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Hijioria Placitonim Corona. THE HISTORY OF THE 3^leas of t^t Croton. By sir MATTHEW HALE, LORD CHIEF JUSTICE OF THE COURT OF KING'S BENCH. PUBLISHED FROM THE ORIGINAL MANDSCRIPTS By SOLLOM EMLTN, of Lincoln s-Inn, Ef^. ADDITIONAL NOTES AND REFERENCES TO MODERN CASES CON- CERNING THE PLEAS OF THE CROWN. Bv GEORGE WILSON, Serjeant at Law. A NEW EDITION. AN ABRIDGMENT OF THE STATUTES RELATING TO FELONIES CONTINUED TO THE PRESENT TIME, WITH NOTES AND REFERENCES, By THOMAS DOGHERTY, Efq. OF CLIFFORD'S-INN. %n €tDo aolunte0» VOL. IL nu Printed by E. Rider, LiU/c- Britain, FOR T.PAYNE, H. L.GARDNER, W.OTRIDGE, E. A N D K . BR K E A ND J. RIDER, J. BUTTERWORTH, W. CLARKE AND SON, R. PHENEV, J. CUTHELL, J. WALKER, J. BAGSTER, AND K. BIC KERSX Af t. 1 8 O 0. ■•/5 ■!■ / T \ZO0 TABLE O F THE SEVERAL CHAPTERS CONTAINED IN THE SECOND PART. Chap. I. nrOUCHING the King's bench. Page 1 "^ Chap. II. Concerning the courts before the lord High- fteward, and the Steward of his inajefty's houfliold. 7 Chap, III. Touching fpccial comniifilons of oyer and terminer, and their kinds and power. 1 Chap. IV. Concerning general commifllons o/ oyer a«^ terminer. 22 Chap. V. Touching Jullices o/'gaol-dchveiy. 32 Chap. VI. Touching the power o/ Jullices of aflifc and nlfi prius with relation to felony. 3 9 v^ Chap. VII. Concerning the comnaifTion of peace, and the power therc- ^ of in relation to felonies. 42 ^ Chap. VIII. Concerning the Coroner and his court, and his authority In pleas of the crown. 53 ~ Chap. IX. Concerning the ^c\\K^ his power In picas of the crown, as 3 well by co)nmiJfion as In his Turns. 69 ^b Chap. X. Concerning the apprehending and arrefling of felons and //W/«;i ^j' private perfons, awi^efcapcs. T- Chap. XI 7614G4 A TABLE OF THE SEVERAL CHAPTERS Chap. XL Concerning arrefts or apprehenfion of felons or perfons fuf- pcded of felony by an officer. Page 85 Chap. XIL 0/*aiTefts of felons upon hue and cry ra'ifed. 9S Chap. XIII. Arrejls of felons virtutc praecepti, or o/" warrants. 105 Chap. XIV. Concerning the office of a juftice, when a per/on charged or fufpe^cd of idouy is brought before him. 120 Chap. XV. Concerning h^'il and imLinprUc. 124 Chap. XVL Concerning the JIatutes of ZA> E. 3. 1 R. 3. 3 H. 7. 1 & 2 P. & M. 2 & 3 P. & ]VL in relation to bailment of prifoners. 136 Chap. XVII. Concerning the fourth general, namely^ the various manner ef bailing of prifoners. 140 Chap. XVIII. Concerning warrants to fearch for flolen goods, and fei/.Ing of them. 149 Chap. XIX. Concerning prefentments, inqulfitlons, and inJiftments, and their kinds. 152 Chap. XX. IVhcrc a man fliall be put to anfwer in criminal and capital offenfes without indi6lment at the king^s fuit. 156 Chap. XXI. Who may be indi^torsj and where and how returned. * 152 Chap. XXII. Concerning the demeanor of the grand inqueft in rela- tion to their prefentments. 1 57 Chap. XXIII. Concerning the forms of indiflments in cafes capital, and firfi touching the form of the caption returned upon a certiorari- 165 Chap. XXIV. Concerning the body of the indictment in cafes capital, and the feveral parts thereof and the forms requifite therein. 168 Chap. XXV. Concerning the forms of indictments /«^«r/;V2r/flr, and the feveral pans thereof. 174 Chap, XXVI. C(5««/«i«^ procefs upon iudiclments. 194 Chap. XXVII. Touching certiorari out of the King's bench. 210 Chap. XXVIII. Touching the arraignment of offenders in capital offenfes. 216 Chap. XX! X. Concerning the plea of the prifoner upon his arraign- ment^ and firfi of his confeffion of the fait charged^ and approving others. 225 Chap. XXX. Concerning the pleas of the prifoner upon his arraign- ment, and firfi concerning pleas in abatement of the indi6tment. 236 Chap. XXXL CONTAINED IN THE SECOND PART. Chap. XXXI. Ctncerning pleas it. bar of an i iJitJment of felony or trcafon, aw^/^/y? o/'autcrfoits acquit. Page 210 Chap. XXXII. Concerning the plea of 2i\Mc\{o\is attaint or convi6t of the Jame felony, or any other of cnfe. 251 Chap, XXXIII. Concerning pleas to the felony, viz. Not guilty. 255 Chap. XXXIV. Touching the trial of offenders by jury, and firfi the procefs. 2J9 Chap. XXXV. Concerning challenges, fl«Jy7>_/? o/" peremptory chal- lenges. 267 Chap. XXXVl. Concerning challenges for caufe in cafe of indi6lments for treafon or felony. 27 1 Chap. XXXVII. Co«f^rK/M^ evidence fl«^ witnefles. 276 Chap. XXXVIII. Concerning evidence in writing, 234- Chap. XXXIX. Concerning evidences requifite or allowed by a6ls of parliament, and prefumptive evidence. 286 Chap. XL. Concerning variance between the indidlment and evidence, and where the evidence proves the indidment, and where not. 291 Chap. XLI. Concerning the demeanor of the jury, and how their verdi6l is to be given. 293 Chap. XLII. Concerning the mifdcmeanors of jurors, and iheir punifhment. 306 Chap. XLIII. Concerning ftanding mute, and the pimifliment of penance, o peine fort Sc dure. Sl^ Chap. XLIV. Concerning clergy, hQW it flood at common law, and how generally at this day. 323 Chap, XLV. In what ofFenfes clergy is allowable or not. 330 Chap. XLVI. Where and in what ofFenfes, that were capital at common law, clergy is taken away in part or in whole, by ads of parliament Jubfequent to 25 E. 3. and fit Jl o/ petit treafon. SS't Chap. XLV II. Concerning the alteration made by fever a I Ilatutes /« cafas of murder, raanflaughter, rape, and wilful burning of houfes or barns with corn. 343 Chap. XLVIII, Concerning clergy in robbery from the houfe, or robbery fi'om the perfon. 348 Chap, XLIX, Concerning clergy in burglary. 360 Chap. L. Concerning clergy in fimple larciny and other felonies. 364i Chap. LI. IVhat pcrfons are or are not capable of clergy. 371 Chap. HI. At what time clergy is io be allowed. 371 Chap. LIII. A TABLE OF THE 5EVERAL CHAPTERS, (sfc. Chap. LIII. Concerning the manner how, aw^f the Judge by and before •whom cicigy is to be prayed or allowed. Page 380 Chap. LIV. Concerning the confequences of chrgy granted or prayed. 382 Chap. LV. Concerning judgments in the fever al kinds o/" capital offenfes. 391 Chap. LVI. X^oncerning giving «/ judgment, by whom, and when. 40 ; Chap. LVIl. Concerning executions. 406 Chap. LYlli. Concerning reprieves before or after judgment* 41^ 11 1 S T O R I A H I STORI A PLACITORUM CORONiE. PART II. CHAP I. Touching the king's bench. HAVING gone through the feveral kinds of capital oftenfes, I fliould now, according to my firft propofed method, proceed to the enumerating and confidering of offenfes that are not capital ; but I (liall referve that for the third part of this tra6late. 1. Becaufe the fuhje6l thereof is very large, numerous and various, and would exhauft too much of that time I have or can fpend from other employments. 2. Becaufe the method, order and rules of proceeding in captital caufes, is different from any other courfe of proceeding in other cri- minal caufes, and hath an appropriate method of proceeding by- law configned to it, and therefore they are fitted to be handled to- gether. And in this bufmefs I ihall proceed in things as they arifc in the order of proceeding in capital caufes : Flrji, I fliall take - -, a very brief account of the courts and jurifdi6lions wherein they are to be decided ; and this I fhall not do at large, but fo far forth only as it relates to proceedings in capital caufes : and when I have bricHy paffed over that, then, fecondly, I Ihall proceed with the whole traft of proceeding in criminal caufes, from the firfi: purfuit of the offender to his execution ; as ,iiamely, arreft, procefs, out- VoL. II. B lawrv. 1 HISTORIA PLACITORUM CORONA. ]a\vry, arraignment, pleading, challenge, trial, clergy, fandluary, judcrment, reprieve, execution, i^c. in the very fame order as a courfe of proceeding in capital caufes lies. I. I begin with the jurifdidions, wherein caufes of this nature are handled. And altho the court of parliament is the higheft court in this king- dom, and a court wherein proceedings capital have been often heard and determined, yet 1 ihall decline that bufinefs, ]. Becaufe the courfe of proceeding in parliament is in a different method and or- der, than what is ufcd in other ordinary courts. 2. Becaufe the inftances are many and various, and will take up a volume to give an account of them. 3. Becaufe I have elfcwhere gathered up fome obfervations of that kind already. The higholt ordinary court of juftice next to the court of par- liament, is the court of king's bench ; I ihall not at large purfue the jurifdiiSlion of this court, for it hath been done to my hands amply already (a). But I ftiall only confider it with relation to capital proceedings, namely, treafons and ftlonies, and that very briefly ; and therein, ] . Concerning the jurifdi^lion of the court in this particular. 2 Con- cerning the power of the judges of this court out of court, ia rela- tion to matters of crime or mifdemeanor. 7'he court of king's bench confifts ot two kinds of jurifdi6lIons v/z. the civil jurifdi6tion or the plea-fidc, and the criminal juiifdli^lion or the crown-fidc. Till the time of Edward 11. the matters of both kinds were entered promifcuouflv in the rolls ; but then the rolls were difci imina- •-'^■^ cd, and t^iofe of the crown-hde, entitled Rex, tho botii were filed np together in the fame bundles. And thus it continued very long, but of later times th'j records of the plSas are bound up by tliemfelvcs, and the records of the pleas of the crown bound up by tliemfelvcs, a;id kept in the crown- office, under the immediate cull.ody of the coroner of the king's bench, who Is alfo the king's attorney in that court, and clerk of the crown. In cafes criminal, the court of king's bench Jiave a different kind of proceeding touching offenies arifing in the fame county where they fit, and offenfes in other counties, and removed before them by Certlorayi. I*) By lord Cvit^ 4 h.f'u. ca^, 7. In HISTORIA PLACITORUiM CORONA. 3 In the county where the couit fits, there is every term a grand in- cu'.cft, wlio are to prcllnt all matters criminal arifmg within that countv, and then the fame court proceeds upon inditftment fo taken ; or if in the vacation- time there be any indiiflment of felony before the jiiHices of the peace, oytr and tetm'incr, or gaol-delivery there fit* ting, it may be removed by Ctrtiorat i into the king's bench, and they may proceed de die in diem, and there need not be fifteen days between the Trjie and return of the Feni/e facias, becaufc the ofFenfe arifeth in the fame county. But if an indi>5lmcnt of felony be removed out of another county than where the king's bench fits, and the prifoncr comes in either gratis, or by Habeas Corpus, or procefs, there muft be fifteen days be- tween the Tc/le and the return of the Venire facias. 9 Co. Rep. lis. h. lord Sanc/iar's cafe. At common law, if a lecord of an indicftment, or other thing come into the court before the filing thereof, the court may remand it ; for 'till it be filed it is no record of the court ; but if it be once filed, it is not to be remanded. But if the ifluc be joined, the tranfcript may be fent down to be tried by Nif prius ; but the original record remains in the king's bench. 5 Mania, B. Coron. 2Z\. But by the flatute of 6 H. 8. cap. 6. in cafes of indidtments (f murder, or other felony removed into that court, the court may re- mand the indi6tmcnts, and the bodies of the prifoners to the jullices of the peace, gaol-delivery, and other juflices, where the _ _ felony was committed, commanding them to proceed there- •- t" J upun, as if the prifoner or indidtment had never been removed. The court of king's bench is in the county where it fits, a court in eyre and more, 21 AJji-z. 1. and alfo the fovereign court of gaol- delivery and oyer and tommer. y Co. Rep. 118. a. lord Sanc/iar's cafe. And therefore when the ccurt of king's bench comes into any county, there can be no feffion of the comm.iflion of gaol-delivery, or oyer and terminer, oi peace during the term-time, while the court fi;s ; it doJi not determine the commifTiou, but fufpcnds their feifion durint^ the term ; for in the vacation- time, they may proceed again upon theii fo.mer commiiTion, a'nd lb it is not like a new commilfion, v.'hich after publication fuperfedcs the former, de cm infra, lord San' char's cafe, ubi fupra. B 2 But 4 HISTORIA PLACITORUM CORONiE. But if an indi(5lment be found before commiflioners of oyer and terminer in the vacation-time in the county where the king's bench fits, or in any other county in term or vacation, there may ifllie a fpecial commifTion to determine that indi6lment, with a writ to the iormer commiflioners to deliver it to the new commiflioners ; and thefe fpecial commiflioners may fit in the term-time in the county where the king's bench fits ; but then the king's bench muft adjourn during that feffion of this fpecial commiffion : ruled in Sir If alter Rawleigh^ cafe, M. 1 Jac. Co. P. C. cap. 2. p. 21. Dyer 286. i>. Ploivd. Com. 390. earl of Lelcejler's cafe, wherein is the whole order of fuch commiflion. 4 Co. Lijiit. p. 73. The court of king's bench is the fovereign court of oyer and ter- tniner, therefore tho fome adls limit proceedings in fome criminal caufes to the juftices of oyer and terminer, yet the king's bench may proceed upon them ; but juftices of peace cannot, as upon 5 E/iz. cap. 14. for forgery, 8 H. 6. cap. 12. ftealing records, ^c. If a perfon attainted in the country be removed by Habeas Corpus^ and the record removed alfo by Certiorari, this court may award ex- ecution. M. 5 Car. I. B. R. Coxe's cafe fl;J. r -, This court is alfo the fovereign coroner o( Enjrland, and *- ^ -i therefore may take appeals of death, is'c. by bill. 4 Co. Inji. p. 73. Where judgment of death is given In the king's bench, the exe- cution is to be made by the marfhal of the court; for the prifoner is fuppofed to be in cuftodia marefcalli ; and the entry is always, Et prtvceptum e/i marefcallo, is^c. quod facial exccutioncm periculo incinn- bente ; quod vide Co. Entries in title Indidment, per totiim \ but tlicre may be a mandate to the flieriff of the county wherein execution is to be made, to be aflifting ; and thus it was done in H. 24 Car. 2. in the cafe of Brown, who had judgment of death in the king's bench for a felony committed in Middiejex, and executed by the marfhal in Surrey, becaufe the prifon was there ; but he might have done it in Middle/ex, for he is a minifter of the king's bench in each county ; and fo it might be, tho the felony had been done in any foreign county removed by Certiorari (cj. By the ftatute of 33 jF/. 8. cap. 12. felonies, l£^c. within the king's palace arc made triable before the lord fteward, and a fpecial order (bj Cre. Cfr. 176. tcforc mcntioad, Pgrth />• 464. fc) Thut it was done in AJtboe's cafe MISTORIA PLACITORUM CORONAS. S of trial dialled by that ftatute, namely, by the king's fervants in his cliequcr-roll ; yet for a felony within the kind's palace, if the king s bench be fitting in the fame county, the prorcc-ding may bt; in the king's bench; for the ftatute of 33 H. 8. being in the affirmative is not exciufive of the king's bench for felonies that were before that, 10 Co. Rep. Ti. h. But indeed where a felony is de novo created, and with it a new fpitial form of proceeding, as by the fcatute of 3 //. 7. cap. 14. for confpiiing the death ©f the king. '^c. it is not tri- able in the king's bench, nor in any other form tlian is limited by that aa. M. 20 Jac. B. R. Ca/ilc's cafe fdj. Now concerning the juftices of the king's bench. They are in their perfons confervators of the peace throughout England without any other commifTion ; and any of them may iflTue out their warrants for apprehending of a malefadtor, or fur r /- -i furety of tlie peace in any county of Englandy namely, to ^ apprehend and bring him before a juflice of peace in the county where he is apprehended ; and this warrant is dirc(5led under their hand and feal to iheriffs, conilables, and other officers. Each judge of that court hath a tipftafF attending him, being a deputy to the marftial for the execution of his office in tliat fpecial fervice ; and the chief juflice, or any one of the other judges of that court, may by the cuftom of that court, ore teims, command the tipftafF to ap- prehend any perfon for matters of mifdemeanois relating to the court, or other mifdemeanors, and bring him before him, and fuch arrefl: is juftifiable without any other warrant, and without lliewing the caufe. T, 1 V Car. B. R. 2 RoL Mr. p. 558. Throgmorion -ainA Allen. 1"he chief julHce of the king's bench is not that 'JujTiciarivA AngUce which was antiently in ufe ; for that Jujildarius Avglia had, in ef- fe6l, all the jurifdi61:ion both civil and criminal, that is in the king's bench, chancery, common pleas, and exchequer, and miglu and did fit in any of thofe courts as the chief judge of them, as appears by many evident inflances. But the chief juftic of the king's bench hadi in the court of king's bench, as one of the judges thereof, that part of the jurifdivflion of the Jujiiciarius Angl'ue, which concerns criminal caufes, and the in- fpedlion and reformation of the judgments of other courts. It is true he is frequently called chief juftice oi England, becaufe he prefidcs in that court where the JuJiic'iar'iHs Anglice did mofl tre- (J} Cro. Jac. 463. B 3 quently 6 HISTORIA PLACITORUM CORON^E. quently and naturally fit as the king's deputy in adminiftration of juftice; but it is a mifconclufion that therefore lie is that Afognus 'Juftlaar'ttis Jnglite, which was in ufe before the time o{ Henry III. He is created by writ, and always was; but the 'Ji'filc'iar'ius Arigl'iee by patent. 3 Blackf. Com. ch. 4. p. 41, 4 Blackf. Com. ch. 19. p. 165. 2 Hav.k. P. C. ch. 5. [ 7 J C H A P. II. Concerning the courts before the lord high fteward, and the fleward oi his majcfty's houlhold. TOUCHING ihc farmer of thefe, it is inflituted for the trial of peers of the lealm : more cannot be faid touching it, than is already faid by my lord Coke, 4 Injl. cap. 4. Co. F. C. cap. 2. p. 28. ^ fequentlbus, and becaufe it doth not concern the ufual and common proceedings againfc common perfons, I Hiall difmifs it. Touching xhc fccond, namely, the proceeding before the lord flew- ard of the honfhold, i^c. for treafons, and murder, and manilaughter, and larciny done within the king's palace. This court is eftablilhed, and the method of proceeding therein punftually delivered by the ftatute of 33 H. 8. cap. 12. which will not need much explanation, only thefe things are confiderable therein. 1. As to their power of hearing and determining treafons in that court, it Teems to be wholly abrogated and repealed by the ftatute of 1 is^ 2 P.i^ M. cap. 10. 2. Whereas by that a6l, clergy is talcen away in cafes of man- naughtcr,^felonious ftealing of goods in the king's houle of the value of tv<'clvc-pcnce ; it fcems to me clergy is reftored in tlicfe cafes by the a(5l of 1 E. 6. cap. 12. tlio the party be convict according to the Aatute of 33 H. 8. 3. Whereas breiiking of the king'b hcufe with intent to flcal, is made felony by that ftatute without benefit of clergy, that breaking of the king's houfe is become no felony by the ftatute of 1 E. 6. cap. 12. and 1 Mar. cap. 1. tho he be arraigned before the fteward of tlic AIarJIiaif(a according to that a6l. 4. The IlISTORIA PLACITORUM CORONiE. « 4. The ofFcnfe of felonious ftcaling of the king's goods of the value of twclve-pei\cc, or hreaking the king's lioufe to fteal the goods, is limited bv that a6l to be tried before the il:e\varil q^. \\\(t Marjhalfea^ and others afTociated to him by the flitule, but not before the lord ftcward, or treafurcr, or comptroller of tliehoufhold, as manflaughter or murder is dire6ted to be tried or determined by that ftatute, nor by tlie king's fervants. b. It feems to me, that by the dire6i:ion of diat av5\ the proceeding of the lord Aeward, or flcward of the A4arjhalfca^ is to be by a feflion within the king's houfe or palace where tlie felony is committed ; aiid that ftatutc limits the pierin^l of the king's palace for that pur- pofe, v'lz. zvh/iln any edifices, places, courts, gardens, orchards, privy- walks, tilt-yards, "wood yards, tennis-plays, cock-fghts, /fowling alleys^ near adjoinin?^ to any of the houfes aforcfaid, and being part of tJie famcy or zvithin 200 foot of the Jlandai d of any ontivard gate, or gates of any of the houfes above rehear fed, commonly ufed for any pafjagc out of, or from any of the houfes above rehearfcd. And therefore if it is confiderablc, whether as to tills purpofe, vi'z. for trial of felonies within the king's palace, the extent of the king's palace of IFhitehall limited, or rather extended by the acl of 28 H. S- cap. 1 2. be not rcftrained ; for by that flatute that new palace of Jiliiteh(dl, the old palace of IVefminflcr, St. James's park, and the flrcct leading from Charing-Crofs to the fan£luary-gate of JVeflminJlcry and all the houfes and buildings on both fides of the ftrect from the Crofs to IVcfiminfer-hall, and between the water of Thames on the eaft and the park-wall on the weft, and all the foil of the old palace are made parcel of the new palace. Upon this doubt I did advife, that the lord fteward upon a late occafion upon this a£l fliould not fit in IVeflminfler-hall, but in irhite-hall, according to the reftriflion of the ftatute of 33 H. S. which was after the ftatute of 28 H. 8. and feems as to this purpofe to reftrain it ; but this advice was not followed, for he fat in M .£l:e." Turtle pleaded not guilty, and was acquitted by a jury of merchanrs and mariners; the which jury e\ cfficio agaij^ indided the fame perfons, who had before been indifted " coram adniirailo flotx, " qood navem praediftam de bonis, &c. " fclonicc deprecdarunt," and thereupon a cat'iui iffucd to the flieriffto bring ihem co- rufn Rcge ub'tcur.quc, <^c. to anivver for the faid crime, isfc. Mitch. 26 E. 3. Ro!. 51. in dorjo. coram Rcge. Norfolk. y<>hn Sehiidtrc impleaded fe- veril perfons, de placUo trcinl\r:J]lonis per. iiu'jm, for entering his (hlpj'uper cofscrum Kurii de North'lenn', beating and wound- ing him, and plundering the Ihip, quam in mart pradicia reiiqucrun: in dijpcratam, per quod nwvis pr.i-di^a periit orr.nino ; and re- cover'd 36 j marks againll them, for the da« mages fullaincd thereby. Trin. 34 E. t. R.t. 34. coram Reoe. N:r~ f.lh. Sevt-ral merchants of Lii.ccl-. put on board a (hip wool and other commodities for Brabant, to the value of S96/. 10;. The fhip in its palFagc was entered in a hoflile nuuiier ia the port of Ccrjlct in ZcaUnd aB4 u HISTORIA PLACITORUM CORONiE court of king's bench had certainly a concurrent jurifdidion with the admiralty, in cafes of felonies done upon the nar- row and plundered by the fubje£ls of the earl of Hainault : fatisfaftion had been de- manded of the earl for this depiedation in vain ; and thereupKjn, at the fuit of the faid merchants of Lfpfo/;;, a writ was directed to the bailiffs of Lynn to feize omnia bona, Ssfc, of the merchants of Hainyult, and keep them till the Lincoln merchants had received fatisfaftion, or till farther order fhould be taken therein. To this writ the bailiffs re- turned, that the Hainault merchants had r.ulla bona infra hatllvam Juam : upon this a Linctln merchant came into chancery, and alledged, that fcizure had been maJe of goods to the value of 31/. 171. by the faid bailiffs, which they had redelivered to the Hair.auU merchants without warrant, and thereupon a. fecond writ iffucd to the faid bailiffs, ordering them to pay inatlaU the faid 31/. 17J. to the Lincoln merchants in part of their lofs, or elfe to appear rcram Regf in cSIabii Irin. ubicur.que, (s" inltrim to ie'iz^ omr.ici bona, &c. oi tht IlMinauIt mer- chants, as before. It appears afterwards, Mich, 15 E. 1. Rot. 14.2. coram f. 1. yet the ads they do by virtue of thefe commiflions after the king's death, and before notice thereof, fland good. M. 3 Car. C. B. Croke, p. 97; 98. in Sir Rando'ph Crew's cafe (*j. 3. By exprefs Superfcdccts by a writ ; but r ^ -i this Superfcdeas bv writ, tho it be a Superfedeas cmninoy yet (a) ff. Jones, 420. " of A'iJ! fr'ius, commKTion, proci;fs, or (*) But now by 7 &" 8 H'. ca}>. i~. and " proceeding'; wiiatloever in, or ifFuin^ I ^nn. cap. 8. it is en.iCled, •' Tiiat no " out ot any court of equity, nor any " commiifion citlicr civil or milil.iiy, " prviccfs or proceeding upon any oHire " That no patent or giant of any oHicc or " or inquifition, nor any writ of Ccrac an, " imploymqnt either civil or military, •« or //.i<>:rf: C«//'tf> in any matter or caufe " That Bo comniifiion of afTifc, o,er and " either criminal or civil, nor any writ "terminer, general gaol delivery, or of " of attachmciit, or piocefs lor con;einpt, " affociation, writ of admittance, writ of " nor anv commiilion of delegacy, or rc- •' / mn omnes, writ of ailillance, or com- " view for any matters ecclclultical, tcf- " million of the peace (hall be dctcrmind " timentary, or maritime, or any proccis «' by the dcniife of any king or queen of " thereupon fhall be determind, abated or «' this realm, but fhall continue in full " difcontmucd by the demifc of any k:iig " foicc for fix months next enfuing not- " or queen of this realm, but fhall remain •« withOanding fuch demifc, unlJ's iupcr- ♦' m full force, as if fucU km^ or qucca «< fcdcd and determind by the next fuc- " had lived. «' ceffor: And alfo no original wnt, writ C 3 IS zs HISTQRIA PLACITORUM CORONiE. is not an abfohite repeal of the commiflion, but only a fufpenfion, for it ma\' be renewed again by a writ of Procedendo, 12 JJfiz. 21. adjudged. 4. By the ifluing a new commiffion of the fame nature in the fame county, and notice thereof. And therefore before the former commifiion be determlnd, there muft be notice, which is, of three kinds. 1. By fliewing the new commiffion ; ihis determines the former, as to all thofe and thofe only to whom it is fliewn. 2. By a proclamation of the latter com- miffion in tlie county -.^this determines the former commiffion wholly. 3. By a feffion in the county by force of the latter commiffion in the county. Cohcy 4 hifrit. cap. 28. p. 165. If a general commiffion of oyer and terminer, gaol delivery, or the peace, iffuc for the county at large ; and afterwards a fpecial com- miffion of the like nature for one town, or for the loca maritima of that county, this new commiffion, with notice as before, doth deter- mine the general commiffion /)r<9 tamo. 25 El'iz. Z^rzVscafe, 1 Leon. 71. 363. p. 270. ^ fupray cap. pracedente. And fo c com-crfo, if a fpecial commiffion of oyer and terminer^ gaol-delivery, or the peace, iffue for a particular town or city, not beiu"- a county, or for the loca maritima, a general commiffion of like nature in the county, with fuch a notice as before, de- *- ^ termines the fpecial commiffion : But by the ftatute of 2 ^ 3 P. & AT. cap. 18. this is helped as to fpecial Gommiffiions in cities and towns corporate, as hath been before faid ; but that ftatute is to be intended only of towns or cities, as it feems, (qnare) and ex- tends not to commiffions of oyer and te> miner. 4 Co. Injiit. p. 165. in marginc. But if there be a general commiffion of oyer and terminer, or gaol- delivery, or peace for the whole county, and a fpecial commiffion of the fame nature to a liberty, hundred, or other precintl, as in a hun- dred, liberty, or franchife within the county, and both bear tcjie the fame day, they all ftand. Thus it is in Suffolk, where there have been always three commiffions of gaol-delivery to the juftices of al- fize, one for the county at large, another for the franchife, another for the town of Bury, and they impanel feveral grand juries, and lit; and act refpe6lively by each commiffiion. And the juftices of gaol -delivery in the franchife muft fit in the franchife by the ftatute of 27 H. 8. cap. 24. and the reafon is, becaufe antiently tlie abbots of St. Edmund' s-Bitry did by virtue of the king's letters patent. HISTORIA PLACITORUM CORON.^. 26 patent, conftitutc their own jufliccs of gaol-delivery in the franchife and town ; and therefore the fefTions of gaol-dclivery is fittefl to be held at Bury ; but the commiflion of oyer and tcrmhier extends turn ififra libertates, quuiii extra ; but ot this vi'le cap. prox. But a commillion of one nature doth not iuj)erfcde a commiflion of anotlier nature, as a comniiiTion of cxcr and terminer is not re- pealed by a fubfequent commiflion (jf gaol-dclivery or the peace, nor t" converfo^ for they are of feveral natures. 3 Mar. B. Commijfion 2 J-. I'hefe things before-mentiond arc common to all judiciary com- milTions ; thell- tliat follow, more particularly concern general com- miflion s of oyer and terminer. 1. Regularly upon the commiflion o( oyer and terminer there fliould iflue a precept to the flicrilY in the name of three commiflioners at leaft, whereof one of the quorum, ami under tlieir jvaiticular feals, bearing date fifteen days at lead before their fefl"ion, to the flieritF to return twenty- four for a grand inqueft ad inquirendum, Isfc. _ _ ut fuch a day ; and the ilieriffis to return his pannel annexed ^ / J to the precept. 2. Regularly the commiflioners o( oyer and terminer cannot proceed upon any indi^lmcnt taken before others than themfelvcs. 3 Afar. B. Commijfion 24. And therefore they cannot proceed upon the coroner's inqucft, or upon an indiclment of felony before jufticcs of peace. But tliis rule liath two exceptions. 1, That it is only intended of a general commiflion of oyer and terminer, for, as hath been fliewn, there may be a fpecial commiflion to determine a treafon or felony taken before other commiflioners of oyer and terminer, Plowd. Com. p. 390. Cpjiis com'' Leiceji. ; nay, or by the coroner or juftices of the peace. 2. Tiiat it doth not extend to an inquifition taken before other commilhoners of oyer and terminer ; for it is and always hath been the conflant pra6tice to take indi(5lmcntj> bctore commiflioners o( oyer and terminer, as for highways, barrctry, forgery, perjury, i^c. and to try them before pther commiflioners of oyer and terminer at anotlier fubfequent feflions ; and if there were any doubt of that at common law, yet the ftatute of I E. 6. cap. 1. hath fettled it, vi-z. *' That no procefs or fuit made before the jullices of afl"ife, g-iol- " delivery, oyer and terminer, juftices of peace, or any the king's " cominifliojiers, iliall be in any wile difcontinued ly making or ♦' publilhing any new commiflion or aflbciation, or by altermg the C { " names 27 HISTORIA PLACITORUM CORONA. *' names of the jultices ; but the new juftices of affife, gaol-delivery " and the peace, or other commifTioncrs may proceed in every be- *' half, as if the old commiflions, juftices and commiflioners had ftill *' remaind and continued not alterd. And this gives power to the juftices of oyer and terminer^ i^c. to proceed upon indiftments taken by former juftices of oyer and terminer, as well in cafes of treafon or felony, as other mifdemea- nors. 3. In cafe where a felon or traitor, ^c. pleads to an indiflment taken before juftices of oyer and terminer, they ought not, (as in cafe of juftices of gaol-delivery,) to award a precept ore tenus to the (he- -j riff to return a jury, but it muft be by precept in the names ■- "• and under the feals of the commiflioners, or three of them, whereof one of the quorum. 4 Co. Inftit. cap. 30. p. 16S. £9* ibidem cap. 28. p. 164. and the fherifF ought to return the pannel filed to the precept. 4. But the indi61:ment may be preferred, iffue joined, precept made and returned, and prifoner tried the fame day before commiflioners of cyer and terminer: fee the precedents cited 4 Co. Injiit. cap. 28. p. 164. P. 16 Car. 1. B. R. Croke 583. refolved per omnes Jujlici- arios Anglia, altho there were no commiflion of gaol-delivery in that cafe, but only of oyer and terminer. Accords H. 9 Car. B. R. Chap- man! % cafe for barretry before juftices of oyer and terminer. 2 Roll, Abr. p. ^&. And the fame law is queftionlefs for juftices of gaol- delivery. T. 9 Car. B.R.Croke'6\5. But in cafes of juftices of the peace it liath been held, that they cannot try the fame feflion that the party pleads to the indictment, much lefs the fame he is indided. 22 E. 4. Coron. 44. H. i\ Car. 1. B. R. Croke, p. 438 ^ 448. adjudged in cafes not capital, Bump- Jied^s cafe in an indidment of extortion, and accordingly ruled T. 23 Car. B. R. Fue's cafe for fcditious words. 2 H. 8. Keizu. 259. But yet it hath been held good even before juftices of peace to receive an indiftment, and put the party, if prefent, to plead to it, and try it the fame feflions, T. 14. fac. B. R. Cro. 404. Rice's cafe adjudged good, 4 Co. Injlit. cap. 28. p. 164. without quejtion they may : And there can be no difference aflTigned between feflTions of the peace and oyer and terminer in this cafe, nor between caufcs criminal and capital, for the offenfes rife in the fame county, and as there goes out a fummons of gaol-delivery, fo there iflues a general .fum- mons HISTORIA PLACITORUM CORONA. 28 iDons of the feflions of tlie peace ; and that all conftables, Isfc. then attciuh, quod vide Cronipt. dc pace, f. 232. a. 2 Co. Injlit. Jupcr Ar- ticulis, cap. 15. p. 568. Yet in refpedl of this contrariety of opinion, the ufc hatli com- monly obtainti, that in cafes not cajjital both before jufticcs of oyer and terminer, and ot the peace, he that travcrfcth an iiulidlmcnt, hath time to try it till the next feffion ; but where the party Is in prifon, the jufticcs of gaol-delivery put him to anfwcr, and \.^9 ■* try it preiently. But in all treafons and felonies, as well before juftices of oy^r and terminer or of peace, as well as before juftices of gaol-delivery, the ronftant courfe is to indid the party, put him to plead, try him and give judgment, and all at the fame fefTions ; and it is fit to hold the courfe according to the modern ufage ; but it feems to me, that in all cafes criminal or capital, juftices of oyer and terminer may dc rigore juris proceed to indictment, trial and judgment the fame feflions. 5. The court of the general commlfnoners oi oyer and terminer^ as likevvife that ot the gaol-delivery and of aflife, comes under the name of a court of record in relation to thofe offices, that by a6l of par- liament are diredted to be punlftied in any court of record; as the ftatute of 5 l^ 6 E. 6. cap. 14. of foreftallers, i^c. and the ftatute of 33 H. 8. cap. 9. of unlawful games, by the opinion of my lord Coke, 4 Injiit. cap. 28. p. 164, and according to Iiim, if it be limited to be puniihed in any ot his majejly\ courts of record. But there is a great authority againfl this, and that in fuch cafes efpecially the latter, it only extends to the four great courts at IVejl- minfter. as upon the ftatute of drapery, 4^ & 5 P. isf M. cap. 5. which is, that the penalties of that a6l fhall be rccoverd by adtion, hill, plaint or information, or otherwifc in any court of record, where- in no cffoin, protection, wager of law, or injundioia fliall be al- lowd ; this extends only to the four courts of JVcJlminJlsr, Gregorys cafe, 6 Co. Rep. f. 19. b. of tillage, labourers, ^c. (e) to be rccoverd in any of the queen's courts of record, by the opinion of all the judges except Catlin, Sanders and JVhiddon, extends only to the four courts of Wejiminfer, and not to commiffioners of oyer and terminer ; but otherwife it is, if no court be appointed. AJ, 6 is* 7 Eliz. Dy. 236. a. (a) s E^i?i' f<»/. 4. Again, 29 HISTORIA PLACITORUM CORONiE. Again, by the llatute of 2'i H. S. cap. 4. againfl brewers for felling beer by lefs meafme than is appointed by the aft, the penalty *- *^ half to the king half to the informer, to be recoverd by adlioii x^debtj bill, plaint, or information /;; any of the king's courts, wherein no wager of law, effoin, protedlion or privilege fliall be allowd, T. A Car. C. B. Croki-, p. 1J2. Farrin^ton's cafe; Ruled, that not- vithflanding the Aatute of 21 y'jc. cap. 4. this information lies in the common l>ench, becaufe the juftices of Niji prius, oyer and ter- miner, or of the peace, or gaol-dclivcry cannot hold plea upon this ftatute, becaufe thefe juftices cannot allow an eflToin or protection \ and the ftatute of 23 H. 8. extends only to fuch courts as can allow a protection, ii^c. and accordingly I have known it refolved upoi:i the ilatutc of T E. (). cap. 5. for wines ; and about 23 Car. 2. it was re- folved upon a writ oi error in the exchequer-chamber, upon a judg- ment given in the exchequer tor Fo!y a defendant in an information upon the ftatute of 1 Ei'iz. cop. 1 S. (\^hcreby the cutting of timber within fourteen miles of a navigable river is prohibited on pain of forfeiting of forty (hillings for every tree, a moiety to the queen, and a moiety to the informer, to be recovered by original writ, bill, plaint or information, wherein no cffoin, proteftion, wager of law, or in- iunclion iliall be aliowd,) that this extends not to the commifliioners of iyer and terminer, nor other courts in the country, but only to the four courts at H'tjiminjier. 1. Becaufe original writs are not re- turnable before them. 2. They cannot allo#s- or difallow proteftions or CiT^ins ; whereupon the judgment for cofts was affirmed ; and yet lierc is no mention of any court, or court of record, or his majefiys courts, but purely upon thefe two reafons. And yet I believe hundreds of informations have been before jufHces of oyer and terminer and offfe, yea and of the peace in the country upon feveral afts, that have the like claufcs, as 35 H. 8. cap. 7. for the prefervation of woods, and mfinite others according to my lord Colie\ opinion, but when it hath come to be judicially debated, I have not known it to obtain ; but the refolution ill Harrington s cafe and in Gregory^ cafe have ftill been allowd. , T 6. Commiflioners of oyer and terminer cannot affign a •- *' -^ coroner to an approver, nor juftices of peace, but juftices of gaol delivery may. 4 Co. Inflit. p. 165. Stanf. P. C p. 143. b. 1. By the ftatute of 5 E. 3. cap. W. juftices of oyer and terviiner niay iffue proccfs of outlawry in any county of England againft perfoiii ,J^ HISTORIA PLACITORUM CORON.^. ^31 perfons indidlcd before them, and alfo a capias utU^atum againft per- ions outlawed. 8. \\) the ftatute of y £. 3. cap. h. juftices of oyer and terminer^ gaol-d«l»very, and afliJe are to fend their records and proccfles deter- niind and put in execution to the exchequer at Michaelmas once every year under their feal, to be l>cpr by the trcafurer and chambti- lains, but arc to take out their tflretes^ firfl. 9. All the precepts and piocefles of juflices of oyer and iennincr fegularly ixrq to be in the names and under the feaJs of the jnflices fviz. three of them, one of the quorum) ; and altho at this day there is no other warrant for the execution of prifoners condemned, but a calendar left witli the llierifF under the hand of thejuflice that fits, yet antieutly there was a warrant under their hands and feals, and in the names of the commiflioners. Co. P. C. p.'6\. But if the prifoncr be in fuftody of the flicrifF, the truth is, there is no need of any warrant or calendar, for the open pronouncing and entring of the judgment Sufpendatur is a warrant for the execution, and fo it is in the king's bench, the entry on record of the judgment with a prtrccptum cji niareJcoUo quod fac'iat exccutioncm penculo in- cumbentcy without any formal writ or precept of the court is fufficient, and more is not ufual : and the calendar fubfcribed by the judge of gaol-delivery is but a memorial ; and RolU would never tgn any ca- lendar, but gave his orders openly in court with a charge to the fheriff ^nd gaoler to take notice of them. More may occur touching thefe matters in the next chapter. See Index to z Hawk. P. C. tit. Oyer and Terminer. C H A P. V. [ J2 J Touching jiijllces of gaol-delivery, THIS court is by commiffion under the great feal dirc6led com- monly to five or any two of them, quorum aliquem veftr^hii A. Bi vel C. D. unum cjje votumus ad gaolam nojlram ccmitatiis nojiri S. do prifonibus in ci'i cxijicntibus deliberandis \ fee the whole tenor of the commlflion. 4 Co. Injlit. cap. 30. p. 1G8. 1. By 32 HISTORIA PLACITORUM CORONiE. 1. By the ftatute 8 R. 2. cap. 2. no man of law ihall be juftice of aflife or common deliverance of die gaol in his own country ; this ftatute is expounded by 33 H. 8. cap. 24. to be meant of the county, where he dwelleth ; and as to juftices of affife a penalty of one hundred pounds is added, if he exercifes that office in the county ■where he is born or doth inhabit ; but both thefe afts are ufually dif- penfed with by a fpecial mn ohjiante. By a fpecial privilege by charter granted to the city of London the lord mayor is of the quorum^ 2. R. 3. 11. a. and fo it is in the city of Norwich. 2. Juftices of gaol-delivery may proceed againft prifoners (if in gaol) upon Inquifition before the coroner or any other juftices ; and therefore juftices of peace muft fend in their indi<5lments not deter- mind unto the juftices of gaol-delivery to be proceeded upon, whe* ther they be felonies or trefpafles, if the party .be in gaol or fet to bail. StaU 4 E. 3. cap. 2. 'i. The juftices of gaol-dclivery after their commlftion fealcd do, or (hould iffue a precept to the Iherift' importnig thefe things, viz. 1. That upon fucn a da|^ and place, Venire facias omnes prifones in prifond domini regis coni' prcedi^^ cxijlentes vel per ipfum per mamt- captionem dimtjf. cum coritm attachiamentis i£f omnibus aliis eorum deliberationein tangent^ l5l penes fe remanent^. 2. Quod Fe- L *)*> J ni^e facias at the day and place 24 Icgales homines de quolibet hundredo ^ inquirendum pro domino rege & corpore comitaiiis pradi^i. 3. jic alios 24 prohos fs* legates homines de comitatu pradiHo ad faci- endani juratam inter dominwn regem l^ prifones pradi^os. 4. Et pro- damari facias di^am deliberationcyn gaolcv in omnibus civitatibus, bur- yis ^ aliis locis, quod omnes^ qui fequi voluerint verfus prifones prce~ 4ifIos pro domino rege vel fe ipfis, adtunc fmt ibi in forma juris pro- fecuturim 5. Scire facias etiam omnibus Jufliciariis ad paceni comi- iatiis pradi^i, coronatoribus, capitalibus coiifiabidariis pads, tnajoribusy lalUviSy fencfcallis magnatum, balUvis hundredormn ifS libcrtaUm., quod tunc fint ibi ad faciendum quod ad officium fuum pcrtinct, l£ tu adtunc fis ibi una cum balUvis £5* minifiris fuis ad faciendum ca^ quy the ftatute of 27 H. 8. cap. 2L The power of making juf- tlces o(ey}c, ofafTif-, giul-delivery, and of the peace in counties pa- latine and franchifes is refumed, and the fame are to be made by letters patents under the great fcal of E^igland. But they ("hall hold their feflions only within fuch franchifes and liberties, and in none other places, as the juftices of the faid liberties lately have commonly ufed within the faid liberties ; and that no per- fon widiin the faid liberties be compelliblc by authority of this adt to appear out of the fame before other juftices of affife, gaol-delivery, or of the peace, than thofe named by the king to fit within the faid liberties. By this ftatute, 1. Thefejuftices fitting within exempt franchifes or counties palatine are now the king's courts and the king's juftices, and therefore a certiorari iffuing out of the king's bench to thefe juflices licting in Durham or the cinque-ports ought to be obeyed as by other iuftices out of franchifes. 2. That yet where franchifes of this nature were antiently granted to abbots to make juftices of gaol-delivery to fit widiin fianchifcs, as for inflance in the franchife of St.^Edmundi" BurVi there is a fj)ecial commiffion of gaol-d.^livery for that franchife. 3. That this refirldlion of n-.ting within the franchife extends not to the com million of ovf'' and /o/;i/;2iT, for that extends tarn infra liber-^ tales, quilm extra, and therefore may fit out ot a franchife, r. ^ -. and determine mifdemeanors ^^ithin the franchife : And r'iii ' -^-^ J 1 did once in a lelfion in the county of Suffolky which by rcafon of ficknefs at that time, could not be held in Bury, viz. I kept the feffion for the whole county by virtue of the commifnon oi oyer and terminer. 4. I'his rcl'umption extends not to cities and boroughs, but they are fpeeially excepted, and particular provifiou for the billiops of £/v, Vol. II, D Durham 39 HISTORIA PLACITORUM CORONiE. Durham and York, to be juftices of the peace only within their franchife. 23. By the ftatute of G R. 2. cap. 5. they are to hold their feflions in the principal towns, where the county-court is held; but this is but directive not coercive, for the judges may, and ui'ually have ap- pointed their fcflions at their plcafure in other places. 4. Blackf. Com. ch. 19. p. 269. 270. See Index tj a Hawk. Tit. Gaol-delivery. CHAP. VI. 7o«^/;/«^ ///f^flw^r of juftices of aflife fl«<5^ nili pfius, tvith relation to felony. THE fettled courfe of granting n'ljl prim was by the ftatute of 27 E. 1. de finlbus, cap, 3. By the conft:ru6lioa made of that rtatute, if a man be indi6led in the country, and that indi6tment removed by certiorari, and the body ot the prifoner by habeas corpus into the king's bench, and there he pleads not guilty, after that flatute and before the ftatute of o H. 8. cap. 6. the tranfcript of the record might be fent down by nijipritis to try that iflue. 22 E. 4. 19. 5 Mar. B. Coron. 231. Statute 42 E. 3. cap \\. 4 Co. Rep. 43. b. Bibith's cafe. And the like may be done in an appeal, 21 H. 7. 31. a. 2 ^ ii P. Cs* M. Read's cafe, Dy. 120. a. Raji. Entries in title Jppeal per totum, 8 H. 5. 6. Coron. 463. P -J Upon the ftatute of 21 E. 1. cap. 3. and the ftatute of 14 i/. C. cap. 1. tlieic hath been variety of opinions touching their power in cafes of felony: Some have thought, that by virtue of thofe ftatutes they had originally a power to hear and determine fe- lonies without any other commiftion, tho as to treafon concerning coin, upon the ftatute of 3 //. 5. cap. 7. it is exprefly dire6led, that they fliall have a commiflion for the hearing and determining that of- fenfe ; thus Statnf. Lib. II cap. 5. f. 51 i^ 58. Again, others have thought, that they have not any fuch original power without a fpe- cial commiflion enabling them to hear and determine felonies origin- ally ; but that commiflion, as it feems by the ftatute of 27 £. 1 . cap. 3. is called a writ, but is in truth no other than a commiflfion, for all aflfociations arc commiffions ; and then the naming of them juftices of nifi HISTORIA PLACITORUM CORON/E. 40 filfi prius is nothing clfc but the dcfcription of thofe persons, to whvan commifTions of gaol-delivcrv fhall be dirc£lcd, and fo they are no other but jufticcs of gaol-delivery. Otliers have thouglit, and that truly, that the juflices of «;'// />rmx have not any origi.ial power of hearing and determining indiilments of felony without a fpecial commifTion for that purpofc, but that by virtue of the adts of 21 E. 1. and 14 H. 6. thcv have a power to de- termine fuch felonies only, as are fcnt down to trial before them ; as they have power by the ftatute of IVcJlm. 2. (a) to give judgment in aflifcs of darrein pi el on me nt and quare impedit, where an ilfue is brought do\n to trial I'^forc them, tho they have no power originally to hold plea in a quarc inihcdii. And that this wis tiie meaning of the ftatute of 14 M 6. cap 1. and tho it fpeaks of ail cafes of felony and of treafon, yet it is intended only of fuch felonies or tre;ifons as were at iiFue and brouelt down . before them to be tried by nlji pr'msy appears in fhis, that as ro thofe points of treafon, -which were enac'^ced by 3 H 5. cap. 1. it is ex- prefly enacted by that ftatute, that they fl:iall i.ave commiftions to liear and determine them, and fo as to thofe they needed not the aid of a new ftatute to enable it. Now as to the ufage thereupon. 1. In cafe of appeals. If iflue be joined and fent down _ by niji /irjus to be tried, antientl}' indeed thev did not pro- •- -* ceed to judgment ; but if the defendant, were acquitted, they did by the fame jury inquire, 1. Of the damages. 2. Of the fufficiency of the plaintiff, 3. Of the abetters ; and this inqueft being returned into the king's bench, there judgment and execution were made, quod vide % H. 5.6. Coron. 463. yea and by Fairfax, 22 E. 4. 19. If the plaintiff were nonfuit at the rijt prius, the juftices of 7iijl prius ftiould only record it, and remit the record into the king's be )ch, and not arraign the prifoner at the king's fuit. But the later pradice and authority is otherwife, viz. That they may not only inquire of the abetters, but alfo give judgment againft them; and, iftiie plai iff be nonfuit, may arraign the prifoner at the king's fuit, and give JHclgaient and make execution. Dy. 120. a. Read's cafe. A:id fo if :ic be coi .idl of manflaughtcr upon an appeal, the juftices oi niji prius allow his cle-gy, 4 Co. Rep. 43. b. Bi* (a) cap. 30. Sec 2 C#. l.Jiit. 444, D 2 I>i:A'i 41 HISTORIA PLACITORUM CORONA. bitk's. cafe ; and this it feems is Wvirrantcd by the confl:ru6tlon of the ftiitute oi 14 H. 6. cap. 1. for the lUtutc of JVefiin. 2. cap. 12. (b) ex- tends not to this cafe, efpecially of arraigning the prifoner upon a nonfuit. 2. As to an indi(5ltnent of felony or trcafon removed out of checounty by certioiarly and the party pleading, the record is fent down by 7i}j: prius to be tried, the judges of yiift pr'ms may upon tli at record proceed to trial, and judgment, and execution, as if they were juf- lices of gaol-delivery by virtue of the ftatute of 14: H. 6. cap. 1. But if there were any queflion upon that ftatute, yet tlie ftitute of 6 H, S. cap. G. which extends to all juftices and commifTioners as well as tliofe of gaol-delivery and of the peace, enables the court of king's bench to fend to thcni the very record itfelf, and by fpecial writ or mandate to command them to proceed to trial and judgment upon fuch iffue joined ; as they may command the juftices, before whom the indi(Stment was taken, to proceed to hear and determine the fame if no fuch ifTuc were joined. 4 Bhcks. Com. ch. 19. p. 269. See Index to z Hawk. P. C. Titles AfTifc. Nifi prius. [(ij 2 Co. JnJIit. 383. [42] CHAP. VII. Conceniifig t/i^ commliTion of peace, and the power thereof , in relation to felonies. AT common law there were confeivators of the peace afligned by the king by commifTion. But the firft eftaMilhment of juftices of the peace was by the ftatute of 1 E.Z.cop. 16. Good a7id lawful men Jliall he ajfigned in every county to keep the peace. And by the ftatute of 13 £, .3. cap. 2. Tvjq or three of the beji reputation in the counties^ with other wife and learned in the law, JJmU be ajfigned by the king's commijfion to hear and determine felonies and trefpajjes done againjl the peace in the Jame counties^ and infiifl punij/i- tncnt reafonably according to law and reafon, and the manner of the deed ; and tliis ftatute dircvSted their power of hearing and determining as well as keeping the peace. In HISTORIA PLACITORUM CORONA. 42 In ptirfuanco of thefe ftatutes, and of other flatutcs (a) rebtlve to jufticcs of pcac e, tlii-y have a cominillion of the peace umlcr the great feal tlire(5tcti to rhcm. Ami this comniifTiun confiftcd anticiuly of three claufes of ^{p-f,- fiaviiniis, and now of two. I'he firfl; is, JJJi.rnavb)ws vos conjunc/iin (sf Jiviflm isi qucmlU'et vejhiim od pnccm fiojlram in coni Cant' confcrvandmn^ i^c. And this makes every of thoin confervators and juiliccs of tlie peace for tl-.ofe a(51s that are performable by one juHice. The fecond is, JJJignnvimiis vos iif quo/Iil>et duos vc! pluses vcf- trtiin, quorum aliquem vejhum A. B. C ^c. utium ejji volumus, juf- ticiarios uojhos ad ttiqu'rcndum per facramentum proiorum Uf L'7.ii:um homhium de coviitatu pradido^ per qwii rci Veritas melius fciri , poterit, de omnibus iff omnhnodis fehnii^, vt'ttcficih, incantati- L *+-) J onibus, arte vuigicci, fortilcvUs, tranf^rtjfionihusy foreJ}allarii^, re?ruta- riis, ingroj/ariis, exiortionibus quibufcimque : Ac dc cmnibus ^' JiiivuHs aliis malij'aClis f5* offe>iJ:Sy dc quibiis jujticiarii pacts noflrw legitime in- quircre pojjunt out debcnt, per quofcunque if} qualitercuuqne in cotnitatii praditio jatlis Iff perpctratis, vcl qu/e in pojicrum ibidem fieri ccn- tigerit ; and then goes to foine particular offenfes, and to inipcci: ia- dii^ments taken before them or before former juftices of the peace, and to make procefs againft pcrfons indi6led, quoufque cr.piantur, rcd- dnnt fe, vcl ullagcniur : Ac omtua iff Jingula felonias i^c. Iff ccstera p'-iemijja fecu7idum legem tsf cnrifuctudinan rcg'^i no/hi AnglicE audun- dum iff termi)iandum, and to do execution thereupon. A provifo if a cafe of difficulty arife, tlien to refpitc jiidgnicnt till t'^e juftices of aflTife come into the county, iffc. So that the commifiion giv^ a perfonal power to every jufiire of peace by tlie tirft claufe ; but by the fecond gives U) them, or two of them, whereof one of the quorum, power to hear and detcrmme felonies, i^c. But befides thcfe powers fpecially given tliem by their comn-.ifilon, and the general adts of parliament toucl.ing juftiees of peace, there arc divers fubfcquent ftatuies, tliat give them powers, fometimes to oi-iCJuftice, fometimes to two, fometimes in their fefiions, fometimes out of their fefiions, wli'cli it wcie too long here to recite, I ihall only apply myfelf to that power, that they have by their com- 1) ,i milTion 43 HISTORIA PLACITORUM CORONA. jniflion or otherwife, in relation to treafons, feloiiies, and capital ofFenfes. 1, And in the fivft place touching the fecond AJfignavimus^ where- by they have power to hear and determine. Without this claufe they have no power to hear and determine fe- lonies or other mattei s, for ihe bare making of them juftices jf peace without this claufe doth not give them power to hear and determine indidlments: v'lde Stamf. P. C. Lib. II. cap. 5. /. 58. a. And therefore in all returns of making up of records before juflices of peace touching indictments or convicSlions, they muft b" mentiond to P ^ be juflices of peace, nee non ad diverfafclonias, tranfg>cJJioneSy L T'T" J ^ ^11^ malefa£la in eodem comitatu pcrpctrnta audienduni ^ Urminayidnm aJjignaC . Yet this claufe doth not make them juflices of cyer and terminer^ for that is a diflindl: commiflion of another nature, as hath been fhewn ; and therefore thofe a6ls of parliament, that create new of- fenfes and limit them to be heard and determind before juflices of oyer and terminer only, give not thereby power to the juflices of peace jn fuch cafes, unlefs alfo named in the a£l of parliament. As the flatute of 5 Eli-z.. cap. 14. of forgery, 3 H. 7. cap. 13. confi^^.iring the king's death, 33 H. 8. cap. 12. murder in the king's palace, 8 H. 6. cap. 12. embczzeling records, 33 H. 6. cap. 1. em- bezztling mafler's goods, 2 £5* 3 £. 6. cap. 24. flroI:e in one county and death in another, accefTary in one county to a felony in another; for thefe flatutes limit the punifhment of thefe ofFcnfcs to fpecial judges appointed by the a6ts themfelves, or to juflices of oyer and terminer^ under which appellation generajly, in flatutes, juflices of peace come not. 9 Co. Rep. 118. b. Co. F. C. cap. 41. p. 103. Da It. cap. 20. {^bj. As touching high treafon it is not mentiond in their commifTion, and they have no power to hear and determine it by the general words of their commifTion. But a juflice of peace upon complaint of a treafon, may examine and commit the offender to prifon, and take informations touching it, for it is a bread i of the peace, and in order to the confcrvation thereof, he may commit the offender to gaol, in order to farther pr- ceeding againfl him by juflices of oyer and terminer or gaol-de- liverv. (i) Niiv Edit. tap. 40. p. 108. But IIISTORIA PLACITQRUM CORON.^. 4<^ But by fome aiSts of parliament jufticcs of peace may tal:e iiuli.St- ments of particular treafon?, but thofe prefontmcnts they mufl certify into the king's bench or gaoi-dclivcry, as the cife fliali require, as upon the ftatute of 5 El:z. cap. I. ior maintaining the authority of the itc oi Rome, 13 Elir. cap. 2. for bringing in bulls for abfolution, yignus Dei, tffc. 23 E/iz. cap. 1. for withdrawing and reconciling, or b«ing vvitlulrawn from the king's alligeance. By the ftacute of 3 //• 5. cap. 7. as to treafon for clip- ping, i^c. power was given to the juflices of peace to ii.q.iire '- "^^ J and make pmcefs thereupon, and antiently that claufe was put into their commifTion, but now omitted ; for by the ftatute of 1 ,lfar. cap. I. the a6t of 3 //. 5. cap. G. is repealed, and confcquently the a£l of 3 //. 5. cap. 1. that gave power to juftices of peace to inquire toucliing it. » By tlie ftatute of 26 H. 8. cap. 6. power is given to juflices of peace to the adjacent counties to hear and deteiniine counterfcitino- aml clipping of coin, and murders and other felonies in IVales ; but this ah'o as to trcalous is rcpcaid by the flatute of 1 ^ 2 P. ifj* .]/. cap. 10. As touching felonies. It is iruo, that by the anticnt flatute of 6 ii. 1. cap. 9. and 4 E. 3. cap. 2. murdcis and manflaughters were to rtay till the gaol- delivery. But by the ftatutcs of IS 7:. 3. cap. 2. 34 E. 3. cap. 1. n R. 2- cap. 10. tho they do only mention felonies, and do not exprefly men- tion murders and manflaughters, and although the commiflion of the peace mentions not murders by exprefs name but only felonies g;*ne- rally, yet by th'rfe general words in thefc ftatutes, and this coin- mifHon, tliey have power to hear and determine murders or man- slaughters, and thus it has been rcfolved 5 E. 6. Dy. G.9. a. Frcf. to 10 Co. Rep. againft the opinion oi Fitzherbert in iiis Juftice of Peace, and 9 H. 4. 24. Cor on. 457. For till the ftatute of \Z R. 2. cap. 1. a general pardon of all fe- lonies had pardoned niurdcr ; and ttio that ftatijte requi;e the word murder to be expreflcd, yet tiiat is with relation only to p.u-do:iS, and not to teftrain the extent of the woxA felonies in a coin.-nin n. And theiefore 1 know not what my lord Coke means in his com- ment upon the ftatute of Gloucejl. cap. 9. 2 InjVu. p. 316. whce he faith, that juji'.ccs of peace cannot take an indi^ment of the kilLi:g of a D 4 7nan 45 HISTORIA PLACITORUM CORONA. man fe Uetcndendo, bccMiJi- not vjithln their coniinjjfion, but jiijiices of gaol'delivvry may ; tor it juftices of peace have a power to hear and determine murder or manflaughtcr, it feems they may take an indicl- , , ment of fe defendendo, for the coroner may take an indi(fl- •- ment of fe dcfcndcndo. 3 E. 3. Cor on. 286. Co. Entries 354. a. Crompt. Juft'ue 28. a. Helmets cafe, and fo may juftices of peace againft the opinion of Stamford, f. 15. b. But tho the juiilces have this power, yet they do not ordinarily proceed to the hearing and de- tcnnining of murder or manflaiighter, and rirely of other ofFenfes without clergy, and the rcafons are, 1. The monition and claufe in their commifTion in cafes, of difficulty to expeii the prefcnce of the juflices of affife. 2. The dircaion of the ftatute of 1 ^ 2 P. ^ -M. ca^, 13. which direds juftices of peace in cafe of manflaughtcr and other felonies to take the examination of the prifoner and the information of the facV, and put the fame in writing ; and then to bail the prifoner, if there be caufe, and to certify the fame with the bail at the next gaol-de- livery ; and therefore in cafes of great moment they bind oyer the profecutors, and bail the party, if bailable, to the next gaol-delivtry ; but in fmaller matters, as petit larciny and fome cafes within clergy, they bind over to the feftions, vide Dalt. cap. 20, (c) ; but this is but in point of dlfcretion and convenience, not becaufethey have notjuvif- didion of the crime. By force of this commifllon they may take an inquifttion touching felo de fe., if not inquired before by the coroners ; and tho the coro- ner's inquifttion is to he fuper vlfum corporis, this needs not, but it is traverfablc. Co. P. C. p. 55. They may proceed upon an indictment taken before former juf- tices of the peace in the county by the ftatute of W H. 6. cap. 6. and 1 E. C. c.p. 1. but cannot proceed upon an indi6lment taken before commifftoners of oyer and terminer or gaol-delivery. Lamb. Jufi'c. p. 551. But if an indictment be taken before the flierifT in his Turn by the ftatute of 1 E. 4. cap. 2. thofe indidments are to be delivered to the juftices of peace at their next fefiion, and they may proceed upon thofe prcfcntments. Tho they have power to hear and determine felonies, yet, 1. They cannot deUvcr a perfon by proclamation, (as juftices of gaol-delivery CcJ New Edit, /-. 107. may,) HISTORIA PLACITORUM CORONA. 47 may,) till an inquifition taken ; but if an incjuifition be taken and an ignoramus found, they may deliver him, as it fcemeth, Cronipt. de Pace, f. 9. b. 2. They cannot aflign a coroner to an approver. Tho this be not a commiflion of oyer and terminer, yet by the opinion B. Comviiffion 8. a commifTion of oyer and terminer in the county determines the fecond Afflgnavimm of tlic commilfion of the peace ad audiendum tsf terminandum ; quod qu^rc. A general comniifTion of the peace in a county, in two cafes, doth not determine the power of former juflices of peace. I . Where they are juftices by charter, fuch as are in London, Norwich, ^c. for thefc are perpetual and not amoveable. 2. Juflices in a particular city or corporation, parcel of a county, by tommiff.on are not fupcrfedcd by a new com million granted for the whole county by the iiatute of 2 y 3 P. y M. cap. 18. Vide ftalnte 11 //. 6. cap. 6. If the king by charter granc to a corporation, that the mayor and recorder fhall be juftices of peace within the city, whereby they are juilices in perpetuity by charter, yet if there be no words of exclu- fion, the juflices of peace of the countv have a concurrent jurifdiction with the juftices by charter, and fo it is, if they be juftices by com- miflion in the town or city : Or the king, notwithftanding that char- ter, may grant a commiffion of the peace fpccially in that city or county, and they will have a concurrent jurifdiclion with tjie juftices by charter. Dut if this franchife of being juftices be granted, ita quod jujiiciaril comitates fenonintromitcant, then, tho a fubfequent commiffion be granted in the county at large, it feems they have no jurifdiilion in this corpo- ration or town. 20 H. 7, 8. Cafe de Abbe de St. Albans ; quare ta- men, whether the indidtment or feffion in the franchife be void or only a contempt in the juftices : This was heretofore moved between the juftices of the peace of Surrey and the borough of Southivark, but never rcfolved ; but fome thought it to be like the cafe of the baili- wick of a liberty and retoma brevium granted, ita quod vicecomes 71011 intrct, if the Iherift' executes a writ within the liberty, the _ .. execution is good, but the ftierilF punilhable for infringin rr i- t" -• the franchife. By the ftatutc of 4 E. 3. cap. 2. the juftices of the peace ought to deliver all their prefentmcnts to the next fcflion of gaol-delivery, where they fliuU be finally heard and delerniiacd. It <. 48 HISTORIA PLACITORUM CORONA. It is true the juilices of peace may fo deliver them over, and if they deliver them fo over, tlie jufcires of gaol-delivery may proceed to determine them, as well as upon the coroner's incjucfl, namely if the offender be in gaol, bur othervvife not. But this deiivciy over of the prefentments at the feflion is neither tifual nor neceflary at this day, for that ftatute was made when the judices of peace had only power to inquire and not to determine. But by the ftatute of 18 £. 3. cap. 2. their commiflions where to hear and determine, and fo were all the comiflions of the peace made after that ftatute, fo that after that ftatute they might, if they pleafed, determine the prefentments taken before themfelves. Tho commiirioners of oyer and terminer may indi£l and try at the fame feflion, yet (as before) it hath been ruled otherwife in cafe of jufticcs of peace, unlefs by corifent. But certainly conftant ufage and learned opinion muft give that expofition upon thoferefolutions, that it mnft extend only to popular a(5\ions or indiv5lments for mifdemeanors, and not in cafes of felony, for here they may and do proceed Je die in diem and at the fame feffions, and fo much is intimated in Bump- J}ed\ cafe, H. 11 Car. 1. (d) fupra, cap. 4. p. 28. and Coke i Li/iit. cap. 28. p. 164. exprefly faith it is common experience, and reafon {peaks for it, as well as in the cafe of the commiffion of oyer and ter- miner, the fefTion being in the fame county, and with a public fum- mons preceding every general feffions. The ordinary courfe of proceeding is in their feffions, which are of two kinds, viz. private feffions, or public. Touching the former I ihall fay nothing, for it is ordinarily for the difpatch of country bufi- nefs, or about ale houfes, poor, i£^c. - ^ The public feffions are of two kinds, viz. the general '■ " -' quarter leffions, and general feffions that are not quarter- feffions ; both are or Hiould be fumnioned by a precept in the king's name ; quod vide Crompt. Jujllce 232. a. or of the Juftices. Lamb. Lib. IV. cap. 2. As to the jurifdi6lion in general both agree, that in either of thefe general feffions of the peace they may proceed touching thofe mat- ters that are within their commiffion, as to take indictments, try felons, &c. But by particular acts of parliam-ent fome things are limited to the quarter-feffions, and cannot be proceeded in at other general feffions, CdJ Cro. Car. 438. 448. as HISTORIA PLACITORUM CORONA. 49 zfi ^ isf 6 E. 6. cajj. \ 4. for ingrofling, 1 //. 7. cap. 1. hunting, 2t£f 3 P. t5f M. cap. 8. higlnvays, 5 Eiiz. cap. 'J. perjury, 5 Eliz. cap. 12. licenfing badgers, 7 E. 6. cap. S. wines, and divers others, de qulbus vide Lamb. Lib. IV. cap. 1 9. Thcie quarter-lcHions were by Icveral a6ts of parliament appointed to be held at feveral times, by 25 E. 'i. cap. 8. at the Jnnunci.itkfty St. Margaret, St. Michael, and St. Nicholas. By 36 E. 3. cap. 12. within the utas of Epiphany, within the week nf Lent, between Pcntccoji and Alidfumvier., within eight days of St. Michael. By \2R. 2. r^/>. 10. the feflions arc fct at liberty, t'/z. to he held every quarter of the year at leaft ; only Middlejex is excepted by lA: H. 6. cap. 4. By the ftatute of 2 EL 5. cap. 4. in the firft week after St. Afi- chnel, Epiphany, claufe of Eajier, and tranflation of St. Thomas the martyr. By the flatute of 33 LL 8. cap. 10. the Tuefday after £'fl/?fr week is expounded to be in the week after Claujum-Fafchce, for the fef- fions to be held ; yet Claufum PafchcE or Low-Sunday is the firil: day of that week. The ftrift regular expofuion of the flatute of 2 H. 5. for the week after Michaelmas, i^c. is, that if Michaelmas fall upon the Sunday or Monday, the cjuartcr-fefTions in ftridlnefs fliould be held in the en- fuing week, and not the fame week. Yet it is very plain, that the quarter-feffions are varioafly ^ , held in feveral counties, fome at one day, fome at another, •- ^ yet it hath been ruled, that tiiefe are each of them good quarter- feflicins within the feveral adls that relate to quarter-fefTions ; for thefe a6ts, efpecially that of 2 jEf. 5. is only diredive and in the affirmative, and therefore, tho the fefllons are held at another day according to- the general dnedlion of the flatute of 12 i^. 2. yet they are quarter- fcfhons. Nay in Afiddlefex, where by the flatute of 14 H. 6. there are regularly but two felTions, yet thev may hold quarter-fcflions (as in- deed jhey do,) in that county : tho thefe fefTions are not precifely hell at the times prefixed by 2 //. 5. yet they arc quarter-fefTions if held quarterly ; and fo it was agreed by the juflices upon a late a6l fc) this fefTiou of parliament for the taking and fubfcribing the oaths of fuprcmacy. (c) 25 Car. 2. «/. Z. II. I 50 HISTORIA PLACITORUM CORON.^. II. I ih"\\ now proceed to fome few obftrvations touching the power of pariicular juftices of peace by virtue of their tlrft JJfigna~ vhnus in the comir.ifll m, which makes every particular juftice a juf • tice of peace, and gives him power to conferve the peace. Concerning their power to bail or commit perfons brought before them for felony vide hrfra in cap'ite de bail l^ mainprife (f)^ ^ not a Jiatute. 34 ii, 3. cap. 1. i^ alia Jl alula. Thcv are to execute their authority as juftices of peace within the county wherein they are juftices. If a juftice of peace hvcs or be out of the county, wherein he is juflice, he cannot by his warrant fetch a perfon out of the county, where he is juftice, to come before him in the county, where he is ; \ZE. 4. 8. h. Plowd. Com. 37. a. Piatt's cafe. He c.mnot do a judicial act out of the county wherein he is a juftice of peace, as take recognizances, take examinations, commit offenders, ^c. but he may do a minifterial a£l, as to examine a party robbed, _ whether he knows the felons according to the ftatute of »■ ^^ J 27 Eliz. cap. 13. H.G. Car. \. B. R. Helier's cafe, Crake, p. 211, 212. yet qiaere of recognizances and examinations, for they are adls of voluntary jurifdi6tion, and therefore it feems may be done out of the county, as well as a bifhop may grant adminiftration, in- flitutlon, or orders out of his diocefe : But indeed Imprifoning of a perfon for not giving recognizance, or committing a perfon for a ci Ime, are adls of compuUory jurifdlvSlIon, and may not be exerclfed out of his county fg). Yet fuppofe a m.an be a juftice of peace in London and in M'lddk- fex^ as the recorder is, whether he may not commit a perfon in Mld- dlcfex brought out of London or c converfo, it feems it hath been al- ways pra6lifed, for he is in commiflion in both places. If A. commits a felony in the county of B. where lie lives, and goes into the county of C. and is there taken, a juftice of the peace (f) cap.l^, " city or precinft adjoining, that is (^) By 9 Geo. i, cap. 7. \. 3. *« If a "a county ui itfdf; provided, that no *' juftice happens to dwell in any city or " power is thereby given to the jidHccs " other prccinft, that is a coiiniy ot itfcll, •' ior the county at large to hold their *' fituate within the county at large, (or " fcHions in cities or town', that arc *■ which he fhall be appointed a juftice, " counties ol thcmfelvcs, nor to jufiicei, " tho not within the laid county, he may " iherifls, conftabks, or other peacc-ofli- " grant warrants, take examinations, and " ccrs of the county at larg« to aft or " make orders lor any matters, which " intermeddle in any matters arilsngwiili- " any one juftice may aft in at his dwell- " in fuch cities or towns, otherwifc than •' houfc, tho out of the county whereof '< as if the faid aft had never been made." *' he is appointed a jaftice, and in fome of HISTORIA PLACITORUM CORON/E. 51 of the county of C. may take his examination and informations ia the county of C. tho the felony were committed in the county of B. yet qvo'tc, whether upon his arraignment in the county of B. thofc examinations can be given in evidence ; I have not allowd them, be- caufe tlu) he may commit and examine, and give an oath to the in- formers, yea and hind them over to give evidence or commit tliem, yet thai is but for ncccfiity of prefer\'ing tlie peace, for he hath really no jurifdiction in the cafe. And note, the cuftom of London enables the juftices of gaol-deli- vci y to fit at Nezvgate, wiiich is in London, both for Aliddlefcx and London, but the juftices of the peace for Middlcfcx fit only in Alid- dlcfex, and the juftices of the peace for London in London. By the ftatute of 1 ^ 2 Bh. & Alar. cap. 13. they ought - to take the examinations of felons (without oath,) and the •- j~ J informations of accufers or witncflcs (upon oath,) and return them to tlie jufticfs of gaol-delivery. And thcfe examinations may be read as evidence againft the prl- foner, and fo may the intormations of witnefTcs taken upon oath, if they are dead or not able to travel, for they are judges of record, and the ftatute enables and requires them to take thcfe examinations ; but then oath is to be made in court by the jufticc or his clerk, tliat thefe examinations and informations were truly taken. If ^. brings B. before a juftice of peace for fufpicion of felony, if he can teftify materially againft him, he may bind him over to pro- fee ute ; and, if he refufes, the juftice may commit him. The juftices of the peace have jurifdidlion of felonies arifxng with- in the verge. 4 Co. Rep. 4G. a. ff'igg^ cq/e. The juftices of the peace in their feffions may proceed to outlawry in cafes of indi6tment found before them, and that by the common law ; and in cafes of popular adlions may proceed to outlawry by the ftatute of 21 Jac. cap. 4. But they cannot iifue a capias utlegatwn, but muft return the re- cord of the outlawry into the king's bench, and there procefs of ca- pias utUgatum fliall ift'uc. Dalt. p. 406. (hj. See Burn. Tit, Juftices of Peace, i Blackf. Com. ch. g, p. 3^1, &c. and Index t« z Hawk, P. C. Tit. Peace. (bj New Edit, f. 67Z. C H A P. 53 HISTORIA PLACITORUM CORONiE. CHAP. VIII. Concerning the coroner and his court, and his authority in pleas of the crown. CORONERS are of three kinds, viz. 1. Virtute officii. 2. Vir- tute carta Jive commijfionis. 3. Virtute eleSiionis, as the coro- ners of counties. I. The coroner virtute officii Is the chief juftice of the king's bench, who by virtue of his office is the chief coroner of England, 4 Co. Rep. 57. b. in cafe de comminaltie de Sadhrs, and therefore it is there faid, *' That in the time of//. 1. it was refolvcd, if a man be flain in open " rebellion, the chief juftice upon the view of his body may make a *' recerd thereof and fend it into the king's bench, and thereupon the ** party flain (hall forfeit his lands and goods," which may be true as to goods, but not as to lands, becaufe none can be attainted after his death but by a6l of parliament. But of this hereafter. II. Coroners by charter or commiflion or privilege : And thefe or- dinarily were made by grant or commiifion without election ; fuch are the coroners of particular lords of liberties and franchifes, who by charter have power to create their own coroners, or to be coroners themfelves : Thus the mayor of London is by charter coroner of Lon» don, the bifhop of Ely hath power to make coroners in the ifle of £/y by the charter of H. 1. Queen Catharine had the hundred ofColridge granted to her by the king S5 //. 8. with power to nominate coroners. 9 Co. Rep. 29. b. Jtneredith's cafe. And therefore by tlie ftature of 28 £. 3. cap. 6. where the power of eledling coroners is confirmed to the counties, yet there is a faving to the king and other lords, which ought to make fuch coro.ners, their , feignories and franchifes, fo that the king may grant coroners L 54 J ^vithin certain preclnds; and lords of franchifes, that have power to nominate coroners by charter, may ftill do it without eledion. There have been two great precinds, that by the king's grants have power of granting or having coroners, namely, the jurifdidlion of the admiralty, and the verge. As HISTORIA PLACITORUM CORON^E. 54 As touching the former I have not feen the grant, but I have heard the lord admiral is cither made coroner, or hath power to make them within his juiildiction ; and of the dcatli of a man or other articles belonging to the coroner arifing upon the high fea, inquifitions have been ufually taken by the coroners appointed by the king or his ad- miral, and here the coroners of the county have no jurifdiclion. But of deaths of mm happening upon arms of the fea below tlio bridges within the bodies of counties, as upon Thavies or Severn, tffc, in {liips there hovering, tlio the coroner oi' the admiralty hath j-jrif- didtion, yet it is not exclufive of the jurifdiiftion of the coroner of the county, who may inquire in any great river uponthefe articles, where a man can fee from one fide to the other, 8 £. 2 Coron. 399. Only the inquifitions taken before the coroner of the admiral are returned before the commiffioners upon the (latute 28 H. 8. cap. 15. The in- quifition before the coroner of the county is to be returned before tlic commifTioners of gaol-delivery for the county. 'Ihe other great jurifdi6lion is the coroner of the king's houfe, ufu- ally called the coroner of the verge, who it feems anti.ntly was ap- pointed by the king's letters patent ; but by theftatute of 33 H. 8. cap. 12. the gt anting thereof is fettled in pcrpctuitv in the lord fteward, or lord great mailer of the king's houfe for the time being. Antiently the coioner of the verge had power to do all things within the verge belonging to the office of the coroner, exclufive of the co- roner of the county; but becaufe the king's court was moveable often, by the (latute of Artkuli Juper cartas^ cap. 3. (a). It is ordained, that of the death of a man the coroner of the county (liall join in inqui- fition to be taken thereof vvitli the coroner of the kin^T's houfe; ^ , and if it happen it cannot bj determined before tlie ftcward, procefs and proceeding Ihall be thereupon had at common law. But yet in that cafe of death within the verge, the coroner of the county cannot take an inquifition without the coroner of the verge j and if he doth, it is void; but if one perfon he coroner of the county and alfo of the verge, the inquifition before him is as good as if tlie offices had been in feveral perfons, and taken by both. And tho the court remove, yet he may proceed upon that inqui- fition, as coroner of the county. 4 Co. Rep- 45 £s* 46 ^f'^'gg's cafe. But if a murder or manllaughter be done within the precinils of the king's palace limited by the ftatute of 33 H. 8. cap. 12, then by that Ca) 2 Co. I'fiit. p. 5jo. ftatute S5 HISTORIA PLACITORUM CORON^\ ' ftatiite the inquifition fliall be taken by the coroner of the houfhold, Tvithout the adjoining or afTifting of any coroner of any county, by twelve or more of the yeomen officers of the king's hou(hold ; and this is enafted to be as fufficient, as if taken alfo by the coroner of the county, and the method of the return and proceeding upon thofc in- quifitions before the lord fteward is therein declared and enabled. III. The general coroners of counties. Thefe by the ftatute of /Veji. 1. cap. 10. fl;J, and 28 E. 3. cop. C. are eligible by the county in the county-court by the king's writ de coronatore eligendo, and fworn by the fherifF for the due execution of their office. F. N. B. 163. The ftatute of FFcJim. 1. dire6ls they fhould be knights, but that Is out of ufe ; but by the ftatute of 14 E. 3. cap. 8. they ought to have fufficient lands in the county; and by the ftatute 28 £. 3. cop- 6 they ought to be lawful and fit men. In as much as their office is by election, their offices do not deter- mine by the demife of the king, as ftieriffs do. Dy. 165. a. (*) And in as much as they are cledled by the freeholders of the county, ^ , if they be infufficlent and not able to anfwer their fines, and •- ^ ^ perform the duties of their place, the whole county fliall be anfwerable for them and their mifcarriages, and amercements or fines fhall be impofcd upon them for the fame, (viz. if upon procefs againft the coroner for his fine or amercement the fheriff return nihil habet,) and procefs fhall go againft the whole county, becaufe ele<5led by them. 2 Co. Injlit. p. 175. In fome counties there be only two coroners, in fnme four, in fome fix, and by the ftatute of 34 ^ 35 i/. 8. cap. 26'. in each county in Wales., and in Chcjler two. If there be above two coroners in a county, and a writ be dire6led coronatorihuSy tho one die, yet as long as the plural number remain, a return by the coroners is good; but if there be but only one furvivor, he cannot execute the writ and return it till another be made. 14 H. 4. 35. a. 31 4IF%. 20. But if there be two coroners, in a county or more, one may execute the writ, as in cafe of an exlgenty but the re- turn muft be in the name of the coronatores. 14 i/. 4. 34. b. per Hank. 39 H. 6. 41. But tho there be many coroners in the county, an inquifition yw/»fr v'lfwn corporis may be taken by any one of them. Stamf. P.C.p.bZ. a. (bj z Co. Jnjlil, /). 174. (*) See 4. £. 4. 43, a, in mis ad p. loi. As HISTORIA PLACITORUM CORONA. 56 As coroners may be eleftcJ by writ de coronatore el'irendoy fo they may be amoved for reafonablc caulc, and new ones chofen in their room by writ. And nltho that caufe be not traverfahle, 5 Co. Rep. 58. b. yet if it be falfe, he may have a fuperfedeas to that new writ. F. N. B.p. 1G3. Thus far concerning the conflirufion of ^hefe officers and cheir dif- ferent kinds; now touching their jurifdidlion and procccdiug. Before the ftatute of Magna Carta, cap. 17. fcj the coroner heU pleas of the crown, by that ftatute nullus vice-comes, conftabulanus, coronator -vel alii ballivi nojlri tencant placita corona^ fo that thereby their power in proceeding to trial or judgment in pleas of the crown is taken away. But yet they retaind a jurifdi6lion flill as to matters of in- r _ n quiry, taking of appeals, i^c. all which is fet down at large in the ftatute of 4 £. 1. ftyled De officio coronalorum, viz. 1. Of the death of a man, whether by felonv, misfortune, isle. viz. de fubiio viortuis. 2. Oi treafure-trovc. '6- Of appeals of rape. 4. Appeals de plagis & mahemio. 5. Of deodands. 6. Of wreck of the feaj and 1. By fome, of breach of prifon fdj. 1 lliall reduce them to thefe four, viz. I. His power to take inquifitions y///)rr vif/on corporis. 2. His power to take appeals. 3. His power to take the accuiation of an approver. 4. His power to take abjuration. I. For inquifitions. Regularly the coroner liath no power to take irquifttions, but touching the death of a man and perfons fubico moituis, and fome fpeclal incidents thceunto. If any perfon dies fuddcnly, tho it be of a fever, and the townfliip bury him before the coroner be fent for, the whole townihip ihall be amerced. Jtifi. North. Coron. 319. Nota, this caie is mHprinted, I have feen an aiuient trunfcript at large of the Iter of Nona ton, and pe- ruied this very cafe, whica in Lbro mco f' 52. b. is mouji de fiyme, viz* ftarved by hunger ; for tho a man dies fuddenly of a f.'ver or apoplexy, or other vifitation of God, the townlhip ftiall not be amerced, foi then the coroner iliould be fent tor in every cafe; \mt if it be an un- namral or violent death, then indeed if the coroner be not fent for to view the body, the town ftiall be amerced. Cc) 2 Cs. Inpt. t>. 3», (d) Vide Ctrtn. />. 435. Vol. II. E An<^ 57 HISTORIA PLACITORUM CORON^E. And fo it is it" the vill leaves a body, that died of a violent deatli, above ground unburied, the townlhip fiiall be amerced, 3 E. a. Co)on. 339. and the amercements in tliele cafes may be fet upon the prefentment of the grand inquell, or upon the prefentment of the coroner. Rut if a prifoncr in gaol dies a natural death, yet regularly the gaoler ought to fend for the coroner to inquire, becaufe it may be pofliblv prefumed, tl.at the prifoner died by the ill ufage of tlie gaoler. And if this death happens m the king's bench, the clerk «■ ^ -^ of the crown, who is the coroner for that court, is to view the body. 3 E. 3. Coron. 292. 8 E. 2. Coron. 421. If the coroner have notice and comes not in convenient time to view the body and take his inquifition upon the death of him, that thus dies fuddenly, and therefore upon a prefentment by the grand ir.quefl: of a death by mifadventure, if the like prefentment be not found in the coroner's roll, he lliall be fined and iraprifoned. 3 E. 3. Coron. 292. And by the ftatute of 1 //. 8. cap. 7. he fliall forfeit forty {hillings for every fuch default, and the juftices of the peace and juflices of aflife have power to enquire of thofe defaults, and this without any fee to be taken by the coroner. But by the ftatute of 3 H. 1. cap. 1. if the coroner be remifs, and makes not inquiiitions upon perfons flain, or doth not return the fame to the next gaol-dclivery, he is t« forfeit 5l. for every default. The coroner cannot take an inquifition but upon the view of the body, and if he doth, fuch inquifition is void ; and the reafon is, bccaufe oftentimes much of the evidence arifeth upon the view, for the inquifition ouglit to contain the manner of his death, the place, length and depth of the wound, is^c. And therefore the where there are many coroners, one may take the inquifition. Sta-if. 53. o, yet it cannot be done by deputy, for by the ftatute of Excn 14 E. I. the corontaf is to view the body and take the inquifition in his own perfon. Crompt. Juji'ice, f. 227. a. And therefore if the body be buried before the coroner comes, tlio the coroner ought to record it, and the town{hip fliuU be thereupon amerced, as before is fald, yet the coroner ought to take up the body, and take his view thereof, if there be any poffibility of it, and there- fore the body hath in fuch cafe been taken up fourteen days after, and HISTORIA PLACITORUM CORON/E. 58 and an inquifition thereupon taken. 2 A'. 3. 2. a. 21 E. \. 70, Tl. Wingiield'% cafe. And therefore if the coroner take an inquifition without view of the body, he may take a fccond inquifition fuper vifuin cor- r- -i poris, and that fecond inquifition is good for the firll was ab- ^ ^^ folutely void. 2 /?. 3. 2. 21 £.4 70. But if a coroner takes an inquifition fuper vifum corporis, and after ihis anotlier coroner takes an inquifition upon the fame matter, the fecond inquifition is void, becaufe the tirft was well taken. M. 6 R. 2. Cor on. 107. Crompt. Juji'ic. 229. b. If a coroner takes an inquifition fuper v'lfum corporis (as upon a y>/(? defi'J, and that is fent into the king's bench and quaflied, the coroner may take a new inquifition fuper vifum corporis. But upon a furmife, that the coroner ought to have found hlra fcio de fe and hatli not, there fhall be no melius inquirendum diredled to the fherifF; I have knov.n it often denied, and it was held it was within the redraint of the ftatute 28 E. 3. cap. 9. Butpofiibly a commiflTion or writ may ifTue for the inquiry of the goods of a felon not mentionJ in the coroner's inquifition. If the coroner do not inquire of a filo de fe, or of any other fudden death, thejufbices of the peace or oyer and tenniner may en- quire thereof, and fo may the juftices of the king's bench, but then that prefentment is traverfable ; but it is held that the prefentment of the coroner of a fe:o de fe is not traverfable, de quofupra. Part I. cap. Zi. p. 414. Co. P. C. cap. S.p. 55. When notice is given to the coroner of a mifadventurc, he is t^ iflfue a precept to the conflable of the four or fix next townfhips to return a competent number of good and lawful men of thorr town- fhips, viz. twelve at leaft to make an inquifition touching that matter. 4 E. \. Offlcium coronatoris. If they make not a return, or the jurors returned appear not, their defaults aic to be returned by the coroner, and the conftables or ju- rors in default Ihall he amerced before the juftices ju ^j;r antiently, but now before the juftices of gaol-deliver)'. But If tlie jurors appear, by Crompt. Jufiice, f. 226. h. they are not challengeable by either party. Yet in Mich. 4 Car. B. R. Sir William lVithipole\ cafe ^ by the greater opinion of all the judges of England the ftatute •- •• Qt II H. 2. cap. 9. extends to inqulfitions before the coroner, and E 2 that Co HISTORIA PLACITORUM CORONA. that if in an inqucft before the coroner one of tlic jurors he outl awed the but of trcfpafs, this is a good pica to a coroner's inqueft of murder Cto. p. 134. The jury is to be fworn and charged to Inquire upon the view of tlie body how the party came bv his death, whether by murder by anv pcrfun, or by misfortune, or as felo dc fe. In fuch cafes, where the coroner's inqueft is conclufive, (as it is comnaonly held in the cafe oi felo dc fc.) the coroner mufl: hear evi- dence as well againft the king's intcrell; as for it, and that upon oath, for there is no perfoii to be condemned to death, but only the fa6t to be inquired into. And fo ir was ruled in Barclalc's cafe who drowned himfclf, and the coroner would not admit witneflcs to prove him to be non com- pos 77ientis at the time, but fliut them out, and only took witnefles for the king ; and for this caufe the coroner was reprehended by the court of king's bench, and the inquifition fet afide and not fuf- fered to be filed, and a new inquifition taken, whereby it was found he was non compos, for in this cafe there was no perfon put to aulwer; de hoc vide flip) a, Part I. p. 415. But it hath been held, that if a perfon be killed by anotlier perfon* and it be certainly known that he killed him, the jury inuft hear evidence only for the king ; and whether the killing were by malice or without malice, nay tho it were fiich a killing as is juftlfiable, as an officer killing one that afTaults him in doing his office, yet the inqued muft find it murder, bctaufe the party fliall be put to aniwer, and upon not guilty pleaded tlie whole matter will come to be tried by the petit jury, wliere the evidence of both fides may be openly heard in court, and fuch diredlion given as the nature of the fadi requires, viz. to be murder, manflaughter, or per Infoi iunlum : and thus it hath been commonly praclifed of later years. But it feemeth to me, that this is neither reafonable nor agreeable J. ^ - to law or antient ufage, but is a novelty as to the cafe of '- -' the coroner's inqueft, tho it may be and is reafonable and fit in cafe of an indiiSlment by the grand inqueft of the county, for thefe reafons : 1 . Becaufe the coroner's inqueft, is to inquire truly (ej quovioao ad mortem dcvenit, and is rather for information of the (e) Why Ihould not tliis ar<^iiir.cnt |-.o!d tVieir oath to frefent the truths the luhdc a-, well in the cafe of an indidtiiicnt by the truth, and noih'xrg but the tiuth f lide injre^ graud inqudt, lincc ihty arc likcwife by ^. 157. truth HISTORIA PLACITORUM CORON/E. 6t truth of the fa6l as near as the jury can afTcrt it, and not for an ac- cufation. 2. Becaufe tho the prifoner may be arraigned upon the cr ' roner's inqueft, if it find it murder or manflaughrcr, yet neither ths court nor the profecutor is concluded by it, but a bill of murder may be preferred to the grand inquefl:; and upon that new prefent- ment the party may he arraigned and tried, tho the coroner's inqucfl arifcs only to manflaughtcr, or it may be to fc defcndcndo or chance- medley. :j. And accordingly tlie antient- practice hath been; for the coroner's inqueft to find the matter as they judge it was : vide 26 EUz. Crompt. "Jnjllce, /. 28. a. Holnies^s cafe, Coke's Entries 353. b. and very often in the anticnt Iters o( E. 2. and it. 3. dc quo fnpra. And therefore the difference of the penning of the a(5l of 1 ^ 2 P. i^ AT. cap. 13, touching the examinations taken by the jufkiccs of the peace and the coroner is obfervable : The jv.fticcs of the peace are to put into writing tlie informations againfl the felon of the f.iv5t and circumflaneeS thereof, or Jo much thereof as fiiall be material to frove thejelony ; but the coroner is to put into writing the effcSi of the evidence given to the jury before him being material, without faying fo much as is material to prove the felony, but the whole evidence given whether to prove or difprove t]ie felony ; and all this evidence is to be upon oath before the coroner's inqueft, wlicther it makes for or againfl the prifoner : but indeed when the prifoner is to be tried upon that inditSlmeut, or the iudi6lment of the grand inquefr, thofe wit- nefTes, that acquit the prifoner, are not to be heard upon oath at his trial, unlcfs the profecutor defires it (yy*. So that I do conceive the coroner's inqucfl ought in all .. ^ , cales to hear the evidence upon oath, as woll that which ^ " -' iTjaketh for, as that which maketh againfl: the prifoner, and ti.e -whole evidence ought to be returned w-ich the inquifitlon. Now fuddcn violent deaths, which are all within the coroner's office to inquire, are of thcfe kinds. I . Ex vijitatione Dei. 3. Per infcrtur.iumy wliere no other had a hand in it, as if a man fall's from a houfe or cart. 3. By his ownliand, zs felo de fc. 4. By the hand of another man, where the offender is not known 5. By the liand of another, where he is known, whether by murder, manflaughtcr, fe dcfcndendo, o\ per infortunium. Cf) This was indeed the praftice, tho the behalf of the pafoncr in all trials for unfiipportcd by any autliori'.y in law- ; but truafo.i or tclony arc to give evidence upon now by 1 An;:, ea^, j. tlic witucir^;s oa oaili, ■ E3 1. If 62 HISTORIA PLACITORUM CORONA. 1. Ifrheinquell find that he died ex vifitatlonc Deij there is no more to be done, only the inquifition, together with the exami- nations, are to be returned to the next gaol-dehvery, by the ftatutc of 3 H. 7. cap. 1 . 2. If the inqueft find the death per :nfortuniw;i fimply, as by a fall ^c. then the coroner is to take the exa:nination, and return the fame with die inquifiiion to the next gaol-deliverv, and to inquire of tiie deodand, and the v.alue, and in whufe hands, and to feize and deliver the I'anie to tiie rownihip to. be anfwerable for the fame to the king, by the ftatute of 4 £. I. De officio coronatorU. But if die perfcn were Jrowned in a pit, the coroner Ihali command the viU to Hop it, and if it be not done, the viii fliall he amerced in eyre, or before jufiices of gaol-delivery. 8 E. 2. Coron. 416. And note, that in no cafe the coroner fets any fine or amercement as for non-appearance of juries or conftables, efcapes of towninips, l^c. but only prefents it to the next juftices in eyre, or now to the next gaol-delivery, and they impofe the fine. 3. li the inqueft find a man feio de fe, they ought to find the fpe* cial matter, and alfo what goods and chattels ne had, of what value, and feize and deliver the fame to the townfliip to be anfwerable to the king or his almoner, or the lord of the franchife, to whom they belong, and Ihall bind over the firft finder of the body to the next gaol-delivery. T f^ -i 4. If the party be flain and the felon is not known, they are to find their inquifition accordingly, and ihall bind over the firft finder of the body to the next gaol-delivery, and return his ex- aminations, together with his inquifition, by the ftatute of 1 ^ 2 P. is* M. cap. 13. And note, that the antient manner of inquiry in this cafe, whether by the coroner or juftices in eyre, was, 1. Quis primus inventor P 2' y^n male credltur ? If fo, then if he were prefent, he might be anaigned ; if abfent, they went on to the ounawry againft him ; but if they anfwered, non male credltur, then he was difcnarged. 35 H. 6. \b. a. B. Conf piracy 4. 5. But it die perlon was flain, and the party that did it was known, and the inquifition tounu him guilty of the oeath, or that he died by his hand, diere were thefe proceedings, namely. The inqueft were alfo to inquire of all that were prefent, aiding and abetting. They HISTORIA PLACITORUM CORON/E. 63 .They ihull tH'o iiujuirc of all acceffaries he/ore the favSl, hut they cannot inquire ot acccflarics after (*), and therefore a i)rcfcntment of a fugam fecit npon an acceflary after is void. Stamf F. C. 1 S >, 18*. 4i/. 7. IS. /-. If they find a man guilty as principal or as acceflary before^ they arc alfo to inquire whether lie fled for the fame ; for if the party be ac- quit upon his trial, nay tho the petit jury upon his trial find him not guilty, nor that he fled, vet this inquifnion before tlie coroner fliall canfe a forfeiture of his goods, fi)r it is not traverfable. Dy. 238. b, Stamf F.C. p. IS'i. b. (f). If a party be found guilty by the coroner's inqucft, or that he fled, they are alfo to inquire of his goods and chattels ; and by the antient law the coroner was prcfcntlv thereupon to feiz,e and inventory his goods, and delivery them to the vilhua to be anfwerable to the king for them, as appears by the ftatute of 4 £. 1 . how far this is alterd by the ftatute of 1 R. 3. cap. 3. vide qita fupra, Part I. cap. 27. f. 365. But it feems, that if there be a prefentment before the coroner of 2l fugam fecit, the ftatute of 1 R, 3. takes no place as to that, _ .. becaufe, whether convidt or acquit, the fugam fecit ftands as ^ an unavoidable forfeiture, and therefore the coroner may without queftion feizc the goods fo found by inquifition upon a fugam fcclt^ and commit them to the townfliip. If the perfons, that are found guilty by the inqucft, be taken, the coroner may and muft commit them to the fljerift^", and he is to fend them to the gaol by the ftatute of 4 £. 1. But if any were prefent and found not guilty, the coroner was to bind them over to the next gaol-delivery by the fame ftatute, and to r^-cord their names in his roll : This was to the intent, that if farther evidence was difcovcred againft them, they might be there proceeded agamft, if not, then they migbt be ufed as vvitnelfes ; but the ftatute o{ \.- i^ 2 P . Ifi Af. cap. 1 3. hath made better proviilon ; de quo Infra. It the parties found guilty as principals or arceflfaries before by the coroner's inqueft be not to be found, the coroner might proceed to the outlawry againft them at common law, quod vide 27 J^Jf^- 47. viz. by procefs oi capias to the flierifl'; and if they were returned non inventl, then they were demanded at five counties and outlawed : V:de Crompt. Juftice, p. 226. b. (•) Vide Pirtl. p.^iS. in nods. (+) Fide Tart I. /. 363 6f /. 417. E 4 But 64 HISTORIA PLACITORUM CORONiE. But now that courfe is alterd, and the coroner ought not to pro- ceed to the outlawry, but is to return his inquifition to the next gaol- delivery by the ftatute of 3 H. 7. cap. \. and the juuiccS of gaol- delivery are to proceed againfl: the offenders, if in gaol ; and if not in gaol, then to certify the inquifitin into the king's bench, and there procefs of outlawry to go aguinft them upon that inquifition. And by the Itatute of 1 is' 2 P. i^ A'l. cap. 13. the coroner is to take the examinations againft the piincipals and acccffaries before, and put them in writing, and bind over witneiTes by recgnizance to the next gaol-delivery, and then to return their exai-r'inations, re- cognizances, anjd inquifitions upon pain of 40 j. for every default. In cafe of an indi6iment of murder or manfl;iughter bv the grand inquefl, if the prifoner appears, pleads, and be acquitted by the petit jury, they fay fo and no more, only they inquire of the flight. P >. - But if a perfon be found guilty by the coroner's inqueil, and *- "^ -' plead and be acquitted, yet in as much as the coroner's in- quefl have found that he was kild, the court gives credit to it, and therefore the petit jury muft alfo give in, who it was that kild him, which ferves as an indidtment agaiufl that olhcr perfon. !3 £". 4. 3. b. 14 H. 1. 2. b. and commonly if they cannot tell, they give in fome fidlitious name as Jo/in a-Noke, which ferves the turn. If there be an inquifition of manflaughter or murder, and alfo an indidlment by the grand inqueft of the fame ofFenfe, and he is ar- raigned and found not guilty upon the indictment by the grand in- quefl:, yet it is neceflary to quafh the other inquifition or arraign the patty upon it, and lie is to plead auterfoits acquit, or not guilty, and fo be acquit upon that alfo, for it otherwife (lands as a record againft him, upon which he mav pofTibly be outlawed. But if both indidlments be of the fame nature and for the fame ofFenfe and be good, he may be arraigned and tried upon both at once. By the flatute of Wejlm. 1. cap. 10. the coroner was to take no- thing lor the execution of his office touching the death of a man. Bu> by the flatute of 3 H, 7. cap. 1. in cafes of murder or man- flaughter he was to have the fee of 13j. 4d. out of the goods of the feloii, or out of the amercement fet upon the townfhip for an efcape. But-by the flatute of I tJ. 8. cap. 7. for an inquifition upon the death of a inai. by ( mpi; misfortune or mifadventure, he is to take nothing upon pain of forfeiting forty Ihillings, I. By illSTORIA PLACITORUM C0R0N7E. 65 1 . By what hath been before fald it appears, tliat the coroner hath power to take an inquifition of felony of the death of a man, and h'kewifc of certain incidents therennto. 1. Of acceffarics before the fad, but not of acceflaries after. 2. Of the efrape of the manflayer, that tliercupon the townfhip may be amerced, which is farther con- firmed by the Ihtute of 3 H. 1. cap. 1. 3. Of his flight. 4. Of his goods and chattels : But he hatli no power to take an inquifition of any other felony, tho in fome cafes he hath power to take r /-/■ -• appeals of other matters, as fliall be faid hereafter. 2 Co. *- -^ Injlh. p. 32. Only by cuftom in Northumberland the coroner hatli power to inquire of other felonies. 35 H. 6. 27. b. But it is faid that he may take the confcflion of him, that breaks prifon^ and upon his record thereof the parly fliail be hanged. S E 2. Cor on. 435. 2. But altho he hatli power to take an inquifition touching the death of a man, it mufl: be Jupcr vifum corporis^ and not other- wife. And therefore in antient times if a man were hurt in the county of J. and died in the county of B. tlie coroner of the county of B, could not take an inquifition of his death, becaufe the ftroke was not given in that county, nor could the coroner of the coimty of J. take an inquifition, becaufe the body was in the county of B but they ufed to remove the body into the county of A. and there the coroner of that county to take the inquifition. 6 H. 1. 10. a. But this would not avail, till the ftaaite of 2 ^ 3 £. 6. cap. 24. gave a remedy in this cafe by indiding and trying him in the county where he died. But if he were ftricken and had alfo died in the county of J. and the body had by fome means been after removed into another county, he ought to be removed into the county of ^. where he was llricken and died. 3. 1'iiat altho he might take an indldlment of death, and at com- mon law proceed to outlawry, yet by the ftatute of Alagna Carta, cap. n. he was dilab'ied to hear or determine that felony, or to make execution upon the outlawry. 4. But tho the coroner could not take any inquifition but fuper vifiwi co>poris, yet in fome cales, that were not felony, he mi ii.t take an inquifition; as 1. De Thcfauro invent o. 2, Of wreck and roy^vl filh, 3, And it feems he had a pQW?v to attach a perfon, that had dan- 66 HISTORIA PLACITORUM CORONiE. dangeroufly wounded another, and that not only upon an appeal of mavhem, but alfo tx offidoy as a thing tending to danger of death j quod I'ide 4 E. I. De officio coronatoris. ^ And thus far touching inquifitions before the coroner. •- ' -* II. The feccnd thing, wherein the coroner's power lies, is taking of appeals, namely appeals of murder, appeals of robbery, appeals of rape, appeals de plagis i£f mahemio ; and this appears by the ftatute of 4 £. 1 . De coronatoribus. Thefe appeals can be tcken only of fa6ls done within the county, whereof he is coroner. Stamf. P. C. f. 6'6 a. (g). This appeal is to be by bill in proper perfon, and before the coroner and fheriff : videjlat. 3* H- 7. cap. 1. But yet the coroner is the principal judge, and therefore a certiorari to remove fuch a bill may be to the coroner alone. 4 H. 6. 16. a, Dy. 222. h. or to the coroner and flieriff, becaufe by the ftatute of fVeJim. 1. cap. 10. the flieriff hath a counter-roll. 38 E. 3. 14. b^ 'Re'r'ijicr 2S4. a. Dy. 223. a. But not to the fheriff alone neither for appeals nor outlawries, unlefs in London. Dy. 317. a. Altho by the ftatute of Magna Charta, cap. 17. the coroner cannot determine the appeal, yet he may do thefe things. 1. He may record the nonfuit of the plaintiff in an appeal by bill before him, 22 JJJi'z. 93. 2. He may award a capias and alias to the flieriff, and may thereupon demand the defendant at five counties, and outlaw the de* fendant, 22 A (11%. 97. tho Siamford makes a doubt of it, Lib. II. cap. 14. /. 64. a. and thiriks that the appeal muft be removed by certiorari into the king's bench, and there only procefs of outlawry can iffue ; but when the apoeal is fucd before the coroner and fheriff, to have the appeal detcrmind it niuft be removed into the king's bench by certiorari. III. The third power of the coroner is to take the accufation of an approver, namely when a perfon is indided before juftices of gaol- delivery or in the king's bench for any felony, he may confefs the offenfc, and impeach or accuie or appeal others of felony, and there- vpon die court uffigns him a coroner to take his confcfTion. The coroner u; on an appeal by an approver may take an appeal of th<- approver ag.r.nft any perfon for any felony or treafon t °° i committed in the lame county, or in any other county. 15 L. '6. 42. Coron. 462. HISTORIA PLACITORUM CORON.E. 68 If the appeal be in the fame county, it fccms the coroner may make a precept to the flicrifF to take tlic perfon appeald ; but if he be only a coroner of a fianchife, it fcems he may make a precept to the iLe- rifF to attach him, quare ; but hovvfoever he cannot make a precept to the bailiff of the franchife, bccaufc the bailiff of a franchife cannot execute a procefs within his franchife, but by the precept of tlie flic- riff. 29 E. 3. 42. Coron. 462. And therefore it fccms in that cafe lie mufl return tlie appeal beforr the judge of gaol-delivery within the franchife, and he may make proccfs within tlie franchife to the ftieriff; ^•ic/e the cafe of Ely, 29 E. o. 41. f>. quivre, how the ufage is there, viz. whether the judge makes procefs out of the liberty, and to whom. But if the appeal be of a felony or treafon out of the county, the fame mufl be removed or certified to the juflices of gaol-delivery, and they may make procefs into any county of England to take the perfon appeald ; and fo the cafe of an appeal by an approver differs from the appeal^ by a perfon grieved. 5 H. 5. Coron. 431. 29i!i. 3. 42. Corofu 462. ^Stamf. P. C Lib. 1. cap. 52. /. 53. IV. The fourth power of the coroner is to take the confeffion of a felony by a felon, tho the felony were committed in any foreign coun- ty, and to take his abjuration. Stamf. f. 53. But by the ftatute of 1 Jac. cap. 25. continued by 21 Jac. cap. 28. the whole bufinefs of fanduaiy, and the abjuration before the coroner relative to fan6tuaiy, is taken away ; and therefore it is necdlefs to repeat the office or power of the coroner in relation to fanduaiy Co. P. C. cap. 51. S« I Blackr. Com. ch. g. pa. 346. 4 Blackf. Com. ch. 19. pa. 274. ch. 21, p. 2q:« Index to 2 Hawk. p. C. Tit. Coroner and Burn. Tit. Coroner. C H A P. IX. I 69] Concernifjg the flieriff, his power In pleas of the crown, as well by com- mijjion, as in his Turns. THE power of the Ihcriff to iiold pleas of the crown, as well as the coroners and other the king's bailiffs, is rcftraincd and taken away by Magna C/iaria, cap. 17. recited in tlie former chapter. Yit 69 HISTORIA PLACITORUM CORONiE. Yet after that flatute he had power to receive indi6>ments and prc- fentments of felony, tho he had not povver to determine them. And this power was of two kinds, vi-z. fpecial by virtue of a fpecial writ or commifli^n, and general or virtute officii in his Turn. The former of thefe powers, virtute brevis or commtjjionh, continued in ufe till the flatute of 28 E. 3. cap. 9. and by that ftatute all former commiflions and writs of that nature are rcpeald ; and enadled, that for the future no fuch commifTion or commiflions fhall be granted. And therefore H. 37 Efi-z. B. R. where the coroner found a death per 'infortunium., and it was furmifed for the king, that he wzs felo de Je^ and a melius Inquirendum prayed to the fherifF ; ruled that none ihculd iffue, becaufe contrary to the ftatute. The latter powder of the fherifF is virtute officii., and this ftill con- tinues in the fheriff, namely, that he hath power in his Turn to take inquifitions of felonies, that were felonies at co.nmon law ; but the flieriff cannot take any inquifition of any felony created by a6l of parliament, unlcfs the fame a£l likewife gives him jurifdi6lion ; and therefore the (heriff in his Turyi cannot take an inquifition of rape. -, This court is a court of record, and the fherifF or his ftew- •- ' ■' ard or clerk is judge in it, the ftyle Placlta coram vlcecomlte com' S. in Turno. The indidJments taken here have thefe requlfites. 1 . That the courts be held infra menfem Pafchts, isf men/em Ml- chaelh by the ftatute of 31 £. 3. cap. 15. or elfe they lofe their turn for that time, which hath been expounded their court fo held for that turn only (hall be void. Siamf. P. C. f. 81. I?. 6 H. 1. 2. a. 38 H. 6. 7. a. 2. The indictment muft be under the feals of the indiclors, and by twelve jurors at leaft by the ftatute of fVeJim. 2. cap. 13. fa). And by the ftatute of 1 E. 3. cap. 17. it muft be by roliif indented between the fheiifF and the indi6lors, (which laft ftatute extends alfo to leets and franchifes,) otherwife the indidments are void ; and one of the indidors muft fhew one part of the indenture to the juftices, when they come to make deliverance. 3. By the ftatute of I R. 3. cap. 4. the indiftors in the ftierifF's Turn muft have 20s. freehold, or 26 j. 2,d. copyhold, and be of good name, otherwife the flieriff or bailiff fhall forfeit IOj. and the in- di(^ment is void. C^J Z Co. I>:f,t. p, il7. And HISTORIA PLACITOnUM CORONvE. 70 And therefore, if any be arraigned of felony upon fuch an indi6t- ment, he may plead that one of the indiitois had not 20s. freehold, nor 26 i. 8^. copyhold ; fo that when it is faid h Jliall be void, it mud be intended void by plea ; for if the prifoner excepts not to it upon his arraignment, he is concluded by that omiflion. Upon thcfe indi6tments of felonies in the flieriff's Turtty tho they could not proceed to hear and determine them by rcafon of the ftatutc oi Afa^na Charta, cap. 17. yet the fheriif did commonly make out procefs or precepts in nature o{ capias to arrcfl; the parties, as appears by the ftatutc of JViJini. 2. cap. 13. But now by the ftatute of 1 E. 4. cap. 2. their power of making out procefs upon thefe indi6lments is taken away, as well in cafe of indi(5lments of fclonv, as other mifJemeanors within their cognizance; but thev are to deliver all fuch prcfentmenls and indiclme.its ^ - • 17*1 to the juftices of the peace at their next fcflions, who are *- ■* to make out procefs thereupon, and hear and determine them ; but it the original prefentment were not within the jurifdidlion oi the Turn, the juftices of peace ought not to proceed upon fuch indidtments, tho removed before them. 4 £. 4. 31. . Ill- cup. 10. to be thus: if a man had committed manflaughter either bv misfortune or otherwife, if he fled, and the jury were in- quired of by the judge if he were in dcccnna, then the decenna was to be amerced by the court, becaufe they had him not there; if he were not in any decenna^ then the vill was to be amerced ; becaufe they re- ceived him an inhabitant, apd had him not in franco plegio ; for every one above twelve years old Ought to be in frank-pledge, except clergy- men, noblemen, and knights and their families (*) : and therefore in the cafe of clergymen, noblemen and knights, if any of their family de manupoflu committed a murder or manflaughter, the clergyman, nobleman or knight was amerced if the malefa6lor fled, unlefs fome fpecial cuftom had abrogated it, as in HertfordJJiire : and thus did the pradtice long after continue: vide 8 E. 2. Coron. 428. Si ferviens all- cujus domini in fervitio Jiio exijiens facit feloniam i^ convincatur., quam^ vis poji feloniam ipjius non recepiavit, amerciandus ejl\ and 3 E. 3. Itin. North' ton, Coron. 203. It was prefented, thzi J. hz^ killed B. and it was demanded of the prefenters, whether he were in decenna ? They anfwered, He was not P Then it was demanded where he abode ? They fay with the parfon of the town ; and thereupon the parfon was amerced for his manupaji. Then it was demanded who was p'efcnt when he flew him ? They fay C. It was then demanded of them, whether C. received him [took him]? They fay Not-^ ■wherefore C. was amerced. Then it was demanded where the felon was? They fay he is efcaped; then it was demanded whether it were done in the day or the night ? They anfwer in the evening ; therefore the whole vill was amerced. Several things are obfervable in this cafe. 1. That if he i- ' 5 J Jiad been in decenna, the decenna had been amerced, becaufe they had not him prcfent adjlandum redo in curia. 2. That becaufe the parfon nor his family were not by law to come to the view of frank-pledge, he was amerced for one that was of his family, one de vianupajiu. 3. That he that was prefent and took not the ofi^ender, (•) Vtdt Part I. p. 6 j. in itetlt. was HISTORIA PLACITORUM CORON^E. 75 was alfo amerced. 4. That becaufe the felony was committed in the day-time, and tlie felon efcaped, the whole vill was amerced, 22 E. ?). Coron. 238. fo in effect three amercements for one efcape. And note, that according to Bratlon^ ubi Jupra, he is dc manupajluy qui ejl ad vlfiinn tsl veft'itiim, ox ad viflum cum mercede, as a houfhold fcrvant ; and according to the antient law, he that entertained a man three nights, made liim to he de manupajlu. This law of amercing the decenna, or him of whofe family an of- fender IS, is not abrogated, but yet it is not nowufed; but it was cer- tainly a mofl: excellent conflituiion, whereby every man was under the pledge of liis mailer or fatlier, with whom he lived, or muft be within {omt decenna that may fee him forthcoming : vide Spelman in Gloffar. litul. Friburg l^ Leges Edvardi, cap. ig. 20. fa). As thus the vill is anfwerable for an efcape, fo is he that is prefent when a n-. an (laughter or murder is committed, and doth not do his beft endeavour to apprehend the malefeftor, though he were not party or accefTary to the crime; with this agrees 3 E. 2. Coron. 428. before- mentioned, where it is called only an amercement; but S E 2. Coron. 395. he that was of full age, that was prefent when a manflaughter was committed, et ne leva le maine d^ attach le felon, was committed to prifon, till he made fine to the king, but he that was within age was difcharged fSJ. And tho in the book of 14 /7, 7. 31. /^. a perfon indidled for being prefent at a felony, without faying he was aiding and abetting, was difcharged, it was becaufe the indiftmcnt there was with intent to make him a felon, and not to charge him with a mifdemeanor for not purfuing the felon: vide Co. P. C.p. 117- It is a mifde- p >. - meanor, for which the party fliall be fined and imprifoned. *- -* Bvr that wliich hatli been faid, it appears, that the apprehending of a felon is in many cafes a duty, and not arbitrary, even in cafes of a private perfon, witliout any other warrant than v.'hat the law gives, and that the omiflion thereof is a mifdemeanor, and punilhable by fine or amercement. And now therefore I come to confider touching the arrefts by a private perfon in cafe of felony. And this is of thefc kinds. 1. Where the party arrefted hath really committed a felony, and this is known to the party arreting. 2. Where the party arrefted hath really committed a felony, but it is only Ca) U'iik. Leg. Ar^lo-Sgx.f. loi, (k) Hde Part I. p. 21. Vol II. F fufpcaed. 76 HISTORIA PLAClTORUM CORON^E. fufpedled, and not certainly known to the party arreting. 3. Where there hath been a felony comnutted, and the party arrefling doth, upon probable grounds, iufpect the perlon arrefted to have committed it, tho in truth he did it not. I. As to the firfl of thefe, where a perfon hath committed felony, and j1. knows it. It is true in this cafe, if the time and nature of the facSl, and the condition of things will bear it, it is bcH: to complain to a juftice ot peace, and have his warrant for t!ie apprehending of him ; or if that cannot be had in convenient time, then to call to his afliftance the conftable ; but fuch the cafe may be, that the delay that mnfl: arife neceflarily by thefe folemnities, may give the felon opportunity to efcape; and ilierefore in this cafe J. without any other authority than what the law gives him, may arrcfk or apprehend the felon; and if he cannot do it by his own flrength, he may call others to his afTiftance, or raife hue and cry for his apprehcnfion ; and if he doth not thus, he is punilhable, as is above declared, if it can appear that he knew it. And it will be all one, whether the felony were committed in the fame countv, or in any other county; for the law in this cafe makes J. an oSccr ; and this was antiently the law, and ftill is. Bradon. Lib. ult. in fine, in cnminalibus caufis, ubi fequi debet capitale ^pplici-' urn, vita videlicet vet mutilatio inembroruvi, non fcquitur atta- *- ' ' ^ chiamentum aliquod, fed corpus talis, quicunque ille fuoit, ab omnibus ancjhtur, qui funt adfidcm domini regis. Jive hide praccgtum habuerit. Jive non habuerit ; and accordingly it is ruled, 10 £. 4-. M.b. that it is a good juftitication for a man in an a6lion ot falfe imprifon- ment to fay, that the plaintiff committed a felony, and fhew what, and the defendant arrefted him, and delivered him to the conftable, or he might have brought him to gaol by himfelf or his fervant, as is there agreed. But the fafer way is, to bring him before a juftice of peace, who may examine and commit him. And as a private man may do thus upon a felony comrnitted, fo if he fee danger of murder by a dangerous wound given, he may pur- fuc the offender. 7 E. 3. 16. Barre 2^1. And in both thefe cafes, he may break open doors, if he be denied entiance, and if defaHi the felon or malefadlor be there, for the law makes him an officer in this cafe, as well as if he were a juftice of peace or conftable. 1 E. 3. IG. b. Nay HISTORIA PLACITORUM CORON.E. 77 Nay yet farther, if the felon rcfifts or flics, fo that he cannot be taken without killing him, this is juftihable, and no felony; but ftill it muft be where he cannot be otherwife taken, for it is for advance- ment of jiiftice, and fupineflion of felons, and therefor if they cannot be otherwife apprehended, it is ia^^'ful, as well as if /f. were a con- ftable, or had a warrant ; and if the books that fi)eak of this matter, be but carefully examined, it will appear that the law was fo generally taken, tho he were puilued or taken without any formal procefs to the ftierilF, and that as well before an arreft made, as after; and this zppe3.vs in terntinis, 22 y/JJiz. 55. 3 E. 3. Coron. 34G, Isl 328, isf 2H0. but indeed the books of 3 E. 3. Coron. 288, 239. are of a conftable and watchman : but in 3 L". 3. Coron. 349. the townfmen that did it were fined 40i. but it feems it was more for the efcape than the killing: vide Stajnf. P. C. Lib. I. cap. (j.f. 13. a. h. accordant. As lo the flatutes of Magna Charta^ cap. 29. 25 E. 3. cap. 4. 28 E. 3. cap. 3. 42 E. 3. cap. 3. they do not at all concern this prepara- tory imprifonment of a felon, as Ihall be fhewn in due time ; p -. and therefore whatfoever hath been before faid holds true in '- the firft inftance of his imprifonment, tlio the party be not yet indicicd. II. As to the fecond cafe, viz. where a felony is committed by B. but A. that arrefls him, doth not certainly know it, as not being pre- lent at the committing of it. • I take the law to be all one with the former cafe, ®nly what he doth herein, he doth at his peril ; for if in truth B. be a felon, then ^.' may arreft him, and may break a houfe to arrefl: him, if he he within the houfe, and refufcs to render himfelf ; yea, and if he will not fufFer fiimfelf to be taken, he may in cafe of neceflity be killed ; but this flill is at the peril of A. tor it he be no felon, it may be man- flaughter at leail in A. if he doth it. But how far forth this will be juftifiable In cafe that A. hath a good caufe of fufpicion, will be conliderable in the next enquiries. III. I'he third cafe . 56. 221. 22 ^/z. 55. and the reafon is, becaufe B. is not bound to take notice of A. as authorized to arreft him, as being no officer, nor having any warrant; it is true, a con- flable aiTefting in tlie king's name, or ottlring fo to do, the party is (•) Vide Pun I. />. 49c. F 3 bcuui Z3 HISTORIA PLACITORUM CORONJE. bound to take notice and fubmit, as hath been faid, Part I. cap. 37. but a mere ftianger offering to do it, a man is not bound to take notice of his authority, and therefore may fly from him if innocent, for poflibly he may think he came to rob him. 3. Yet farther, if an innocent perfon be adtually arrefted upon fuf- plcion by a private perfon, all circumflances being duly obferved, and he brsaks away from the arreft, yet I do not think the perfon arrcfting can kill him, tho he cannot be otherwife taken, for the perfon arrefted is not bound to take notice of that authority that the law gives to a private perfon in this cafe. But then can he juftify the beating or flriking of him in cafe he cannot otherwife take him that thus makes the aiTault ? As where a bailiff of the fheriff by warrant arrefteth a perfon, tho he cannot ftrike or beat him before the arreft to take him; yet after the arreft and efcape fuch bailiff may juftify his beating, if he cannot otherwife retake him according to the opinion of the book, 2 E. 4. 6. ^. And it feems he cannot, but only lay his hands gently upon him to lay hold of Iiim for the reafon before given. 4. But then fuppofe that either before the arreft or after the arreft, B. draws his fword and affaults ^. and ^4. preffeth upon him either to take or detain him, and in the conflidi: B. kills yJ. is it murder in B. or if J. kills B. is it juftifiable and no felony in /^F If the bailiff of a fheriff is about to take a prifoner, and before he takes him the party draws his fword and kills him, this is murder, as is before faid, Pari I. cap. 37. And en the other fide, if either after or before the arreft the bailiff upon affault made upon him kills the r Q -\ P^^'tyj ihis is no felony, neither is he bound to give back to ^ "^ -^ the wall. Co. P. C. p. 56 iff 221. It feems, that if the party arrefted kills him that thus arrefts upon fufpicion, always fuppofed the party killing is innocent,) this is but inanflaughter and not murder; and on the other fide, if the party ar- refting kills the party arrefted or intended to be arrefted by him upon fufpicion, that this is manllaughter; and tho the arreft in this cafe bad been lawful, yet the part} arrefting hath not the fame privilege, as in cafe of killing a man upon hue and cry, tho the party arrefted after the arreft, or upon the attempt of the arreft, affaulted him that ar- refted him or attempted to arreft him. 1. Becaufe in this cafe, tho the law impowers the party to arreft him, yet it is but a power of per- niif2on, not an injunvStion by the law, neither is he punilliable if he. bad I-IISTORIA PLACITORUM CORON/E. 84 liad not made fuch an arreft; and fo not like the cafe of an arreft by an officer, warrant of a juftice, hue and cry, where it is a duty to arreft, and the party, that omits his duty in this cafe, is punifliable by fine and imprifonment for his omifllon. 2. Bccaufe he might have had a legal warrant from a juftice of peace, or called an officer to his affiftance, and then he had been under a more effe«5lual protection of the law in what he did in purfuance of his duty. '3. It would give too great a latitude for perfons to be their own judges in this cafe, and to take away a man's life who is innocent, and poffihly miglit not have fufficient afTurance, that either a felony had been committed, or that he that arrefts had a jull: or lawful caufe of fufpicion. And it feems the law is the fame, whatfoever the caufe of fufpi> cion were, yea aklio the perfon were indicted for the offence, becaufe a perfon innocent may be indi£led, and becaufe there is another way to bring him into an anfwer, namely procefs of capias to the flieriff, who is a known refponfible officer. 3 E.. 3. Coron. 346. And thus far concerning arrefling by a private perfon upon fuf- picion. Sec Burn. Tit, Arreft per tot. & Index to 2 Hawk. P. C. tit. Arreft. Fofter. 136. 319, 320. and 4 Blackst Com. ch. 7,1. oi Arrefts. pa. 289, &c. C HA P. XI. [85] Concerning arrefts or apprehenfion of felons, or perfons fufpedled of felony l?y an officer. THKRE are certain officers and minifters of public juftice, tha^ virtiite officii are empowered by law to arreft felons, or thofe that are fufpedlcd of telony, and that before convidlion, and alfo be- fore indiftment. And thefe are under a greater protecfllon of the law In execution of this part of their office upon thefe two accounts. 1. Becaufe they are perfons more eminently trufted by the law, as in many other a6ts incident to their office, fo in this. 2. Becaufe they are by law punifti- able, if they neglect their duty in it. And therefore it is all the reafon that can be, that they fhould have the greateft prote^^ion and encouragement in the due execution of their 85 HISTORIA PLACITORUM CORONA. their office, fince their a6tings herein are not arbitrary but neceflary duties, ^not permiffions,) and under fevere punilhments in their ne- gledl thereof. And hence it is, that thefe officers, that are thus intruflcd, may without any other warrant but from themfelves arrefl felons, and thofc that are probably fufpe6led of felonies ; and if they be afTaulted and killed in the execution of their office, it is murder ; and, on the other fide, if perfons that are purfued by thefe officers for felony or the juft fufj)icion thereof, nay for breach of the peace or juft fufpicion thereof, as night-walkers, perfons undu'y armed, fliall not yield themfelves to thefe officers, but lliall either refift or fly before they are apprehended, or being apprehended (liall rekue themfelves and refill: or fly fo that thev cannot be otherwife appreiiLnded, and are upon neceffity flain therein, becaufe they cannot be otherwife taken, it is no felony -. in thefe officers or their affiftants, that upon inevitable ne- •■ -^ ceffity kill them, tho poffibly the parties killed are innocent, for by their re n (lance againft the authority of the king in his officers, they draw their own blood upon themielves. The officers that I herein principally intend are, 1. Jufliices of the peace. 2. Sherlff^s. 3. Coroners. 4. Conftablts. 5. Watchmen. And when I mention ihefe 1 alfo include all, that come in their aid and affiftance ; for every man in fuch cafes is bound to be aiding and affifl:- ing to thefe officers upon their charge and fummons, in preferving the peace and apprehending of malefa6lors, efpecially felons. And if any being thereunto called fhall not give their affiftance, they are to be puniftied bv fine ar.d imprifonment, and confequently are under the common protedlion of the law equally with the officers themfelves. And that was the rcafon of theftatutes of 7 'Jac. cap. 5 and 21 Jac. cap. 12. that gave power as well to affiftants of the moll ufual peace- officers, as to the officers themfelves, to plead the general ilfue, and give the fpccial matter of their juftilication in evidence, and allow double colls to the defendant. Wherefoever a private perfon may arrell a felon or perfon fufpe6led, there any of thefe officers may do it; but of this fufficient hath bocn faid before : 1 therefore come to that power, that concerns them fpecially as officers in this cafe, / I. 'Jujilct? HISTORIA PLACITORUM CORON.^. 86 I. Jujiices of peace have a double power as in relation to arrefl of felons ; one upon complaint of another perfon, whereof liereaftcr, cop. 13. Another priniitive and original in thcmfclves, wliercof at preient. If a juftice of peace fee a felony, or other breach of the peace, committed in his prcfcnce, he may in his own perfon apprehend the felon. And fo he may by word command any perfon to apprehend him, and fuch command is a good warrant without writing ; but if the felony or other breach of the peace be done in his abfence, then lie muft iffue his warrant in writing under his feal to apprehend the malefd<5lor, 14 H. 1. 9. b. adjudged ; and by Fincux, if there be any riot or breach of the peace like to happen by a tumultuous _ ^ meeting, iflc. he may command his fervants or others to pre- *■ •* vent it by arrefting tiie parties. And riote^ that if the juftice of peace hath either from himfeif or by a credible information from others knowledge of a felony done, and juft caufe of fwfpicion of any perfon, he may himfeif arreft and commit that perfon, 14 H. 7. 8. per Keble ; and according to it are the exprefs words of the ftatute of .34 E. 3. cup. 1. befoie- mentiond. II. Secondly, As to the fieriff, it is ordaind by the flatute of Wejimwji. 1. cap4 9. (a), "That all generally be ready and ap- *' pointed at the commandment and fummons of the flieriff, and at the ** cry of the country to fue and arreft felons, when any need fhall *' be, as well wiihin franchifes as without, and they that will not fo *' do, and thereof be attaint, fhall make grievous fine to the king, " and if default be found in the lord of the franchife, the king fhall " take the franchife to himfeif, is^r. And if the fheriff, coroner, or " bailiff", will not attach or arreft fuch felons there, as they may, or " will not do their office for favour borne, to fuch mifdoeis, and be ** attaint, they fhall have a year's imprifonment and after make *' grievous fime, if they have wherewith, and if not three years im- *' prifonment. By this ftatute the flieriff" is not only enabled but injoind to arrefl felons, and all pcrfons are required to be affifting to him therein upon his fummons ; and they are punilhable by fine and imprifonment in default tliereof. (a) z Co. lific.p. 17 2. And 87 HISTORIA PLACITORUM CORONA. And altho the flierifF in his Turn had power to take prefentments of felonies at common law, yet this was not intended barely of if- fuing precepts upon fuch inqnifitions, but to a minifterlal taking of felons as he was confer vator of the peace, for his Turn was kept but twice in the year, but the occafions of taking felons were fre- quent. And accordingly it was pra6lifed, vide 5 H. 1. 5. a. In fine^ the fheriff arrefted one fufpedled of felony, and no queftion of the law- fulnefs thereof. III. Coroners : Tho coroners had no power of taking in- *• -' quifitions of any felony but t]ie death of a man, as hath been fliewn ; and therefore by the exprefs provifion of the ftatute of 4 £. 1- De officio coronatoris he may not only make procefs but make hue and cry after them, yet by the flatute of Wejlmmji. 1. cap. 9. above-mentiond he is a confervator of the peace in relation to all fe- lonies, and can command them to be apprehended, tho he can take no inquifition concerning any but the death of a man. IV. For the ofBce of conjlable it is of twofold extent. 1. Mini- ■ fterial and relative to the juftices of peace, coroners, fherifFs, ^c. "whofe precepts he ought to execute, or in default thereof he may be indided and fined. 2. Original or primitive, as he is a confervator of the peace at common law. By the original and inherent power in the conftable he may for breach of the peace 'and fome mifdemeanors, lefs than felony, im- prifon a perfon. If a man leaves an infant in the cold to the intent to deftroy it, or charge the parifli, the conftable may take him and put him in the ftocks. M. 34 ^ 35 £//z. B. R. Croke, n. 1. Beal^z.nd. Char- tery p. 287. So if a conftable be affaulted by A. tho it be in his own cafe, he may imprifon the party and carry him to gaol ; but for opprobrious word^, or a general hindrance of him to fummon the trained bands to attend the lord mayor of London upon his precept, he cannot juf- tify the imprifoning of a perfon in the Compter^ 7". 31 jE/zz. Rot. 1521. Fulwood and Gafcoign ft) \ but he muft bring him to a juftice of peace : nota, in the juftification it was alfo adjuged, that he af- faulted him ;. ideo quare of that judgment. (c) Ha-vil. f. 97« And HISTORIA PLACITORUM CORON.^. 83 And what may be done by a conftable may be done by his deputy, for by the law a conftable may make a deputy, and he is within the ftatute of 7 Jac. cap. 5. to plead the general iffue. AL 1 3 juc. B. R. Fhelps and IVinchcombc (d). If A. menace B. to kill him, upon complaint thereof to the con- ftable he may arreft him and put him into the ftocks, till _ _ ^ he find iurety of the peace, 44 E. 3. Barre 202. but that is '" ^ ^ intended, that he may detain him till he can conveniently bring him to a juftice of peace and to avoid the [irefent danger, for tho foine of the old books feem to hold, tliat the conftable may take fureties of the peace and detain a perfon till he gives him fureties, yet it can- not be by recognizance but by bond, and that for an affray or menace of breach of the peace done in his view. H. 37 El'iz. B. R. Croke^ n. 25. S/iarrock and Ham?ier (e). If information be given to a conftable, that a man and woman are in incontinency together, he may take the neighbours and arreft them, and commit them to prifon to find fureties for their good behaviour, 1 H. "{. 6. a. there the cuftom of London indeed is pleaded; but 13 H. 1. 10. If. adjudged, that it is a good juftification for the conftable or any in afliftance to plead, that J. holds a meffuage in the fame vill, and (he kept perfons fufpe6led of common bawdry, and the plaintifF fufpicioufly reforted to that houfc with women of ill fame, and that he arrefted the plaintiff^ to find fureties for the good be- haviour. The conftable may arreft fufpiclous night walkers f/J by the fta- tute of 5 E. 3. cap. 14. and men that ride armed in fair or markets or clfe where. Stat. 2 E. 3. cap- 3. dc Northampton. And it appears by the books before-mentioned, that in cafes of arrefts of this or the like nature, the conftable may execute his office upon information and requeft ot others, that fufpecl and charge the Cd) Moor p. 845. " That it was not lawful even for a legal Ce) Cro. E/ix. fil^- " conltable to take up a woman upon a (J) But tlicn that fulpicion muft not be " bare fufpicion only, having been guilty a mere caufelefs fufpicion, but mull be " of no breach of the peace nor any un- founded upon fome probable reafon ; and " lawful a£t : and as to the cafe in 13 //. 7, fo it was luled in the cafe of the Ouccn " 10. the reafon thereof was, bccaufc it and Too'.ey, M'ub, 1709. for the murder of •' was in the view of the conftable, who D' authority, MS. Rep. murder, and gave this for one reafon, offenders, $0 HISTORIA PLACITORUM CORONA. offenders, nay tho it be but with fufpicion thereof. 5 E. 3. cap, 1 1. 13 H.l. 10. ^. 44 E. 3. Barrc 202. But if there be an affray, tlio to prevent it, or In the time of the affray the conftable may upon information or complaint arrcft the offender, yet it is held, that if the affray be paff, and no danger of death, the conftable cannot arreft: the parties without a wairant from a juftice of peace. 38 E. 3. B. Faux Imprlfonmcnt 6. But the law fcems contrary, for tho in that cafe he cannot take furety of the peace himfelf, yet upon a complaint to him he may arreft the party to bring him before a juftice to find furety of the peace, or £pr appearance. 44 £. 3. Barre 202. 35 Eliz. S/iarrock's ca{e^ Now as touching the conftable's power of arrefting ex officio in relation to felonies it may come under thefe conftderations, 1. What his power is to arreft when a felony is certainly committed. 2. What his power is to an-eft in cafes o{ fufpicion of felony. 3. What his power is in cafe of danger of felony, tho none be committed, as ia cafe of affrays or dangerous wounding. 1. As to the tirft of thefe, where a felony is committed, it is of all hands agreed, that he may ex officio arreft and imprifon the felon till he can conveniently be conveyed to a juftice of peace or the com- mon gaol. And it will be all one, whether the felony were committed in the fame vill, or in any other vill or county, if the felons be within the vill where he is conftable. And this appears clearly by the books of 2 i7. 7. 15 ^. 7 E. 4. 20. a. and divers others, and by the ftatute of PVeJitn. 1. cap. 9. 5 E. 3. cap. 14. And in that cafe it is on all hands agreed. 1. That he may break open doors to take the felon, if the felon be in the houfc, and his entry denied after demand and notice that he is conftable. 2. That if in fuch an attempt of arreft the conftable or any that come in his afliftance be kild after competent notice that he is con- ftable, it is murder. 3. That if the felon refift and cannot be taken, whether L ^^ ^ it be after the arreft or before, the killing of the felon, who cannot be otherwife taken, is no felony. And the reafon of all this is, becaufe he is ex effiic'w a confervator of the peace, and is not only permitted but by law injoind to take a felon, HISTORIA PLACITORUM CORONA. 91 fdon, and if he omits his duty herein, he ir> indictable and fubjecl ta a iinc and iniprifonment. And it is not material, wliether he faw the felony committed, or hatli It only by complaint or information ; for as well in one cafe as tlic oihcr he is bound to apprehend the felon, and make fcarch after him witliin the limits of his jurifdiiftion, and to raife hue and cry upfip him ; and certainly what may be done upon hue and cry raifed upon a ft Ion may be done by that conftable who upon the firft complaint raifeth it; and the law gives him protection in the execution of his office, and will never puni/h him \\\ the neceflary purfuit of what it iujoins him. And with this all the before cited books in the precedent chapter do agree ; for I have before therein determind, that in this cafe a pri- vate perfon may kill a felon, who is really fuch, if he cannot other- wife be taken; videfupra, p. 77. 2. I come to the fccond, namely what if there be a felony done, (fuj)pofe a robbery upon ^.) and A. fufpe6ls B. upon probable grounds to be the felon, and acquaints the conftable with it, and dc- ftres his aid to apprehend him ; in this cafe I fay, 1. That the conflablc may apprehend B. upon tliis account, tho the fufpicion arife in A. at Hrfi: \ and with this agree the flatutcs of 3 jE. 1. cap. 9. and 5 E. 3. cap. 14. and the books of 2 E. 4. 9. a. 5 Co. Rep. 91. b. Scma'ins cafe, Dalt. cap. 109. p. 292. fgj^ 13 E. 4. 9. a. accords 2 H. 1. 15. h. tho Brian be to the contrary ; but there are to be thefe circumftances to accompany it, I . A. the perfon fufpcding ought to be prefent, for the juflification is, that he did aid A. in taking the party fufpe6ted, 2 H.I. \o.h. He ought to in- quire and examine the circumftances and caules of the fufpicion of A. which tho he cannot do it upon oath, yet fuch an information may carry over the fufpicion even to the conftable, whereby - it may become his fufpicion as v^ell as the fufpicion o( A. ^ ''" -^ And it the conftable fliould not be allovvd this latitude in cafes of this nature, many felons would efcape, and the party airefted hath no prejudice thereby, for tlie jufticc of the peace, to whom in fuch cafes he is properly to be brought, may confider the circumftances, and pofTibly in fome cafes difcharge or ball him, and upon his trial, if in- nocent, he will be difcharged. 3. But there muft be a felony in fadl (g) New Edit, cap. idz. p. 535. done 52 HISTORIA PLACITORUM CORON.E. done, and the conftable mud be afcertained of that, and aver it in his plea, and it is ifTuable. 2. Confcquently, if the conftable upon fuch an arreft or attempt thereof be kild, it is murder as well as in the former cafe. 3. That in fuch cafe, if the fuppofed offender fly and take houfe, and the door will not be opened upon demand of the conftable and notification of his bufinefs, the conftable may break open the door, tho he have no warrant. 13 £. 4. 9. a- for it is a proceeding for the king by perfons by law authorized, and therefore there is virtually a non omittas in the actings of their authority. And the reafon of the difference between private perfons anefting upon fufpicion and conftables is, 1 . Becaufe that in the former cafe it is but a thing permitted to private perfons to arreft for fufpicion, and tliey are not punifhable if they omit it, and therefore they cannot break open doors ; but in cafe of a conftable he is punifhable if he omits it upon complaint. 2. Becaufe it would be a great inconvenience if every private man upon pretence of fufpicion flioulJ break open houfes, for they may not be of known value or refponfible ; but a conftable is an officer known within the vill, and his authority known, and is prefumed of fufficiency, for he is chofen by the leet, like a bailift' jurus tS" cojtusy who need not fhew his warrant (*). Again it fecms to me, that if a perfon thus charged with fufpicion of felony upon juft grounds of fufpicion, and where a felony is a6lu- P -1 ally committed, tho he be innocent, yet if he reilft the officer '--'•' after notice that he is the officer, and afCiult him, if the offi- cer kill him, it is no murder. But it may be more queftionable, whether if he fly and cannot be apprehended, the officer may kill him, where he is fufpedled and in- nocent, if he cannot be otherwife taken, as he may a felon, as before is fhewn, p. 11. but it feems he may, and it is no felony no more than in the former cafe, for thefc reafons, 1 . Becaufe the conftable is obliged to do his office in cafe of a probable fufpicion, as well as in cafe of an a6lual felony. 2. Becaufe he cannot judge, whether the party be guilty or not, till he comes to his trial, which cannot be till he be apprehended. 3. Becaufe the party draws upon hlmfelf this inconvenience, and makes himfelf fufpeded by his very flight from the known officer. (•) Vide Part I. p. ^61. And niSTORIA PL/VCITORUM CORON.^. 93 And this is the rcafon why, tho a man be innocent of a felony com- mitted, yet if he fletl for it, and that be prefcnteJ by the coroner, or found by the jury that acquits him of the felony, yet he forfeits his goods, becaufe it was his own fault that he did not Jlarc jur'i^ and brought upon himfelf the juft caufe of fufpicion, and put the country to trouble and hazard in purfuing him. And yet it is true, that if the felon were not once in the hanJs of an officer that had warrant to arrcft, as if he be in the houfe, and fly out at a back-dour before the officer feizeth him, this is not an cfcapc in the officer, 27 /IJfi'z. 9. But on the other ficie it may be faid, that it is neverthelcfs an efcape in the townfhip, for which tliey fliall be amerced, tho the pcrfon were never adually taken ; ^/W vide fupra^ cap. 10. And thcrcf(jre it is at the peril of the whole viil, if they take not a felon (*j, and when he is upon probable caufe fufpedled, he is pre- fumed to be fuch, till the contrary appear upon his trial. And therefore, as before is faid, a juflice of peace cannot difcharge a perfon brought before him but for fufpicion of felony, in cafe a felony were committed, but muft eiiher bail or commit him. And upon die reafon before given it fcems, that if a per- - fon be charged to the conflable for felony, or fufpicion of ^ -^ felony in the county of A. and the conftable charge him in the kind's name to yield himfelf, and he either before or after the arreft purfue him into another vill, ray into another county, the conflable hath the fame privilege and protivftion upon his purfuit and arrcil, as if he were taken in the county of Jl. tho yet he muft bring him before tlie juflice of that county where he was taken: vide Crcrr.pton de Pace^ p* ill, 173. Dah. p. 340. (IiJ. But for this latter cafe I lake the law to be all one in cafe of a con- ftable having a warrant to ancft a felon, or not having one, but do- ing it by his own intruific.power zvV/a';^ ^^^c/V, namely, that if he hath or hath not a warrant from a juflicc of peace to arreft a felon if the tl'lon fly into another county before arreft, he is to be brought before a juftice of that counry, or to the gaol of that counrv', where he is anefted ; but if he weie once ariefted and efcape, and upon frclli fuit he is taken by the conftable in another county, yet he may (*) This holds on'.y as to felony touch- p. 73. ;!ig ihc d-:aih of a man, but n )t iij cale (hj New Edit. t. (■ji, «{ other felony, a theft, &"(. 'vtiic Ju^rA, Vol. u. G be 94 HISTORIA PLACITORUM CORONA. be brought back to the juftice, or gaol of that county where he was firft arrefted (*) ; for in that cafe in fuppofition of law he is always in cuflody by force and authority of the firft arreft, as well where the arreft was v'lrtutc cffic'ii, as where done by a warrant. Vide 2 E. 4. 6. b. 13 £. 4. 8. b. And thus far touching the fecond cafe. 3. The third cafe is, where a felony is not yet committed, but in danger to be committed. If j4. hath wounded B. fo that he is in danger of death, and J. flies and takes his houfe, and fhuts the doors, and will not open them, the conltable of the vill where it is done, or upon hue and cry, may break the doors of the houfe to take him, if upon demand he will not yield himfelf to the conftable. 7 ^. 3. 16. ^. Barre 291. And in that cafe, if the conftable be kild, it is murder ; if he kill A. if he cannot be otherwife taken, it is" no felony, but excufable and jufiifiable by the neceflity caufcd by the obftinacy and default of A P ^ If there be an affray in the houfe, where the doors are *-^^ -^ {hut, whereby there is likely to be manflaughter or blood- flied committed, the conftable of the vill having notice thereof, and demanding entrance, if they within refufe to do it, but continue the affi-ay, the conftable may break open the doors to keep the peace and prevent the danger. Nay yet farther, if there be diforderly drinking or noife in an Tiouie at an unfeafonable time of night, cfpccially in inns, taverns, or alehoufes, the conftable or his watch demanding entrance, and being refufed, may break open the doors to fee and fupprefs the diforder ; and this is conftantly ufed in London and M'uidlefex. I come now in the laji place to confider what the conftable is to do with his prifoner that he hath thua arrefted for felony, or other caufes above-mentiond. In cafe of a fudden affray through pafllon or excefs of drink, he may put the perfons in the ftocks, or in a prifon, if there be one in the vill, till the heat of their pafTion or intemperance is over, tho he delivers them afterwards, or till he can bring them before a juftice of peace. If an ofFenfe be committed, for which the conftable may arreft, he may convey them to the fheriff, or his gaoler of the county ; and (*] VidtBanl. p.^%0. if HISTORIA PLACITORUM CORON.E. 95 if it be within a franchife, he may deliver them to the gaol of the franchife, and they are bound to receive them without taking any fine for the fame by the ftatute of 4 E. 3. cap. 10. vide 5 H. 4. cap. 10. 23 H. 8. cap. 2. But the fafeft and bcft way in all cafes, is to bring them to a juftice of peace, and by tiiem the prifoner may be bailed or committed, as the cafe fliall require ; but till they are bailed or dif- charged, or the fherifF or gaoler hath received them, they arc dill under the chargre of the conftable that took them. 10 //. 4. 1. a. Efcape 6. Till the conftable can conveniently convey the parties arrcfled to a juftice of peace, or the common gaol, as when the arrcft is in or near night, he may detain the party in the ftocks ; or if there be no ftocks in that vill, he may bring them to the ftocks of the next adjacent vill. And if the perfon be of quality or Tick, the conftable may p /- - [keep him in an houfe (ijl^ for a day and a night at leaft, ^ > J and in fome cafes of ncceflity for a longer time, till he can with fafety and conveniency convey him to a juftice of peace, or the common gaol. 20 E. 4. 6. b. 22 E. 4. 35. b. Dalt. p. 340. The charges of fending malefactors to gaol by the common law, is to be borne by the vill where they are apprehended. '6 E.I. Cor on. 328. 4£. 3. cap. 10. But now by the ftatute of 3 Jac. cap. 10. the charge is to be borne by the prifoner, if he hath wherewith, the fame to be levied by vyar- rant of the juftices of peace ; and if he hath not wherewith, then the charge to be borne by the pariih, townftiip, or tithing, where the of- fender is apprehended, by a tax or rate to be made, as by the faid ad is prefcribed. And what 1 have herein faid touching the conftable is applicable to a tithing-man, headborough, burlholder, for their authority is much the fame. But the conftable of the hundred is a dlftindt oflficer, and introduced upon the ftatute of IVlnton, vide H. 37 Eliz. B. R. Crcke, n. 25. Sharrock and Hanmer ; yet he feems to be a confervator of the peace. V. IVatchmcn: Watchers arc of three kinds, 1. That which is appointed by the ftatute of IVinion., cap. 4. which is that from Jfccn- Jion-day until Alichaelmas^ watches fhall be kept in all towns from CiJ Thefe words are not in the MS. bu: they or others to the like effeS are minlfeft- ly w^tcd to fupply the fcale. G 2 fun. gS HISTORIA PLACITORUM CORON.E. fun-fetting to fun-rifing in boroughs, ts'c. by twelve, in other towns by fix or four, according to the number of the Inhabitants : this watch is to he fet by the conllable, and the negledt thereof punifhable by 5 //. 4. cnp. 3. Their power is to arreft fuch as pafs by until the morning, and if no fufpicion, they are then to be delivered, and if fuf- picion be touching them, they lliull be delivered to the (lierifF, viz.' to the common gaol, there to remain until they be in due manner de- livered ; and if tliev will not obey the ancft, hue and cry fliall be P - levied upon th^^m ; but this watch extends only between ^/~ ^ -^ ' -' cenjion day and Michaelmas. 2. But there is another watch that may be kept by the conftable €x officio, which may extend to other times, becaufe there be other things under his charge, as a confervator of the peace, as for the purpofe to raile or purfue hue and cry upon lobberies committed by the ftatute of IVinton, cup. 1. to fcarch for lodgers in fuburbs of cities, that are fufpicious perfons, which is to be done every week, or at leaft once in fifteen days by the fame ftatute, cap. 4. for fuch as ride or go armed by the fiatutc of 2 E. 'i. cap. 3. for night-walkers and perlons fufpicious either by night or day by the ftatutc of 5 E. 3. cap. 14. And altho a conflable is not bound io any preclfe time for this kind ot watch, nor punifiiable, if he omit it barely for the omiflion, if he be ready upon occafion to do his office, when required in thefe cafes, yet it is in his power to hold fuch watches as often as he picales, and it is convenient and jullifiable, and herein the watchmen arc the miniftcrs and afliflants of the conftable, and are under the fame pro- tedlion with him, and may ad as iie doth ; and regularly he ought to be iu company with them in their walk and watch. 3. There is yet a third kind of watch, which is by authority of the jufliccs of peaot, which may be held at other times than the flatute of JVin^n appoints, and the watch thus appointed hath the fame power as either of the former; and this feemg to be within the i^ower of any one jufncc of peace by the tirll AJJignavimm in his commiffion; vick Lamb. JujTic. Lib. I. cap.-~2il.-p. 183. Dalt. cap. 60. p. 142. fkjy and cap. lOy p. 292. (IJ ; but the fafer way and more ufual is by order of the fefiions of the peace or of the court of king's bc-nch, which hath the higheft ordinary authority in matters of the peace and prefervation thereof. (kj Nev EcJt. cap, 104. f, 3jz. (IJ New Edit, cup. 10^^ p. 536, No\V HISTORIC PLACITORUM CORON.'E. 97 Now a watchman hath a double proteclion of the law, vrz. 1. As an afliftant to the conflable, when tlie conflahlc is j)rcrcnt or in tho watch, tor fo every man, who is afTifting to the conllubic in the ex- ecution of his office, hatli the fame protedlion, that the ^ , law gives the conftable. 2. Purely as a watchman fet by ^ -^ -* order of law ; and the law takes notice ot his authority fn^^ co nomlnr^ and therefore killing of a watchman in execution ot liii office is mur- der. Co. P.C. cap. 1. p. 52. D Co. R<-p. 6o. a. MackaH/^ tafc. And fuch a watchman may apprehend night-walkers and commit them to cuftody till the morning, and ulfo felons and peffons fufpeflcd of felony. And thus far of arrcfts virtute officii. Sec Burn. Tit. Arrefl. per tot. Index tj i Hawk. P. C. Tit. Arrefl. Foftrr 136, 315, 320 & 4. Blackf. Cum th. 21. Of arrefts, pa. i8y, &c. See Burn I'l: CuQlUble. Burn. tit. Watch. CHAP. XII. Of arrells of felons upon hue and cry ra'ifed. HUE and cry is the old common law procefs after felons and fuch as have dangeroufly wounded any pcrfon ; And this hath received great countenance and authority by feveral a6ts of parliament. By the ftatute of JVcJlm. 1. cap. 9. (a), it is cnaded, " 'Tliat all " be ready and apparelled at the fummons of the fhcriiF l^ a cry de ** pays to purfue and arrcft felons as well within franchifes as with- ♦' out ; and if they do it not and be thereof attaint, le toy piendra a •* eux grevement, they are to be indiiled and lined for the negle6l. By the ftatute of 4 £. ). Dc officio coronatoris " Hue and cry (liall M be levied for all murders, burglaries, men-flain, or in peril to be " flain, as other-where is ufed in Et^land, and all fhail follow the " hue and ftcps as near as they can ; and he that doth not, and is *' convidl thereof, fliall be attached to be before the jullices in eyre.'^ By the ftatute of Iflnton, cjp. 1, " From henceforth every coun- •' try Ihall be fo well kept, that immediately upon robberies and (aj t C.>. Ir.jiit pin- ^ S ** felonies 59 HISTORIA PLACITORUM CORONA. ** felonies committed frefh fuit fliall be made from town to town, " and from country to country :" and cap, 4. " If any will not *' obey the arreft of the town, where night-walkers pafs, they " fliall levy hue and cry upon them ; and fuch as keep the town, *' (I'lz. the bailiff or conftable), fliall follow with hue and cry with *' all the town and the towns near ; and fo hue and cry (hall be made *' from town to town, until they are taken and deliverd to the jflie- '* riff; and for arreftments of fuch Grangers none ihall be pu- ** nifhed." And this is in truth but the antient law ; thus it appears by Bradony Lib. III. cap. 1. where he mentions a provifion per dom'inum regent iff ejus conJiUum, (which mufl be intended an antient a6l of parlia- ment,) quod omnes tarn milites quam aliiy qui funt qu'indecim annorum iff ampUiis, jurare debent, quod utlcgatos, viurdratores, robbatores^ l^ hurglatores non rcceptabioit, nee lis confentirent, ncc eorum receptatorU hus. Iff y Ji quos tales nover'int, eos attachiari fac'icm, iff hoc vlce-comiti Iff belUvh fuis inonjlrahunt^ Iff Ji hucjium vel clamorem de tal'ibus aU' diverint, Jiat'im audho clamore fequentur cum familia iff hominibus de terra fua (*). And it is one of the articles of inquiry In the leet in the ftatute de v':Ju franci plcgu, dc hues levies iff tiient purfues, and among the capitula Itincris de hucfto kvato Iff non fccuto : -vide Coke fupcr Jlat. fVefim. 1. cap. 9. 2 Injiit. p. 172. And altho it is a good courfe to have a juftice of peace to diredi his warrant for raifmg hue and cry to prevent caulclcfs hues and criesy yet it is neither of abfoluie neceffity nor fometimes convenient ; for the felons may efcape before the juftice can be found, and hue and cry was part of the law before the ftatute of 1 E. 3. cap. 16. which firft icftituted jullices of peace. And altho alfo it is fpecially incumbent upon conftables to purfue hue and cry., when called upon, and they are feverally punifhed, if they neglevil it (b), and it prevents many inconveniencies, if they be .. there ; for it gives a greater authority to their purfuit, and '- -• enables the purfuants in his affiftance to plead the general (•) Vidi Tart I. p. 2^ (jf 24. in Tiotis. " utmoft expedition, as foon as he fhall (h) By 8 Geo. 2. cop. i6. " If any «' receive notice thereof, he fhall, for " conftabic, headborough, fefr. within the " every fuch lefufal or neglcft, forfeit " hundred wherein any rubbery fhall hap- «' five pounds, one half to the king, and ♦' pen, fhall refufc or negledt to make " the oilier half to fuch perfon as fhall «• tuc and cry aficr the felons with the " fuc for the fame," iffue HISTORIA PLACITORUM CORONA. lo^ iflue upon the ft^tutcs of 7 ^ 21 Jac. without heiug diiven to fpeclal pleading ; and therefore to prevent inconveniencics that may happen by unrulinefs, it is moft advifeuble, that the conftable be called to this a^lion. Yet upon a robbery or other felony committed, hue and cry may be raifcd by the country in the abfence of the conftable, it is there- fore called Cry de pah. Neither is there any inconvenience confiderable in it ; for if hie and cry be raifed without caufc, they that raifc it are punifliablc by fine and imprifonment. 2 Co. Injiit. p. 17'J. And accordingly it was agreed by the two chief juftices and three other judges, upon the trial of PackJmrJl, Jackfon, and others, who were all convi6ted of murder, and executed, for killing two of x\\c countrymen that followed them, being highway robbers. Lent vaca- tion, anno Car. 2. 26. In this matter of hue and cry thefe things are confiderable, i/lz. 1. By whom it is to be levied. 2. How it is to be levied. 3. In what manner to be purfued. 4. What may be done by them that purfue it. 5. How punifiied, if omitted or negledled. I. Hue and Cry may be raifed as well by an ofEcer of juftice, as by the precept of ^ juftice of peace upon information of a felony. Or it may be raifed by any private perfon that is robbed, or knows of any felony. II. Touching the maimer of it : It is diverfe according to a variety of circumftances. 1. The party tliat levies it ought to come to the conftable of the vill, and give him notice of a felony committed, and give him fuch reafonable affurance thereof as the nature of the cafe will bear. 2. If he knows the name of him that did it, he mud: tell the conftable the fame. 3. If he knows it not, but can defcribe him, he inuft defcribe his perfon, or his habit, or his horfe, or fuch cir- cumftances that he knows, which may conduce to his difcovery. 4. If the thing be done in the night, fo that he knows none of thefe ciicumftanccs, he muft mention the number of the pcrfons, or the way they took. 5. If none of all thefe can be difcoverd, as .. where a robbery, or burglary, or felony is committed in the *- ^ night, yet they are to acquaint the conftable with the fa£t, and defire him to fearch in his town for fufpe6led perfons, and to make hue and (yy after fuch as may be probably fufpedted as being perfons vagrant G 4 in loi HISTORIA PLACITORUM CORON.^. ill the fame night, for many civcumftances may ex fofl fatio be ufcful for difcovering a malefaftor, which cannot be at firft found (c). III. In wliat manner it is to be puifued. 1. The conftable is to make fcarch in his own vill, 2 £. 4. 8 ^ 9. 2. He is to raife all the neighbouring vills next about, Crompt. de Pace, f. 178. h. 3. It is to be purfued with horfe and foot: vide 27 El'fz. cap. 13. Dalt. cap. 2S. p. 15. (d), per direfhon de Hyde, chief juftice. \Y. What may be done in purfuance of a hue and cry levied, and therein I think as foUoweth : 1. That in cafe of A;/f and cry once raifed and levied upon fuppofal of a felony committed, tho in truth there was no felony committed, yet thofe that piirfue hue and cry may arreft: and proceed, as if fo be a felony had been really committed. And therefore the juftification of an imprifonment by a perfon up- on fufpicion, and by a perfon, efpecially a conftable, upon hue and cry levied do extremely differ ; for in the former, there muft be a felony averred to be done, and it is iffuable ; but in the latter, vi-z. upon hue and cry it need not be averred, but the hue and cry levied «pon information of a felony is fufficient, tho perchance the inform- ation wfie falfe; and therefore 1 do not find any averment r j^^-i of a felony committed in cafe of a juftification of an im- prifonment upon hue and cry. b H. 1. b. a. 21 H. 1. 28. a. per Redcy 2 £■. 4. 8 b" 9 And the reafons hereof arc thefe. 1. Becaufe the conftable can- not examine the truth or falfiiood of the fuggcftion of him that hift levied it, for he cannot adminiftcr him an oath, and if he Ihould for- bear his purfnit of the hue and cry, till it be examined by a juftice of peace, the felon might efcape, and the purfuit would be loft and fruitlefs. 2. Becaufe the conftabie is by the a61s of parliament (cj Bv 27 E.'ix. cat. 13. To the levy- '< fuch robbery at the dwelling-houfc of ing of hue and cry, fo 3S to rhargc ihe " fuch conftable, fefr. ddcrib.i.g, as far bur.drtd for any'rrbbery it is rtqiufite, " as the nature and cucumUanct-s of the »' That the larty robbed do, with all con- «« cale vill admit, the fdon or felons, and " Ntniciu Ipccd, give notice thereof to " the time ynd pljre of the robbery ; and ♦• the inhabitants oi fome town, vilUgc, or " alio wuhin twer.iy days next after the •' hamlet, near the place where the rob- " robbery r.ommitttd, caufe public notice •' bety vas commilicd;" And by 8 " to be given thereof \n ihc LorMn Ga- Cto. 2. y tx^e f>atu*.e of 3 £. 1. cap. 9. au conmandrnenu isi a HISTORIA PLACITORUiM CORONiE. io6 bf a Ics futnmcns de v if count & mi cry de pays muft be umlcrftood disjuiivStively, (of at the cry of the country) for the flieriff liad jiuif- tli<5tion at the common law to take indidments of old felonies in his Turn ; and fo he hath ftill, tho he is not now to make pro- , cefs upon rhtin by the ftatuti: of 1 E. 4. cap. 2. L / J The coroners have alfo power to attach manflaycrs by their war- rants after intjuiiition, whereby they are found guilty, but that feems nut t(j be all their power ; but they may make out warrants f(#r ap- prehending thofe perfons that are not, or cannot l>c prefented before them, as thofe that were prefent and not guilty ; nay alfu of burglais and robbers, and yet they cannot take an inquifition touching thenv; this appears evidently by the flatutcs of '^ E. \. cap. 9. and V E. \. Officiuvi corofiatorls. And with this agrees the common ufagc at this day for the coroners to take manflaycrs before their in^uiliiion be taken, for many times the incjueft is long in their inquiry, and the offender may efcape, if he (Vay till the inquifition deliverd up. But bccaufc at this day the greatcft part of the bufmefs of this nature is difpatched by juftices of the peace, I fhall be more large touchino their warrants, wherein neverthelcfs much of what is faid theiein will be applicable to the wan ants that ilFue in like cafes by other perfons. And therein I fliall principally confuler thcfe particulars, 1. When and in what cafes they may iffue theii warrants for the apprehend- ing of felons. 2. To whom. ;5. How and in what manner fuch precept or warrant is to ilTue. 4. What may be done by the officer in purfuance thereof. I. As touching the firft, in what cafes; juftices of peace may- make warrants lor the faking of felons or pcrions fufpevSt of felony. My lord Coke in his jurifdidlion of courts, cap. '6\. p. 176, 177. hath deliverd certain tenets, which, if they (hould hold to be law, would much abridge the power of juftices of peace, and condemn the couftant and uiuul praiflice, and give a loofe to felons to efcape impunilhed in moft cafes (*), viz. 1. Ihat a jiftice Oi peace can- not upon compLiint iflue a warrant to apprehend a felon before in- dklmcnt, grounding himfelf upon the hafty opinion of fitzhtrhcrt and BiudueU, 14//. S. \(>. a. who yet hold the officer c.xcufc*!, that makes the arreil upon that warrant. 2. That admit he may {*) yUc Part I. ;> 575 isj fupra p. 79. arrcfl io8 HISTORIA PLACITORUM CORONA. arreft, yet he cannot break open a houfe to take the felon by virtue of that warrant. 3. That admit he may arreft by that warrant, yet he cannot iflue a warrant in cafe only of fufpicion. 4, That admit he may, yet no houfe can be broken by virtue of fuch >varrant. Touching tht fecond 2iX\^ fourth matter I fhall confider them, when I come to the bufinefs of the officer's power in purfuance of a juftice's warrant ; but touching the power of ifliiing this warrant by the juftices of peace, I fhall now confider it : And therein I fay as followeth. 1. That a juftice of peace hath power to iflue a warrant to ap- prehend a perfon accufed of felony, tho not yet indi6led. That, upon which the doubt muft arife to thofe that made a doubt of it, muft certainly be the ftatutes of Afagna C/iarta, cap. 29. Nu/Ius liber horns imprifonetur Iffc. n'lji per legale judicium parium fuorum vcl per legem terra. 25 E. 3. cap. 4. " None ftiall be taken " upon fuggeftion made to the king or his council, unlefs It be by *' prcfentment or indi6tment, &c. or by writ original at the com- *' mon law." 28 E. 3. cap. 3. " No man fliall be taken, or im- " prifoned, or difmherited, or put to death without being brought to *• anfwer by due procefs of law." 42 E. 3. cap. 3. *' Whereas ** upon falfe accufations people have been brought before the king ** and council, it Is ena6led, that no man ftiall be put to anfwer •* without prefentment before juftices or matter of record, or by due ** procefs and writ original according to the old law of the land. Now all the weight of the quedion upon thefe ftatutes is to fee what the law ©f the land Is ; for If thefe preparatory arrefts of felons be not againft the law of the land, they are not reftrained by thefe ftatutes. Certainly by the law of tlie land, if a felony were com- mitted, or but fufpedted to be committed, a man might be arrefted by the party that knows, or upon probable grounds fufpedls him to be the felon ; or by a conftable upon complaint, or upon hue and cry, and he might be carried to prifon, and there detained till deliverd |. -, by due courfe of law ; and yet this perfon fo arrefted not all *• "-" this while indifted: vide Jiatutes 3 E. 1. cap. 9. 4 E. 3. cap. 10. and 5 E. 3. cap. 14. And all this was in order to preferve the peace of the kingdom, and to fupprefs felons. But this being not found effc6lual enough, by the ftatute of 1 J5. 3. cap. 16. for the better keeping and maintaining of the peace com- miflions HISTORIA PLACITORUM CORON.^. 109 millions are to iflfue for the fame in the feveral counties ; this was their primitive Inftitution. Their power was enlarged hy the ftatutc of IS E. 3. cap. 2. to hear and determine felonies and trefpaflTes : and by the flatute of 34 E. 3. cap. 1. their power is farther enlarged, and parti- cularly their taking as well perfons fufpe6ted as Indidled of felonies mentioned in that a6l Is required, which, tho perchance it refer only to thofe that have been robbers and gone beyond the fea and fince re- turned, yet It is a pattern for others. Now by thefe ftatutes furely as much power is intended to be tranf- lated to the juftlces of peace In order to the prefervatlon thereof, as was In a conftable or private perfon, for the judices of the peace are confervators of the peace and more. And let a man look upon all the a£ls of parliament, that have been down to this day, he fhall find that the power of juflices of peace to convene and commit felons before Indi6lment is allowed. 4 E. 3. cap. 2. Sheriffs fhall not let to mainprife fuch as btt Ind idled or taken by juftices of peace, unlefs mainpernable by law, 1 R. 3. cap. 3. and 3 H. 7. cap. 3. concerning balling of prifoners committed upon fufpi- clon, \ ifi 2 P.^ M. cap. \o. 2 iff 3 P. tsf M. cap. 10. by which it appears, that juftices of peace may commit for felony, yea or for fufplcion of felony, 3 Jac. cap. 10. 5 H. 4. cap. 10. fo that the im- prlfonment before iiididment Is furely lawful and not within the re- {{.laint of Magna Charta ; andlffo, then furely their arreft is much more lawful, for It is but to bring pevfons to an examination In order to their commitment, bail, or dlfcharge; and there Is no greater re- cord of their commitment than of their arrefts. 2. He may alfo iflfue a warrant to apprehend a perfon fufpefted of felony, tho the original fufpiclon be not in himfelf, but in _ ^ the party that prays his warrant ; and the rcafon is, becaufe '- -' he is a competent judge of the probabilities offered to him of fuch fufincion. And as a conftable may upon complaint arreft a perfon fufpedled of felony, as appears by what hath been fuid in the foregoing chapters (*), fo a juftice of peace may do the like by his warranty and it Is alfo the conftant pradtice accordingly. But that I may fay It once for all, It is fit in all cafes of warrants for arrcfting for felony, much more for fufplcion of felony, to ex- amine upon oath the party requiring a warrant, as well whether i, (•) yiJe tap, xo, /. 80, and cof. 11. f>. 91. See iU'o Part I. />. 6io, felony no HISTORIA PLACITORUM CORON.^i felony were done, as alfo the caufes of his fufplcion, for he is in this cafe a competent judge of thofe circumftances that may induce the granting of a warrant to arreft. And if there were no other reafon to prove it than this, it were fuf- fecicnt; namely, that thejuftice of peace may commit him to gaol that is brought before him for fuch fufpicion, or bail him, as appears by the ftatutes of 1 R. 3. cap. 3. 3 H. 7. cap. 3. I i£f 2 P. & Af, cap. 10. and tlierefoie a fortiori may make a warrant to convene or bring him before him to examine the caufe of the fufpicion. II. As touching the fecond matter, to whom this warrant is to be dircdlcd? Ufually the warrant or precept is diredled to the fherifF, or bailifF, conftable, or tithingman, and they are bound to execute it ; and if they do not, they may be indid^ed and fined for their neglcA. But it may be dire6led to any private perfon or his own fervant, 1 4 H. S. 16. a. Cro7?i/it. de Pace, f. 147. b but he is not bound to exe- cute it; but if he execute it, it is as good as if he were an officer. If a warrant be diredted from a juflice of peace to a conflable of J9. to arreft a felon, l^c. he is not bound to go out of the vill, where he is conftable, to execute the warrant; but yet if he do execute it in another vill, it is good enough, for he a61s herein not fimply as con- r -x ftable of Z>. but by virtue of the iuftice's warrant ; and fo it I 1 1 1 I . *- •* was ruled in my tmie at the affizes m Norfolk about 1668. III. As to the third matter, how and in what manner it is to be made or iffued? Touching which thefe things are regularly to be obferved. The party that demands it ought to be examined upon his oath touching the whole matter, whereupon the warrant is demanded, and that examination put into writing. The party charging another thus with felony ought to be bound by recognizance to profjcute at the next fcflions or aflizes, as the cafe {h^ require. Dalt. ca/i. 117./). 334. (a). The warrant ought to be under the hand and feal of the juftice, 2 Co. Injiit. p. 52. It muft have a certain date, but the place, tho it muft: be alledged in pleading, need not be cxprcffed in the warrant. 14 //. 8. 16. a. Regularly the warrant ought to contain the caufe fpecially, and ihould not be generally to anfwer fuch matters as Jliall be objetUd (a) U(VJ Edit, sap, I'i^.p. 579. againji HISTORIA PLACITORUM CORONA, iix again/I him, bccaufe it cannot apjicar, wl^ethcr it be within th j'jrif- dit^ion of the juftice of peace, neither can it appear whether the party be bailable or not. 2 Co. InjVit. p 52. 591- And therefore upon fuch a general warrant 'r-turned upon an habeas corpus, it is in the pleafurc of the court of king's bench to bail or dif- chargc him; and accordingly for this rcafon, P. 23 Car. B. R. in Brown's cafe, he was difcharged. But yet I hold fuch a warrant is not therefore void, but \i de fmlo the matter be within the jnrifditftion of the juftice, and fo averred, fuch a general warrant is a good juftification cfpecially in cafe of felony, and antienrly it was generally held fuch general warrants were good in cafes of treafon or felony ■*), tho in wanants of the peace and good behaviour the caufe niuft be fhewn, that the party may come provided with his furcticS; and accordingly vide RafiaVs EntneSy tit. Attachment 1. Dalt. cap. 117. p. 329. (h), Crom/it. de Pace, f. HS. a. T. 37 Eliz. C. B. Brono-hton and Mtdjhoc (c)\ and - -. . .fiizj accordingly ruled by my lord Coke himfelt contrary to his •- opinion in his comment upon Magna Charta, T. 7 Jac. C. E. the cafe of the mayor oi Canterbury: vldefupra. Part I. cap. Sir. p. G09. Breach of prifon. A juftice of peace may make his warrant to apprehend a perfon fufpefted by name upon a complaint made to him ; but where upon a complaint to a juftice of a robbery he made a warrant to apprehend all pcrfons fufpecftcd, and bring them before him, this was ruled a void warrant, P. 2\ Car. 1. ui the cafe of juftice Stva/Iowe, and was not a fufficient juftification in falfe imprifonment. A juftice of peace may make a warrant as well in cafe of felon'- as of the peace to bring the party before h'lmfclf, and r'^en the uiticcr ouo-ht to bring the party before him, that made the warrant, 5 Co. Ret. 59. b. Fofter''% cafe; or he mav make the warrant to bring him before any of hU majcjWs jt'fikes of th- peace., ox before h'mfelf, or any of hh majefiysjufliccs of the peace., and then it is in the eleflion of the of- ficer to briiig him before which juftice of the county he pleafes; and it is no: in the eledion of the party to go before whom he pleafes ; adjudged 5 O. Rep. 59. b. Fojlcr'% cafe againft the opinion oi Fhieux 21 H. 7. 21. a. (*) Crompi. 133. l> I SiJ. 78. Dait.p. 862. 5 Afod. P.p. p. 8c. Sj. 85. 574. and Sir li'tUtim V ymiham'i cz^e. Trin. (b) iSrio Edit. p. 574, 2 Gm. \. B. R. l^Ue tdrpin the cal'c of Ken- (cj Meere, p. 408. da! And Roioe, S.jr< Tr. Fol, IV. p. 86 1, Vol II. H And 112 HISTORIA PLACITORUM CORONi^. And in fome cafes he may naake his warrant to bring him to the fcfTions of the peace, tho it is better to bring him before himfelf or fome jufticc, tliat the party may be in the mean time bailed, if there be caufe, to appear at the felTions of the peace or gaol-dcHvery, as the caufe fliall require. A warrant of the peace mav be to bring the party complained of to the juflicc, to the intent to find fureties tor his appearance at the fef- fions, ^t-. and in the mean time to keep the peace, or the warrant may beyT rccufavetit, tlien to bring him to the common gaol Ibidem moraturtiSy quoufquc gratis hoc fecerlt ; a;id yet the conflable or officer may bring him in that cafe before the juftice; and if he refufe there to give fureties, he may by virtue of the firfi: warrant bring him to gaol, and commit without any farther warrant or minimus, 5 Co. Rep. 5;>, b. FoJIer^s cafe. -, Tlie warrant of a juflice before indictment may be in the *■ "^ king's name with the Tejle of the juftice, or it may be in the natne of the juftice of peace himfelf; the hitter mofi: ufual ; but procefs after indidtment ilTued from a feffions of the peace is aUvavs in the king's name, Dalt. Jnjikc, p. 404. 347, 343, (dj. But whe- tlier generally a jullice of peace out of feflions can iffue a warrant to apprehend perfons offending againvi: a penal law, tho within their cognizance, and fo to bind them over to the fefTions, or in default thereof tJ commit them, and this before indictment, fcems doubtful : vide Lamb. 188, IS9. Dalt. cap. \\1. p. ZZl. (ej. Thefe things feem to make againfl it. 1. Becaufe iome acts of parliament do par- ticularly and exprefly authorize them to it, which they would not have done, if it had been othcrvvife lawful. 2. Becaufe in moft cafes of this nature, tho the party were indidled, or an information prefer- red, yet the capias was not the firft procefs but a venire facias and dif- t^ingas, and in cafes of information no procefs of outlawry at all, 8 H. 6. 9. b. until the flatute of 21 Jac. cap 4. gave procefs of outlawry in atflions popular, as in adlions of trefpafs vi isf armis. In cafe of a complaint and oath of goods flolen, and that he fufpedls the goods are in fuch a houfe, and fhews the caufe of his fufpicion, the jufl:ice of peace may grant a warrant to fearch in thofe fufpefted places mentioned in his warrant, and to attach the goods and the party in whofe cuflody they &re found, and bring them before him or fome juflice of peace to give an account how he came by them, and farther (dJ New Edit. p. 593. (e) New Edit. />• 576, to HISTORIA PLACITORUM CORON.E. irj to abide fuch order, as to bw Hiall appertain : vide Dalt. p. 35.i. ffj And this is warrantable by law, and without it felons could not in many cafes be difcovercd, and is the conftant pradlice at this day, notwithftanding the opinion of my lord Ccke in his jurifdi<£lion of courts, /;. 176. But in that cafe it is convenient, 1 . To exprcfs that the fearches be made in the day-time. 2. That the party fuipedtingbe prefent to give the officer information of his goods. 3. There can be no p -, breaking open of doors to make the fearch, but he muft enter ^ per ojlia apcrta, or upon the voluntary opening of the door by the houfe-keeper or his fervants; and the reafon is, becaufe the bare having of ftolen goods in his houfe doth not neceffariiy make a man either a felon or accelfary. 4. But becaufe the having of ftolen goods in his cuftody is prima facie an evidence of a felony and a good caufe of fufplcion, it is a lawful cl.iufe in the warrant to attach the party, in wliofe cuftody they are found, to come before the juftice. 5. The goods being found ought not to be delivered to the party com- plaining, but to remain in the conftable's hand, till cither by a writ of reftitution upon the conviction of the felony, or by due order of the court they be delivered. But the general warrant to fearch all places, whereof the party and officer have fufpicion, tho it be ufual, yet it is not fo fate upon the reafon of juftice Sivalloiv's cafe before cited ; aaJ yet fee precedents of fuch general warrants, Dalt p. 353, 354. The warrant of a juftice of pence ought regularly to mention the name of the party to be attached, and muft not be left in generals or with blanks to be filled up by the party afterwards. Dah. cap. \\1. p. 329. (gj. If there be a riot or breach of the peace in ihe prefence of one or more juftices, they may arreft the rioters tiiemfelves, or com- mand any officers or others by word of mouth without warrant to arreft them, and they may by virtue thtitoi flagrante crimine arrelt them in the abfence of the juftice by the true meaning of the ftatute of 34 £. 3. cap. 1. and 13 H. 4. cap. 1. quod vide adjudged 14 H. 7. f> y 10. And therefore if a riot be committed and difperfed by the coming of ^e juftice of peace, and they be fufpccted probably to meet again or threaten to do fo, tho the conftables may ex officio lupprefs the riot, (J J New Edit. p. 598. (s) NcM Ed.t. p. 574. H 2 and 114 HISTORIA PLACITORUM CORONiE, and raife the power of the vill to do it , yet I think it clear, that a jufiice of peace may deliver a fpecial warrant in the hands of any per- fon to arrefl the rioters, if they re-aflemble, tho there be no particular |. ^ perfons named in the wairant, becaufe it may be impoflible *" -^ to be known what their names are, and yet the peace is ne- ceflary t6 be kept, as well as the breach of it to be punilhed; and the juliice cannot always perfonally watch their re-affemblinu;, but muft trufb others to do it; and tliis is admitted of all hands in the book of 14 //. 7. 9. and the only doubt is, whether it may be done by word, which yet is adjudged there good. And thus far for warrants. IV. The fourth thing is the manner and order of their execution. If a warrantor precept to arrcft a felon come to an officer or other, if the felon be arrcfted and after arreft efcape into another county, yet he may be puifued and taken upon frefli purfuit, and brought before the juftice of thecoun;y where the warrant iflued, for the law adjudgeth him always in the officer's cuftody by virtue of the firft arrefl ; but if he efcapes before arrefl into another county, if it be a warrant barely for a mifdemcanor, it feems the officer cannot purfue him into another county, becaufe out of the jurifdi6lion of the juftice that granted the warrant; but in cafe of felony, affray, or dangerous wounding, the officer may purfue him, and raife /lue and cry upon him into any county, but if he takes him in a foreign county, he is to bring him to the gaol or juftice of that county, where he is taken, for he dotii not take him purely by the warrant of the juftice, but by the authority tliat the law gives him; and the juftice's warrant is a fufficient caufe of fufpicion-and purluit. 2 E. 4. 6. b. Dalt. cap. 118. p. 340. f/ij, 7 E. 3. IG. /». n £. 4. 4. Z-. Tho a perfon, that hath a warrant to arreft: for felony or other mifdemeanor, may call others to his affiftance, yet he cannot make a "warrant to another as his deputy to execute it, or command another to execute it in his abfence. 8 E. 4. 14. a. But it is held, that if the warrant be direded to the ftieriff, he may make a warrant to his bailift" to execute it, and may command by word his under-flieriff^ to execute it without any other warrant. 8 £, 4. 14. a. Dalt. cap. 1 17. p. 332. (I J. {h) Ntw Edit. p. 24. fef 5S5, (ij Nliv Edit. p. 577. If HISTORIA PLACITORUM CORONA. ii6 If a warrant iffue from a judicc of peace to a private ptrfon to aiTcfl for felony or any other matter, he is not bound to fliew Ins warrant, unlefs it be deniandeil, and then he mufl (liew it. But if it be direded to a known officer, as to the iherilf, who is a known officer in the county, or to a conflable, who k a known offi- cer in the vill, he is not bound to fhew liis warrant, tlio demanded, no more tlian a hii'xUlYJutus isf conns; it is enough for him to fay / arrcj] you for felony, &c. in the king's name. « E. 4. 1J-. a. 14 H. 7. 9. />. 21 H. 7. 23. a. 9 Co. Rep. 69. MackctUy\ cafe (*). But it is reafonablc and aho fale tor the officer to acquaint him what he attacheth or arrellcth liim for, for it is a great fecuriiy to the officer that arrcfts liim, and juft for the party arrefled to know the caufe for v\hat it is. A warrant of a juftice of peace to arrcft for felony may be executed in a franchifc within the county, for it is the king's fuit, in which a non omittas is virtually included. Where bv virtue of a warrant from a juftice of peace thehoufc may be broken to apprehend a telon or other malefactor, there are thele (liverfities. Upon a warrant to fcnrch for ftolen goods the doors cannot be broken open ; for tho it be for the king, yet the law enables not the breaking of houfcs in all cafes for the king: (vide flatutc 12 Car. 2. cup. li'. a fpecial ad to enable the fearch and breaking open of an houfe in cafe of goods uncullomed) and therefore the entry to fearch by fuch a warrant mull be per ojiia aperta. So upon an excommunicato capiendo, tho it be the kmg's fuit, yet doors cannot be broken to take him. IL 42 EUz. C. B. Crokc, n. 17. Smith and Smith (k). If a juftice of peace iflues a warrant to apprehend a felon, who is in his own houfe, and after notice of tlie warrant and rcqucil i -^-i to open the door it is refufed or ncgkded to be done, the officer may break open the door to take him ; and the fame la%v is, if it be but for fufpicion of felony. 13 E. 4. 9. a. 5 Co. Rep. ^\. b. Sc mains cafe (f). (*) This was an aa arrcft in acivilaftion, otherwife in cafe of felony, becaufe in fuch and the wai rant there meant wdS not the calc a private perfon may ajreil a felon ■writ or warrant for arrciting the party, but without any warrant at all. Viae Far: I. f. the general warrant conftituting liim bailiff, 45S in not'n. and of this ire the caf-s in the year-books (k) Cro. EUtj. 741. here cued to be undcrftoud ; thy it may be (+) Fart I. /. 58a. li 3 And 117 HISTORIA PLACITORUM CORON^E. And fo much more may he hreak open the houfe of another per- fon to take him, tor fo the IherifF may do upon a civil procefs. 5 Co. Rep. 93. a. Semairi's cafe. But then he muft at his peril fee that the felon be there, for if the felon be not there, he is a trefpafTer to the Granger whofe houfe it is ; but in both cafes the officer muft firfi: notify his bufmefs that he comes about, and demand adm.iGon. Ibidem. But in cafe of wanants to fearch for ftolen goods I think the doors of any perfon cannot be broken up. If a warrant of the peace ifiue from a juftice of peace, the officer or miniftcr of fuch warrant may break open a door in cafe of refufal to open after demand and notice of his bufmefs : ruled by Popham and Clerk '6 Jac. Dalt. cap. 78. p. 204, 205. (I). Isow touching the killing of a man jujilciari fe nolenth, where there is a lawful wairant againft him, much hath been faid before ; ■where I confidered the conftable's power (*) ; fomewhat I Ihall fay here. It is neceffary in this cafe to confider the difference between an arreft upon a warrant for felony, and an arrefl for a fimple mif- demeanor. And alfo a difference if the officer kills him in cafe of a flight, or of a refiftance and an attempt of a refcue after arreft. If there be a warrant againft J. for a trcfpafs or breach of the peace, and A. flies and will not yield to the arreft; or being taken jnakes his efcape, the minifter kills him, this is murder. But if J. either upon the attempt to arreft, or after the arreft af- fault the minifter, that hath the warrant to arreft him, to the intent to make his efcape from him, and the minifter ftanding upon his . Q^ guard kills him, this is no felony, for being by law author- *- -* ized to arreft him, he is not bound to go back to the wall,' as in common cafes of y^- defendcndo, for the law is hrs protection. And therefore as on the one fide if ^. kills him, it is murder, fo on the other fide if upon this affault by A. the minifter kills him, it is no felony ; the neceffity excufeth him, if he cannot otherwife fave himfelf and perform his duty. And herein it agrees with the common cafe of a fheriff's bailiff in the execution of his warrant. Co. P. C. cap. 8. p. 56. ^IJ Nru Edit, ctp, 127. f. 427. (*) Supra, f>. 91 &f 77. Fart I. /. 489. But HISTORIA PLACITORUM CORON.^. ii3 But wliere a warrant ifTuetb ii-ainrt a felon, and citlier before ar- reft or after he flics and defends himfclf wiih flunes as the i)Ook of 3 E. 'i. Coron. 290. or with his bow and arrous, as the record is of M. 22 E. 3. Rot. in. coram rege Ebor (mj, fo thai the officer muft give over his puifuit, or otherwife cannot take him with- out killing him, if lie kills him, it is no felony ; and tlie fame law is for a conilabic, that doth it vlrtidc ojfuii, or upon a puriult of hue and cry. And the fame law it is, if in truth he were no felon, hut yet a warrant is againfl him as fufpeil of felony, and he having notice tJicrcof flies and refifls, for the officer or minifter ought to puifue his warrant, or othcrwife he is puniihable ; and the i arty by his flight and refiflance is acceflary to his own death. But then there mufi: be thefe cautions. 1. He muft be a lawful officer, or there mufl be a hue and cry, or there mufl be a lawful war- rant. 2. That the party ought to have notice of t!ie re ifon of the purfuir, namely becaufe a warrant is againOt him, for liis flight muft be upon notice to him of the intent to anxft him tor felony. 2 E. 4. 9. a. And 3. It muft be a cafe of necedity, and that not -> fuch a neccfllty as in the former cafe, where an immediate aftault is made upon the miniftcr juft at his coming to arreft, or to refcue himfelf from him; but this is the neccflity, viz. that he can- not otherwife be taken, and the rcafon is, becaufe it is for the public good, and tiicy are punilliabic, if they neglctSl in any manner what they ought to do, namely the miniftcr by tine and impriionmenr, and the townftiip by an amcrcemtnt. But tho a private pcrfon may ancft a felon, and if he flies fo as he cannot be taken without he be kiid, it is cxcufahle in this cafe for the neceffity, 22 ^£iz.. 53. per Thorp, yet it is at his peril, that i\\g party be a felon, for if he be innocent of the felony, the killing, at leaft before the arreft, feems at Icaft manfiai.gritcr for the rcafon above (m) This was the cafe of Henry Vij'cy, aftcrwjids indified, " qood fclo'ifc in- vho had been indided bcfote the fheiitf " tcrfccit prxdidum H. Vcjrv, kd qaia inTurnofw) atmoR.R. nono oi A\\er% tc- " comiJCiiuin dl, quod pracdidus // ds Ionics, wheieupon the fhcritf rti'indu'vU " Ciyderaii-e praedidluni H. l^'fy indx- eommijjijnemfuam Henrico de Clydcrawc ^ " tntum de divcilii leloniis fugam f.icien- aliis ad capiendum fra.-dii'ium H. Vel'cy £3* " do, ut i>loiicm dommi regis, virtir.e Jaivi ducendum ujque cajirum de tbor'. " coinmifTionis fiiae pviuiida; anno R. I^efcy would not fubmit to an arrell, but " nono iiitcrfccit & noii tclonice ; conii- ficd, & inter fugierjum fhot wii!i his bow •' dcratum eft, quod icl-.m li. dc Ciyuti' and arrows ai his pui facrs, but m the end " avje cat ludc quiclu;." ■was kjld By Clydtrwut. Clydiravie wis H 4 ' given. 119 HISTORIA PLACITORUM CORONtE. given, for an innocent pcrfon is not bound to take notice of a private perfon's fufpicion (*). It a juftice of peace have jurifdiclion in the cafe, (as he hath in all felonies and breaches of the peace, yea tho it be high-treafon, fo far for:K as it is a breach of the peace) tho he errs in granting of his warrant, it fecms that the officer that executes it, is excufable. 14- J/. 8. 16. a. per curiam. Yet :n fome cafes, as touching rates for the poor, tho he hath jurifdiiflion in the matter by the ftatute of 4-3 Ellz. cap. 2. the officer is puniAiabk for .xecuiing il;e warrant, where none ought to iffue, bccaufe it is a circumfcribed particular jurifdiclion given him by a£t of parliament, which he ought flri£lly to purfue. T. 10 Car. B. R. 2 Rol. Abr. 560. Nichols and Walker. When the officer or minifter hath made his arreft, he is forthwith to bring the party to the gaol, or to the juflice, according to the im- port of the warrant. But if the time be unfeafonable as in or near the night, whereby he cannot attend the juflice, or if there be danger of a prefent refcue,' or if the party be fick and not able at prefent to be brought, he may, as the cafe fliall require, fecure him in the flocks, or in cafe the quality of the perfon or the indifpofition fo require, fecure •- him in a houfe till the next day, or fiich time as it may be reafonable to bring him. 2 E. 4-. 9 & 10. (f). When he hath brought him to the juftice, yet he is in law ftill in his cuftody, till either the juftice difcharge or bail him, or till he be adhially committed to the gaol by warrant of the juftice. \0 H. 4. 7. a. Efcape 8. And thus far concerning arrefts by warrant or precept. See Burn. tit. Arreft. Index to z Hawk, P. C. tit. Arreft. 4 Blapkf. Comr ch. 2r. Of Arrefts. pa. 289. &c. See a Wilfou 288. Eiuickv. Carrington touching Ge- ceral Warrants. (•) Vide Jufra, p. 83. (+) Vidcjupra, p. 95, 96. CHAP. HISTORIA PLACITORUM CORONA. 120 CHAP. XIV. Concerning the office of a juftice, nvhen a per [on charged or fufpe^ed of felony h brought before him. WHEN a party thus arrefted for felony is brought to the juf- tice of peace, he muft: eitJier difcharge, or commit, or bail him. But preparatory to thefe zdis there are fome things, that arc re- quired of him before he do eitlier. 1. By the ftatute of l b* 2 P. ^ M. cop. 13. and 'Zlsi '6 P. isi M. cap. 10. he is to take the informations upon oath of the profe- cutor and witneffes and put them into writing ; and he is hkewife to take the examination of tlic perfon accufed, but this is to be without oath and put into writing. And thefe examinations and informations he is afterwards to deliver into che general ieflions of the peace or to the gaol-deli veiy, as the cafe Ihall require ; and becaufe it may be unfeafonable to take thefe informations or examinations prefently, or pofTibly it may take longer time, the prifoner mav be continued in the cuftody of the officer, or may be detained in the juftice's houfc, or committed to fome near fafe place of cuftody, till the examinations can be taken. But this muft be difpatched in fome convenient time, and j. ^ therefore, P. 43 Ell-z. C. B. Scavage and Tateham (a), in '- ^ an adllon of falfe imprifonment brought by a perfon brought before the mayor of Pom/ret^ a juftice of peace, upon fufpicion of felony, the defendant could not upon the account of examination juftify the detaining him in the jufliice's houfe nineteen days ; but it was held, that he might detain him three days upon that account. 2. It is fit to take a recognizance from the profccutor to appear and prefer a bill of indidment, and alfo of the witneflcs to appear and give evidence at the next feffions of the peace or gaol-delivery, as the cafe fliall require, if he fliall find caufe to commit or bail the pri- foner ; otherwife it is, if he fhall difcharge him. Tliefe things being thus premifed, as I faid, the prifoner is either to be difcharged, or committed, or bailed, {a) Cro. Eliz. 8:9. Fidf Part I. /. 5S5. I. Touching 121 HISTORIA PLACITORUM CORON^E. I. Touching the difcharge of a prifoner. If a prifoner be brought before a juftice of peace exprefly charged with felony by the oath of a party, the juftice cannot difcharge him, but muft bail or com- mit him. If he be charged with fufpicion only of felony, yet if there be no felony at all proved to be committed, or If the faft charged as a fe- lony be in truth no felony in point of law, the juftice of peace may difcharge him, as if a man be charged with felony for ftealing of a parcel of the freehold, or for carrying away what was deliverd him, and fuch like, for which tho there may be caufe to bind him over as for a trefpafs, the juftice may difcharge him as to felony, becaufe it is not felony, Kelw. f. 34. 44 AfF"^' ^2. Poulton de Face 146. b. But if a man be kild by another, tho it be per in-, fortunlum or fe defendendo, (which is not properly felony,) or in making an aflault upon a minifter ofjuftice in execution of his office, (which is not at all felony,) yet the juftice ought not to difcharge him, for he muft undergo his trial for it; and therefore he muft be' committed, or at leaft bailed. J. , II. As touching commitment or imprifonnient of a party ^ -' brought before a juftice for felony, or fufpicion thereof, thefe things are to be obferved : 1. The coiTimitment muft be by writing under the feal of the juftice. And therefore altho a juftice may by word of mouth arreft a perfon for a breach of the peace done in his prefence, yet in that cafe the commitment of him ought to be a mittimus under feal ; thus it was refolved in Sandford's cafe (*), P. 23 Car. 1. B. R. but agreed he may detain him in his cuftody, till a warrant can be made. And herein the power of a juftice differs from the power of a court i for the court of king's bench may commit by order, and fo may the court of fefTions of the peace, becaufe there is or ought to be a record of the commitment. Nay in chancery, if an order be made for commitment of a perfon, till he enter into bond, Isfc. the warden of the Fleet may juftify the jmprifonment by virtue of that order. T. 39 Eliz, B. R. 2 Rol. Ain'* p. 559. Taylor and Beal. {*) Parti. f.6ii* 2. The HISTORIA PLACITORUM CORON^E. 122 2. The mittimus ought to have thefc clrcumftances. 1. It mud contain the cercainty of the caufe, and therefore if it be for felony, it' ought not to be generally pro felonia, but it muft contain the cfpecial nature of the felony briefly, ^sfor felony for the death of J. S. or for burglary in breaking the hotife of J. S. is^c. and the reafon is, becaufe it may appear to the judges of the king's bench upon an habeas cor- pus, whether it be felony or not (•( ) : and likewife by the flatute of S H. 1. cap, 3. the flierifF is to make a calendar of the prifoners in his gaol, and deliver it to the juftice of gaol-delivery fignifyin? the prifoners and their caufes : vide 2 Co. InjVu. 52 isf 591. 2. It is fit to mention the name of tlie juflice, and his authority in tlie beginning of the mittimus, tho this is not always neceflary, for the feal and fubfcription of the juftice to tb.e mittimus is fufficient wanant to the gaoler: vide fapra (**) ffJ* Dalt. 355 ^ 383. (b), for it may be fupplied by averment, that it was done by the juftice. 3. It muft have a certain date of the year and day (*). 4. It fliould have an api conclufion, namely to detain him till he be thence L '^«3 J deliverd by due courfe of law. 2 Co. Injlit. ubi fupra (f). But altho it be true, that thefe things are regular and fit, namely the caufe, the juflice committing, the date, the apt conclufion, yet I am far from thinking the wanant void, that hath not all thefe cir- cumftances. And therefore the jufiification in falfe imprifonment againft the gaoler may be good by virtue of fuch a wan-ant ; and it feems to me (contrary to the opinion of my lord Cohe, ubi fupr^J that if an ■ efcape be fuffercd willingly by the gaoler upon fuch a general war- rant, it will be felony in him : vide qua fupra, cap. 54. Part I. p. 609. De frangentibus prifonam (c ). And therefore if the conclufion of the mittimus be to detain him till further order by the juftice, it is true Jt is an unapt conclufion and therefore binds not up the hands of the jufiices, to whom it may belong, to bail or deliver him, as the cafe fliall require ; but the com- mitment is notwithftanding good, if there be any tolerable certainty in the body of the warrant for what it is, as for felony generally, Ao the particular is beft to be cxpreflTcd. (i) PlJefapra, f III. {*) Supra, p. 111. ('•) Parti, p. 577. (t) FtdeVartl. p. (,Z^. (bj New Edit. j>. 575 6f 593, (cj Sec alfo Fail. I . />. 595. 3. Regularly 123 HISTORIA PLACITORUM CORON/L'. 3. Regularly the commitment is to be to the common gaol of the county, or if the ofFenfe be commitrcd and the party taken within a franchife that hath a gaol, (as the Gatchoufe at Wejimin- Jrer^) then to the gaol of the franchife, by the ftatute of 5 H. 4. cap. 10. Only fometimes it hath been ufed by the juflices of peace to fend fuch prifoners, which are bailable and have not th.ir bail ready, to fome private prifon, as the Ne-w Prifon in Middlefex for feme Ihort time, till they can procure iheir bail : but this hath ahv^iys been dif- liked by the juftices cf the king's bench and gaol-delivery as incon- venient, and not agreeable to the law (d). 4. If the prifoner be bailable yet the juftice is not bound to demand bail, but the prifoner is bound to tender it, otherwife the P juftice may commit him; quod vide 14 i7. 7. 10. a. per *- ^-' Fineux, accordingly adjudged T. 40 Eliz. C. B. Col/in's cafe ; and fo of a fherifF, that hath taken a man by cap'msy where he is bailable. Thus far touching commitment of an offender. But in fome cafes the offender is neither difcharged nor committed, but bailed, and that comes next to be confidered. But becaufe the buGnefs of bail is large and various, I fhall refer that to the next chapter. Burn. Title Juftices of the Peace, (d) See the cafe of Kendal and Roc, SteteTr. Vol. IV. j>. 86a. & fupra, Part I. f' 585. in itsiit. CHAP. XV. Concerning bail and mainprife. TOUCHING bailing of felons, &c. there will be thefe things inquirable. 1. What it is, and the nature and kinds of it. 2. In what cafes it may be, and in what not. 3. By whom faj. 4. In what manner it is to be done, by writ or .without writ fl^J. 5. The penalty of erring therein fcj. Ca) Infra, cap. 16. ^ Jubjine cap> 1 7. (ej Infra, fub fine itijus capitis, (bj Infra, caf>. 17, Touching HISTORIA PLACITORUM CORONiE. 124 Touching tin- firjl, namely the nature of bail. Bail and maiuprile arc ufed promifcuoufly oftentimes for the fame tluno;, and indeed tlie words import much the fame thing, for the former is traditus J. S. and the other is manucoptus per y. S. But vet in a proper and legal fenfe they differ. 1. Always main- piifc is a recognizance in the fum certain, but bail is not always fo. 2. He, that is delivcrd per iiwnucapt'ioneyn only, is out of cufliody ; but he liiat is bailed, is in fuppoiuion of law llill in cuftody, and the parties th.at take hini to haii ate in law his keepers, and may re-feize him to bring him in ; and tlierefore if a man be let to mainprife, fup- pofe in the king's bench, an appeal or other fuit cannot be brought againft him as In cujlodi viarefcalli; but if he be let to bail, he is in fuppofition of law ftill in cujiodia marefcalli, 33 E. 3. Mainprife 12. 36 E. 3. Ibidcyji 13. 32 H. 6. 4. a. Frote^lion 13. and ac- j- cordingly tlie books of 2\ H. 7. 20. b. per Fineux, and •*•* 9 E. 4. 2. ct. that fccm to differ, are to be underflood. 3. Tho fometimcs the recognizances themielves both in bail and mainprife are in fums certain, as fhall be fliewn, yet the entry on record in the one cafe is deliberatur per manucaptionem, and in the other cafe traditur in ba Ilium. But now for the kinds of bail properly fo called, it is of thefc kinds. 1. Sometimes it is in no fum certain at all, but traditur in ballium t© y. S. and this is the ufual form in all bails in civil a*5lions in the king's bench ; and antiently it was fo alfo in criminil cafes, tho now, as (hall be fliewn, it differs. And of this kind was the antieiit form of tliat bail, which was corpus pro cofporc, which now is rarely ufed in that form, and the reafon why that is difuled is, becaufe there was antiently a loofe opinion, that he, who was bail in this manner for a felon, was to be hanged, if he brought not in the principal to keep his day, 33 E. 3. Afainprife 12. but the truth is, all his punifhment is to be fined for his default. Crompt. yujlue. f. 157. a. 11 //. 6. 31. b. And fo in civil actions, where this kind of bail is fometlmes in ufe, as appears 27 i/. S. 11 ^ 12. 21 H. 7. 20. b. the bail is amerced, if he have not the principal at the day. 2. Sometimes the bail is only a recognizance in a fum certain for the appearance of a felon, and this is ufual, viz. the principal in double the fum i as for inftance in 40/. or more, the furetics each of 125 HISTORIA PLACITORUM CORONA. of them in 20/. a-piece ad comparendum i£ Jlandum re£lo in curia de latroclnio pradldo fecundum legem, l^c. Dalt. cap. 1 14. />. 305. (a). The fureties ought to be at leaft two men of ability, and their number and fufficiency and the fum of the recognizance is much in the difcretion of him that is to take it, and therefore he may examine tliem upon oath ; but how thefe are punifhable that take infufficient bail, fliall be faid hereafter. The fureties ad JIandum jur'i doth import alfo, that he •- -' (hall plead to the felony ; and therefore before the ftatnte of Marlhridge, cap. 28. (b), if the felon had flood upon his privilegium clericals and would not anfwer the felony, his bail had been amerced, which is remedied by that ftatute. 3. The third fort of bail is that, which is Indeed the true and*re- -gular bail, which is not-only a recognizance in a fum certain, but alfo a taking to bail, the true form whereof is contained in Lambert's "Jujlicc, Lib. I. cap. 23. p. 2G4. M^morand' quod die, anno, i^c. co- ram, tsfc. venerunt A. £<^ B. ^ ccperunt in balUum J. S. captum i*f detentum pro fiifpicione cujujdam fclonia ufqua proximam generalem gaola deliberationem in comitatu pradido tenend\ ^ ajjwnpferunt, viz. quilibet coriim Jub pcena 20 1. de bonis & catallis, terris (5* tenementis eorum Isf cujujlibet eorum ad opus didi domini regis levand\ Ji pra- didus J. S. ad eandem proximam gaolce deliberationem non perfonaliter comparebit coram ju/iiciariis di£ii domini regis ad didam goalam de- liberandi aJJJgnatis ad refpondendum dido domino regi tunc l^ ibidem fuper prami£is, or fuper iis, qua ad tunc tsf ibidem ipji objicientur, or rather according to the antient form adjiandum redo de latrocinio prc£. diflo fecundu^' legem Isl confuetudinem regni Kx\^\2£. Dat. fub JigiUis nojiris, die., anno, \^c. Vide F. N. B. 250. Crompt. 157. b. But the feal need not be, for he is a judge of record, only his hand fimply fubfcribed, or fubfcribed capt. tsf cognitus die isf anno fupra- di£lo coram Math. Hale. This is the form of a bail, where the principal is either an infant or in prifoii, and fo abfent ; and thereupon a warrant ifllies under the hand and feal of him that takes the bail for his enlargement, called a liberate. But if he be bailed by a juftice of peace before commitment, or if committed and brought into the court of king's bench or feffions to (a) Neva Edit, tap, i66. /> 150^ (f>) ^ ^^- I'^fiit.p, 150. be HISTORIA PLACITORUM CORON^E. 12S be bailed, then the party himfelf is alfo bound ; and fometimcs the recognizance is lunijlc with a condiiion added for his appearance, and fometimcs the condition is containd in the body of the rccoo^ni- zance, ut fupra : Only it is to be rcmembred, tliat when any pcifoa is bailed for any mifdemeanor cither upon the return of an habeas corpus or otherwifc, the return or record ought to be L ' ^ firfl filed, and a conDuittitur marcfcaHo eiitred, and then bail taken; for all perfons, that are bailed in the king's bench, are de fuilo, or in fuppofirion of hw firll fuppofcd to be in cujlodia niarefcaUl. The advantage of this kind of bail is this, that it is not only a recogiii/ance in a fum certain, but alfo a real bail, and they are his keepers, and nny be puni.'hed by fine beyond the fum mcntiond in the recognizance, if there be caufe, and may rc-feizc the prifoner, if they doubt his efcape, and bring him before the juflice or court, and he fliall be committed, and fo the bail be difcharged of his recog- nizance. 36J?. 3. Maiupnfe iZ. 32 jE. 3. Afainprife 23. Crompt, Jujike, /. 157. «. Touching the fecond^ in what cafes a perfon is bailable, tliat Is accufed or indidled of felony or accelfary, or in relation thereunto. I fliall not meddle with bailing of prifoners In civil a6lions or for ofFenfes lefs than felony by acb of parliament, only thus much. Regularly in all ofFenfes either againft the common law or a6ls of parliament, that are below felony, the offender is bailable, unlefs, 1. He hath had judgment. 2. Or that by fome particular or fpecial a6l of parliament bail is oufted. What adls of parliament oufl: bail in particular ofFenfes againfl thofe a6^s is not my purpofe to declare, they are very well collected by Mr. Dalton, cap. 1 14. (cj^ and Mr. Crcmpton de pace regis,/. 154. b. i£ Jcqiientibus. In relation to capital ofFenfes there are efpecially thefe aiSls of par- liament, that are the common land-marks touching ofFenfes bailable or not bailable, viz. 3 £. 1. or IFcJIm. 1. cap. 15. 34 E, 3. cap. 1. 23 H. 6. cap. 10. 1 R. 3. cap. 3. 3 H. 1. cap. 3. \i^ 2 P.^ M. cap. 13. and 2 iiJ" 3 P. i^ M. cap. 10. As to the fljtute of 3 E. 1. it declares, who are bailable and who not as well in other cafes, as in cafes capital. (c) New Edii, caf>, i66, p. 553, But 128 HISTORIA PLACITORUM CORONA. But at that time few were concerned In bailing of prifoners, but the flieriff, in whofc cuflody they moft commonly were, and fu.:h fub- ordinatc officers, that either under the ilieriff or as baiUffs of liberties had the cuflody of prifoners, [as appears from the words of the fta- tute,l Et pur ceo que v't [counts isl nutres qucux ont prifc bf retenus pri- foners: And therefore ftill the ilatute did not exterd to courts of juf- tice, much lefs to the court of king's bench: vide 2 Co. Injllt.p. 18 5, 186. fuper hoc Jlatutum ; neither doth this ftatute fingly of itfelf extend to jufticcs of the peace, for they were not in being till \ E.'6. and therefore the ftatute o£ I & 2 P. iff M. cap. 13. efpecially makes this ftatute of 3 £. 1 . a dire6tion touching bailing of offenders. And therefore it feems alfo upon the fame reafon the ftatute of 27 £. 1. cap. 3. definlhus levatis, that directs and authorlzcth juftices of gaol-delivery to inquire of fticriffs and others, that have let out of prifon by replevying perfons not replevifable, or have offended againft the ftatute of IVcJhninJicr, and to punifli them according to that ftatute, extends not to courts or juftices of the peace, but only to ftieriffs and fubordinatc officers. And the truth is, it could not be well applicable to any but them, for as all writs of hom'ine rcplcgiando^ de inanucapt'ione, isf de odio £^ atia were dire61:ed to the fherifFs, fo in moft cafes what was to be done in thofe times for bailing of prifoners was moft commonly to be done by the flier iff. This ftatute declares, 1. Who were not bailable by the common law. 2. Who from thenceforth fhould not be bailable; and 3. Who fliould be bailable, and infliits puniftiment upon ftieriffs and bailiffs bailing thofe that are not replevifable, and not bailing thofe that are replevifable. And this acl extends not only to fuch bailments as might be virtute officii^ but alfo to bailments by force of the common writ de homine repleg'iando or de tnanucapthne ; whereof hereafter. My lord Coke in his comment upon this chapter fdj hath given us the fubftance and intent of this ftatute, which I fliall therefore but in effedt tranfcribe. P -, I. As to thofe that were irreplevifable at common law, •- "■'I mean before the ftatute of 3 E. 1. (for pofTibly more anti- ently all offenders were replevifable), they are of four forts. 1, For the death of a man, (d) % Co. Inftt. p. i86, &fcq. At HISTORIA PLACITORUM CORON.H. 129 At this time there was held h'rile clifFcicnce between murder and manflaughtcr, but only in degree ; for till 23 H. 3. clergy was allow- able in the one as well as in the other, nay, at this dav, if the indicl- nient run only Intii fecit i^ murdravit without ex tnalhia pracoptata, the prifoner hath clergy. And as to the point oi la'il no difference was at common law, nor after the (latutc of 3 £. 1. till later ft:itutes (dc quihuslnfraj, between muidcr, manflaughtcr, or the killing of a xv\?iK\ fe chfendendo.,o\ [ler in- fortunium, for they, that could not bail in murder, regularly could not bail in the ()t:'Cr three Cvafes. And tliis hell nniverfally as to bailment by the fherifFor by the juf. ticcs of peace; but as to dihers, it had loine exceptions. The court of king's bench might and ftill may bail in any cafe •whatfoever, even in high treafon or murder, for the court is held in law coram ipfo rcge. 4 Co. lujih. p. 11. 2 Co. Infit.p. 186. but this ii in the difcretion of the court, and none can challenge it de jure. And this bailment in the king's bench may be upon an original in- diftment before ihcm in the county where they fit, or upon an indict- ment removed bv certiorari, or upon a prifoner removed by habeas ^or/ius before or after an indictment taken; vide infra. In fome cafes juftices of gaol-delivery may bail in cafe of the death of a man. 1. If a man be found guilty of a iSfaSkx fe defendendo, or per infortu- nium upon his trial, the juftices of gaol-delivery may certify the matter into chancery, that the party may fue his pardon of courfe, and in the mean time bail him till the next fcfiions. 3 E. 3. Coron. 361. And the fame law it Is, if the coroner's inqueft only find it j- .. fe defcndendo, fucli inquifition flicwing the fpecial matter, as ^ •* it ought, is good, Stamf. P. C. cap. 1. f. 15. b. 26 Eli%. Holmes'^ cafe, Crompt. de pace, f. 153. b. ^ 28. a. and the rcafon of the book of 1 2 .E. 3. cited by Crompton, that in an indi£lment before the coro- ner /^ dcfendcndo, the words [e defcndendo were void and flricken out, is not bccaufe they were againfl the king, but becaufe they were too general. 2 Co. Injlit. fupcrjiat. Gkuc. cap. 9. p. 316. an \ndi\€trc\ent fe defcn- dendo is good before jufticcs of gaol-dehveiy, bur it is there faid it is not good before jufticcs of peace; dc quo fupra, p. 45. and therefore upon fuch an indi^ftment before the coroneryf" defcndendo fpecially, the juftices of gao)-delivery may bail the party till the next fefTions to Vol. ri. I procure 130 HISTORIA PLACITORUM CORONA. procure Ills pardon of courle, as well as it it had been found upon hig tJ-ial; and (o it was done 26. E Hz. in Holmes's cafe, Crompt. 153. b. vide /p-Ricc's cafe, 19 H. 1. KcI'M. 53. a. Crompt. ibidem. 2. \i a man be convicted of manflaughter, and hath a pardon to plead, which the jufticcs of gaol-delivery fee in the interval of the ici^- lion. they may bail him, (notwithftanding his convidtion and tliat of nianllaughter), to another fcffion to plead his pardon. 2 E. 6. B, Muinpr^Je 94. Crompt. 153 Z-. 3. If a peiion he brought before the judges of gaol-delivery upon fiifpicio.'i of murder, but before commitment or indi61mcnt [it appears] upon examination of the fa6l by the juflices of gaol-delivery, that he is not guilty, (tho in truth a felony were committed;, the juftices'of gaol-delivery may bail him to another fefTions : v'lde 31 Ellz. in cafe dc Sal/ord, Crompt. 154. a. But I am not of the mind that the fame judge [S/iuttleworl/i'] was of that if he be convi6l upon a trial againfl: the opinion of the judge, tha^ he can bail him to fae his pardon ; but all he may do is to reprieve him before judgment, and certify for him for a pardon. And therefoie it fcems to me there is no ditFsrence between this r- -, cafe and that of Dyer 179. a. wheTe a man is convict, and it I 10 I I -^ ^ -" is doubted whether he be within clergy, yet he remaineth not bailable. 4. If a man be indidted of murder at the feflions of gaol-delivery, and prays his trial, but the profecutor for the king is not ready with all his evidence, the judge may refpite his trial till another fcilions; and tho he be not bound to bail him, yet if he do find that it is no con- trivance of the prifoner to furprife the profecutor, but that it is merely the negle£l of the profecutor, or that, his pretenfe is merely a delay to continue the party in prlfon, I have known it often pra£lilcd at NeiU"' gate, and elfe where, for the juftices of gaol-delivery to bail the pri- foner till another felTions, if it be far oiF, and upon circumftances' confidcred. And yet in none of th.efe cafes neither juflices of peace nor flierifF can bail ; but how far they may Iwil in cafes of manflaughter fhall be laid hereafter, when we confider the fubfequent llatutes. And thus far at prefent for bailing in cafe of the death of a man. 2. The fccond cafe where a man was not bailable by the common law, is, where a man is taken per mcmdatian domini regii : tliis is not intended of tlie pcrfonal command of tlie king, for regularly as the king HISTORIA PLACITORUM CORONiE. iji king cannot in perfon arreft or imprifon, To lic cannot command another to imprifon, but it mull: be done by iome order, writ, or prc- cepr,or proccfs of fome of his courts. 1 G H. 6. Monjirauns de fait 182. 1 H. 7, 4. ^. 2 Co. InjVit. fulierjiatulum IVcJlmhiJh 1 cap. 15. p. 137. Nay, altho fuch a mandate be by commiflion under the great feal, it is void, 42 JJiz. 5. therefore the pra-crptum, or mandatum dom'tni regis in this ad, is intended of the procefs of law ifTuing out of the : king's courts according to their feveral jurlftlidions, 2 Co. Injiii. fuper Afag. Chart, cap. 29. and /Te/^m. 1. cnp. 15. But if intended of the king's perfonal command, tho fuch a perfon fo taken be not bailable by tliC common writ dc //amine rep/cgiando, yet he is bailable bv the court of king's bench or chancery upon an /ial;eas corpus ; de quo infra., 2 Co. hijiit. p. 55. 187. :i. Thirdly, Or of the jujllccs, viz. by writ of procefs jlTuing according to law within their feveral jurifdidions ; '-^•^^-' for akho thefe were bailable in many cafes by the courts that iflued the proccfs, yet tliey were not bailable by the common writ de hom'ne rcplcgiando, but are excepted therein, nor hy \hQ ihzuS virtute ojlcii- till riic fl-atute of 23 H. 6. cap. 10. 4. Fourthly, Or for the Forejl ; perfons imprifoned by the juftice ia eyre in the forcft, are not replevifahle by the common writ de homine rcplegiando. II. The fecond part of this (latute is enading or declarative who are not bailable ; but io far as this ftatute looks, it only concerns the fheriiF and bailiffs, and the common writs oi homine replegiando, or de mamwaptiorie, which are direded to tl\e flieriff, tho afterwards it was made the rule in many things to juftices of peace, i^c. by the ftatutes of 1 tsf 2P.tf M. and 2^3 F. £5* M. de quihus infra. And the cafes wherein bail is reft;ained by this ftaiute, are thirteen. in number, fome in rcfocd of the heinoufnefs and weight of the of- fenfe, as treafon, burning of houfcs, breaking of prifon, isfr. and the reft upon the great evidence and probability of guilt, as perfons out- lawed, l£c. but I fliall follow them in the order that the flatute fcts them down. 1. Perfons outlawed; for outlawry Is an attainder of felony, and [the outlaw] is prefumed guilty, becaufe he withdraws himfelf frota .the procefs of.laj^v. A^lt^jl^ ^ Ai)d upflijjjie fama reafo>^|k that a perfon convid of felony, -whi;&^theju4eadv4leftvupQBCbt#lcrgy, is not bailable, becaufe he'is *^ j^fcij^ ^ ^ '. convided. \ 132 HISTORIA PLACITORUM CORON^E. convi6lcJ, Dy. IT9. a. Nay, tho he be convi6led againft the direc- tion of the court, he is not bailable againft the opinion oi Shuttlcworthf 31 Eli'z.'Crompt. f. 154. a. And therefore if the ordinary had had a clerk convidl in his cuflody, if the ordinary let him to bail, he was puniHiable: vide 15 H. 7. 9. a. But it a man be outlawed for felony, and be taken upon a capias. utlegatmn, and plead in avoidance of tlfe outlawry againft him that he is of another place, and fo not the perfon outlawed, or bring a writ of J- ^ error to revcrfe the outlawry and aftign his enors, the court '• "^ -^ of king's bench may bail him ; and it is not unufual fo to do, vhether the outlawry be upon an appeal or an indi6lment. If a man be indi6led or appealed for fuch an offence, wherein bail may be taken, the indiflment or appeal does not hinder his bailment, becaufe it induceth no fufficient prefumption of his guilt; if he were bailable before indiilment, he is bailable after, 2 Co. InJlit.Juper Jiat, Wepn, 1. cap, 15. znAJIatutum ip/nm F. N. B. 249. 22 JJJi-z. 94. but not allowed till he hath pleaded to the indictment, 16 Jjp-z. 13. 39 4lftz. 44. But if a m.an he indi6led before juftices of a higher jurifdi61ion, as before juftices of oj^r and terminer., he cannot be bailed by juftices of peace, for they cannot proceed upon an indidtment taken before lu- perior judges, tho otherwife the caufe might be within their cognizance. 2. Perfons that have abjured for felony, are not bailable, for they are attainted in law. 3. Approvers in felony are not bailable, becaufe they do confefs themfelves guilty. 4. Perfons taken with the malnouvre are not bailable, becaufe it ig furticm manifejium. But that is intended of the thief himfelf; for if -^. fteal goods, and fells them to B. and B. is taken with them, B. is bailable. 5. Perfons that being committed for felony break prifon, are not to be bailed; for, 1. It carries a preAimptlon of iheir guilt. 2. It is a fuperadded felony to the former, for which they ftood committed. 6. Notorious thieves: and herein common fame, and other clr- cumftances mav be oppofed againft their bailing, unlefs they can fliew- rcafonable evidence to prove their innocence. 16 /:. 4. 5. a. h. 7. Perfons impeached and approved by an approver, becaufe it in- duceth a ftrong fufplcion that they are guilty, becaufe the accufer con- feffeth himfelf guilty before he can impeach others. But HISTORIA PLACITORUM CORON.^. 134 But this hath I ertain exceptions. 1. If ilie approver he ch:al. 2. If the api>rovcr hath waved his appeal. :;. If the perfon accufed % the approver be of good tame. 8. Pcrfons arreftcd for wilful burning of another man's houfe, ■which was a felony at common law. 9. Pcrfons arrefted for fallltyin^ the king's coin. 10. Or for counterfeiting the king's great or pi ivy (c.d\. 11. lie that is excommunicated by the ordinary, is not badablc, unlefs it be for a temporal caufc; and then upon a proliibition granted, he may not only be bailed but delivered; or upon an appeal and a fpecial writ ile cautlone admitteuria, if not obeyed by the oidmary, a fpecial writ may ifTue for his enlargement. 12. Or if he be imprifoncd for fome open mifdeed, as if.-/, danger- oufly wounds B. he may be imprifoncd till it be known whether the party will die or live; and regularly is not to be bailed, till it fliall probably api)ear that the danger is over. 10 H. 7. 20. a. j. H. 1. cap. 1. 13. Nor he that is arrefted for treafon, that toucheth the king, •whether he be indidted or not; thefe are neither bailable by virtue of the common writ dc hoinlne rep'.cgiando, nor ex ojpcio by the IherlfFor baihfFof a liberty. But all or any of thefe are bailable by the court of king's bench. 2 Co. Injllt. ISi'. III. The third thing provided by this ftatute, is to declare who are bailable by the fheriff", and they are of fcven kinds. 1. Perfons indided before the fheriff for larceny, if they have not been accufed of other felonies before, or as the writ of the regiil;er, f. 83. b. 268. b. flyles them, if they are of good fame. This therefore lies very much in the difcreiion and true information of the (lieriff, or other juiVices that commit them. 2. Perfoais imprifoncd for a light fufpicion, dum tamcnfuerlnt bona: Jama;. :5. Perfons indicted for petit larceny. 4. Pcrfons accufed for receiving of felons. 5. Or of commandment, force, or aid to the felony done. Thefe two lafl concern acceiraries after and before, where- ^ -■ in there is fome diveriity of opinion in our books. Regularly in all cafes of felony, tho It be murder, the acccJary is bailable till the principal be attaint, and this holds as well in oiles of I ;3 the 135 HISTORIA PLACITORUM CORONA. the death of a man as other felonies, 4-0 E. 3. 42. a. 40 ^JIz. 8. But if the principal be once attaint, and then the acceflary is taken, he fhall not be bailed until he hath pleaded to the indictment ; but after plea pleaded by him, Jie Hiall be bailed, notwlrhftanding the at- tainder of the principal, tho it be in cafe of murder. 43 E. 3. 17. l>. 50 E. 3. 1,5. a. 27 yf/liz. 10. 47 JJIz. 16. 6. Or indicied or accufed for an offenfe, for which he ought not to lofe life or member, unlefs in cafes of offenfes againft a61:s pf par- liament, \vhere the acls of parliament exclude bail. 7. Or appeald by an approver, who is fince dead. Thefe be the cafes wherein by i/iat a6l the party is bailable. And therefore though a party be committed, and the tenor of the mitlhr.us be to detain him without bail or mainprife, yet if the ofFenfe be by law bailable, he that hath the power of bailing may bail him. Crompt. de Face 153. «. This ftatute adds a penalty, 1. For bailing a perfon not bailable ; if he be a flierifF, conftable, or bailiff of fee, he fliall lofe his office; and if he be an under-bailifF, or not a bailiff of fee, he fhall have three years imprlfonment, and be fined at the king's pleafure. 2. And if he fliall detain pcrfons replevifable after furety offered, he'fhall be grievoufly amerced. And thus far for the flatute of 3 £. I . Burn. Tit. Bail per totum. Index to z Hawk. P.C. Tit. Bail. 4 Blackf. Com. cli. 2a, Of Ccfmmitmenc and Bail, 296 — 300. [136] CHAP. XVI. Concerning the Jiatutes of 34 E. 3. 1 R. 3. 3 fl. 7. 1 & 2 P. & M. 2 & 3 P. 5c M. in relation to bailment of prifoncre. ANTIENTLY mofl of the bufmefs touching bailment of pri-. foners for felony or mifdemeanors was performed by the fheriff or fpecial bailiffs of libeities, either by writ, or virtute officii. But when the offices of juf^ices of peace were inftituted by the ftatute of 1 E. 3. they gradually had the greater bulinefs of com- mitting and bailing offenders devolved into their hands \ and by fuc- cefUve ads of parliament. I. The HISTORIA PIACITORUM CORON.E. ij^ 1. The pf;wer of t'lo nicrliT grew out of iifc. 2. The jiifticcs of peace <)!)taiiui mofl of the (heriiT's power in relation to baihnent. ti. Thtir power of hailmcnt is in relation to offonfes extended larL;er than the lhe}ift"'s, and in fome kind larj^cr than the limits prcfcriboJ by 3 E. 1. ■ 4. Yet in fonic rclp-ds the Sheriff's power as to bail- ing in otfenfcs not cajjital was enlarged hy the ftatute of 23 H. G. cup. 10. i Ihall therefore take thofe fcveral llatutes in order of time. I. The ftarnte of 3t E. 3. cap. 1. gave them power to apprehend malefactors, and to commit them to cuftody, or to hind them to their ^ good behaviour, which was not intended pcrpcual, but in nature of bail, Viz. to appear at fuch a day at their feflions, and in the mean time to be of good behaviour. By the flatute of 23 H. 6. cap. 10. there is not only power, hut command to the flieriff to let out by fufficiem fiireties parties arrefted in perlbnal adions, and upon indiaments of trcfpafs, (except perfons taken by excommuniccJio capiendo, condemnation, judgment, execu- tion, fureiy of the peace, or by comtnandment of the juf- r^^-j-\ tices, orpeifons taken upon the ftatutc of labourers), yet their power of bailing of felons, t^c. by the ftatutc of 3 E. 1. con- tiixucd. II. By tlie ftatutc of I R. 3. cap. 3. *' Forafmuch as perfons have •* be^n taken and imprifond upon fufpicion of felony, fonietimes up- " on light fnrpicions, fomctimcs by malice, and detaind without bail or " mainnrilc, it is enaded, that every juftice of peace within then hmils ♦* have power to let fuch prifoners to bail, as if they had been m- " indited before them at their feflions, and fliall have power to m- " quire of cfcapes." 'J his gave power to any one jnftice of peace to bail any prifoner for felony, and excepts not manflaughter, but withal luppoferh, that before this ad they could not bail till iiidictment in their feflions ; but it fecms was fomewhat uncertain, for it was, iviiere they zucrc com" vi'ittni for malice or light Jujpiciom, III. The ftatutc of 3*i^. 7. cap. 3. reciting the ftatutc of 1 A'. 3. and that by colour thereof divers pcrions not mainpernable were let to bail, ena6ls, " That twojufticcs of the peace, whereof one of the *' quorum, have power to let fuch perfons as are mainpernable 'by *' law, to bail to the next feflions of tiie pe.i:c oi gaol-deiivcry, and ** iliuli accordingly returi;i the recognizance under pain of 10/. i i ' ^ Ihis 137 HISTORIA PLACITORUM CORONiE. This ftatute feems, 1. To repeal the flatute of I R. 3. as to bail- ing by one juftice, and gives it to two juftices, whereof one of the quorum. 2. It limits alfo the power of bailment only to fuch cafes as are bailable by law ; and therefore, it feems, takes in the ftatute of o E. 1. as the direclory what pcrfons are by law bailable. And thus it ftood till 1 Afar. IV. By the ftatute of 1 ^ 2 P. w5* Af. cap. 13. thefe two things are principally ena6led. 1. That whereas the ftatute of 3 H. 7. is general, that two juftices^ fhall let to bail fuch as are bailable by law, this ftatute in exprefs words makes the ftatute of 3 £. 1. the ftandard for the taking of bail by two juftices. J. ^Q-j 2. That any perfon arrefted for manflaughtcr, or other *■ ^ felony bailable by law, or fufpiclon thereof, ftiall not be bailed but by two juftices of peace, whereof one of the quorum, both to be preieiit at the bailing of luch offender, and to certify it in writing at the next gaol-dtlivery ; but the juftices ot peace and coroner ia l.ondon \ and the county of Adiddlefex, aij^d in other cities, boroughs, and towns corporate wiihin their feveral jurifdiftions] to do as for- merly : juftices of peace, i£^c. offending contrary to the true intent of this acfl, the juftices of gaol-delivery may fine them. V. The ftatute oi 2 l^ Z P> i^ A^. cap. 10. only provides for ex- aminations and informations to be taken by the juftices of peace, as well upon commitment as bailing of any prifoiKr for inanflaughter, or other felony. Upon thefe ftatutes, and that of 3 £". 1. which exprefly faith, *' That for the death of a man (*) a perfon is not bailable by law,'* it hath been queftiond, whether juftices of peace may bail in cafe of manllaughter. On the one fide, the ftatutes of 2 Adar. and 3 Ad'ar. exprefly ad- mit that they may, and accordingly the ufual piadlice hath been: vide Lamb. Jufiice^ p. 25. l^ fequentibus. On the other fide, thefe things make againft their bailing, viz. \. The ftatute of fVeJlm. 1. [3 E. 1.] cap. 15. recites exprefly, that for the death of a man the offender is not by law bailable, and the very ftaiute oi \ i^ 2 P. ^ AI. refers to the ftatute of 3 ^. 1. as the rule and ftandard for juftices of peace to proceed by, in cafe of bailing. (*} Vide Giaiivil, Lib. xiv. cap. \ &f 3, 2. Again, HISTORIA PLACITORUM CORON/E. 138 2. Again, the ftatute of G/(3»f f/?fr, cap. 9. (t) cxprcfly provides, •' That he that kills a man by inifadventuie, fliall icmain in prii'oa *' till the coming of the jtiflir.cs in tyn- or gaol-dclivciy, and then he *' (hall be tried;" and if in cafe of a death by infortunium, much more in cafe of a funplc maullaughtcr. 3. The \vrit ot homlnc rcplcg'iaudo excepts the cafe of the death of a man frbm bail. 4. It was rcfolved by all the judges o^ England , 1 Car. 1. that a man is not bailable for manflaiighter, as I had it from the book of the late chief juftice Hyde, who accoidingly did fct a fine of , i'OA upon a learned reader, being a julHce of peace, and '^■'^ now an antient ferjcant at law tor bailing a man in cafe of manllauph- tcr in the county of Salop, which I knew to be true; and this was approved by moft of the judges that heard it. To fettle this bufincfs therefore I fay, 1. l^hat in cafe of murder it is of all hands agreed, that the juf* tices of peace cannot bail, but it is to be done regularly only in the king's bench. 2. That In cafe of manflaughter, if the fait be apparent by plain proof or confeflion that a man is |cild, and kild by J. i>. whether the fame were done ex maUtia peacogitatOy cr upon a fudden fallirig out, or but Jc dcfcndendo, yet a juftice of peace, or two jufliccs, whereof one of the qucrwn cannot bail by any law in force. 3. That whether it do conjlare de perfona occidcntis, or de modo OC' c'tdendi, or not, yet if the party be indi6led of manflaughter, nay iho it were but fe defendcndo, the jufticcs of peace cannot bail. 4. But if there be a manflaughter committed, and it is certainly no more, and a party fufpe6ted is brouht before two juftices of the peace, whereof ont; is of the quorum, if the matter be doubtful and uncertain, whether this be the perfon that did the fadl, the two juf- tices of peace, whereof one is of the quotum, may bail th.at man, and tliat by virtue of the ftatute of I R. 3. cap. 3. which gave power to one juuice of peace generally to bail any perfon fufpedl of felonv, if it appear to him to be a light fufpicion, \vvhereof he muft needs be the judge), which doubtlefs extended to manflaughter ; and altho the ftatute of 3 H.l. cap. 3. transfers that power to two jufliices of peace, whereof one of the quorum, yet (['A\ it was houomed upon tlie fla.ute (+) zCt. J/j/?i; p. 31^. of 139 HISTORIA PLACITORUM CORONA. of I R. 3. and the ftatute o( \ & 2 P. i^ M. is bottomed upon that of 'A H. 7. ' Again, the ftatute even of JVeJlm'inJier 1, Sju'.-z. 2, E. 1.] tho it fay de mtn-te hominls, there is no bail at common law, yet it muft be in- fended, when the offender is certainly known, for it generally pro- vides, that perfons taken upon a light fufpicion (hall be baild ; and therefore the ftatute of 1 i^ 2 P. ^ M. when it makes the *• ^ -• fbtute of Weftm'inftcr 1. the Ibndard of their proceeding iiv point 6f bailment, and yet fuppofeth one taken for manflaughter bailalJe, muft mean fuch a manflaughter, where the party is [only] fufpedted, not where the thing is done [by him] ; for the words bail- able by lavj, do not only refer to felony^ which is the hft antecedent, hnt manflaughter : and by this conftru£lion, all the ftatuteS; and all parts of the ftatutes ftand together (e). ■ (e) Since our author wrote there has liecn another very material ftatute in re- lation to bailment, -vix,. 31 Car. 2. cap. 2. commonly called the ha'.eas corpus aft. By this ftatute, ^. 7. " If any perfon com- ** mitted for high treafon or felony fhall •* pi ay or petition in open court the firff ♦» week, of the term, or fiift day of the " fefTions of oyer and terminer, or general *■' gaol delivery, to be brought to his trial, •' and fhall not be indifted fome time in " the next term or fefTwns after fuch com- " mitment, the court is required upon •' motion made the laft day of the term or *' fcflions, to fct at liberty fuch prifoncr '* upon bail, uiilefs it appears to the court *' upon oath made, that the witneffes for ♦• ttie king could not be produced the <« fame term or fedions. And if any per- " fon fo committed having made his pray- " er or petition as afoiefaid, fhall not be '• indicted and tried the fecond term or " feirions after his commitment, or upon " liis trial, Ihall be acquitted, he fhail be «' difcharged from his irnprifonment. This act (which is related by biftjop Burntt in his hiftoiy of his own times, To/. I. />. 485. to have pafTed the houfe of lords in a veiy remarkable manner,) is ge- nerally cfteemed the great bulwark of Etiglijh liberty, altho upon fome important occalmns it hss been thought proper, as to treaf:)n, to ful'pend it for a time. Sec 6 ylnn. cap. 15. I GiO. I. caf. 8. &" cap. JQ. 9 Gto. I. cap, I. CHAP. XVII. Concerning the fourth general, namelyy the various manner of balling prifoners. THE fourth thing comes to be confidered, namely, the different manner of bailing of malefadors. . And this is of two kinds. Firji, By writ. Secondly^ Ex officio without a writ. And HISTORIA PLACITORUM CORONA. 141 And, fiijl^ Concerning bail by writ. And thcfe are of four kinds. 1. Hom'ine replevjando. 2. Ereve de vianucaplione. 3. Habeas corpus. 4. De odio (5* atiu. I. The writ o( hominc repkgiando lies for any perfon imprifond for a rnifdemcanor, wherein by the law he is hailaile ; and therefore m. the writ there is an exception of the death of a mans pcrfons im- prifond by the command of the king or his juftices, or for offenfes of the foreft, vel pro aliquo alio rcflo, quare fecundum confuciudjnem Angiiae non Jit replcgiah'dis. F. N. B. ^6. f. But tho otfenfes in the foreft are excepted, yet a fpecial writ of hominc rcplegiando lies for one taken by the minifters of the furcll (nota, not by the chief juftice) F. N. B. 67. a. So that this writ as to the point of bailing is founded upon tlie ftature of Wejlm. 1. cap. 15. or at Icaft governed by it, only in the ftatute there the exception is of perfons taken by [command of] the yujlkcs^ here it is capUnl'ts jujl'iciarn. By this writ the flieriff is to deliver the party by mainprife ; and if he returns, that 7. S. makes title to the perfon imprifond, cither as his villain or ward, l^c. he is to take fureties of the party imprifond to appear in the king's bench or common-pleas, and to take bail of him for his appearance at the day, and to attach J. S. to appear at the fame day, ^V. where the bufinefs may be determind ; and if y. S. be returned non ej} Inventus, then a capias in withernam may be granted agjvuft him to take his body, and if a non eji inventus be returned, a withernam to take his goods. II. The wiit of mainprife, and that is of two kinds, namelv, 1. The general original writ de manucaptionc. 2. Special writs of main- prife, both ifiTuing out of the Chancery. 1. The general writs of mainprife are at large fet down in the Rcgiji- f. 26 S. y feq. and F. N. B. 250. ^ Jlquentlhus, and thefe write fcem to be grounded or dire(5led alfo by the flatute oi 3 E. 1. cap. 15. for that is the rule and dire<5lion whereby perfons are to he baild bv this general writ ; for no perfons criminal are bailable by this common writ of mainprife, for as fuch they are bailable by tiiat fla- tute ; and this common writ of mainprife refpedts either fuch as are committed by the fheriff or bailiff of a hundred, or fuch as, p tho they are in the flicriff's cuftody, are yet committed to '- -• his cuftody by others, as juflices of the peace, t^c, 1. As 142 HISTORIA PLACITORUM CORONA. 1. As to thofe of the former kind, we muft call to remembrance vAizt hath been before faid touching the power of the fheriff to take indidlmments of felony, either by commifiion or in his Turn. The former power is rcpeald by the ftatute of 2S E. 3. eap. 9. As to the latter, though the power of taking indictments continues in the flieriff's 7«/«, yet by the ftitute of 1 E. 4. cap. 2. they are to fend them to the juftices of peace to be determind in their feffions ; but the flierifF nor his bailiffs are not to arrcft or attacli any perfon thereupon ; and the like law is for bailiffs of hundreds, who have a Icet of the hundred or Turn accompanying it. And therefore as ro thefe, the writ of mainprife is confequentially taken away, according to my lord Cokey in his comment /«j)^r Weftm. 1. cap. 15. 2 htpt. p. 190. But whereas it is there faid, that by that Jiatute the writ of main- p/ife generally Is taken away^ it is certainly miftaken, for the writ of mainprife hath dill its ufe in cafes of peifons committed by the juf- tices of peace, and fo.ne other cafes, as fliall be farther Ihewn. 2. The Jecand fort therefore of thefe common writs of mainprife, were for fuch malefa6lors as were committed by others, if they were fuch as by the flatute of IVeJlm. I. cap. 15. were bailable, and the writ of mainprife in this cafe continues in force and ufe to this day ; as for inflance, F. N. B. 250. d. for a perfon approved by an approver, if the approver is fmce dead ; yet fuch a perfon can nei- ther be taken by warrant of the (lierifFor jufkice of peace, but by the coroner or juflices of gaol-delivery. F.N. B. 250. g. 251. c. for one inditSted before the juftices of peace for a trefpafs, 250. /. for foreftalling, 250. e, as accefTary to a felony, where the principal is not attaint. Again, F. N. B. 250. /. for one taken by the king's commifHon for felony. And this is that writ that feems intended by the book of i-^'^^J 14, H. 6. S. a. where it is faid, " I'hat he that is taken by *' fuggeftion, as by juflices of peace, &c. may be balled without *' writ y but he that is taken by a writ, muft be bailed by writ (*) i" which feems intended of this writ of mainprife ; and tho the faying be not univerfally true at this day, for fome that are taken by procefs or 'writ may, at leaft at this day, be bailed virtute officii, efpecially upon the flatute of 23 H. 6. cap. 10. ^ I4^cjhn. 1. cap. 15. yet it (*1 See our author's note ad F.N.B. 66. t, ^ luf. HISTORIA PLACITORUM CORON^E. 143 fiifficicntly Intimates, that the writ of inainprife was not taken away by 28 £. 3. cap. 9. And thus fur for the general writs of mainprlfe. 2. Special writs of mainpi ife were fotnetimcs granted upon fpecial occafions for thofe, that were not bailable othcrwife. Thus it was ufual in anticni times by the king's fpecial warrant, fometimes by fj^ecial commiflion, fometimes by immediate writ out oi cJuiticery in times of war, to deliver perfons in prifon for felony upon mainprife to go Into foreign parts in ihe king's wars, as Gaf- coignc, and clfcwhere, at the king's wages, t^ Jiabiint rcflo in cunUf after their return, Ji quls vcrfua cos loqui voluetit, and upon the return of fuch manucaptious into the chancery to have charters of Pardon. See precedents of fuch commiflions and writs, Pat. 22 E. 1. m. 1. to Roger Braha'zun, and PViUlam Brercford. Rot. Vafcon. 22 E. \. tn. 8. ti'. 11, y m. 12. ?/**. 4. for malefactors imprifond in all the gaols in England for felony and other crimes per manucaptioncm de- liberandi \ and the like was oiten pradlifcd upon like occafions in the reigns of other kings. And thus fur for writs of mainprife. III. The third ufual writ for bailing of criminals, is by habeas corpus., and this is a writ of a high nature ; for if perfons be wrong- fully committed, they are to' be difcharged upon this writ returned ; or if bailable, they are to be bailed ; if not bailable, they are to be committed. 'J his writ iflues out of the great courts of IVeJimlnJlcr^ but hath different ufes and cfFe«5ls. 1. It may iffue out of tlie court of Common'pleas or Ex- chequer ; but that is or ouglit t() be always where a perfon is ^ -^ privileged, or to charge liim with an a6tion. If a perfon is fued in tlie common-pleas, or is fuppofed to be fo fued, and is arreftcd for a pre-fnppofed mifdemeanor, yea or for fe- lony, an habeas corpus lies in the court of Cominoyi-pleas or Exchequer; and if it appears upon the return, that the party is wrongfully cora- miited, or by one that hatli not jurifdidlion, or for a caufe for whlc/i a man ought not to be imprifond, the privilege fliall be allowd, and the perfon difcharged from that imprifonment ; or if it be doubtful, he may be baild to appear in the court of King's-bene//, which hath conufancc of the crime returned. Coke A'fagn. Cart. cap. 29. 2 In/itt. p. 55. Aiid 144 HISTORIA PLACITORUM CORONiE. And upon this account, P. 43 Ellz. C. B. in the cafe of Bates that was impilfond by the council- table, for not bringing in his futv fcription to the Eaji-Jndia company, and this being returned upon the habeas corpus, together with a writ againft him out of the common- bench, they adjudged the privilege to be aliowd, and the party to be ilifcharged fa). But if a man be fued in the common-bench, and is arreiled and jmprifond for felony, the the gaoler, upon the habeas corpus, ought to return the caufes, as well criminal as that wherewith he is charged out of that court, yet the court of common pleas ouglit not to com- mit him to the Fleet, nor difcharge him of the imprifonment, nor yet to take bail of him to anfwer there, for they have not conufance of fuch crimes ; the like it is, if he he returned committed for a riot or furetv of the peace by juftices of peace ; and therefore all they caa do is to take his appearance, and take him to mainprife upon tlie aftion, and remand him as to the matter of crime, for which he was well committed by the juftices, and to remand his body to the flieriff's cuftody upon his commitment for the crime. 2 H, 7. 2. a. But now by the ftalute of 16 Car. 1. cafi. 10. they have an origi- nal jurifdir more fureties in any lum accoid- " ing to their difcretions, having regard to " the ([uality of the piifon^r, and nature of " the offcnfe, for hi^ appearance in the " court ot king's bench the term tollowing, *' or at the next arTi/.cs, ^c. or in I'ucli " other court, wlice the laid ofieiife is " properly cognizable, as the cafo IlijH rc- " quire, and then Ihall certify the faid writ " with the return thereof, and tlie faid rc- " cognizances into the faid court, unlcf* " it Ihall appear unto the faid lord clianccl- '= lor, i^c. that the party f.) committed is '* detained upoii a legal procels, oidci, or " warrant out of fome court, that hath ju- " rildi6tion of criminal matters, or by " foine warrant ligned and fcaled with tiie " hand and fcal of any of the faid juftices, •' or barons, or fome jufticc of the ptace " for fuch matters or ofFeiifes. for which by " lav/ the piiioncr is not bailable. " No perfon 10 be iiititled to the benefit *' hereof, unleli he firll pavj orcaufe to be " paid or tendered the cliarges of bringing, •• to be alcertained by the judge or court •' thit a'.vaiued the writ, and inJorfctl 146 HISTORIA PLACITORUM CORONA. Till the return filed the court may remand him, after it is filed the court is cither to difcharge, or bail, or commit him, as the nature of the caufc requires. , If together with the habeas corpus there ifTiies a certiorari *■ ' -^ to remove the indictment, yet in cafe of felony, tho the body and record be returned and filed, the court may remand him and the record by the ftatute of 6 H. 8. cap. 6. but in other cafes the record cannot be remanded, but they mud: proceed in the king's bench both to pleading, trial, and judgment. But if the body be removed by habeas corpus, and the record alfo by certiorari, but the record not filed, tho the return upon the habeas corpus be filed, a procedendo may iifue to the court below. And thus far for the habeas corpus in the king's bench. Ey virtue of the (latute of Magyia Charta, and by die very common law, an habeas corpus in criminal caufes may iflfue out of the Chancery. Coke oa Magna Chart a, cap. 29. 2 Infiit. p. 55. But it feems regularly this fliould ifllie out of this court in the vaca- tion time, but out of the king's bench in the term-time, as in cafe of a fi'.perfedeas upon a prohibition, 38 E. 3. 14. a. B. Superfedcas 13. When the caufe is returned, the cliancellor may judge of the fuffi- ciency or infufficiency thereof, and may difcharge or bail the prifoner to appear in the king's bench, or may propriis manibm deliver the re- cord into the king's bench, together with the body, and thereupon the court of king's bench may proceed to bail, difcharge, or commit the prifoner. But if the chancellor fliall not difcharge him, but bail him, this furety muft be to appear in the king's bench; or if the chancellor fliall «• thereon, not exceeding l^d. per mile, " tobe ttanfported, or offenders fent to be *' and give fecurity by his owubondto pay "tried, wlieie tiieir offenlcs were com- *' the charges of carrying back, ifreniandfd *• mittcd. «' by the court or judge, and that he will " That after the affixes proclaimed and *' not make any cfcapc by tlie way. " during the continuance thereof no pri- Is is further provided by this fiatutc, ♦' foner be removed but before the judge ** That no peifori fet at large upon any *' of affife in open court, nor at any other *' habeai corj-us Ihall be re-committed for M time, but by bahcas corpus, or other legal *' the fame offenfe, but by order of court " writ, except where the prifoner is de- *' having jurifdi6tion of the caufe ; any per- " livered to the conrtablc, t c. to be carri- •' fon kn')wiiigly offending herein to for- " cd to the common gaol; or where any ♦' fcjt 5C0/. " perfon is fent by order of any judge of " This writ to run into counties palatine " adifc, or jullice of peace, to any com- *• and privileged places. *' mon v.orkhoufe or houfe of corrcftion ; " That no lubjc6t of Englendhc fent pri- " or is removed from one place to another «' foner into Scotland, or any places beyond " within the fame county, in order for hii *• the fca, cither within or without his " trial or difcharge in duecourfe of Law ; ♦I Majefty's dominions, under the penalty " or in cafe of fiidden fire, infeflion, or ♦« of a ramutiire^ except peiio0s ordered " other nqccffity," do HISTORIA PLACITORUM CORONi^. 147 . 6zo. £9" 5 Ann. cap, 31. wiiwcvei knowingly K 2 ir. Touching I5r HISTORIA PLACITORUM CORON^E. II. Touching the execution of this warrant. 1 . Whether the ftolcn goods are in the fufpe^ilcd houfe or not, the officer and his afliftants in the day-time may enter /)tr ojiia aperta to make fearch, and it is juftihablc by this warrant. 2. If the door be flint, and upon demand it be refnfed to be opened by them within, if the ftolen goods be in the houfe, the officer may break open the door, and neither the officer nor the party that comes in his affiftance are punifliablc for it, but may juftify it upon the ge^ neral iffue by the ftatute of 7 yac. cop. 5. fo tliat in eventu it is juflifi- able bv both, for it is a procefs for the king, and includes a non omit- tast and the very having of the goods carries a fufficient ground prhnd facie of fufpicion, that he was the felon that Hole them, and may be thereupon juftifiably arrefted. 3. If the goods be not in the houfe, yet it feems the officer is cx- cufed that breaks open the door to fearch, becaufe he fearchcth by warrant, and could not know whether the goods were there till fearch made; but it feems the party that made the fuggcftion is punifliable in fuch cafe, for as to him the breaking of the door is i}t eventu lawful or unlawful, I'/z. lawful, if the goods are there ; unlawful, if not there. HI. Now upon the return of this warrant executed, the juflice, before whom it is returned, hath thefe things to do : 1 . As touching the goods brought before him, if it appears they were not ftolen, they are to be reftored to the poffeffor ; if it appears they were ftolen, they are not to be delivered to the proprietor, but depofited in the hand of the iheritFor conftable, to the end the party robbed may proceed by indicting and conviding the offender to have reftitution. 2. As touching tlie party, that had the cuftody of the goods. If they were not ftolen, then he is to be difcharged. If ftolen, but not by him, but by another that fold or delivered them J. -^ to him, if it appears that he was ignorant that they were •- ftolen, he may be difcharged as an ofterulcr, and hound over to give evidence as a v.itnefs againft him that fold them ; if it appears he was knowing they were ftolen, it is lit to bind him over to anfwer the felony, fur there is a probable caufe of fufpicion, at leaft that he was acceifary after. . JBuro, Title Search-warrant, per tot« ' CHAP. HISTORIA PLACITORUM CORON.^. 152 CHAP. XIX. Concerning Prefeutnients, Inquifitions, and InditSlmcnts, and their kinds. I HAVE gone through thofe matters, that arc preparatory to the proceeding againfl malcfuitors in the feveral courts, whertin their offenfcs are punifhuble, namely, the arrcfl and imprifonmcnt, or bailing of otFendcrs, and the feveral jurifdidions, and juftices, and miniflcrs of juAJce concerned therein. That which follows to be confidered is the manner of bringing the offender to his legal trial and judgment, which is either by appeal, which is the fuit of the party, or by indictment which is immediately the king's fuit. The former of thefe, namely appeals, I flirJl confider after the bufmefs of indictments, becaufe it is but rare to have an appeal, and the mod profecutions of this miture are by indidtmcnt or prefentment, and therefore I ftiall confider this firft. I (hall diftribute this matter into thefe general heads, namely, 1 1 Touching indi6iments and prefentmcnts. 2. Proccfs. 3. Arraign- ment. -I. Piea^^of the offender. 5. Trial. 6. Judgment. 7. Exe- cution. -Each of which will take in feveral particular heads and diftributions. Prefentment is a more comprehenfive term than indl^menty for re- gularly an indittmcnt is an accufation given in aguinft a perfon by the grand inqueft for fomc mifdemeanor whereunto he is put - -, to anfwer; but prefer.tments do not only include fuch indict- ^ ^ mcnts, but aho lome other informations whereunto the party is not put to anfwer, as prefentmcnts oifelodcfc, oi fiigain fecity of deo- dands, of deaths per infortunium ^ and many others. In this title concerning prefentments and indictments I fhail con- fider thefe points. 1. The feveral kinds of prefentments and indict- ments. 2. Where a man fliall be put to anfwer in criminals wi-hout indi(5tment. 3. Who may be indicters, and how returned. 4. Of what they may inquire. 5. Wliat the penalty of not inquiring or prelenting. 6. What formalities are required in indi6bnents. K S Firft, 153 HISTORIA PLACITORUM CORONy?:, Firfl, Touching the feveral kinds of prefentments, inquifitions and jndi6lments in matters capital. They may he diftlnguilhed, 1. In relation to the courts or judi- catories, or jurifdi6llons, where they are made. And, 2. In reaped of their efFecls or natures. I. Touching rht former branch of difliribution in relation to the jurifdi6lions where made, and that multiplies prefentments or indi6l- ments according to the jurifdi6lions, as fome are in the leet, fome in the fheriff's Turn, fome before the coroner, fome before juftices of peace, juftices of oyer and terminer, gaol-delivery, king's bench, whereof enough before hath been fald, and (hall not need here to be repeated. But ihofe, that mofl concern capital ofFenfes^ are fuch as are taken before the coroner, or fuch as are taken befoie* juftices by commiffion, whereof more fliall be faid in tlie enfuing chapters II. As to the fecond kind of diftribution in refpedl of the nature and efFeil thereof. 1. Some prefentments are of themfelves convi6lions, and not tra- verlable. 2. Others are not convi£lions, but only in nature of Informations, and therefore traverfable. Regularly all prefentments or indI61:ments before juftices of the peace, oyer and terminer, gaol-delivery, i^c are traverfable, and con- clude not the party or thofe claiming under him. P ., And therefore, tho it hath been held, that the prefent- *■ ^^-' ment of a felo de fe before the coroner be not traverfable, (de quo fupra,) yet of all hands it is agreed, that a prefentmcnt of a felo de Je before juftices of peace or oyer and terminer is traverfable by the executors, i^c. Co. P. C. cap. S. p. 55. H. 37 Eliz. B. R. Laughton\ cafe. If a prefentment be made ft^per vlfum corporis, that J. kild B. and fled, this prefentment of the flight is held not traverfable, but con- clufive to forfeit the goods, tho he be after acquitted of the felony, and exprefly found by the petty jury upon his trial, that non fe re- traxit (d), 1.} H. 4. 13. h. Forfeiture 32. 3 E. 3. Forfeiture 35. 7 Eliz. Dy. 238. b. And tho fame law is, if it be ionn^ fuper vifum corporis^ that the felon fled and was kild in the flight, this prefent- (d) ViJt Jupya,- f.(>i,f>i^. ment, HISTORIA PLACITORUM CORONA. 154 mcnt, tho after tlic party's death, is conclufive as to the forfeiture for the flight. 3 E. 3. Corou. 289, 2S'0. 312. But if before juflices afligned to hear and determine, it he prefcntcd, hat J. S- coinmitted a fel(;ny and fled ; or if upon the arraignment of a pcrfon for felony he be found not guilty, and that he fled, this is but in nature of an inqucft of office, and the flight is traverfahle in an a^lion, or information, ox fc'ire facias brought by the king for the goods of the perfon ; 37 AJJi-z. 7. 47 E. 3. 26". a. And all the rca- fon, that can be given why the coroner's inqucfl: of ^ fugam fcch is C(^nclulive, and not the other, is only that which is given S E. 4. 4. a. Ceo ejl un ancient pojit'if ley del coron. If a man be prefentcd to have fufFerd an efcape, bccaufe in this cafe the party is at leaft to be fined, he fliall have his traverfe to it, and is not concluded by it. But if citlier before the juflices in eyre, or before tlie coroner, an efcape be prefcntcd upon a vill either before or after the aireft, this is held not to be travcrlablc, becaufe there is only an amercement to be fet upon the vill, viz. vi/Iaia in viljcrlcordui ; and the reafon given by Staviford is, quia dc minimis non curat lex ; Stai/if. P. C. Lib. I. cap. 32. /. 35. b. But if it fall out, that there be an iq^idlment for fucli an efcape, {zs there hath been been foimeily againffc the city oi Loudon for ^ tile efcape of thofe that riotoufly kild Dr. Lamb (e), who were ^ ^^^ thereupon fined 2000 1. J fuch an indidlment is not conclufive, but traverfahle. Whether an inquifition of a /rlo de fe before the coroner be tra- verfahle, vide qua fupra. Part I. cap. 31. />. 414. Arid there are no prefentnicnts befules what are before mentlond, that are in themfelves conviiftions and not traverfahle, but a prefent- meut in a leet of bloodilied or the like, and in the Swanimote court of the foreft for oft'enfes of Vert and Venifon. But even thofe prefentments are traverfahle alfo in two cafes, vi-z. I. If the offenfe prcfented be out of their jurifditftion. 2. Or if the prefentments be fuch as concerns the freehold, as prefentments of nuifances, or fuch matters as charge the heehold ; 41 £. 3. 26. ^. 45 E. 3. S. b. And tlicrefore it was ref )lved in the E.xchequer in a quo warranto agaiufl: tlic waier-baiiiff and conferva tc^r cf the river Sever n, 22 Cui . 2. (d) Crt. Car. 251, K 4 that tSS HISTORIA PLACITORUM CORONi^. that upon a bare prcfentment the confervators cannot fet a fine upon a fuppofed unlawful filhing or the like, unlcfs the party comes in and confeffes it, or pleads to it, and be convicted by a jury of the oflenfe. A prefentment of a riot or forcible detainer by a judice or two juf- tices of peace, as the cafe fliall require, is n convidion by the ftatutc of 15 R. 2. cap. 2. 8 H. 6. cap. 9. 13 E. 4. cap. 1. But a prcfentment by a juftice of a default in repairs of an high- way, tho by the flatute of 5 Ellz. cop. 13. it is fuch a prefentment as the parties fliail be put to anfwer, yet it is not conclufive, but the traverfe of the party is faved by the ftatute ; and it is but reafon, for tho the view of the juftice can afecrtain the decay or want of repairs, yet it cannot afcertain in what parifh it lies, or who is bound by tenure or prefcription to repair. Burn. Titles, Inriiftment & E'refentment. 4 Blackf. Com. ch. i>3. p. 301, 30Z — 307;! Index to a Hawk. P. C. lit. Indittratnt. Prefentment. [156] CHAP. XX. Plliere a man Jhall he put to anfwer In criminal and capital ofFcnfes without indictment at the king's fuk. AT the common law there were feveral means of putting the party to anfwer a felony without any indictment, fome where- of are ftill in force, others are taken away by ilatute. I. If a thief or robber weie taken with the mainoiivre, cum manu tpere^ and the mainouvre brought into court with the prifoncr, he fhould have been arraigned upon the maiiiouvre at the king's fuit ; 2 E. 3. Corm. 156. And therefore M. \?, l^ \9 E. \. coram rege^ rot. 28. "Norf. Et quia pnediflus Johannes de Brampton [falfavius Jtgilli regis i^ brevium fuorum, ut dicilur,"] non ejl appellatus, nee in- di^atus, ncc captus cum manu opere, per quodfeiia domino regi in hujuf- modi caju potcji competere, idco {_conJideratum cji., quod'\ pradiHus Jo- hannes [^eat inde] Jine die^ Zee. And T. 10 E. 2. rot. 132. Bucksy Robert Legat was arraigned for counterfeiting the king's feal, upon the counterfeit commiffion brought HISTORIA PLACITORUM CORONA. 156 •brought into court without imlid^ment, and he pleaded flot guilt^r^ and was acquit (*)• But upon a bare information or bill, -without indi(flment or the mainouvre at common law, no parry was to be put to anfwer for a felony; and therefore, AI. 20 i^ 2i E. \. coram rege, rot. 27. Hj' herniay H'iUiam P/ene, the king's carpenter in Ireland, being ac- cufed for felony by a bill in the king's-bench there, and convidled and condemned, but after lanfomed for 200/. and a wiit of error brought in the king's-bench in England, and a/Tigned, that he ought not to be put to anfwer in cafe of life or member per vocem l^ per billam, qimm Nigellus le Broun, forrexit venjis ipfum, licet non ejjct Indi^atus per 12. (fj. L'49 J But it fecms to me, that this proceeding upon the mainouvre is wholly taken away by the fiatutes of 25 E. 3. cap. 4. 28 £. 3. cap. 'j, 42 E. 3. cap. 3. and therefore I do not find any proceeding upon the mainouvre hnce theie rtatutes. II. A fecond fort of proceeding in cafes capital without indi<5lment IS, where an appeal is brought at the fuit of the party, and tlie plain- tiff is nonfuit upon that appeal, yet the offender fhall be anaigncd at the king's fiiit upon fuch appeal; and fo it is in cafe the appellant die or releafe ; and in fuch cafe, altho the party be indifted as wcU as appeaid, yet upon the nonfuit of the plaintiff, the poocecding for the king fhall not be upon the indictment, but upon the appeal, 4E. 4. 10. a. But this hath thefe two qualifications. 1. It mufl be where the plaintiff in the appeal hath either declared upon his appeal by writ, or formed his appeal by biil, for the bare fuing of a writ without a declaration is not fuch an appeal as, the party being nonfuit, the defendant fhall be thereupon arraigned ; for (*) Vide Part I. p i85 £3* :?4g, nion, " Quod prnediflum recordum eft i^f) That cafe was thus : H'iil-am Prene " iriitandum, & adiuchilandum ; & idea afligncd for error that " par ceo que le " mandatum eft capitali juftic' Hiberniie^ *♦ commune laie dc Engleierre, e de Ire- " quod corrigat, Scr.. ifc acccpta I'ecuritate ♦' laund veut, ke mil homnie par billc " dc pra:dirto H'itHdmo ad ftandum rcEio •' faunz cnducmcnt, ou par I'litt dc apel, " in com' ubi deiiquilfc dcbuit, & vocatis " fuz les plez dc corone, nc fait [loit] " iupcr hoc convoraiidis ponat praditluia *' attache, ne mis en refpounz ; yrt that *' IVillielmum per apeitum & manifciluta " he the faid fFilliam had been iinprifond, " indi£lamentum de certis teloniis in ce»- •' & de dherjis felmiis acculpatui par une " tis iocis, li aliqiiis vcl aliqui eum forte " bille par Nel le Broun bote en mayns '* inditlare five appellare voluerit fccim- " dcs juftjces ; altho par enqucft, nc par " dum legem & conl'uetudinem ri-gni, &c, •' chapiter, ne fut endite." And upon *' it quod interim pei manucaptionrm bo- confidcration of the whole matter the court " na & catcUa, terras & tcnemcnta, eidcia #f king's-bench in Er.^land wcic of opi« ♦' IfillUlmn delibcret, &c, 1. Tlis 149* HISTORIA TLACITORUM CORONi^. 1. The writ may be brought in his name by a flranger withoTit his privit}'. 2. Becaufe the writ alone contains not fuch certainty of time, place, and other matters, whereby the party may be put to an- fiven 1 H.1.6. b. 2. It mufi: be where an appeal is well begun, and by a party en- abled to profecute It, therefore, if tl-,e appeal abates, becaufe a plaln- tifF is outlawed, or a woman (who cannot bring an appeal, but only P *T of ^^ death of her hufband,) or if the year and day be paft, ^ ^ -'or by the niifnofmer of the defendant, isfc. there the ap- pellee fiial! not be arraigned at the king's fuit, becaufe the appeal was never good, but ihall be difmilTed, only the judges may arraign him upon an indiilment, if any be before tl>em for that ofFenfe, or if none be, )^t they may bind him over to another fcflions, and in the mean tln'ie to be of good behaviour; \9 E. 2. Cor on. 317. All the leanv ing touching this bufincfs is fully declared by Stamf. Lib. III. cap. 59. f. 147. ySf fcquentibus. Ill- A third fort is upon an appeal by an approver, but the ■whole learning touching that will come in its proper place here- after f^/ IV. The fourth fort is by appeals by particular perfons, efpecially of treafon in parliament; and this was very frequent in antient times, efpecially in the time of R. 2. namely anno feptimo, undecima & duo- decimoy which bred great inconveniencies. And therefore by the ftatute of 1 H. 4. cap. 14. all thefe kinds of appeals in parliament are wholly taken away ; and fince that time I find not any fuch appeals brought in parliament. And therefore, whicn the now earl of Brijlol, in this prefent par- liament, in the lords houfe preferd articles of high-trcafon and other xnifdemeanors againfl: the earl of Clarendon^ then lord chancellor, ■upon a reference unto all the judges, and upon great confideration the judges una voce returned their opinion, that thefe articles were con- trary to the ftatute of 1 i7. 4, and could not be preferd in the lords houfe by the faid earl, or any other private perfon (Ii). But impeachments by the houfe of commons of high treafon, or other mifdemeanors in the lords houfe have been frequently in prac- tice, notwithftanding the flatute of 1 H. 4. and are neither within (g) Vide infra, ctp. 29. p. 2z6. (bj Sec Stide hoc totum^ Stamf. P. C. Lib. II. cap. 29. f. 95. a. By the ftatute of 1 1 H. 1. cap. 3. there was power given to pro- ceed upon all penal ftatutes by information before juftices of afiize and peace, but there is an exception of all cafes of treafon, murder and felony. Ill ufe was made of this ftatute by Empfon and Dudley, and great inconvenience and trouble to the people did aril'e by it, and tiiereforc by \ H. S. cop. 6. It was repeald. And tiao informations are pradlifcd oftentimes in the crown-ofHcc in cafes criminal, and by many penal fiatutes the profecution upon them is by the afts themfelves limited to be by bill, plaint, information or indl^ment, yet thus much is obfervable. 1. That the method of profecution of capital offenfes is ftill to be by inJiclment, except the caies above mentlond. 2. That 151* HISTORIA PLACITORUM CORONA. 2. That in all criminal caufes the moft regular and fafe way, and moll confonant to tJie ftatutcs of Afagna Carta, cap. 29. b E. 3« €ap. 9. 25 jE. 3. cap. 4. 28 E, 3. cap. 3. ^ 42 £.'3.' fd/>. 3. is by |irefentment or indidtment of twelve fworn men. [152*] CHAP. XXI. IVho may he ind'i^on, and where and how returned. INQUISITIONS, prefentments, or indictments are taken before courts, or officers of feveral kinds, and accordingly by a£ls of parliament feveral things are prefcribed touching them. I. Touching inquefts before coroners: By the ftatute of 4 £. I. De officio coronatorisy the coroner is to iflue his precept to four, five .or fix vills to appear before him at a certain day to make inquiry, 4his precept is diredied to the conftables of the vills, who accordingly give fummons to a competent number of inquirers, twelve at le:.fc {i}, and by them the inquifition is made, when they have been fworn and have heard their evidence upon oath taken before the coroner. II. Touching inquefts of felonies in leets and Turns. By the fia- tute of PVeJlminJler 2. cap. 13. indi6tments in the fheriffs Turns are to be by twelve at lead, and they are to fet their feals to the inqui- fitions, otherwife they are void fkj. And by the flatutc of 1 £. 3. cap. 17. which extends as well to leets as Turns, they are to be by indenture, one part to remain with the indidtors, the other with the fherifF or fieward. And by the ftatute of 1 R. o. cap. 4. no perfon fhall be returned \)pon a pannel in the fheriff's Turns, unlefs he hath 20 j. per ann. of freehold, or 26 j. 8<5?. of copyhold, and all indictments in the Turn taken otherwife fhall be void. But now by the flatute of 1 E. 4. cap. 2. the fherifF cannot pro- ceed upon any indidtments for felony, or otherwife taken in his Turn^ but muft fend them to the feflions of the peace, and the jufiices there are to make procefs and proceed tiiereupon. CiJ Cohat's cafe fupra, f. i6x, j« ntth, (k) x Co, JnfiU. p, 387. But HISTORIA PLACITORUM CORON.^. 152* But then there mud; be care taken, 1. That the indiitments be of fuch matters only, aj. are within the jurifdidlion of the fherifF's Turn, otherwifc the juflices may not proceed upon them, 4 E. 4. 31 a. % E. ^. b. b. (*) and 2. That they be by inden- - ^- ture, and under the feals of the prcfenters, according to the i- ^«' -■ former ftatutos. III. Indi(5lments taken in the county of Lancnjier before the fiierlff or juftices againil: any perfon inhabiting out of the fame county, or taken in any other county againft inhabitants of the county of Lan^ cajlcr^ ought to be by twelve men, and each indidlor to have lands or icnempnts of the yearly value of 5/. by the ftatute of 33 H. 6. tap. 2. (tj. IV. Touching murders, l£c. committed in the king's palace, the jlatutc of 33 H. 8. cap. 12. hath appointed, that twenty-four of the king's yeomen officers of the cheque-roll of the king's houfe fhall be returned to make inquiry, and the trial to be by a jury of the gentle- men officers. V. Concerning Inquiries to be made before juflices itinerant, the courfe was this : There firfl: went out the writ of the common fummons of the eyre, dircvSled to the flierifF to fummon de qna- libet villa quatuor homines ilf prapojitum, l^ de quoUbet burgo duo- decim legalcs burgcnQs, to be at the day and place for the €yrc, and upon that day the flicriff and lords of liberties were to return the names of the bailiffs of their hundreds and liberties, and thofe bailiffs were fworn to elevSl two men in their feveral hundreds, and prefent their names to the court, and thefe two hundreders for each liundrcd were to choofe of themfelves, and the reft of their feveral hundreders refpeflively, ordinarily {Ixteen, or fometimes only twelve, who were feverally fworn upon inquiries and prefentments of things done within their hundred, as fo many grand inquefts for every feveral hundred, and the twelve returned for each borough were the grand inqueft for the borough ; this caufed a vaft and chargeable at- tendance upon the courts in eyre, and hath been long difufed, and therefore I fliall not fay more of it. VI. Concerning the choofing and returning of the grand jury be- fore juftices affigned to keep the peace, oyer and terminer, and gaol- delivery, I fliall be fomevvhat more large ; becaufe, before thefe juftices, ordinarily, criminal and capital taufcs are heard dfiH de- termined. (•} Vidt fuprfl, />. 71. (+) T*q I- />• a«6. UpCMl 154* HISTORIA PLACITORUM CORONA. Upon the fummons of any {tflion of the peace, there goes out a precept either in the name of the king, or of two or more juf- tices of peace, diredled to the flierifF, tliat non omittas propter aliquant libertatem in balliva iudy quin earn ingredlarisy & venire fac' tali die ac loco vigiitti quatuor liberos isi Icgalcs hojnines de quoUbet hun- drt'do in balliva tua, tarn infra libertcites, qiiam extra, od faciendum i^ exequendum ea qute ex parte dotninl regis tunc tsf ibidem eis injungantury and ?ijcire fac to all coroners, conftables, and bailiffs, i^c. to be there at that day. Lamb. Lib. II. cap. 2. AikI according to others. Venire fac'' viginti quatuor liberos Cs* /#- jralcs homines de quollbet hundredo in balliva tua, quorum quillbet habeat 40 s. per ann. liber i tenement I ad minus, venire fac* etlam vlglntl qiia- tuor turn mllltes quum alios probes t^ Icgales homines de corpore com* tuly quorum quillbet habeat l-Os. de tcrrls i^ tencmentls llberi tene^ viently ad Inquircnd' Juper lls^ quts ex parte dominl regis ad tunc Id ibidem els Injungcrentiir, pramunientesy omnes jujllclarlos ad pacem^ conjlabularlos, ^c. Crompt. f.2\2.a. And in cafes of commiffions of oyer and terminer, and gaol- delivery, Quod non cjnlttas propter allquam libertatem, quln earn In- vredlarls, id venire fac* tarn vlglntl quatuor probos id legales homines de quollbet hundredo com' pradlcl\ ad Inquirendum, pnsfentandumy faciendum id exequendum ea omnia, qua ex parte domlni regis tunc id ibidem eis injungerentnr, qiiam alios vlglntl quatuor probos id legales homines de com* pradlcf ad faclend' juratam Inter do7?ilnum regcjii id prlfones pradl^os, idc. Co. Entr. f 55. a. Upon this precept the flieriff is to return twenty-four or more out of the whole county, namely, a confiderable number out of every hundred, out of which the grand inqueft at the fefTions of the peace, oyer and terminer, or gaol-delivery, are taken and fworn ad inquiren- dum pro domino rege id corpore comltatus, (not as antiently in eyre, a kind of grand inqueft out of every hundred) ; but in feme, counties, which confift of gildable and fucU franchife, where anciently feveral juftices of gaol-delivery fat, as in Su^olk (*), there are two grand juries, one for the gildable, another for the franchife, becaufe there are two feveral commiffions of gaol-delivery. ^., Now touching the grand jury thus returned before juftices L^55 J alTigned, there are fome things confiderable, (•) Videfuprat />. iff. They HISTORIA PLACITORUM CORONA. 155* They muft he pro hi Isf iegales homines, and tlierefure if a;)y one of the indi£t(jrs be outlawd, t)io in a perfonal adtion, it is a fufficient plea to avoid the inditSlment ; 1 1 //. 4. 41 ^. ^/. 4 Car. B. R. Crcie^ p. 134, Sir JFiUiam JVith'tpoleh cafe, and the ftatute of 1 1 //. 4. C(.ip. 9. hereafter mentioned fortifies this, de quo infra. And therefore if any of them be attainted in a confpiracy, or dccies tantum, or of perjury, or outlawd in any perfonal atSlion, or attaint of felony, or in a pmmunire, they are not to be indiclurs, becaufe ia IdiW \.\icy Mt not probi t^ ligaics. Lamb. 'Jiijiic. 391. Touching thfeir annuus cenfus, I do not find any thing determinei!, but freeholders they ought to be. The flatute of 2 H. 5. cap. 3. that requires jurors that pafs upon tlie trial of a man's life, to have 40^. per ann. freehold, hath been the meafure by which the freehold of grand jurymen hath been mcafured in precepts of fummons of feflions (f), By the ftatute of 11 //. 4. cap. ultimo, reciting, that iiiquefts had been formerly returned of perfons outlawd, fled to fandtuary for trea- fon or felony, is^c. enatfls, " That no indidlments be made by fuc!i " perfons, but by inqucft; of loyal fubjedls returned by the Ilieriffs or *' bailiffs duly, without denomination of any perfcn, but only by the *' fwoin bailiffs and miniflers of the flieriff; and if any indi£tmcnt be ** otherwife taken, it be void." Upon this ftatute it hath been refolved in Sir JVilUayn WithiprAe' % cafe, above cited. 1. That it extends to coroners inquefts. 2- It is a good plea upon this ftatute, that one of the indi>5lors is outlawd in a perfonal a6lion, as well as of felony, or that any i^i the jurors were impanneld at the denomination of any, contrary to this ftatute. By the ftatute of 3 H. 8. cap. 12. it is ena6led, " That the jufticcs ** of gaol-delivery, and juftices of peace, whereof one of the yrvorz/w?, *' in open feffions, may reform the pannels returned by the fheriffi *' (which be not at the fuit of the parties), by putting to, and- ,j^.. ** taking out the names of the perfons returned, and (hall *- ^ ■* " command the ftieriff to return the fame accordingly, upon pain of *' 20/. and the king's pardon to be no bar to the profecutor." This a»5l extends not only to pannels of grand inquefts returned, but alfo to pannels of the petty jury, commonly called the jury of hfe and death, which may be reformed by the juftices according to this a<^, and the Iheriiris bpund to return the paunel fo reformed. (+) Vjc InfrMy p, I-:, in r.Otij, The 1S6* HISTORIA PLACITORUM CORONA. The grand inquell returned the firft day of the feffions, and fworn, commonly ferves the whole feffions of the peace, oyer and tenn'mer, or gaol deliveiy ; yet the court may command another grand inqueft ta be returned and fworn, which is done ordinarily upon two occafions. 1. If before the end of the feffions, the grand jury having brought hi all their bills, are difcharged by the court, and after that difcharge, cither fome new felony, or other mifdemeanor is committed, and the party taken and brought into gaol ; or if after the difcharge of the grand inqnefl:, fome offender be taken and brought in during the feffions. In the former cafe, there is a neceffity t@ make a fpecial record of the adjournment of the feffions from day to day, becaufe otherwife the •vvholc feffions are in fnppofition of law only the firfl: day, and therefore without the entry of fuch adjournment, the offi^nfe and proceedings will be, in fuppofition of law, after the feffions ended, and fo the pro- ceeding will be erroneous (*) : this was the cafe of Sampfon (hj, who being arraigned and tried for a murder committed after the firfl: day of the feffions, and before the feffions ended, for want of entry of an ad- journment it was ruled erroneous. And the fame Is to be obferved, if upon record it appears, that the grand inquefl was returned after the firfl day of the feffions, unlefs an adjournment be entered of record. 2. The fecond ordinary inflance of a new grand jury returned, Is Dpon the ftatute of 3 H. 1. cap. 1. namely, a grand inquefl: impannel- led to Inquire of the concealment of another grand inquefl, upon ■which defaults prefented, the former grand inquefl Is to be amerced ; and this, tho it mentions only an inquefl thus to be taken by jufllces J. ^-. of peace, yet it extends to the king's bench, and hath been- ^ pra6tifed there accordingly In my knowledge, and poffibly'at the feffions of oyer and ter7niner and gaol-delivery, tTio that can rarely- come In quefllon, becaufe the feffions of the peace ordinarily accom- panies thofe commlffions. And this Is the proper and legal way of punlfhing the grand Inquefl, if they refufe to prefcnt fuch things as are within their charge, and for which they have probable evidence to make a prefcntment ; but 6f tbis more in the next chapter, (*) Supra, f. 24. (h) W. y$)ictf 420, See Index to 2 Hawk. P. C, tit. lodiflorit CHAP. HISTORIA PLACITORUM CORONiE. 157 CHAP. xxir. Concerning the demeanor of the grand inqucft, in relai'icn to thzlr prcfcntmcnts. THE coroners inqucfl may, and mud hear cvi;]ence of all liands, if it be olFered to them, and tliat upon oath, becaufe it is not fo much an accufation or an indl6lnient, as an inquilition or inqueli: of office, quoinodo J. S. ad viortem [nam dcjcuit, tho it be alfo true, tliat the ofFtindor may bu arraigned upon that prcfcntmcnt. But the grand inquefl before jufciccs of peace, gaol-delivcrv, or oyer and terminer, ought only to licar the evidence for tlie king; and in cafe there be probable evidence fa), they ought to find tlie bill, b;:- caufe it is but an accufation, and the party is to be put upon his tri;il afterwards. But if a bill of indictment for murdt.T, or other capital ofFenfe he j)relcnted againfi: J. if upon the hearing the king's evidence, or upon tlieir own knowledge of the incredibility of the witnefles they are dif- fatisfied, they may return the bill Ignoramus. If A. be killed by B. fo that it Aozh conjiurc de perfond ^ ^ occlji If} Occident Is, and a bill of murder be prefented to them, L j J regularly they ought to find the bill for murder, and not for man- flaughter; or fe dcfendcndo, becaufe otherwife olfenfes may be fmo- thered without due trial ; and when tlie party comes upon his trial, tlie whole fadl will be examined before tJic court and the petty ju:v, and in many cafes it is a great difadvantagc to the party accufed (*j. For if a man kills B. in his own defence, ov per Infortunium, or pol- fibly in executing the procefs of law upon an aflfault made upon him, or in his own defenfe ui)on the highway, or in detenfe of hii hcule againfi: thofe that come to rob him (in which three laft cafes ir is neither felony nor forfeiture, but upon not guilty pleaded he ought to be acquitted), yet if the grand inqufl: find an :<^:::rai:!?:i upon the bill, (aj This fame doiSlrinc is l.iid down h\ the tniih oi [he in:'.iclmr nt, as a ^c'i: r.;r., C. J. Pembcrinr., in the cai'c of the carl of oi' ;» coroner's iiujieil : I'lc^e fulirn, p. (i\. Shdl'^Jhuiy, Htu'te TV. Vil. III. p. 415. r*) N'otwithllanding this, accordihr; to Vidi tatr.en Sir yobn tlciv!cs remarks 011 lord Co^i, 9 Co. 1 19. d. inaitlmcnts, '.vnic:! tUii ca(e, Stu:e Tr. fo! IV. />. 1S3. wh»rc- concern the life of a man, ought to be fri* iij he unanfwerab'.y (hews, thit a grand- nicJ as near the mith as may l-^-. jury ought to have the fame pcifuihon of Vol. II. L or 158 HISTORIA PLACITORUM CORONiE. or tind the fpeclal matter, whereby the prifoner is difmiflcd and diT- charged, he may iieverthelefs be indided for murder fevcn years after. But if the grand jur}' had found the bill for murder (yea or for man- flaughter), and the party pleading not guilty, the fpecial matter is given in evidence, and die petty jury find the fpecial matter; (or in the three lafl cafes find him not guilty, as they may) this acquittal upon this finding will be a good plea of autrefohs acquit, and he lliall never be arraigned for it again. If a bill be againfl: A. for murder, and the grand inqueft upon tlie evidence before them, or their own knowledge be fatisfied that it was hut per infortunium, ox fc dcfcndcy^do, and accordingly return the bill fpecially, tlic court may remand them to confider better of it, or may hear the evidence at the bar, and accordingly direft the grand inqueft ,. but I have known a judge blamed for fetting a fine upon the grand in- queft for fuch a return, becaufe in truth it comes not up to felony. But if a bill goes out againft B. for murder, and it doth corjlare dt pcrfomi occidcntisy may the grand mqueft find the bill for manflaughter, and iFfiGramus for the murder i' and is the court bound to receive fuch a return? P -J In this cafe, of all hands it is agreed (bj, that the grand jury is to blame, becaufe they take upon them to anticipate the evidence that is to be given to the petit jury, and fo determine marrar of law, which belongs to the com t to determine, and by this nieans many murders may efcape under the difguife of manflaughter, arid fo cfcapc with their clergy. iiome therefore have made it a practice to fet a fine upon the grand jury in this cafe, and it hath proceeded fo far, as to fine petit juries uilo in fuch like cafes; whereof hereafter. '1 hat which I think herein, and in other concealments of grand in- quclls, is as follows, z-i^^. 1 . '1 hat the court may receive fuch a return from the grand inqueft, ^nd It is a matter of difcretlon, cfpecially, if upon inquiry from the {b} This !£ far from being ojrc-d of all fafl, and proper for the confideration of a hands, for fuch an anticipation of the evi- jtJiyj and tho judges have fomctimes fined dcncc by the grand jury is wh..t tl'.cy can- jurors for not linding fuch bills for murder, not avoid, they being bound by their oath yet fuch proceedings have been generally as much as the petit jury, Jo pnfent the cehfured, as in the cafe of Sir W. /^n^/irwj, tohvle truV', ar.d tioib'ing tut tbc truth ; nor and others, P. 19. Car. 2. who were fined do they in this cafe fo properly detciminc by Kicliug, C. J. for not finding a bill of matter of law as matter of faft ; for whether murder, albeit they were fatisfied the man murder or not depends upon a prcconcciv- died by the hand of the party indidcd ; but ed malice, which , tho it is to be prefumed, upon complaint in parliament, the chief whtrc no piovocatioii appears,; is matter of jutlice was fain to fubniit. 3 Kcb. 180. indidors I HISTORIA PLACITORUM CORON/E. 159 inditStors or witnefTcs, or upon view of their examinations it dotli plainly appear, that the crime amounts to no more 2. That barely upon fucli a return no fine can be fetupon the grand inqueft, unlefs the evidence to the grand imitiefl: be given at the bar in the prefcncc of the court; for othcrvvire the court cannot undcrfl.iud, whether the grand imjucrt doth well or ill in fuch cafe. 3. That if the evidence to the grand inqucfl: be given at the Inir upon an indidlment in the king's bencli, and tlie grand inqueft will not find a bill according to the dircClion of that court; as for inftancc, will find a man guilty onlyy^ dr;«i proceeded to fine jurors in civil caufes, if they gave not a verdi<5l according to direction even in points of fact ; this was done by a judge of aflize fcj, in Oxjordjhhe, and the fine eftrcated ; but I, by the advise of moft of the judges oi England, ftaid procefs upon that fine; the like was done by the fame judge in a cafe of bu:- . glaiy, the fine was eftre.ucd int ) th-- Exchequer; but by like advice (c) Ju.'lioc H dc , t O^f rj. ra ich. I 15, L 2 I ftavea [i6ij i6o HISTORIA PLACITORUM CORONA. I ftayed procefs ; and in the cafe oi IVa^Jlaff (d), and other jurors fined at the Old-Bailey, for giving a verdidl contrary'- to H. 1. oap. 1. prefcrlbes a wav for their hning, which would not have been, if they bad been arbitrarily fubje6t to a fine before. 3. It is of very ill confequcnce, for the'privi- icgc of an Engl'ijlnnan is, that his life iludl not be drawn in danger without due prefentmcnt or indi6lmcnt, and this would be but a fiendcr fcreen or fafe-guard, if every juflice of peace, or commif- honcr of oyer and terminer, or gaol-delivery, may make the grand jury prefent what he pleafes, or othcrwifc fine them; and there is no parity of reafon or example between inferior judges and the court of king's bench, which is the fuprcme ordinary court of juftice in fuch cafc!; ; and thus far concerning fining of grand inquefls ffj. Hiey are fworn to keep the king's coahfel undifcovered, the reveal- ing or difclofjng whereof was heretofore taken for felony, 27 j^J'. 63. but that law is antiquated, it is now only fineable; if there be thirteen or more of the grand -inqucft, a prefentment by Icfs than twelve ought not to be; but if th'ere*be twelve' aiTcntin'g,;tho fome of the reft of their number difFen% it is a good prefentment ; for if twelve agree, it is not neceflfary for the reft to agree. Lamb. Jujiicc 400. But in cafe ofa trial bv the petit jury, it can be by no more nor lefs than twelve, and all allcntiflg to the verdict /'^r^, accordingly it was adjudged; M. Vl E. 3. Rot. 16. Suff..Rcx. (h). the judgment "was leverled, bccai.fc but cjevcn indiclors. But. fd) Vau^b. 153. contrary to tlie dirtClion of the court, (cj Cap 42. thcic may be fonie rcafcn why tlicy fhould if.) 7 lie coiii.t i/T king's bench, 'it is true, be fined, Sec Hood'i cale, KeLgn 50. but Vray inticli more fattly be tniiLcd, than barelv biidmg matter ot fail againil the other inferior courts, but yet? our author's dir.cctioii ot the court, is no fufHcicnt caufe arguinenis do fufScicntly evince, that no to fine a jury, Hujhcll'i cafe, Vtiugk.- 15^. court whatever ought to h;.vc fuch a power and this diltin6lion is founded on the an- ot making juries liiid what they plcafc, nor ticnt maxirn of the common law ; ad q'lcrf- "lias the law vcHed inch a p'rtwci ih any tknem jv.rh non rejhor.dent jurutorci, jed ju- touri; for as :o matter ol fuel, the jury died; tidj^u./ji'wncmj'atliiwnrejpi,nde„tju.- aie the folc j :dg(i, and herein are to Le dues, J:d jura/ores. Co. Lit. \. 366. & guided entirely tiy ilicir own judgments ' iibvui iti. and confcicnce.s ; indeed 1:1 matters of law, fg) ^ce the inconvcnicncies hereof, Pief. the court is the proper judge, and ihejury to^cateTr; p. -j. arc not to iiiid contrary to their dnedtion j (bl This cafe proves nothing as to the but even here they aie not bound to loliow petit jury, it be;ng an inditlment on the tiic diicclion of the court, but if they can- coionei's inqueft, as appears by the record, not afl'cnt tliereio, ought to End tlfC tatt which is as ioilows : '■'■ jfohn C',bat oi Ipf- fpcctally j indf t!ic fame rci;.;n removctl into the Jf.ing's bench, " & contiuuaio irjdc procclfu L ' vcrfiis praef.it' "Joh.mn'm ufque a die Paf- ' cha" in xv dies anno rcgnl regis nunc ' Ans^liu- quadragefiino tertio, ad quern ' diem coram domino icgi apiid If'i/iii:' • vcnit pr,rdirtiis Jchar.tus C.ob.it per man', (4: vilo & diligeutcr cxaminato per cm' iudicl.iincpjo pra-di£to, pro eo quod ' lompert, ell in eodem, quod fuerunt nili ' uudccim jmatures tatitiim in mquilitionc ' prardicla, \\h\ in q;ialibet mqnilitioiie dc ' jure tore dcbcicnt \ii jurati, it fic vidc- ' tur cnr', (|uod indiftamfntum pr.-cdidum ' minus fulticiens ell ad praefat' yi,h:in>itm ' Cobat ulteruis indc ponere rcfpoiifur'. ' Ide<> idem yohaina i\ihat ad prxfcns cat ' indc liac dif, lalvo fcinpcr jure rcjjis, If i6j HISTORIA PLACITORUM CORONA* If a man had been flricken in the county of //. and had died in the county of B. the offender had no been indidlable of murder, ^r. in the county of .^. becaufe the death was in the county of B. neither had he been indictable in the county of B. becaufe fne {Irqke was given in the county of /^. but by the {latute of 2 isf 3 E. 6. cap' 24. he may be indi6lcd in tiie county where the party died, tho the flroke \veiein another county; and alfo the offender iliall be tried there, but an appeal may be brought in either county. 7 Cv. Rep. 2. a. Buiwer's cafe. So if y/. had committed a felony in the county of D. and B. had been accefTary aefoyc or afttr in the county of C. B. could not have been indiiSted as accefiary in either county at common law, but by tliat flatute he is indidable, and fliall be tried in the county where he fo became accefTary. Stamf. P. C. Lib. I. cap. 46. So if a flroke were given fuper altum mare, and the party came into the body of the county, and there died, this is cafus omijjus, and the party is neither indiftable by the jury of the county where he died, nor before the admiral, by tiie flatute of 28 H. 8. caj>. 15. Co. P. C. cap. 7./). 43. If J. robs B. in the county of C. and carries the goods into the county of D. A. cannot be indidled of robbery in the county of D. becaufe the robbery was in another county ; but he rnay be indidled of larceny or theft in the county o{D. becaufe it is theft wherever he carries the goods; the like law in an appeal, 4 i7. 7 5 b.l. Co. Rep. 2. a. Bu/wer^s cafe. But by the force of fome ads of pa^-liament, treafons and felonies committed in one county may be indided and tried in another county. By the flatute of 3:i //. 8. cap. 2'o. upon cxaminatipn, as in that J. - , flatute 16 provided, treafons, mifprifions of treafons, arid ^ -^ murders committed \\\ any p^ace vvitlna the king's dominions, or without, may be enquired of, heard and determined, in any county where the king by his commiflTion fliall appoint. This flatute, at lead as to the trial of treafons and mifprifions, is re- pealed by the Itatute of 1 £3" 2 /'. & Af. cap. 10. Slam/. P. C. Lib. II. cap 2G. fol. h'J, [)0. Co. P. C. cap. 2../>. 27. But it fecms that flatute flands in force as to indi'i^ments and trials of niunler, the circumflances rcfjuired by that flatuie being obferved. Bv the flatute 35 H. 8. cop. 2. becaufe fome doubt was conceived, whether foreign trca'.ons committed out pf this realm might be enquired of, HISTORIA PLACITORUM CORONA. i5+ of, heard and determined within the realm, it is enaftcd, tha: fuch offences iliall be enquired of, licard and determined in the king's bench, or in fuch counties wlicre the king Ihall iffuc his commiiriou by the good men of the fame county. This ftatute ftands in force, not repealed by I Iff 2 P. & M. cap. 10. Co. P. C. cap. 2. p. 21. By the ftatute 27 Ellz. cap. 2. treafons by pricfts or jcfuits coming into England, and felony for receiving them ; and by the ftatute 1 Jac. cap. 11. felony for taking a fccond hufbund or wife, the Hrft living, are inquirable and determinable where the offender is appre- hended; the like for felony in cxportaliou of wools, by tlie ftatute ot 14 Car. 2. cap. 18. But yet it was held at common law, tluit treafon in adhering to the king's enemies beyond the fea, was inquirable an 1 triable wlicre the otFender had lands, vide Coke fuper Littleton^ Siu^. 440. /I. 2G\.. b. b R. 2. Trial b\. but this is now fettled by the ftatute of 35 H. 8. cap.2 vide Co. P. C. cap. \. p. 11. If y^. by rcafon of tenure of lands in the county of B. be bound to repair a bridge in the county of C. if the bridge be in decay, be may be indidied in the county of C. that he is bound ratlone tenura of lands in (he county of 5. to repair the bridge. 5 H. 1. 3. 3 E- 3. ^JJtJe 44u. ^ Blackf. Com. ch. 23. p. 3:3, Burn. tit. Jurors. Index to z Hawk P. C, tit. Jurors CHAP. XXIII. [165] Concerning the forms of indictments In cafes capital, and fir fi ton-hincr the form of the caption returned upon a certiorari. IT will be a buftnefs of too much lengt'n, and befidv^s my intentioti to treat of all indivflmcuts in cafes of criminal, but I lliall confint: myfelf only to thofc that arc capital. Touching the forms of in. 27 G. 4. The jufticcs names, //. 42 Eliz. B. R. Ludlovj's Cd(c. EuC it is not necelTary to name ali tlie jufticco by name, but the reft may be fupplied by the words flsf foais fuis, Isfc J Bui fo many are fit to he named as are enabled by their commiffion to hold a feflion, and the return of the caption is fuppofcd to agree with the title of their leiTions. 5. The title of their autlrority; t^s jujlid ad gacUm domini regis com' pradici' deliberand' . K\\\note, that if there be a feflion by three commiiT/ons, as of gaol-delivery, oyer and terminer^ and the pe ice, if it be returned at a ftflion HISTORIA PLACITORUM CORON.^; . 166. feflion holden before thepn, and the record be made up, as upcxn- all three- commifTions, if they hnvc jqrifdidtion to take the indi(5tmcni. but by one of ihofc, it is good, tho not enabled .to take it by thq. other. 9 H. 1. 9. a. ' Ttnt' coram juJiiclaT lis ad facem, without faying jiccnon ad divert fclcnias, i^c.audtcnd' iff termlnand\ ajjignat'is, is not good to rcmovQ an indictment becaufe tho that claufc be ufually added to all com- mifnons of the peace, yet there are nqt thereby juftices of oyer and terminer^ and that claufc ought to be added to tlicir return, becaufe vvitliout that claufe they cannot proceed by indictment. 22 E. 4, 12. h. 2 R. 3. 9. a. b. And altho in all commiflions of oyer and terminer, gaol- r /• -i delivery, and of the peace, there be fonie that are of the /juorunif. without wliich there can be no fefflon held, yet in the cap- tion there need not be any mention, whether any of diem, or whicli of them are of the quoyum, but generally as before, for it is fiifficient, if de faflo the feflion be held before him or them that arc of the quorum, tho not fo mentiond in the return, and fo is the ufiial courfe. But it feems, that if an a7. And 4^2 HISTORIA PLACITORUM CORON.^. And fo it fcems, if a man be indided at a leet, quod f clonic e rapuli fuch a wbman, and this indiy£lment is removed into the king's bench; becaufe the leet hath no jurifdiclion to take an indi£lment of rape as a felony, he fhall not be put to anfwer it as a felony, but fliall be fined as for a trefpafs, becaufe as a trcfpafs the leet may enquire of it. 6 H. 7. 5. a. If it be a general (latute, it need not be recited, but it is fufficient to conclude contra formam Jlatuti in hujufmodl cafu edW i^ provis^y for the court ought to take notice of it, and all penal ftatutes, that induce a forfeimre to the king, or make a felony or treafon are gene- ral ftatutes, becaufe it concerns the king 5 but if a general ftatute be recited in an indi6lment, and be mifrecited in a point material, and conclude contra formam fiaiut'i pra:ditliy it is fatal, and the indict- ment fhall be qualhed, but it feems, that if it conclude generally _ , contra formam Jlatuti in hujufmodi cafu edit' isf provis\ it is good, for the court takes notice of the true ftatute, and will rejedt the mifrecital as furplufage. M. 7 Car. B. R. Croke^ n. 14. Barn's cafe (oj in maintenance, and yJ/. 8 Car. B. R. per Jones fuperjlat. de cottages (p)>. 1. If an afl of parliament making a felony or other ofFenfe be but temporary, and made perpetual by another ftatute, the indidlment concluding contra formam Jlatuti is good. 2. If the former ftatute be difcontinued, and revived by another ftatute, the beft way is to conclude contra foi 771am jlatutonoUy M. 31 (fJ* 32 £//%. B.R. //'■// \s cafe, tho there is good opinion, that it is good enough to conclude contra foriTiam of the ftatute, as in cafe of the ftatute of 5 £. G. of ingrofling, 31 H. S. for ufury, and 5 Eliz. for perjury, which were difcontinued and revived, yet the indiilments good concluding contra /or/natn of the firft ftatute. T. 9 Jac, Rot. 1 24. C. B. JVcflvjood\ cafe. 3. If one ftatute be relative to anodier, as where the former makeg the offcnfe, the latter adds the penalty, as the ftatutes of 1 and 23 Eliz. t}ic indi6lment ought to conclude contra for7iiamjiatutorwn. P. 42 Eliz. B. R. Croke, n. 6. Dwgly and Aloore fqj. III. Touching the joining of perfons and ofFenfes in one indidl* mcnt. Co) Cro. Car. iiz, (p) 31 El'iti. w/. 7- (jj Cro El. 750. larciny : HISTORIA PLACITORUM CORONA. 173 If there be one ofFendci and fcvcral capital offcnfcs committed by lilm, they may be all contained in one indidlment, as burglary, and larciny : Larcinies committed of fcvcral things, tho at fcveral times, and from fcvcral pcrfons, may be joined in one indiilment. ii there be fcvcral offender-., tliat commit tlic fame offcnfc, tho in law they are feveral offcnfcs in relation to rlie feveral offenders, 21 E 4. yet they may be joined in one Indidmcnt, as if fcvcral commit a robbery, or burglary, or murder. And fo it is, if the offcnfcs are of feveral degrees, but dependent one tipon another, as the principal in the firft degree, and the princi- pal in thefecond degree, viz. prc/cnt, aiding, and aietting the prin- cipal, and acccffary before or after. r -j yV. Touching the joining of feveral offenfes of the fame nature, but diftindly committed by fcveral offenders, fome have been ruled infufficient, as an indid^mcnt of feveral pcrfons, qued non cfccurarunt fojjata frparclia ante feparalia fua pomaria, quaflied in 23 Car. I . B. R. fo of fcveral officers, quod colore feparalium officior^ fuorum feparaliier cxtorjive ceperunt, l^c. M. 33 ts* 34 FAiz. B. R. Lakers eafe in Hug/i/s Rep. and fo if two are indidled for ufing a trade not being bound apprentice, it is not good. P. 16 Car. 1. B. R, Brooke\ cafe (rj. But yet in 21 T. 21 Jac. B. R. A. B. C. and D. were indited for ercifting four fcveral inns ad commune nocumcntum, it was ruled, that for feveral offenfes of the fame nature feveral pcrfons may be indidled in the fame indif^ment, but then it muft be laid feparaliter trexerunt, and for want of chat Vi^ord (feparaliier J the indi(f^ment was qua(hed. And it is common experience at tJiis day, that twenty perfons may be indidted for keeping diibrderly houfes, or baudy-houfcs, and thcr are daily tonvidl upon fuch inJiulmcnts, for the word feparaliter makes them fcvcral indidlmcnts. {rJ : R. A. ;8. ^/, S, CHAP. 174 HISTORIA PLACITORUM CORONiE. CHAP. XXV. Concerning the forms of indldments In particular, and the feveral parts thereof. THE mod confulerable parts of an indidlment in capital offenfes are, 1. The name and addition of the party offending. 2. The day and time of the oftenfe committed. 3. The place where It was committed. 4. Upon or againft whom committed. 5. The manner of the commiflion of it. 6. The fa6l itfelf and the nature of it. 7. The conclufion., This is the grammatical order, wherein things are fet down' t '5^ in the indictment, and upon thcfe parts moft of the con- •fiderations and obfervations touching indi<5tments do aHfe, and thofe that are not reducible to thcfe heads, are partly obferved before, and {hall be more fully profecuted in the end of this chapter. 1. As to the name and addition of the party indifted, this regularly ought to be inferted, and inferted truly in every indidment. But if the party be indided by a wrong chriflian name, firname, or addition, and he plead to that indiclment not guilty, or anfwers to that indictment upon his arraignment by that name, he f^iall not be veccived after to plead mijnomcr, or faUlty of his addition, for he is ■concluded and eiloppcd by his plea by that name, and of tlrat ef- toppel the gaoler and flicrifF, that doth execution, fhall have ad- vantage. • M.- 16 Jac. and P. 17 Jac. B. R. Debt was brought againft •Sir Francis Forte/cue knight and baronet, and he appeard," and judg- ment given againft him, ruled 1. That he ftiall never affign for error that he was no baronet, tho baronet be parcel of the natne. 2. It execution be fued againft him by the name of Sir Francis For- tefcuc knight and baronet,.- and he.brings falfe imprifonmcnt againft the (heritf, the flierifi^ fliall have advantage of this eftoppel, ad- judged (cij. Therefore he, that will take advantage of the mifnomcr of his chriftian name, addition, or ftrname, muft do it upon his arraign- ment, and the entry muft be fpccial, viz. fuper quo venit Robertas [a) 2 RoU B.:p. 50, 83. A\'illiams, HISTORIA PLACITORUM CORON.E. 175 Williams, fjtd inJi^atus cjl per r.omcn Johaniiis Williams, W d'lat quod uhi in 'mdiilamcnto fupponitiir, quod qiudam Johannes Williams vi Iff arm'is, &c. ipjius uomeri cji Robcrtus isf ws« Johannes ; for, it he fhould fay venlt pradiflus Johanhes Williams, he concludes hiin- fclf, and canr.ot plead, that is name is Robert, and fo I liave known it ruled againft the hook of I E. 4. 2. b. The mifnaming of rhc firname of the offender in an appeal is a good plea in abatement, but tho the lirname be miftaken in an indi6lmcnt, yet it ihall not abate. 1 H. b. 5. b. per Hank- ^ ford. Stamf. P. C. Lib. Til. cap. 18. tavien qtittre. But the millakc ot the chriFiian name is pleadable, as well in cafe of an indidlnicnt, as an appeal, and the party fhall be difmifled from that indictment. 11 i/. 4. 41. />. Coron. 8«. Stamf. P. C. iibi fuprc^ but by Rolf 3 H. 6. 26. a. it is no plea in an indidtment (b). But the fafeft way is to allow his plea of mifnomer both as to his firname and as to his chrillian name, for he that pleads mifmrner of either, muft in the fame pica fet forth what his true name is, and then he concludes himfelf, and if the grand jury be not difcharged» the indidtinent may prefently be amended by the grand jury, and re- turned according to the name he gives himfelf. By the ftatute of 1 H. 5. cap. 5. in all indi6tments, tffc. thcpart-/- indi6tcd ought to have the add.tioa of his myf^cry, degree, place, and county. Therefore, if the party indi(f^cd have no addition, or a falfe ad- dition, he ir.ay upon his arraignment except to the former, and plead to the latter. And if he be outlawed upon fuch indiflm:nt, %vhere there is no ad- dition, or a falfc addition, he may avoid it by a writ of error, isfc. But a!tho there be no addition, yet if he appear, and pltad not guilty without taking advant ige of that defc6t, he lliall never allege the want of addition to flop his trial or judgment, for by fuch his ap- pearance and pleading to ifiue the indictment is affirmed, and the want of addition falved, and the ftatute fatisEeJ. H. IS Jac. B. R. Crokcy n. 5. Johnfon's cafe (cj, adjudged. The addition required by the ftatute is of his degree, as Yeomaru Gent, Ejq ; of his myftcry, as htijlandman, fa'dor^ fpinjier., y£c. there- fore, if the addition be only general, as fcrvant, iarmer, citizen, 9 E. [b) The words of ihc bojk. are, it it n-> p'ta ii fJcrj. [c C c. Z.'is. 6C9. Vol II. M 4. 4S. 176 HISTORIA PLACITORUM CORONA. 4 48. a. or of crimes or mifdeme§inors only, as extortioner, vagubond^ heretic, 22 E. 4. 1 . a. thefe arc no good additions. P -I The addition ought to be to his fnbftcintivc n;inne, not only ^ '' to tlie alias d'u'ius. y1/. 33 ^ 34 Ellz. Croke, «. 11 . Lcke's cafe (J) as A. B. alius diHus A. C. butcher, becaufe regularly the addition refers to the lait antecedent, and upon the fame reafon it is, if the in- dictment run Sibilla B. nupcrdc C. k;^^;- Johannis B. nuper de C. fpinjhry hcczxiit fpinjhr is an addition applicable to the hufband, as well as to the wife ; but an indictment of John B. vir, Emelin B. 7utper de C. yt's- Tuan is good, htCAuic ycoTnan is not applicable to a woman, but to a man. P. 31 is" 32 H. H. Dvo 4G, 47. adjudged, and 4 H. 6. 4. b. Single woman is a good addition, 14 ii. 4. 1. h. fo is ividozvy 10 H. 6.21. a. fo is uxor J. S, adjudged. P. 42 Eliz. B. R. Eleanor Gozi'er^s cafe. An indi6tment againft a peer of the realm is good without an ad- dition, becaufe no procefs of outlawry lies againft liim. Jf. 31 ^ 32 Eliz. B. R. Crokf, V. 15. Lord Dacri^ cafe (e). If fevcral perlons be indicted for one offenfe, viifnomer or want of addition of one quafheth the iadiccmcnt only againft him, and the reft Ihall be put to anfwer, for ihcy are in law as feveral indiftments, and fo in trefpals. 7 E. 4. 10, h. Becaufe the titles of mifnomer and addition are general tides, whereof much is faid in. our books, as well in cafes of civil fuits as iudiclmen's, this Audi fuffice in this place touching this part of the indidlmcnt. » If. Touching the time, ■:•/::;. the year and dav, wherein tliefadl was committed ; this is neceffarv to be containd in the indi£lment. Tho the day be infcrted, but not the year, the indictment is infuffi- cicnt, and it lliidl not be fupplied by intciidment of (ultimato pra- teritoj unlcfs it be fo expreft, but if it be fo'txprefl, it is fuffxient ufcertaining the year by the day of the fefTions. Lamb. 49. If the felhons be held the 20 day of May, and the indl£lment fup- - _qt I"-''^^ ^''^ offenfe to be the 10 day of Alaii idtimi propter iti, it relates to the month, if tdthno pra'terito it relates to the day biy the ncceffary grammatical confl:ru(5lion, but if it X-izuW prateriC With an abbreviation without the termination of the genitive or ab- i.ttive cafe, it fliall relate to die day, viz. the 10th day of the fame Mnw n<; if it were in Englijh the lOlh day of May lall; pad, it re- rd) C Maii anno 2 Eliz. apudC. habens in manu fuci dextra ^1 odium, &c. percujjit B, and it is ngt faid adtunc ^ ibidem per cujjlt qualhed, becaufe r^ i the day and year, and place relate only to the having of the fword, not to the flroke. if. 42 £Az. Crcke, «. 11. Cotton' % cafe (g). If A. be indidted of murder or manflaughter, as well the day and place of the ftroke or other ad done inducing, death, as of the death, muft be expred, tlie former, becaufe the efcheat or forfeiture of lands relates thereto, the latter, becaufe it muft appear, that the death was within the year and day after the ftroke. But tho the day or year be miftaken in the indidment of felony or treafon, yet if tlie ofFenfe were comnntted in the lame county, tl^o (/) Cro. Jac. 677. which makes the felony, * Becaufe it is ihe ftrokjs or robberj', [g] O- £/•»• 739* M 2 at 179 HISTORIA PLACITQRUM CORONJE. at another time, the ofFender ought to be found guilty ; but then it may be requifite, if any efcheat or forfeiture of land be conceived in the cafe for the petit jury to find the true lime of the oftenfe com- mitted, and therefore it is bcft in the indi(£lments to fet down the times as tmlv as can be, tho It be not of abfolute neceflity to the defendant's convidion. 2 Co. InjJit. j18. P. '62 Eli::.. Syer's cafe adjudged. Co. P. C. p. 230. And therefore, if for that variance he be acquitted, he is erroneoufly acquitted, and yet that erroneous acquittal fhall be a good plea of atiterfo'its acquit, for if he be afterwards indided for the fame felony, and the day truly fet forth, he may aver it to be the fame felony not- withftanding the variance in the day. 2 Co. Injlit. ubifupra in felo- ny, and the fame law is in treafon. Co. P. C. p. 230. Where the time of the day is material to afcertain the nature of the otFenfc, it mufl: be cxpreft in the indiclment, as in an indidment for burglary It ought to fay tali die circa horam decimam in node ejuf- dem diei fchnicc i^ burglar iter fregity yet by fome opinion burglariter carries a fufficient cxpteffion, that it was done in the night. So upon breaking a houle in the day-time, to oufl the offender of his clergy upon the flatute of j9 Eiiz. cap. 15. it is ufual to add tem- pore diurm, for the ftatute exprefTeth it fo, otherwife, tho the indi6l- ment be good, yet he fliall not be oufted of his clergy. J. -, ill. Touclilng the place where the felony i.> committed ; ^ regularly the vill, or hamlet and county mull be expreft in the indi»f\ment. . And herein much of what hatli been faiJ of the time will be ap- plicable to the place, for where tiie time mufl be repeated again upon leveral aiSls done, yet reguiarly the place alV:) muft be repeated, viz. adtunc isf ibidem. In fome crimes no vill need be named, as upon an indiftment of barretry, becaufe he is a barretor every where, and it fhall be tried de corpore comitatus. T. 4A E/iz. B. R. Tunfiairs cafe, but P. 3 Car^ B.R. Alatins cafe the indi6tment was quaihed for want of a vill ailedged ; the latter refolution is fittefl to be purfucd. Snff. In the margin, the indictment fuppoling a fadl done opud S. in com prccdiB'' is good, for it refers to the county in the margin. But if there be two counties named, one in the margin, another iri 'he addition of any party, or in the recital of an a6l of parliament recited in the premifes of the indiflment, the fa6l laid apud S. in com* prtcdi^e HISTORIA PLACITORUM CORONi^. i8o pripdifio vitiates the indictment, becauic two counties are namcJ be- fore, and it is uncertain to which it refers. //. 4'J Eliz. B. R- Cnke^ M, 12. IVtngficld's c^(c (h J. Indi^inent againft A. B. that he npuJ N. in com' praJiH' made an affauh upon C. D. oi F. 'm corn' prafdl^\ tsf Ipjum adtunc i^ Ibidem cum quoditm gladio, i^c. percujftt, isfc. this indictment is not good, becauic two places named before, and if it refers to both, it is im- pofTible, and if onl> to one, ir muft refer to the laft, and then it is in- fcnfiblc. 2 H. 7. 10. L P. 44 Eliz. B. R. OfIc's cafe. /f. is indicted, quod ipfe tali die (S* anno apud C. in qucndam B. in fultum fecit, isf ipfum cum quodam cultcllo, ISjc. fclonice pcrcujjitj oc- cidity Iff mutdiavit without faying aatunc vS* ibidem pcrcujjit, occidit, iff murdra'-jity the indictment is not good, for the alluuk may be at one day and place, and the kilUng at another. P. 5 E. 6. Dy. 68, 69. \ R.Z. \. a. If a man be inditSted for that rationc tcnur/e of certain lands p p 1 he is bound to repair a bridge, and that it is in decav, it muft be alleged wheie thofe lands lie. 5 H. 1. 3. b, iV. Touching the name of the perfon upon whom the ofFenfe is committed. An indi6tment of murder cujufdam ignoti is good, and fo for fteaU ing of the goods cujufdntn ignoti, Plo. Com. 85. b. Partridge'^ cafe, 1 Afar. Dy. 99. a. fo of an affault in quoidcnn ignotum, and if he be acquitted or convidtcd, and be afterwards indicted for an affault or murder of fuch a man by name, he may plead the former con- vi(ttion or acquittal, and aver it to be the fame perfon. 1 1 i?/.^. Dy. 285. a. But an indictment, quod invcnit qucndam homincm mottuum, ac fc- lonicc furatus eft duas titnicas, without faying de bonis iff catalUs cujuf- dam ignoti, is not good. 11 R. 2. Euditcment 27. If the goods (if a chapel be ftolen, the indictment fliall fay bona iff catalUi copcHcs m cujiod.a prapojltorum, if it be done in time ot vaca- tion bona iff catalla capcll^ tempore vacaticnis ; but if the goodi ot a parifli cfiurch be flolcn, as tiie bell, the books, i^c. it ihall run bona parochiancriim de S. in cujiodia gardiayiorevi eccleJicCy and ihall not fuj)- pofe them bona ecdcfiw. 7. E. 4- 14, 15. ^/. 31 ^ '62 Eliz. B. R. Hadnam & Greeyi veif»is Ringu^iod f:J. T. 36 Eli^.. B. R. Metkdd ^ Bare/oot. /' I C-c. £/.2. "30. 'ij Cm, J'.l-i, 14 c, 1794 M :i It iSi HIST6RIA PLACITORUM CORON.^. Ir the goods, which J. hath as executor of 5. be ftolen, the of- fender may be indii£led, quod bona B. tefiatons in atjlodia A. executoru tjufdcm B. ^ iSj HISTORIA PLACITORUM CORONiE. ef certainty in a count will be much more defc£\ive iu^an indi{3:incnt, hviefore for this inattrr vide title C'junt ijf Breve per totum. VI. The fail itfelf mufl be certainly iet down in an indicStmcnt. _ - -, Jin\nQ\€(.iy\tr)X-:ig:i\\\^ A. (luodfelon'iee abduxit unum equum *- -without faying ceph & abduxit is not good, for he might have the horfe by bailment, and then it is no felony. 1 J E. 4. 10. a. An indi<^mLnt of poifoning, wherein it is alkdgcd, that J. S.^dVw adhibens to tb.e prifoner, isi nelciem potum pra:diflum cum venenofon in- ioxicatum acccpit isf bibit, and" fays not vaiorum pr adifium, is not good, and fliall not be fupplied by the implication of other parts of the indidtment. 4 Co. Rep. 44. b. Vaux\ cafe. An indidlnient of lapi,', quod felonice i^ carnaliter cognovit without the word rapuit is not good, tho it concludes contra formamjiatuti. 9 E. 4. 26. a. An indictment, that A. exoneravit quoddam tormenium, tsfc. verfus E. dans €1 unam mortalcm pla^am without {ay'ing per cu/^^i , is not good. 5 Co. Rep. Long's cafe 122. a. So if it be dedit mortalcm plagam without percujfity it is not good. P. 9 Jac. B. R. Bidjirode's Rep. p. \2^. For burglary, the ofFenfe muft be frcgh & tntravit. VII. The offenfe itfelf muft be alledged, and the manner of it fp). An indictment of felony muft always allege the faft to be done felonice \ an indidtment of burglary muft lay the ofFenfe to be felonice tp' hurglariter f regit tfj intravit ; an offenfe of high treafon muft be laid to be done /)r,7^///i7W<; ; petit txc\i(on felonice t^ proditorie, for tho lie be acquitted of the petit treafon, he may be convi6l of the man- flaughter or murder. J. is indicted, \h-di furatus cjl unum equtan, it is but a trefpafs for want of the v^ovA felonice. i>iatnf. F. C. p. ^. a. If ^. be Indicled, quod I Dccemb. anno, isfc, apud, l^c. felonice i^ ex maluiu fuu prcscogiiatu in i^ fujicr B. injultum fecit., & cum quodam gladiOf 'isSc. adiunc i.^ ibidem percujjlt^ l^ dcdit eidcm B. mortalcm pla- - gam, isic. whereof he died, the hx'ik felonice tff ex malitiajua pnecogi- tatd applied to th'^ aftault runs alfo to the ftroke ; 1. becaufe •- ■^-' placed in die beginning of the fentence; 2. becaufe done adiunc (5* ibidcv.i. (^) Thiii fhoiM have been tlic 5th head fifth head tou.-hing tie thing vihfeirt the 'f-- accuidnig to o;ir .TUihor'^ divilion ai the Jenfc h committed, u^ich makes the number bcgliiii-.ng of this clidpter, but our aii'.ior of ^eneralheads in tins chapter eight inftead has licjc uaufpoied it, and added a ucw of lev^n. An HISTORIA PLACITORUM CORONi^. 185 An indictment of murder or maiiflaughtcr hath thefe certainties and T<:quir;tLS to be added to it more than other indidtments, for it mull: not \k- only fclon'ic accrf- (f) StjJ. 76, Itry tq two, and }ic bc found g'.ii''-y as nc- 5. Regularly i86 IIISTORIA PLACITORUM CORON JE, b. Regularly the length and depth of the wound is to be {hewed, but tliis is not neceflary m all cafes, as namely whcfe a limb is cut nff", 4 Co. Rep. 42. a. Haydans cale ; fo it may be alfo a dry blow, jnd plaga is applicable to a bruife or a wound. But tho the manner and place of the hurt and its nature be requifite, as to the forniality of the indi6Vmcnt, and it is fit to be done, as near rfie trutii as may be, yet if upon evidence it appear io be another kin4 of wound in another pbce, if the party died of it is fuflRcientto main- tain the indictment.. (i. It is ufual to alledge the party ftricken to hare been in "pace Dei & do7?iini rt'^js,- hvit not neceifary to be inferted. 4 Co. Rep. 41 * /'. Haydons cafe. 7. It is necenary to alledge in fa6l, that the party woanded died of that wound, and alfo the time and place, as well of the death as of the wound given, that it may appear, that he died within the year and day of that wound, as dc qua quidein plaga idem J. S. adtunc i£f ibidem in- Jl.mitcr ohiit^ or dc qua qnldcm plo^a mortali idem J. S. languebat, Isi Linguidus vixlt ufque talctn diem anno fupradi£la^ quo qnidem die ident J. S. de plaga mortali pr in all indiif^mcnts of tclony there muft hc/c!or.:ce, and of treafoin thcr? myft hcprodltaricy fo it muft be laid to be done vi ^ armit at common law. Suitnf. P. C. 9i. a. But the ftatute of 37 H. 8. cap. S. hath now made that not to be neccflary. And therefore P. 16 Jac. B. R, Crohy r.. 9. Hart's c^h ft Jy h was adjudged and affirmed in a writ of error, that an indictment of rcfcuc without the words vi i^ armis is good by reafon of this flarutc, which extends to make good indictments of felony, treafon, or other mifdemeanors, notwithftanding the omifnon ofzji U annis, as well as notwithflanding the omiflion of gladiis, baculh i^ cultellisy but this llatute extends not to declarations in trefpafles, fuits between party and party, or informations for the king, but only to indictments. Vill. Touching the conclufion of the indiiftn^ent. Upon an indidtment of murder, where the ftroke is fuppofed to be tlone at one day or place, and the death at another day or place, the conclufion ought noc to be ^ Jic felonicc, vcluntarle, isf ex . „_-• vialitia fuci pracogltata pr(vd'i£lus J. %. prafatum A. B. at the day and place, where the flroke was given, interfecit isf murdravlty this is not good, becaufe tho the ftroke is the offenfe and caufe of tijc death, yet it is neither murder nor manflaughter till the party die. M. 32 ^ 'i'i Eliz. B. R. Croke, «. 1 13, Fojier's cafe (uj. But if it fuppofes the murder or manllaughter to be where the party- died, this is good, for then and not before it is murder. 4 Co. Rep. Arl. b. Haydons cafe. But tlie bell way is bS fie prafatm A. ipfum B. l^c. mcdo i^ for mi pradi^is interfecit & murdravit. 4 Co. Rep. 42. b. Havdons cafe. But if the conclufion be isfjie pra/atiim B. opudC. (where the ftrakc only was given) modo l^ forma prtcdiiV interjecit ifi murdravit^ it is not good, for it is repugnant. jVI. 32 l^ 33 Euz. B. R. Crokfy t:. I'S ^ Fojhr rtnd Iliiine. And if in the fame cafe the conclufion be only Isijic die iff loco pra~ dittis interfecit iff murdravit, it is doubtful whether it be good, be- caufe one time and place is alleged for the ftroke, anotaer for the (0 Cro. Jac. 4:3 . vidt Cro. Jac. 345. Mmt «f Uufiu ind Oglt. \u) C>«. El. IS*- 4 (•'•. 4*. *■ by (h« death. iS8 HISTORIA PLACITORUM CORONi^. death, and (predl^is) may refer to either, H. 42 Eliz. B. R. Croic^ n. 12. IVin^ field' % cafe fx). Regularly every indidlment ought to conclude contra pacem damirti rfgls, for that is not taken away by the ftamt? of 31 H. S. cap. 8. And therefor* an indictment without concluding contra *>accm, lufc. is infufF.cient, the it be but for ufmg a trade not being an apprentice. H. 23 Car. I. B. R. for every offenfe againft z 9i^m.lQ is contra pacenif and ought fo to be laid. But an indictment need not conclude, i^ contra coronam l^ dignita- tem cJiiSy tho it be ufual in many indiclments. Af. 23 Car. B. R. An] indi£tmcnt that concludes contra paceviy and faith not damini re^is, is infufficient. M. 23 Car. I. adjudged. If J. be indided for an offenfe fuppofed to be committed in the time of a former king, and concludes contra pacem domlni ngis nunc^ -. it is infufficient, for it muft be fuppofed to be done contra *- "-' pacem of that king, in whofe time it was committed. Bat if a nun be.indi6\ed in the time of one king contra pacem domini rigis nunc, he may be arraigned for that offenfe in the time of his fiic- ccflor. I E. 6. B. Corone 17S. Enditement \\. neither is the indiiV- ment itfelf difcontinued by the demife of the king, tho in fome cafes ihc procefs be, 1 Co. Rep. 30, 31. If on offenfe be fuppofed to be begun in the time of one king, and continued in the time of his fucceflor, (as a nuifance,) it mufl con- clude contra pacem of both kings, or <;lfe it is infufficient. T. 3 Joe. B. R. Yclvertons Rep. 66. Sir John /Vinier's cafe. If an offenfe be alledged in the time of Q. Eliz. and the indi^ment taken in the time of K. Jatnes, and concludes contra pacem nuper re- ginis y domini regis nunc, it feems good^ and domini regis nunc but furplufage, as well as in a count in trcfpafs. M. 13 Jac. Croke, n. 3. Cotiington and JVilkins, (zj quivre. ''i'ouching the conclufion contra form am ft attiti^ fomewhat hath been faid in the lad chapter ; 1 Ihall add feme things more. If an offenfe be newly cna6led, or made an offenfe of an higher nature by a(5l of parliament, the indi£lment mufl conclude contra forr vinmjiatuti, as an indi£^ment for buggery, tranfporting of wool, ^c. Rape, tho before the flatute oUVcJhninJier 2. it was a trefpafs, yet being made felony by that flatute, the indi(5tmcnt ought to conclude antra formamjiatuti, G //. 7. 5. a. [x) Ctt. Eiix> 739. "" («) Cro. Jac. 377. If HISTORIA PLACITORUM CORO^JE. 189 If an nffenfe were high trcafon, i^c. at the common law, and adc* clarative a*fi of parliament declares it (o, as the ftatiitc of 2'> E. 3. t/t Proditinibtis, the llatutc of 3 //. 5. of clipping the coin, l^c. till re- pealed by I J^ar. the indidltncnt is good with a contlufion fowfra /cr- mamjiatuti, or without fuch a conclufion. Rut at this day the indictment for clip; I ig, waftilng, t^c. of coin cnaded to be treafon by the ftatiites of 5 viJ* IS Eiiz. mufi: not p only cxprefs, as the flatute requires, that it was (caufa lucri,) L > J but muft conclude contra forinam Jlatut'u \i an offenfe wcic felony at common law, but a fpecial a6i of i)ar- liament ouft the offender of fome benefit, (that the common law al- lowed him,) when certain circumftances are in the fa6l, tho the bodv ot fuch indictment mufl cxprefs thofe circumflances according as -they arc prcfcribed in the ftatute, yet the indi£l:ncnt muft not coiKlude, contra for mam JlaUit'i. Thus the ftatnte of 21 Jac. cap. 27 concerning murdering of baflard children requires proof by one witnefs, that the child was dead boni, the indi(5lmcnt rauft fhew, that it was a bafiard child, to bring tlie of- fender within that ftatute, hut concludes not contra formam Jlatutl. So by the ftatute of 8 El'iz. cap. 4. in cafes of pick-pockets, 39 Eliz. cap. 15. breaking houfcs in the day-time, and ftcaling to the value of 5i-. the flarnte of 23 H. S. cap. 1. in cafes of petit treaibn, ■wilful murder of malice prcpenfe, robbing in or near the highway^ 18 Eliz. cap. 7. in cafe of burglary, the ftatute of 4 ^ 5 P. ^ M. cap 4. in cafe of malicious commanding, bfc. any perfon to commit murder, robbery, wilful burning, the offenders are oufted of their clergy-; the body of the indidlment mull bring them within the exnrefs purview of the (latutes or otherwiie thpy (hall have. the benefit of clergy, but it need not conclude contra formam /iatuti, neither is it ufual in fuch cafes, for they were felonies before, and the ftatutcs do not give them a new punifhmcnt, nor make them to be crimes of ajiother nature, but only in certain cafes take away clergy. But yet, if they fliould conclude in thefe cafes contra formam Jiatutiy it would not vitiate the indidtmcnt, but would be only fuipIufaTC; Jor tho the fiatutcs do not give a new penalty, yet they take away an old privilege, when the cafe falls within the circumftances mentlond by the a£l. Uj)on the flatute of 1 Jac. cap. 8. oufting pcrfons of clergy in caf* of ftabbing, the other party not having a weapon drav/D, nor flrickcn £rft 191 ttlSTORiA PLACITORUM CORONA. firft, 1 have known it held it is fufficient, that the indi£lment bring the fadl within the purview of tlie ftatute, tho it concludes not contra formam Jiatutly becaufe it was felony before, and the ftatute only takes away clergy. H. 23 Car. 1. Page and Haruiood (a). Yet tlie ufual courfe at this day is to conclude fuch an indi6lment eantra formam Jlatntl, and accordingly it hath been ruled good. T. 3 Jac. B. R. Crokcy n. 4. Bradley and Banks, but it is not there queftioned but that it may be good without it; fo that in thefe cafes, where clergy is fpecialJy oufled by an a(5b of parliament, the indiftment is good with this conclufiou or without it, but the befi: way in thefe cafes is lo follow what is mofl: ufual. If an ofFenfe be at common law, and alfo prohibited by ftatutes, the indidlment may conclude contra formam Jiatuti or Jiatutorum ; thus in barretry, tho tliere be no diredl ftatute againft it by that name, yet the general tenor of the feveral a6ls running againft it by circum-. locutions, the indictment concluding contra forviam Jiatuti^ or dl- vcrforum Jiatutorum is good, and it is the ufual form. M. 31 is" 32 EUz. B. R, Croke, n. 14. Burton's cafe fl?J, H. 9 Car. 1. B. R. Chapjnan\ cafe (c)t but it muft conclude alfo contra pacem, M^ 6 Car. B. R. Periam^s cafe fdj. If an otFenfe be at common law, and alfo prohibited by ftatute^ with a corporal or other penalty, yet It feems the party may be in* ^icSled at common law, and then, tho it conclude not contra Jiatuti^ iti^ands as an indiftmcnt at common law, and can receive only tha penalty, that the common law inflicls in that cafe. Thus an indictment for a riot is good, tho it concludes not contra formam Jlatnti^ becaufe an ofFenfe at common law, tho prohibited alfo by adls of parliament under feverer penalties. P. 5 'Jac. B. R. fVormall^s cafe fej. So it feems, if perjury be committed, that Is within the ftatute of 5 Eliz. cap. 9. but concludes not contra formam Jiatuti , yet it -| is a good indi(5lmcnt at common law, but not to bring him *• ' within the corporal punifhment of the ftatute. And yet Mich. 10 fac. B. R. an indiftment of forceable entry upon the ftatute of 8 H. 6. cap. 9. ind Mic^. 9 Car. \. B. R. an indidlment for forgery quafhed for not concluding contra formam Jia- U) Aleyn 4^ StylVu (d) z R. A. 82. pU 5. \h] Cro. Elix. I4S. (f) Z R.J. f. S2. pi. 4. («) Cro, Car, 340. tutU HISTORIA PLACITORUM CORONA. 19a itili, Smit/t's cafe ffj ; yet both thefe were offenfes at common law tho reftituti()n were not at common law in the firft cafe nor pillory and lofs of ears in the fccond, but only fine and impiifoument, or at moft Handing in the pillory, bvit without mutilation. Kcgxilarly, if a ftatutc only make an ofFcnfc, or alter an offtnfc from one ciimc to another, as inaking a bare mifdcmcanor to lie- come a felony, the indif^mcnt for fuch new made otfcniV, or new made felony muft conclude coii^ra fotinam Jlatuti, or orhcrwife it is infiifficient. And on the other lide, if an ofFcnfe be purely at common law, if it conclude contra for matn Jjatuti, it is infufficicnt, and fliall bo qualhcd, except in the inflance above given touching clergy, dc quo fiipra. And therefore an indictment of battery concludinc; contra fonnam- Jiatuti is infufficicnt, and ihall be c^^ualhcd. T. \2 Car. B. R. Crcki\ n. 2. Chohnlcy\ cafe (g). Thefe general obfervations I fhail add touching indi£lments upon ftatines, and cox\<:\\!ii\x\.^ cojitra formam jlcAntl. Altho an indi»Stment grounded upon a ftatute muft conclude contra formctmjicttuti, yet it is not nccefTar^- to recite tlie ftatute in the in- didlmcnt, uniefs it be a private ftatute, \vhc?reof the court cannot take notice. Plo. Com. 79. i. Patridge's cafe. Dy. :j47. a. 363. a. Altho it necJ not recite a general penal ftatute, yet it muft bring the fa£l within the exprefs prohibition of the ftatute, otherwife the conclulion contra for mam Jlatuti, and the implication thereof will not aid the indi J- S. nuper dc D. in coni S. there ihall no procefs go to the (hcriff of S. bccaufc that addition is only in the alias difius, which is neither material nor traverfable, and there- fore procefs fliall illue only in the county of B. where he is indii5led, and no capias with proclamation in the county of S. and the fame law in an appeal. 1 E. 4. \- a. If J. S. be indivflcd in the county of B. in this manner ; J. S. ds A. in com' B. Tinper de C. ifi com' J), the capias fliall illue only in the count)' of B. for there the indidlment fuppofeth him adlually con- verfant at the taking of the Indiilment ; but if tlie indiclment runs thus : J. S. Yiuper de A. z'm com' B. nuper de C. in corn' D. In this cafe there fhall go a capias not only into the county oi B. where he is indicted, but upon the return thereof, (If It be before commlflioners,) a ca- HISTORIA PLACITORUM CORONiE. 19$ a capias with proclamatiuns to the fhcriff of £). ami (if in the king's bench upon an indiilment originally found there,) one capias to oiic {lierifF, and another to tlic otlier flieriff according to the ftatutes of 8, 10 and G Hen. 6. above-named, hecaufc he is not named de A. in covi* B. but nupcr de A. in coirC B. and nuper de C. in com* D. and not with an alias diiiusy as in the former cafe. :iO H. 6. Pro" cefs 192 (hj. If a man be indiifled by the name of J. S. nuper de A. in com' Cef- triip, the fccond capias with proclamation fhall be awarded to the prince or his lieutenant, 31 H. 6. 11. and the like to the - h'lihop oi Dur/iam, or chancellor of Z,fl/;i\j//^r. L -7/J There was a very Iharp, yet ufeful llatute, 2 H 5. cap. 9- " H *' anv perfon make complaint in the chancery of any felony or riot *' committed, and that ths offender fly or withdraw himfelf to the *' intent to avoid execution of the common law, a bill thereof fliall *' be made for the king and deliverd to the chancellor, who, (if he *' be duly informed, that fuch bill containeth truth,) fliall, at his dif- *' cietion, grant a capias to the IherifF of the county wliere the of- *' fenfe is committed, returnable in chancery at a certain day ; and •' if the perfons yield themfelves to the fherifF, they fliall be com- " mitted or baild, as the cafe fhall require, and it fliall be commanded *' to inquire of the fadl, and thereupon to be done as the law re- *' quircth ; but if they appear not, then a writ of proclamation to *' ifTue to the fherifF returnable in the king's bench, by which it ihall ** be commanded, that he make proclamation in two co,unties, that ** the parties appear in the king's bench to anfwer the matters in the *' bill, (the fubllance whereof is to be recited in the writ,) upon " pain to be convift of the ofFenfe, and if they come not at the day, *' to fland attaint, and if they come t/icNy ths fadl to be inquired of •• as above. " Provided that the fuggeftion of fuch riots be teflificd to the chan- •' cellor under the feah of two jullices of the peace and the flierifF ♦' of the county before the capias granted, the fubflance of the com- *' plaint to be expieft in the writ of capias y and alfo in the writ of ♦* proclamation." Like provifion for the counties palatine. Tliis is marked as an obfolete flatuic, but I know no a»5l of par- liament that repeals it, unlets it be the implication of the flatute of {b) And Py-oceff 103. N 2 16 Car, >97 HISTORIA PLACITORUM CORONA. 16 Car. 1, cap. 10. which yet feems not to extend to tlie repeal of tliei'e Aatutes, for the chancellor hath no power to hear and determine the offcnfes, but only to grant preparatory procefs to bring them in to anfwer according to law, tor ihey are to be proceeded againft by indi<5lment, if thev appear. P p-| Yet this flatute hath not been, that I know of, put in ure. '- "^ -' 1. Becaufe it feems doubtful, whether it extends to murders or robberies, unlefs accompanied with a riot. 2. Becaufe it is left to the difcretion of the chancellor to iflue the procefs. 3. Becaufe fo many things previous to the procefs are required, as bill, certificates, probable evidence. 4. Becaufe it takes up fo much delay, that they may as foou be taken up by the ordinary way of indi6lment and procefs of outkiwry. 5. And efpccially, becaufe in fuch cafe the warrant of the chief jufUce or any other judge of the king's bench, upon oath made touching the ofienfe and the offenders, reacheth all parts of England. 6. Becaufe it is fo fevcrc, for an innocent perfon may be convwSled upon default of a])pcarance, and yet have had no uotice; but in cafe of an outlawry, tho it be an attainder in itfclf, yet fmall exxcptions are commonly allowed to the procefs or return, and fo by writ of error ufually and eafily reverfiblc, and the party put to plead to the indi6tment. But certainly it might be of great ufe to bilng In and punirti noto- rious offenders, if iffued difcreetly and upon great occafions, provided "the parties were fiifl; indi6ted by the grand inqucft. Ivlow, for the farther declaring the bnfinefs of procefs upon indi6l- ments of felony thefe points arc confiderable. 1. \V'ho may ilfue procefs of outlawry. 2. Againll whom it is to be iffiied in relatiorj to piincipals and acceffaries. 3. What the tenor of the exigent and outlavvry\ 4. What the eft'eifl or confequence of either. 5. How avoided either hy difcontliiuancc, Jnperjedeas, or error. I. As to the firfl of thefe, namely, who may ifTue procefs by capias and exigent. The court of king's bench either upon an indltfbmcnt originally taken before them, or removed thither by certiorari may iffiie proeefs of capias and exigent into any county of England upon a noyi eft in- ventus returned by the flierifF of tlie county, where he is indi6led, an4 a tejiatumi that he is in fome other county. Juflices of gaol-delivery regularly cannot ifTue a capias or ^"•' exigent, bcraufe their commifTion is to deliver the gaol de prijonibiii HISTORIA PLACITORUM CORON/E. 199 prifonibus In ea exl/lentibus, fu that thofc, whom they have to do \vi:ii, aic always intended in cnl^ody ahcady ; vide Jupra cap. 5. Juftices of oyer and Wrtnintr may ilTuc a capias or exl^rent, and io proceed to the outlawry of any perfon indicted bcfojc them, dire^flci to the IhcrifF oi the fame county, where they hold their feflions at common law. IJut by the ftatute of 5 E. 3. cap. 1 1 . tlicy may idue pro.ccfs of ca- pias and exige/it to all the counties of England aga'mW pcrfons indicted or outlawed of felony before them. Jufticcfi ot peace may make out procefs of outlawry upon indii*^- mcuts taken before ihcmfelvcs, or upon Indlvftmcnts taken befoic the /licrifF, and returned to the jufticcs of peace by the ftatute of I E. 1- cap. 1. but the power of the flierift' to make any procefs upon indi*5l- incnts taken before him is taken away by that flatutc. The procefs to the outlawry, v/'z. the capias and exigent muft; be in the king's name, and under the jiidicial feal of the king appointed to tliat court that illiics the procefs, and with the tcj]c of the chief juf- tice, or chief judge of that court or fcflious. A man is indidlcd by incpiifitlon before the coroner, qiitere if lie can by law make out procefs of outlawry ; vldetur quodjic. llAjjiz. 47. B. outlawry liS. II. AgainA whom procefs of outlawry fliall iffuc upon an Indi^l- ment. Altho in civil actions between party and party regularly a capias or exigent lies not againft a lord of parliament of England^ whether fecular or ccckfiaftical, yet in cafe of an indiolment for treafon or felony, yea, or but for a trefpafs vl i^ armis, as an aflault or rior, procefs of outlawry fliall ifTue againft a peer of the realm, for the fuii is for the king, and the offenfc is a contempt againft him : And there- fore, if a refcue be returned againft a peer, 1 //. 5. or if a peer of parliament be convicl of a diireifm with force, //. 32 E'iz. £. R. Croke, M. 9. Lord Stafford's cafe (i), or denies his djcd, ^ and It be found againft him, M. 3S ifj" 3D Eliz. B. R. ^ •' Crokey n, 26. the earl of Lincoln''^ caic (kj^ a capias pro fine aii exigent fliall ifTue, for the king is to have a tine, and the l^uiie rcafoa is upon an indi6lmcnt of trefpafs or riot, and much niore in the cafe of felony. (\JCro. r/i»..i70. (k) Cro. Hi- .cj. \ 3 In 200 HISTORIA PLACITORUM CORONA. In an appeal by writ againft principal and acceflary, becaufe the writ is general and dilb'nguifheth not which is principal and which acceffary, the proceis by capias fhall go againft them all ; but if the defendants make default, the plaintiff in the appeal ought to declare which is piincipal and which acceffary before the exigejjt iffues, and then the exigent fhall go only againft the principal, and If he dif- tinguin^eth it not, but prays an exigent againft all, he is concluded to charge any as acceffary. But in an appeal by bill or an indictment, the bill or lndij6lment declares which is j)rincipal and which acceffary, and there indeed the procefs by capias is againft them all, but when it comes to the exigent^ the exigent fhall iffue only againft the principal, and procefs continue by capias infinite againft the acceffary, till the principal be outlawd, and then an exigent to iffue againft the acceffary, becaufe then the principal is attaint by outlawry i and if the acceffary appear upon the capias, he (hall be let to bail, and have idem dies by bail till the procefs be detennind againft the principal, and this was the common law, but farther fettled by the ftatute of PVeJim. J . cap. 14. 2 Co. In- Jiit. p. 183. and Stamf. P. C. Lib. 11. cap. 17. fol. 69 ^ 70. If ^. and B. be indicted as principals in felony, and C. as acceffary to them both, the exigent againft the acceffary fhall ftay as before, till both be attainted by outlawi7 or plea. 40 ^Jfiz. 2 5. ^ 7 H. 4. 36. b. for it is faid, if one be acquitted, the acceffary is difcharged, becaufe inditSled as acceffary to both, and therefore ftiall not be put to anfwer till both be attaint. 2 Ca. Injiit. 183. Plowd. Com. 99. h. dubitatur\ for tho C. be acceffary to both, he might have been in- [-, di6led as acceffary to one, becaufe the felonies are in law 20ll -^ feveral, but if he be indidted as acceffary to both, he muft be prov'd fo. 4 Co. Rep. 44. b. Vauxe\ cafe. 47. b. Waited cafe, 2 Co. Jrijiit. ubi fupra; but vide 9 Co. Rep. 11!). a. lord Sanchar's cafe contra per iotam Curiam. Nota the diverfity fcems to be between an acceffary to two princi- pals in an appeal, there he Ihall not be convidl, if he be only ac- ceffary to one ; but if A. and B. be inditfted as principals, and C. be indicted as an acceffary to both, if he be found acceffary to one, he fhall be convidled, becaufe the king's fuit ; quare 8 //. 5. 6. b» 9 Co. Rep. 119. a. lord Sanchar'' cafe (*). (•j Vide Jufra, PaiJ I. />. 624. III. As HISTORIC PLACITORUM CORONA. 201 III. As to writ ot" cxiyi facias, and the return tlu-rcoi. It" the (Ictcndant render hinirdf to tlic ihcrlfr' bcforu the ^////jfo ^-Af- iiilus, and appear in court at the return of the exigent vluA plead, and s bailed to attend the trial, and then make default, the imjuell (lull rot be taken by default In any cafe of felony, cither upon an indictnvnt or an appeal, tho it may in other cafes, but a new capias, and atter that an exigent ihall ifTue, and a capias againll the bail. 19 £. S. Exigent 10. If an exigi facias be delivered to the fhtrilT, and tlierc are but two county-courts before the return, and the flierltF return the tirlt and iccond exaftus ilf mn compaiult, and that there were no more county- days between the delivery of the writ to liim and the day of the return, there may iflue a fpecial exigi facias with an alloeato comitatu, if it be prayed, after the return, and before any new county-day be part, but if anv county-day be pall between the laft of the former county-days and the return, no exigi facias (hall ifTue with an alloeato ccmitatu, but an exigi facias dc novo, for the demand of the partv mud be at hve county -courts fucceffively lield one after another without any county- court intervening, 22 E. Z 1 1. «. fo if after the fecoud cxai'ius the (>i- fender render himfclf and finds mainprife, and at the day of the return makes default, exigi ficias wkh an alloeato comitatu fliall ilfue, be- canfe three coiuitv-days intervened, bur a new exigent and a ^ -i I 202 I capias againfl the bail, '2\i E. 3. ubl fupra, and "2 7:. 3. Exigent ll. And therefore in London, wliere the holding of tlie huflings is un- certain, no cxig: facias Ihall IflTue with an alloeato liufling\ becaufe tlie court cannot lake notice of the fet times of holding it, as they may ot the times of holding the county-court. 21 E. 3. o'l. h. 17 E- 3. 1-3. h- Exigent II. hut vide contrarium at tliis day an alhcata liufmg', H. \9 fac, B. R. Avcher zuADalby (I), where it was agreed, that I^ an exigent ilfucs in Lontlon, and they begin \n\\M^\\\g dc placito tcna, (as they may) ihcy fhall proceed aljng at that hulfings to the out- lawry, witiiout mirjgling their huflings de cnninunibiis placitis; but if an alloeato Luf'.Hg" comes, they Ihail proceed without omitting any hulling. If the offcnd':r appear at the capias and pleads to iflTue, and is then let to bail to att-nd his trial, and then makj default, the Inciutfl in cafe of felony Ihall never be taken by default^ but a cafius ad audien^ (."; Va!m. p.;?. N .\ rum 202 HISTORIA PLACITORUM CORONA. dam jiiratam fhall ilTue, and if he be not taken, an exigent, vide 26 •''i/J- 5 1 . Coron. \ 96. and if he appeared upon the exigent and then made default, an exigi facias de novo {hall iffue. \& AJJ. 13. But, ifupon the capias or exigent the (heriff returns cepi corpus, and- at the day hath not his body, the fheriff fhall be punifhed, but no new exigent awarded, becaufe in cuftody of record. 30 Jffi-z. 23. but if the party be returned outlawd, theprocefs thereupon is a capias utlegatum. And that I may fay is once for all, as well this procefs of capias ut-^ li^gatum as all other procefs upon an indiif^ment, and generally all pro- cefs for the king are with a non omittas propter aliqiiam Ubertatcm. And therefore, by virtue of thefe procefTes, the fherfff may enter into any liberty to execute the fame. And if the party be in his own houfe, or in the houfe of any other, jfthe doors befliut, and the fheriff having given notice of his procefs demand admittance and the doors be not opened, he may break open the doors and enter to take the offender. 5 Co. Rep. 9\. b. Scmayne's cafe, ts' iibros ibidem. r^ -1 Nay farther, if a party outlawd be in a houfe, and the door be refufed to be opened, theconftable, or any other per- fon in purfuit of the felon, may break open the doors and apprehend a perfon outlawed or indided of felony. The return of the outlawry mufl be certain. It muft (blew where the county-court was held, and in what county, therefore ad comitatwn mewn S. tcyit. apud C. and fays not in comitatu pradido or in coin' S. is erroneous. 11 iif. 7. 10. a. dubitatur. The like if it be ad comitatum memn tentum apud S. in com^ Somers*, and fays not ad comitatum meum Somers', or ad comitatum Somers', without faying ad comitatum meum Somerfet. P. 7. Jac. B. R. ad- judged, PVhiting\ cafe (m). 6 H.l. ]5. b. II H. 7. 10. a. And yet in that cafe at the defire of the king's attorney, in cafe of an outlawry of felony a certiorari iffucd to the coroners to certify the truth, and thereupon the return was amended according to a like pre- cedent in the time of E. 4. T. 3 Car. B. R.. Plum's cafe (nj. The Iheriff muft return the day and year of the king to every ex ail us. If the day and year of the king be inferted in the 1 , 2, 3 and 5 ex" aifusy but omitted in the 4th exaiius, it is erroneous, and (hall not be (m) iR,A.f. 8o3. fl. 2. (n) Talm. 480. hatih 2 10. fupplled HISTORIA PLACITORUM CORONi^. 203 f'lpplicd by intendment. Af. 14 yac. B. R. Chapman's cafe adjudg- ed (0). So it it be anno regni dom'mee regina without faying Elizahetha, or iiomina- ElhzabethiV without faying regime. P. 1 J(JC. C. B. Burforeti cafe ffi) and Braneiling^s cafe (qj, or anno re^ni Domini rrg:s yacohi without faying rrgni Jul Anglicc, for the year of EngLmd and Scotlayii, differ. H. 7. Jac. Pen's cafe (rj, fo if there be lefs than a month be- tweecn the firA and fccond exadus. H. 13 j^ac. B. R. Taverner% cafe (i). Ad hujl'ing tent* apud Guildhall civitatis London without faying de communibus placitis is erroneous, becaufe they have two . _ huftings, one de communibus placitis, :xK\oihcT dc piaeitis terra- *• 6 H. 7. 15. b. W H. 7. 10. .fl. So if an exigent be againft A. and B. and the return is prima exaflz fuerunt i^ non comparuerunt without faying Jiec eorum cdiquis ccmparuit, it is erroneous. H. 13 Jac. B. R. Taz'erner''s cafe adjudged (tj, i^ fccpius alibi. If there be two coroners in a county, the calHng upon the exigent may be by one of them, and hkewife one alone may give the judgment of outlawry. \\ H. 4. 34. h. per Hauhf. 39 H. 6. 40. b. But it feems the return mufl be by two in minifterial acts. 14: H. 4. 34. b. 39 H. 6. 40. b. The name of the coroner muft be fubfcribed to the judgment of outlawry at the quinto exa^us. M. 9 Car. B. R. Eihrbigton's cafe upon an outlawry of felony, and it mufl be fubfcribed alfo ty the name of their office A. B. and C. D. coronatores, nnlefs in London^ where the mayor is coroner. M. 13 Jac. B. R. Earl/s cafe fuj. P» 17 Jac. Croke, «. 11. Canard's cafe fxj. The (herifFs name and office muft alfo be fubfcxibed to the return of the exigent, e. g. A. B, armiger, vicec ernes. IV. As to the effect of the exigent or outlawry in treafon or felony. 1, As to the exigent the very iffuing of the writ x^l exigent'xn cafc of treafon or felony gives to the king or the lord of a franchife, to whom that liberty is granted, the forfeiture of all the goods of the party fa put in exigent from the time of the tef.e of the writ of exigent* 41 jifz. 13. CoJ 1 R. j4. f. 803. /./• I. (0 hid. p. 802. pi. 5. (p) Ibid. f>. 802. fl. 6. (f) z /?. -^./>. 8c2./)/. 1. (y) i R. A. p. Sox, pt. 7< \u) Hid. p. 802. fl. 3 55" 4, (rj Hid, p. Sy«. pi. i, {st) Ct«. Jac. 5Ji, Aod 204 HISTORIA PLACITORUM CORON.E. - • And therefore, if in an appeal the exigent he well awarded, tho the writ of appeal be abated, the forfeiture of the goods by the exi- gent rtands in force. 43 E. 3. 17. b. Stmnf. P. C. Lib. III. cap. 22. fol. 1 84. b. And tho the outlawry be reverfed for error in law or in fa6l, as if the party were imprifond at the time of the outlawry and after the - exigent, whereby the outlawry is reverfed, yet the exigent bc- "'g well awarded the forfeiture of the goods flands. 19 £. 3. Fsrfeiiurc 19. 30i/. 6. ibid. 31. And therefore a fpecial writ of en-or lies even upon the award r# the exigent for the party fo put in exigent or his executors to reverfc the award of the exigent^ if it were erroneoufly awarded for error in law or error in fad. M. 33 ^ 34 Eiiz. B. R. MarJJie's cafe ad~ judged, cited in Foxley's cafe, 5 Co. Rep. 111. a. but not without re- verfal by writ of error. Ibid. As if he were in prifon, or beyond the fea, or had a charter of pardon before the exigent awarded, and tliereupon tire very award of the exigent {hall be reverfed, and the party reflored to his goods, and fo it is for matter of law, as if the exigent iffued againft the acceflary before the principal attainted. Stamf. ubi fupra. But the avoiding only of the outlawry avoids not the exigent if well awarded, nay altho the party render himfelf after the exigent awarded, and plead to the indictment, and is found not guilty, yet the forfeiture by the exigent fl:ands in force. 22 ^JJiz. 8 1 . Therefore it is neceflary for a party outlawd in felony to bring his writ of error fpecially tarn in adjudicatione brevis de exigi facias, qiumi in tromulgationc utlegaricp, for tho the outlawry be reverfed, it doth ' not revcrfe the award of the exigent. But error in the exigent is caufe to reverfe the outlawry, and error \m the appeal or indiclment, upon which the exigent is awarded, is caxife to reverfc both outlawry and exigent. But without a judgment of reverfal in a writ of error the forfeiture by the exigent awarded (lands, tho the indidlment be qua (bed. or the appeal abated, becaufe the king's title being of record mufl: be avoided by a record, and fo are the books of 41 Jffiz. 13, 43 E. 3. 11. b. to be reconciled, vide Foxleys cafe, 7(bi fupra. 2. As touching the forfeiture by outlawry. Outlawry of treafon or felony is a conviiUun and attainder of the offcnfc charged in the indictment:. And HISTORIA PLACITORUM CORONA. 20S And as the award of the existent gives the foifcituie of the goods, (o the outlawry gives the forfeiture or lofs of the lands of the party outlawd, viz. in cafe ot outlawry of trcafon his lands are foifeitod to the king, of whomfoevcr they arc held, and in cafe of outlawTy of felony to the lord by cfcheat, of whom they are immediately ho Men. But it muft be rcmemhred, that the bare judgment of outlawry by the coroners without the return thereof of record is no attainder, nor gives any efchcat. Co. Lit. §. 191. fo. 128. ^. 23 J//Iz. 49. But ii ir.ufl be returned by the ftierifF with the writ of ex igi facias^ and th'' return indorfed. And therefore, it there be a qninto exaf!us, and thereupon ittle^mus ^fl /"'^' judic'tim corovotorum, but no return thereof is made, there hes a writ oi certiorari to the coroners, 9 H. 4. 7. b. 36 H. (). 24. If. Z)y. 223. a. or to the (herifFand coroners, Regijlcr 234. a. 33 E. 3. 14. b. vide Dy. 317. a. to cerrify the outlawry into the king's bench, but this is only either to ground a charter of pardon upon it, 9 H. 4, 1. b. or to amerce the fheriff, where he returned only a quarto cxaSlui when it was quinto cxa^iis, 36 H. 6. 24. b. but of what efFc6l it is otherwife, there feems diverfity of opinions : I think as followeth. 1. That it doth not difaible the party to bring an a(5lion, becaufe in relation to party and party it (lands as nothing, till returned by the flieviff. AUch. 14 ^ 15 Eliz. Dy. 317. a. Puttenham'?. cafe. 2. That confcquently, barely upon fuch a return of an outlawry M^on Vi certiorari, without the wiitof exigent indorfed and returned together with the certiorari, il feems no writ of efcheat lies for the lord ; queere. 3. But if the writ o^ certiorari be diredled to the flierifF and coro- ners, and the writ of exigent be extant in court, and tliev return this outlawry, pofllbly this nviy be a fufficient warrant to enter it of a re- cord, as a return upon the exigent, for the king's advantage, and to iffue upon it a capias utlegat\ 38 E. 3. 14. b. to have the forfeiture of his goods. 14. y 15 Eliz. Dy. 317. ^. Co. Lit. foL 288. b. 37 H.6. 17. a. vide Fro^or's cafe. P. 5 Eliz. Dy. 223. a. ^ .. And Stanley's cafe there cited out of 18 E. 4. to this pur- ^ "^ pofe. 4. But unlefs the writ is {ome way returned or extant, I think it gives the king no title to land or goodi;, for the writ of cxigi facias is -as; HTSTORIA PLACITORUM (:ORON^\ i» the warrant of the outlawry, and that which gives the coroners their aiithovity in fuch a cafe to give judgment of outlawry. And it is not like the cafe, where there was once a writ and re- turn of outlawry, and the record fince loft, for that upon circum- ftances a jury upon the general iflue may find a record, tho not Ihenn in evidence ; but here the writ was never in truth indorfed nor leturncd. 5. But if thcwrit of certiorari were dire(5led to the coroners alone, tho it may be a ground to caufe the flieriff to mend his return and cuke it according to the truth, yet the certificate of the coroners wiH not make a record to intitle the king or lord to any thing without th» writ of exigent extant, and the return upon it amended by the fheriff, for without the exlgi facias and the return of the outlawry upon it, I think there is neither difability, forfeiture, nor efcheat, and th^efore P. 8 Jac. C. B. a certiorari fhall not be fo much as granted to the coroners to remove an outlawry after the parties death. Sir John Fit*5 cafe. V. Touching the avoiding of the outlawry, it is to be done either by plea or by writ of idcntitate nominis, or by writ of error. 1. Bv plea, where the record of the outlawry is not avoided but made good againft another perfon, as where the outlawry is againfl: y. S. de B. and the party taken upon it is another perfon of another addition, as J. S. de C, or J. S. junior, l^c, vide 19 i/. 6. 58. a. 10 E. 4. 16. fl. 20 H. 6. 19.^7. 2. By writ of identitate nominis, vide F.N.B. 267. 20 £. 3. Brief 683. 14 H. 4. 27. a. 3. By writ of error, for it is a judgment of record and mufl be avoided by record. The errors aflignable are either errors in law, whereof before, or errors in fad, which are many, as if the party outlawd were aa Q infant under fourtcea years old in cafe of felony. Dy. 104. i» ^^^^^ 3H.S. Utlagarie II. So if he were imprifoned at the time of the outlawry, unlefs being brought to the bar and demanded, if he will appear, and he refufe it. M. 8 Jac. C. B. 1 i7. 7. 13. 21 E. 4. 73. b. As touching avoiding of an outlawry of felony, becaufe beyond the fea. H. 15 Jac. B. jR. Carter's cafe CyJ, ihefe differences were ^ r)ij 2 i?. A804. //. a, 3,4, 5, agreed HISTORIA PLACITORUM C0R0N;E. 208 agreed by the court, whereby the differing books are reconciled upoa view of divers precedents. 1. If a man having committed a felony goes beyond the fea vo- luntarily, or upon his own occafions, and not in the king's fcrvice before any exigent awarded, tho after the indictment, and then an exigent is awarded, and the offender being beyond the fea is oudawd for the felony, he may affign it for error. 2. But if after the exigent awarded upon the indiC^mcnt of felony, then he goes beyond the fea voluntarily or upon his own occafions, and being fo beyond fea is outlawd, he fliall not avoid it by fuch being beyond fea, becaufe the exigent awarded gives him notice of the profecution, and by fuch a means he may avoid his convi(£tion by flaying till all the witnefTes are dead. 3. But if prima facie the error in that cafe is well aflSgned, by alleging he was ultra mare tempore promtdgationis ut/egaria; and if he were in the realm after the ex-igent iiTued, it (liall come in by the pica of the king's attorney to fliew it. 4. But if he were within the realm at the time of the exigent ilfued, and went beyond fea upon the fcrvice of the king or kingdom, and then is outlawd being beyond fea, this outlawry fliall be reverfed, and if the party allege generally, that he was ultra mare tempore promuha- tionis utiegariet, and the king's attorney reply, that he was in England tempore emanationis brevis dc exigi facias, it is a good replication for the plaintiff in the writ of error to allege, that he went out after the exigent and before the outlawry pronounced upon the king's command or fcrvice, and fhcw it fpecially, and fo confefs and avoid the plea. And it is to be obferved, that altho the death of the king q{ the inferior court in civil caufes. By the ftatute of 1 tsf 2o{ P. isf AT. cap. 1 3. an habeas corpus or cer- tiorari to remove a prifoner or a recognifance ought to be figned with the proper hand of the cliief juftice, or in his abfencc by one of t!ic juftices of the court, out of which it ifllics. By the ftatute of 21 Jac. cap. S. all ceitisrari'a to remove indiol- ment5 before juftices of the peace, (hall be dcliverd at tlie qnarter- feffions in open court, and the party indiCted ftiall become bound with fufficient fureties in ten pounds to the proferutor, with condition to pay him fuch charges as tlie juftices of peace fliall aflefs, if the party be convicted, otherwife the juftices of peace may proceed to trial not- witliftanding fuch certiorari. A certiorari may iflue to the juftices of a county palatine, o] to the mayor of the cirque ports to remove au indi(flmcnt token before them. 211 HISTORIA PLACITORUM CORON.E. and mufi: not be directed to the chancellor of Durham, iffc or war- den of the cinque ports y for now by the ftaiute of 27 H. 8. cap. 24:. all commiflxons of the peace, gaol-delivery, oyer and terminer, iffc. are to be made in the king's name, and thefe juflices in criminal caufes are immediately fubjca to this court, as other juftices f^^^J of like nature elfewhere are; and if tliey return a privilege of the county palatine or cinque ports upon the certiirrariy it {hall not be allowed^ but an alias certiorari iliall iflue with a precept to pro- duce their charters, by which they claim fuch exemption, P. 43 EI/z, B.R. Rot. 119. r. 3 Car. JB.R. fa J, and M. 8 Car. B. R. (b) upon an indidment of fodomy in the cinque ports. T. 1653. Rutabie's cafe upon an indiclment of murder in Durham (c). A certiorari iflucs bearing tcfie the lafl day of Trinity term to re- move all indiaments againft A. and B. returnable tres Michaelis ; at the quartcr-fcffions it is deliverd, and then an indidment is found againft A. B. and C Ruled 1. That tho the delivery of a certiorari fuperfedes the pro- ceeding upon an indiament, yet it doth not hinder the taking of an indiament after the delivery of the writ. 2. Aldio the indiament be taken after the tejie of the certiorari, and before or after the delivery thereof, yet all fuch indidments againft A. and B. ought to be removed, and the juftices below cannot pro« ceed upon fuch indiaments to trial, judgment, or execution ; and if they do, it makes their proceedings erroneous and void, and likewife fubjeas the juftices to an attachment for the contempt, whether they proceed at the fame feffions, or a private fefiions after. 3. That fuch a certiorari to remove all indiaments againft A. and B. removes all indiaments wherein A. or B. are indided either alone cr together with any otlier perfon. M. 22 Car. 1. B. R. Orfener't cafe fd) adjudged. 1 R. 3. 4. b. 6 H. 1. 16. a. U A. B. and C. are indided (fuppofe for a battery), ruled, 1. Tho A. alone tenders fecurity for the cofts, it is fufficient within the fta- tute, and the record ought to be removed into the king's bench. 2« If the indidment be at a private fefiions, this indidment ought to be deliverd into the quarter-feflions, yet tlie delivery of the certiorari at fa) IhpflU rUdm's cafe, i R. A. 395. Slnpfon's cafe, i R.A. 39^- f'- 5' ^, , .;*^ -^ " (d) The fame points rcfolvcd in Cbeney's C^} Dugdale't cafe. ibid. cafe, i R. A. 395. pi. I, 2. (fj Fidtfuprat Pert I. />. 467. and alfo the HISTORIA PLACITORUM CORON.E. 213 the private fcfrion<; dofcth the hands of the jufticcs, altho the allow- ance of the writ and the tender of the fecuriry inufl be by the ftatute at the quartcr-feflions. A't. 105 3. B. R. adjudged, A^5/(?, T. 15 Car. \. B. R in Hancock''^ cafe thefe points were re- folvcd. 1. That if many arc indicted, and one only tenders furetie^ for thecofls upon the ftatute of Jl Jac. it is fufhcient. 2. If thefurcty be fufficient as to 10/. that is a fufficient furety, and ought to be allowed by the jufticcs of peace. 6. Kfcme coi'ert is not within the ftatutc of 21 Jac. to find furcties. 4. If a rrr//c;rtr/ ifluc and ought to be allowd, the proceeding of the juftices after is coram Jion judice. 5. It was refolvcd M. 4. Car. that the removal of an indiftinent of forceablc entry by the profecutor is not within the ilatule of 2 1 Jac. And fo note a difference between a writ of error and a certiorari^ tlie former is th fuperfcdeas to the ilTuing of execution from the time of the dchvcry of the writ till the day of the return be paft, but then if the p'ainiifFprocecd notti the removal of the record, execution fliall be granted for his delay ; but a certiorari is ^fnpcrfcdcas from the lime of the delivery thereof for ever, unlcfs ^-procedendo ifTue. 21 //. 6. 28. b. Dy. 245. a. If at the fefllons of the peace an indictment of forceable entry be, and reftitution be awarded, and after thefefTions and before rcftitution. aftually made a certiorari is delivered to one juflice of peace, before the ftatute of 21 Jac. it clofcd up their hands, and no relHtution fhali he awarded, but the juftice ought to make z. fuperfcdeas thereupon. And it feems the fame hw ftiU remains at this day upon indictments of forceable entry found at private feffion<:, bccaufe the juftices make execution thereupon before any quarter-feffions come by virtue of the ftatute of 8 H. 6. cap. 9. and if the certiorari fhould not be obeyed, it w ould be fruitlcfs. If y^. B. C. and D. be a(5\ually indicted in one indictment for one ofTcnfe, and a certiorari be to remove all indictments again ft _ _ I 2 1 4.1 j1. and B. this will be ftifiicicnt to remove the indidtment •- ^^ againft A. and B. and alio it removes the indictment as to C. and D. tor the juftices may deliver the indiCtment /)f/- nianus prcprlns, M. 37 iSJ* 38 Elix.. B. R. /P'oodward's cafe, contra 6 E. 4. 5. a. But it the indictment be but one, but the oftcnfcs fevcral, as if A. B. C. and D, be indiCted by one hill for keeping fevcral diforderly houfes, a rfrr/^rijn" to remove this indiCtment againft A. and B. rc- VoL. II. O move? 214 HISTORIA PLACITORUM CORON^C. moves not the imliilment as to C. and D. for tho they aie all com- prifed in one bill, yet they arc feVcral indiclments and feveral offcnfes, and fo the record is in the king's bersch virtually and truly as to J. and B. but as to C. at^d D, the record remains below. Bur if the jufliccs per 7?icvius fuas propr'ias deliver the bill into courr againil all ot them as they may, then if a record be made of that de- livery, the indidlmcnt is entirely removed againfl J. B. C. and D. becaufc not done upon the writ oi certiorari^ hui per nianusfuas proprlas : Jiut othervvife it is, where the olfenfes are feveral, and the indi6tment acj;ainrt A. and B. is removed by writ, and by a return indorfed upon the writ, for then that ftngle indidlment, that concerns J. and B. is removed, and nut the others, where the oflenfes are feveral, and feverally charged. But as I faid, if there be one indi6lment againft J. B. C. and D. for one murder or burglary, another againfl the fame perfons for rob- bery, and a third againfl the fame perfons for a rape, a certiorari to remove all indiaincnfs againfl -i'. and B. removes all thefe feveral in- diclments againfl A. B. C. and D. for tho in law each of them be feverally a felon, yet inafmuch as they are jointly chafged they (hall be all removed as to J. B. C. and D. by virtue of this one writ, con- trary to the opinion o^ Markham. 6 E. 4. 5. a. And vet in fome cafes variance between the certiorari and the record caufeth the record r)ot to be removed, as if the certiorari be to remove the record of an inquifition In curia nojira, whereas it was In culra of the prcdctefTor, the record is not removed. 3 EH%. Dy. 206. l>. So if it be to remove an indidlment for flealing of two •^ horfcs, and the record is but for one. 3 Jj/lz. 3. Plozi: Com. 393. ^. If a certiorari iffue, it is 3. fupcrfedeas in law, and it makes judicial proceedings after the certiorari delivered erroneous, but pofTibly it makes miniflerial proceedings, as the award of reftitution in a force- able entry, void alfo; vide 6 H.l. 16 a. per Kehle^ altho it doth not remove the record before the return. Dy. 245. a. After a certiorari ifTued and delivered, and before the record removed the inferior judge may be enabled to proceed by a procedendo ox fupev' Jedcas of the certiorari ifTuing out of the court of king's bench. But if the record be removed and fikd in court, at common law no procedendo could be granted, neither could the record be remitted, but now by the llatutc of 6 IL 8. cap. 6. the court of king's bench may remand HlSTORtA PLACITORUM CORONA. 215 femaml the record, and command the judges below to proceed upon the indi(5lment fo remitted. And note the difference between a certiorari in the king's bench an;l chancery: In the king's bench the very record itl'clf is removed, and that which remains in the court below is but a fcroU. But ufually in chancery, if the certiorari be returnable there, they remove but the tenor of the record, and therefore if the tenor of a record of an indictment, or attainder, or convidlion be removed by certiorari into the chancery, and thence fent by mittimus into the king's bench, they cannot there- upon proceed either to judgment or execution, becaufe tlicy have only the tenor of the record before them, and not the record itfelf, as in the former cafe. Vide 37 H. C. 17. 39 H. 6. 4. Dy. 217. a. 1 £. 3. 21. a. fcj. {*) Fide Dytr ^6g. l>. Burn. Tit- Certiorari. 4. Blackf. Com. ch. 19. p. 262. 26^. 272. cli. 24. pa. ^2C, 321. Index to 2 Hawk. P. C. Tit. Certiorari. Sec the fevcral Index's ot I, 2, 3, & 4. Ke- potts of Sir James Borrow, & Rep. ttmpt. Lord Ilardwickc 396. CHAP. XXVIir. [216] Touching the arraignment of offenders in capital cfenfes. IN the former chapter I have fhewed how the prifoncris to be ac- cufed, namely, by inditSlment, and how to be brought in by pro- cefs to his anfwcr, and how to be dealt vvich, if he make default, or Hand out againft the proccfs of law I am now to confider how he is to be proceeded againft, if he be taken, or render himfelf, and appear in court. For in cafe of an indidlmentof trcalon or felony no olFendcr can ap- pear by attorney, but in pi-rfon, tho in fome cafes of other indictments after plea pleaded, the defendant may appear by attorney. 9 1^. 4 4. a. 22 Affiz. 73. B. Attorney o3. When the offender in trcafon or felony comes into court, or Is brought in by procefs, fometimes of capias, and fometimes of habeas corpus diredlcd to the gaoler of another prifon, the tirft thing that follows thereupon, is his arniingmcnr. O 2 And 2i6 HISTORIA PLACITORUM CORONZE. And herein I will confidcr, 1. What the arraingment of a prifoner or malefactor is. 2. How it is performed, and in what manner. 3- ^\"hen it is to be done. 1. Arraignment therefore is nothing elfc but the calHng of the of- fender to the bar of the court to anfwer the matter charged upon him by indidlment or apppeal. And the word in Lr.tln is no other than ad ratlonem ponrre, and in French ad rejon, or abbreviated a rcfn, for as the voxforenjis d'tfra'm or dcrayn ufed antiently in our books dc ceo tend j nit Iff derayne imports in Latin difrationare to difprove or evince the contrary of any thing, that p is or may be affirmed, fee Spclmcvi's GloJJ. tit. Dirationare, ■' and Seldcns notes upon Fortejcue, cap. 21. p. 23. (oarraigne is ad rationcm poncre to call to account or anfwer. And this ajipears to be the true fenfc and etymology of the word, by the excellent record of the reverfal in piulianient of the judgment given Sgainfl: the MortirvcrSi E. 2. the reverfal and whole record is entered verbatim Patents 1 E. 3. part 2. m. 3. wliere tliere are three errors afligned in that arbitrary judgment, and all ruled in parliament to be errors, and the attainder revcrfed. 1 . Quod cum aliquis de regno regis tempore pads deliqucrit erga dominum regcm vel aliwn, per quod debeat vitam vel mcmbrum perdercy Isf fiipcr hoc coram judicibus in judicium diiflus fuerity primo debeat poui rationi & fuper dcUdo Jibi impojito ref- ponjiones ipjius audiri, prius qimm procedatur ad judicium d€ eo ; fed in rccordis & procejjibus prcvdidis continetur, quod pradidi Rogerus i^ Rogerus coram jujTic' dut'li adjudicati fuerunt judicio tragus iff fufpendiit iff pojlea pcrpetuce prifona adjudicati iff mancipati abfque hoc, quod ipji fuijjent inde arrenati., feu quodipji ad aliqiia eis impojita r ef ponder e pojjint^ quod eft contra legem iff confuctudinem jegni, iff c. per quod ad judicium de cis erronici proccjfum cjf. 2. D::it etiam quod in rccordis i^ proceffibus prcediclis continetur, quod dominus rex recordabatur vei fus ipfos Rogerum i^ Rogerum, quod ipJl hojliliter equitaverunt.cum liumfredo de Bohun nuper coni ideref. is aids inimicis domini regis contra ipfum regem iff popidum rtgni Jul diverfa mala iff facinota popetrando^ quarc judicia pradi^a Juper eif- dcm reddita fuerunt^ cujufmodi rccorda non ejl domino regifacerCy nijl de inimicis fuis tempore guerrcc, iff hoc, viz. quando idem dominus rex equitat cum vexillis explicatis, iff non tempore pads, fed co tempore do- minus rex non cquitavit cum vvxiUis explicatis, necfuit tempore gueme, c*n-fci and prays to God to fend him a good deliverance. But if the prifoncr hath any matter to plead either in abatement, or in bar of the indictment, ?is mifnomer, auterfoits acquity autcrfoits co>i- -vid, a pardon, l^c. then he pleads it without immediate anfwcring to the felony: but in fome q2.{c%Ji trove ne folt, then to the felony ?icf guilty, dc quo pjjh-a. And thus far what the arraignment is. n. How to be done or performed. On the part of the court, what is to be done is fliewn before, but in relation to the prifoner and his coming to the bar. The prifoncr, tho under an indictment of the -higheft crime, muft be brought to the bar without irons, and all manner of fliackles or bonds. Stavif. P. C.fol. 78. a. 2 Co. Lift. 316. Co. P. C.p. 34, 35. BraSl. Lib. WX.fol. \ ",1. a. i^ alios lihroi ibi, unlefs there be a danger of efcape, and then they may be brought with irons. But note, at this day they ufually come with their fhackles upori their legs, for fear of an efcape, but fland at the bar unbound, till they receive judgment fbj P ^ -J III. \Vlien the party is to be arraigned. In cafe of murder at the common law, the judges did ufu- ally forbear to arraign the prifoner upon an indi6tment till the year and day were paft, whether an appeal were depending or not per omncs jujl'ic' Angliae, 22 E. 4. Coron. 44. unlefs the evidence were very clear (a) The crremony of IioMing up the ought not to ftaiid there /n i;inf«//.f til! dfter hand is not icqiiirfd iii tlit cafe of a pet), liis convictif n, v^^hcn he conits to rtceive nor is it of abfolutc iitccifiiy in the cafe of judgrrunt, uor even at the tune of his ar- a common perfon, it being fufhcient that it raigimic'it, (for that is the time our author appears to the court why is the ptifon in- is here dikourfing of), yet in J.a\er'i cafe, tliclcd. Sec lord Dc/nmere'!, attc. State 7r, M:ch. 9 Geo. 1. it'. R. a difference ■was Vol. IV. p. 211. and lord Mohun'i Cii[t, take n between the lime of arraignment, and Srali Tr. f^ot. IV. p. 508. the time of trial; and accordingly tlie pri- (t>J By this it appears to have been our foner in that cafe llood at the bar in chains author's opinion, that upon whatever occa- during his .irraigiinieut. See 6w/i Tr. fei. (ion a prifoner be brought into court, he \1. f, 2^0, 231, to. HISTORIA PLACITORUM CORONiE. no to convict hiin, and no a])pe:il depending: or altho an appeal were de- pending, if the appellant were an infant. 21 E. 3. 2J. b. Stamf. P^ C fol. 107. a. becaufc of the delay. But now l*v the llatuie ot 3 //. 7. cap. 1, tlie juAiccs fliull proceed to try him upon an imliiStiiicnt of murder (or mandaught-T) rho within tijc year, and if acquitted, yet he llud! not be difcharged, but at tfie difcretion of tlicjuftices iliali be continued in culloily, or upon bail, till the year and day be paft. So that by this ^iXnit. auterfo'its ncqitU of j)rincipal or acccffixry, or auterfolts attaint ot the princi[)al upon an indidlment is no bar to au a[)pcal, hut autt-rfoits acjuit upon an appeal remains a bai -to an indict- ment for the fame offence. But auterfolts convict upon an inditflment, and having had his clergy, is a good bar to an appeal notwitiiftanding this ilatutc, de quo infra:, and yet in favour of an appeal, if a man be indicted of murder, and plead to it, and be convict, if the wife enter an appeal for the fame death againft the prifoner, as long as tiiat ajipeal is depending, judg- ment (hall be refpitcd; but if the wife be nonfuit in her appeal, then judgment (IkUI be given upon the convidtion. Fide AT. 12 (3* 1 J Eliz, B. R. By. 2i»b. a. Stanhys cafe. But as to other indictments, as of robbery, ^c. the fame remain at common law, as before tliis flatute, yet it is the conllant courfe, un- lefs an appeal be depending, to arraign the prifoner upon an indictment within the year ; for now by the flatute of 21 H. 8. cap. 1 1 . the party robbed hath as effectual reflitution ot his goods upon his profecutioii of an indictment, as upon an appeal ; and fo an appeal of ,. robbery is rarely brought. L J Nay, tho ah appeal of robbery be brought by writ, the juftices will not flay the arraignment of the prifoner upon the indictment, unlefs it be by bill, or that the plaintitl' in an appeal by writ hath declared upon the writ, bccaufe tiic writ is general, and it cannot appear what the goods are till declaration; but in an apjieal of death by writ the perfon killed is certain, '^i H. 6. II. a. Stamf. F, C, Lib, II. cap. 3o, fol. 107. rt. If a man be indi(5ted and appealed before the fame juflices for the fame murder or other felony, the party fliall be arraigned upon the ap- peal firft, and not upon the indi6tment, in favour of the appellant, as I have faidi but if the appellant be nonfuit upon his appeal, the prl- O i foner (221 HISTORIA PLACITORUM CORONA. foncr fhall be arraigned upon tlie appeal (c), and prnccfs {hall ceafe upon the indi6tmenr. 4 E. 4. 10. a. And it lliall be entered cejjct pro- ccfjus upon the indiclment, 4 E. 4. ]0. a. And if the prifoner plead, and be acquitted, or plead the king's pardon, and it be allowed, re • giilarly the acquittal or pardon, and the allowance thereof fliall be en- tered upon the ajipeal, tho it be fate to enter it likewife upon the in- divTlment; and therefore if in that cafe, thro the miflake of the clerk, there be no entry oi ccjjet proajjus upon the inili6lment, and the iu- didlment lying thus open, there be procefs ot- outlawry made upon the indidlment, and the party be outlawt*d, he hath no remedy but to hring a writ of error upon the outlawry, and he may affign for error his acquittal upon the appeal, and aver it to be the fame felony, and upon confeflion of the king's attorney, it rtiall be reverft. 4 E. 4. 10. a. If there be an inquifition before the coroner of murder, and return- ed, and likewife an indidment for the fame offenfe by the grand in- queft, it is ufual to arraign the prifoner upon the indictment, but he may be arraigned upon both at the fame time ; but if arraigned upon the indidlment only, there ought to be an entry o{ cejjet proceffus upon the coroner's inqueft as to the prifoner, who may otherwife be out- lawd upon it. ,. -, If a prifoner be foimd guiltv of murder by the coroner's in- J222I .... *■ " queft, and a bill oi indictment of murder be againft him at the feihons of gaol-delivery for the fame murder, it is ulual to arraign him upon the coroner's iuqu'eft, and not upon the indidtment, and if he be acquit upon that, then to arraign him upon the bill, and put him to his plea of auterfsits acquit. But to avoid the trouble of a double arraignment and plea, I have obferved this courfe. 1. If one indi£lment be of manflaughter, and tlie other of murder, ilicn to arraign him of that ofFenfe, wiiich is higheft, and fpare the other. 2. If both be of murder, but one is infufficient, as for the moft part coroners inquefls arc, then to arraign him upon the good indivftment, and quafh the other. J. If both prefcntment and indictment be of the fame nature, and both (for inftance) of murder, and both good, and both returned into court the fame feflions, I have ufually arraigned the prifoner upon bcih (fo as they be put upon the fame inqueft to be tried), to avoid (c^ At the fuit of the king. the HISTORIA PLACITORUM CORON/E. 222 the trouble of the pica o( auterfoits acquh or attaint, and to Indnrfc his acquittal or attainder upon both prcfcntmcnrs, always directing the jury to acquit him upon both, it acquitted upon one, and c convtrfo. Now concerning the arraignment (^-f the acccirary; regularly the accefiary ihall not be arraigned, nor put to anfwcrtill the principal be attaint by outlawry or confcHion, or be convicl, and attaint alfo by judgment upon verdiiSt; for it is an ofFenl'e dependant upon the princi- pal; and altho the principal be conviit, yet if he have his clergy, the ucceflary isdifcharged thereby, and (hall not be arraigned. 2 Co. Injl, I'i'h. Jupcrjlat. li'cfim'' I. cop. 14. But yet the principal and acceffary being inditfted by one or fcvera! Indiftments, and both appearing, may be arraigned together at the iame time (d), and both pleading not guilty, the fame jury Jhall be charged with both, and diredled to inquire of both, '•* '^-» "j'l'x,. firft: of the principal, and if they find him guilty, then to enquire of the acceflary 9 Co. Rep. 11!>. a. lord Sanchar's cafe. 2 Co, Injl, \'6A. fuperjlat. IVeJlvC I. cap. 14. But if J. and B. be indidted for murder, J. as giving the ftroke, and B. as being prcfcnt, aiding, and abetting, if^^. flics, and B. is appre- hended, B. may be arraigned and tried before J. be attainted by out- lawry, tho he be principal but in the fecond degree, for they are both principals; and fo it was done in the cafe of T/iaciy, H. 25 & 26 Car* 2. tho in point of difcretion it is good to try them both together. If J. be indidcd of high treafon, and B. be indik5ted for receiving or comforting him, or procuring, or abetting (but not prefent)^ here it is true they arc all principals ; but in as much as B. in cafe of a felony would have been but acceflary, and it is pofhble that A may be acquitted of the fadl, xt fcems to me, that B. fliall not be put to anfwer of the receipt or procurement till A. be outlawd, or at leaft jointly with J. (ej, and in this cafe the fame jury may be charo-cd with both, and their charge Ihall be fiiil to inquire whciiier >/. were guilty, and if not, then to acquit both A. and B. and li J. be found guilty, then that they inquire oi B. And \n Scmervi 11' s coi^e, 26 Eliz. (fj, mcntiond before, the inquiry was fiift of the principal of- fender, and then of the receiver or procurer to avoid that inconvem- [d] They m.7y he, but not ncccjanly muj}, (*) Yet in lady Xv-''s cafe, State rr.l'oh 9i was laul aqwn tor law by C. J. Pcmbcr- IV. p. 105. it was without any loundafion (0; m the trial of Count Ltntn-Jma'k. See inlaw prattifcd quae coulrarv, yid- iupra Stau 7r. Vol. in.f. 465. and Sir >i;, Part.l. p. t^i.in „gtit. '^■J-r"* iiazvlc's remarks thcregn, Stitft Tr. f^ol. (fJ i /ind 109, JV./». 159. cr.ce 223 HISTORIA PLACITORUM CORONA. cncc and aweroujl, that might happen in cafe B. were firft convict of the procurement and receipt, and yet pofllbly J. might be acquitted of tlie principal fad. If the principal do not plead not guilty, but fome other plea, as in abatement, or in bar, the acceflTary fhall not be put to ple^d till the plea of the principal be detcrmind. 9 H. 1. 19. i. but if the principal plei'd ftst gui/ty, then the acceflary, if prefent, fliall be put to plead prefendy, and they may be tried by the fame inquefl;, ut fupra. |. -, In antient time, if the principal made default, and appeard *•" ^-' not, the acceffaiy ^vas not put to anfwer. 41' E. 3. 7. b, Coron. 216. But of later times the acceflary, if he appear, hath been arraigned and put to plead, but piocefs againft the inqueft, and trial ceafeth till the principal come in or be attaint by outlawry. 9 H. 4. 2- ii. 1 H. 4, 3G. a. Stamf. P. C Lib. I cap. 49. foL 46. a. But the acceflaiy may pray procefs againft the principal, tsl renun- i'lar'i jwi pro fe introdutJo, and his confeat makes it not error, 8 H. 5. 6. b. Coron. 463. and therefore, if the accelfary be acquitted before the principal tried, it is agreed, that it is a good acquittal, and by the fame reafon, if he were convict, it is a good convidtion, yet no judg- ment {hall be given againft him upon that convidlion till the piinci- pal tried. And upon this reafon it is, that if J. be arrcfted or in prifon for felony, and B. refcue him, or the gaoler fuffcrs him voluntarily to efcape, tho this be a diftincl felony in B. the refcuer, and in the gaoler that voluntarily fufFers him to efcape, for which they may be yrefently indidled, yet they flwU not be arraigned or put to anfwer till J. be convicted and attainted by judgment, or outlawd. 1 H. 1. 6. a. 1 E. 3. 16. /'. 2 Co, InjTit. 592. fuper Jlat. de frangcmlbus pri^ fonam \ for if yi. be acquitted upon the indi6lment, the refcuer or gaoler fhall be difcharged. But if J. be indited of the felony, or not indicSled, and be lawfully imprifond and break, the prifon, he may be indi6led and arraigned f(jr his felony in breaking the prifon, before his convitflion of the felony for which he was committed. 2 Co. Injiit- ubifupra. And yet, if after that indidtment J. be arraigned of the principal felony, and acquitted, he may plead that acquittal of the principal fe- lony in bar to the indldlment for the breach of prifon; vide^rationem. fupra^ Part I. cap. 54. />. 611. If HISTORIA PLACITORUM CORONi^. 224 If a capiat be awarded agalnft a felon, and he render himfelf and plead not guilty* and is let to bail, and tht-n makes default, a ca- pias ad audiendam juratam (hall ifliie ; and if lie be brought in, he lliall be brought in upon his pica, but it is faid by Scot, that if ho had rendrcd himfeU upon the exigent, and pleaded not guilty, ^ ^ and been let to ball till the trial, and then made default, '• ^"' whereupon an exigent is awarded, and the felon is brought in upon the exigent, he fliall plead de jiovo, and confequently be arraigned iic novo, for by the exigent awarded, the ftrA iffue is difcontinucd. 16 y^lfiz. V6. Sirai;;nmfnt and its incidfnts, Burn. Tit. Armignmeftt a6d Index to z Hawk. F. C. tit. ArraijjnmctK. CHAP. XXIX. Concerning the plea of the prifoner upon his arraignment, and firjl of his confeiTion of the fail charged, and approving others. WHEN the priloner is arraigned, and demanded what he faith to the indiifliTicnt, either he confciTcth the indictment, or pleads to it, or ftands mute, and will not anfwer. The confcflion is either fimple, or relative in order to the attain* mcnt of fome other advantage. I'hat which I call a fmiple confeflion is, where the defendant upon hearing of his indidlment without any other refpe(5l confefleth it, this is a conviction ; but it is ufual for the court, cfpecially if it be out of clergy, to advife the party to plead and put himfelf upon his trial, and not prefcntly to record his confeflion, but to admit him to plead, 2T Ajfiz. 40. If it be but an extrajudicial confefTion, tho it be in court, as where the prifoner freely tells the fa(ft, and demands the opinion of the court, whether it be felony, tho upon the fa6t thus fhewn it appear to be felony, the court will not record his confelTion, but admit him to plead to the felony not guilty, 32 4f'^' 'il' Statrif, F.C. ^ .^ lib, II. (Ap. M. foL li2. i, "-^^ J Acoa« 226 HISTORIA PLACITORUM CORONA. A confefllon in order to fame other advantage, is either where tlie prifoner confeffeth the felony in order to his clergy, Je quo Infra, cap. 44. or where he confelTcth the ofFcnfe, and appealcth others thereof, thereby to become an approver, and thereupon to obtain his pardon, if he convi»fl them, and this lets in the whole learning touch- ing approvers and approvement, which I fhall here open in the order tlut Mr. Stnvtf'jrd hath gone before me. 1. Of what offenfes a man may be an approver. 2. In what fuits. Z. At what time. 4. Before whom. 5. In -vVhat manner. 6. How he fhall be ordcrd before and after his appeal. 7. What procefs fliall iffue againft the party appeuld. 8. What pleas he fhall have, and how tried. 9. How proceeded in.. 10. What judgment fliall be given for or againfl the appellor or appellee. Before I come to thefe particulars, we are to know, that it is pure- ly in the difcretion of tlie court to admit the approver to appeal or not, or to give him any refpite from judgment or execution upon hi* confefTion and approvement ; for otherwifc it would be \\\ the power of any party arraigned lot felony by becoming an approver to delay judgment, where (it may be) his appeal is but feigned, for the ad- mif&on of his appeal or refpite of judgment is but a matter of grace and difcretion. 21 H. ^. 34. h. Coron. Qi^ bf 67. per omnes jujllc'* vtr'iuf'iue hand. Co. P. C cap. 56. p. 1 29. And therefore this courfe of admitting of approvers hath been long difufed, and the truth is, that more mifchief hath come to good men by thefe kind of approvements by falfe accufations of dcfperate vil- laiss, than benefit to the public by the difcovery and convicting of real offenders, gaolers for their own profits often conftraining prilbn- crs to appeal houefl: men, and therefore provifion made againft it by \ E. 3. cap. 7. And upon this rcafon it is, that as of later times the adnuihon of fuch appeals hath been wholly difufed, fo in times when they were ^ admitted, a great ftri6lnefs was held upon fiich appeals, as '-*' ' -' will appear upon the examination of the enfuing particulars. I. Therefore touching the offenfes, whereof an approvement may be. It may be only of capital olFenfes, as of trcafon or feloi>y, whether they be at common law, or by a6t of parliament. When a prifoner is admitted to be an approver, he is fworn in court to approve, or rather to difcovcr all felonies and treafons that he knows, HISTORTA PLACITORUiM CORON/E. 227 Icnows, aad a certain time prcfixt (as three or four days), to make his appeal, and a coroner affigncd to him to receive inch his appeal and dillovcry. 12 E. 4. 10. b. And yet the appeal is not ^ood as r.n appeal, or as an approvement to compel the parties iippealcd to aiifwcr, but only as to fuch felonies or treafons tliut were committed by the appellee together with tlie appellor, and whereof the appellor ftands indited In court, and as to other treafons or felonies, [than] whereof the appellor fo flands in- dicated, it is no legal appeal or approvement to put the appellee to anfwer. And therefore if J. being indi\5\cd for robbing of B. and he appeal C. that he robbed y/. himfelf, this is a void appeal, and the appellor Ihall be executed, and the appellee fliall not be put to anfvvei to it. 25 E. 3. 39. (a). So if he appeal C as acceflary to the robbeiy of B. either before or after, C. Oiall not be put to anfwer, for it is not the fame felony charged upon J. but only an accelFary to it. 10 F. 4. 14. a. So if A. be indidled of felony, and he appeal B. of treafon, B. (hall not be put to anfwer that appeal ; but B. being fo accufed, it may be a ground for the jufticcs in point of difcrction to make B. find furcties for his appearance at the next feffions, or in the king's bench, and in the mean time to be of good behaviour towards the king and his pcojdc, as was done when a pcrfon that had abjured for felony, made fuch an appeal of treafon. M. ly £". 2. Cot on. 387. vUc ftm'ile IV E. 3. IS. a. Coron. 419. II. In what fuits. r m Approvement lies not in an appeal of felony, for the de- -* lay that may come thereby to the plaintiff. M. 15 E. 3. Coron. 113. 2 J\. 3. 22. A. And therefore, if a party be indidcd of felony, and the prifoncr becomes an approver, if an appeal tor the fame felony be fued afterwards, all proceedings upon tlic approvement liiall Oay. a H. 5. Coron. 442. But i( J. be indided of fclonv, and he becomes an approver, and appeal B. as a companion with him in the fame felony, and B. comes in, it feems he may not become an approver, and appeal C. of the fame felony, [5 E. j. Ccrcn. \13. Stamf. P. C. Lib.W. cap. bS. fol. 147. a. tho 11 //. 4. 93. b. B. Coron. 34. fccms to be contrary. ^a) N. Edit, of the ycir books, /;/. S:. *. If 428 HISTORIA PLACITORUM CORONi*:* If a man be arrefted and imprlfond for fufpicion of felony, he can* not become an approver, becaufe he is not indidled. Stamf. P. C. Lih.\i. cap. 55. Co. P.C. cap. 56. p 129. agalnft the opinion of Strange and Hankf. 6 H. 6. Cor on. 2.'i 1 . III. At what time a man fhall become an approver. After a pcrfon is abjured for felony, \^ E. 2. Coron, 3S7. 1 9 7i. 3. thid. 413. or be outlawd, 21 E. 3. 17. b. Coron. 452. or otherwife attaint, and hath his clergy, 17 £. 3. Coron. 445. he fliall not be ad* mitted to be an approver ; nor one convi6l by vcrdi6l. 19 j^. C. 47. b» Coron. 8. ^. \£ ^. be indiifled of felony, and plead tiot guilty, and put himfelf Upon the country, and the jury is charged with him, yet before the evidence fully heard, and the jury gone from the bar, he may be ad- mitted to be an approver. 12 £. 4. 10. b. W H. 7. 5. b. per omncs jujl'ic^ : v'lde contra 2 H. 7. 3. a. (bj, 9 H. 5. Coron. 440. But if the whole evidence be heard, then he fhall not be admitted to be an approver, 21 E. 3. 18. Coron. 449. 2 H. 7. 3. fothat it feems much in the difcretion of the court to admit him to be an approver -.at any time before verdi6l given, tho after not guilty pleaded, ^^'^^y 12 £. 4. 10. b. in B.R. iff n H. 7. 5. b. per omncs jujiic\ which is of greater weight than the other books. IV. Before whom a man may become an approver. It may be before the juftices of the king's bench, or juflices of gaol-delivery, or juftices in eyre^ for they may affign a coroner to the prilbner to receive his appeal. But it cannot be in inferior courts, as thofe that \\i\cfokc VLnd/ake^ and ififangt/ieft, and utfangtheft. Brafl. Lib. III. cap. 35. But in cafe of a royal franchife, as a county palatine, or the royal franchife of Ely, where the bifliop hath juftices and coroners of his own making, there a felon may become an approver. 29 E. 3. 42. a, Coron. 462. in the cafe of Ely. Neither can a man become an approver before juftices of peace, nor oyer and terminer, for they cannot afhgn a coroner. 9 H. 4. I. Cor-on. 457. 4 Co. Ivjlit. 165. 169. Co. P. C. 130. V. The manner of approver, and of the allowance of it. fb) In this cafe the whole evidence had cafe no way contradicts what is before been /,iven, and the jury gone from the faid ; but there Nvas another exception be— bar, which was one reafon afligiu.-d by the fides, on vhich the court laid the greateft court, why they could not admit the pii- ftrefs, bccaufc they only prayed a coroner^ fpuers to become approvers i fu that this bu: did. not acknowledge the felony. Before HISTORIA PLACITORUM CORON/T!. 229 Before any man {hall be admitted to be an approver, he muft con- fcfs the indictment in open court, and pray a coroner to be nUigncd liim, and regularly this is to be done upon his ariaignn^ient, before plea pleaded, tho, as hath been faid, his confefiion hath been fome- times admitted after not guilty pleaded. \\ H. 1. b. b. 12 K. 4. 10. b. and therefore if he hath pleaded before yiot guilty, and then prays a coroner without confcfTing the felony, the inquefl fliall be taken, and if found guilty he (hall be executed. 2 H. 7. 3. a. adjudged ; and if he hath not pleaded to the country, but prays a coroner, and will fay no more, he Ihall have pciyie foit isi dure, tho the book of I //. 5. Coron. 441. be that he (hall be hanged. Upon confelTmg the felony, and praying a coroner to be afligned, tlic court doth thcfe things. J . They afTign him a coroner to take his appeal. 2. They pre- fix him a time to make his appeal, fometlmes three, fometimes four days. 8 H. 5. Coron. 439. 12 E. 4. 10. h. 26 /IJfiz. 19. 3. He (hall be removed out of the ftrait cuftodv, and make his appeal before the coroner, that he may not have any juft pretence to fay it was - _ by durcfs or conllraint, 12 £". 3. Coron. 169. and therefore, '-~tmnf. P. C 146. a. b. And therefore the bifliop of Ely having the royal franchife of Elyy and juftices and coroners of his own, and alfo having franchife of Tetania hrevium in divers hundreds in the county of Suffolk, and like- wife a gaol there, a felon indi£l:cd and in prifon at Ely became an ap- prover before the coroner of the franchife of Ely, and appeald one in the bifhop's gaol in his hundred in the county of Suffolk, the coroner oi Ely cannot make procefs to the birtiop's bailiff of his liberty in the county of Suffolk to bring the appellee to Ely, which is in another county, VIZ. Cambr'idgcjhne, ajudged 29 E. 3. 42. a. Coron. 462. At common law it feems, if an approver appeal parties that are demurrant in a foreign county, there could be no procefs made but in the kijig's bench, by removing the record thidier by the juftices of gaol-delivery, before whom the parties became an approver. But this is remedied by the ftatute of 28 £. 1. de appellatis, where- by power is given to juftices of gaol-delivery to iffiie procefs to the flicrifFs of foreign counties to take the appellees, and bring them be- fore the juftices in that county where the appellor is indidled. If the appellor allege the place, whereof the appellees are, (as he muft), and thereupon procefs iflues to the (herifF of that county, and he return there are no fuch pcrfons in his bailiwick, 25 E. 3. 42. b. or HISTORIA PLACITORUM CORONiE. 231 or non funt invoit'h 21 H. C. 3K i. the approver (lull have judgment and be executed, and he Hiall not be received to fay they are in an- other county, and pray prOcefs thither. 22 E. 3. Coron. 460. for if he be once fonnd f;ilfe in what he faith, he fliall not be credited iii anything, but his appeal fluill be prefumcd untrue: vlrle 21 H. G. S4-. b. Coron. 45(3. If the approver die before his appeal detcrmind, or be ex- ecuted for the felony, 2\ E. 3. 18. a. 21 £. 3. 17. b. Co- C^-3^3 ron. 452. or hath the advantage of his clergy, 3 £. 3. Coron. 369. or difavows his appeal, and will not profecute it, 2\ H. 6. 34. b. 3 H. 6. 50. b. yet procefs Ihall be continued againfl the appellee at the king's fuit, and the appcUcc, if he come in, (hall be arraigned, for the appeal was well commenced, and it flands as an ?ndi6lment, by reafon of the great prefumption that a man that confefleth himfelf guilty, would not charge another fallly to be companion with him in the fame felony. But if tie appeal were never well commenced, as if the appellor were convi(5\ed by vcrdicfl or outlawry, dc qu'ihus infra, or if the king pardons the approver after the approvement made, and before trial, 47 E. 3. 16. a. Stamf. P. C. fol 149. a. the appellee (hall be dif- charged without arraignment at the king's fuit, or fiirther procefs upon the appeal ; for now the approver having his pardon is fure to efcape, and therefore (hall not be truflcd in his profecution againfl another for the f>me felony. But of thefe matters farther under the next head. If the appellee be returned mn inventus the appellor, as hath becQ faid, may be executed, but procefs of outlawry ihall iffue againft the appellee, as it feems not by one capias and exigent, but by capias, alias, pluries and cxigefit ; qva-rc. VII. Touching proceedings upon the appeal after appearance of the jappcllee. He that is appeald fhall not be let to bail but In three cafes : 1 . If the approver be dead. 2. If the perfon appeald be of good fame. 3. If the appellor wave his appeal. JVcJlm. 1. cap, 15. (a). Stamf, P. C. Lib. II. cap. 18. Fol. 74. a. b. And therefore, if A. be feverally appeald by two approvers, B. and C. indidled feverally of feveral felonies, and A. join battle, and vau- (a) tCe.JrJlIt. /. l88< Vol IL P ^uiih 432 HISTORIA PLACITORUM CORONiE. c[u\(h B. yet he fhall not be let to bail till the appeal of C. be deter- mlnd. 25 £. 3. 42. I/. J. - When the appellee comes in he may take his legal excep- •- ^^-^ tions to the inlufficiency of the appeal, as that the appellor is not in prifon but at large, 21 E. 'i. 18. a. Coron. 4'kS. 6 H.6. Ccron. 231. or that the appellor is within age, or above feventy years old, or a woman, or maimed, whereby the appellee lofcth his trial by battle. Stamf. P. C. cap. 58. fol. in. h. or that he is a clerk con- vlft, and hath not made his purgation. 17 E. 3. 13. a. or that he is abjured the realm. Xd E. 2. Coron. 387. or that he was convld by verdidl before he appealed of the fame ofFenfe: Vide Co. P. C, cap. 5t). Alfo he may have all thofe exceptions, which an appellae at the luit of a lawful perfon either by writ or bill niay have, as that the plaintiff is outlawd for anotlier felony, or in a perfonal adioru-butif he hath obtained his pardon, the appellee ihall be put to anfwer, as in another appeal. 21 E. 3. 17. h- but if the approver be pardoned that felony, upon which he makes his appeal, the appellee fliall not be put to anfwer neither at the party's fuit, nor at the fuit of the king. 47 £■. 3. 16. a. uhi fupra. If the appellee hath no exceptions to the appeal, or to the difability of the appellor, but pleads to the felony, he may put himfelf upon trial^ cither by battle, or by the country. Touching the form of the trial by battle, I fhall make no long narrative at this time, becaufe it is an unufual trial at this day, and befides, it will come more aptly in another place. If when battle is joined they come to the combat, and the ap- pellee be vanquiflied, it is an attainder of the appellee, and the appel- lor fhall have the benetit of the king's grace and a pardon tanquam ex merito jujlitice. But if the approver appeals feveral perfons, and they feverally joia battle, the appellor fliall not have his pardon till he vanquifli them all fuccefEvely, for if he be vanquilhed by the laft, or difavow his ap- peal again ft the laft, he {hall be executed. 41 jE. 3. Coron, 98. 21 H. 6. 34. b. Coron. 456. And note, that, if in the field when they come to battle, the ap- pellor difavow his appeal, the approver fhall be executed, and the appellee deliverd without being arraigned at the king's fuit, for his dif- HISTORIA PLACITORUM CORONiE. 234 difavowing In the field is quafi a trial in fafl. 21 H. 6. 34. If. Co- ron. 456. Stamf. P. C. 148. a. b. But if before the deraigning of battle the approver difavow his ap» peal> the approver Ihall be hanged, but the appellee ihall be put to anfwer at tlie king's fult, for it may be the king hath other evidence bcfides the approver to convifl liim. If A, becomes approver, and appeals B. C. and D. of the fame felony, and in his combat with B. becomes recreant, B. fhall be difcharged, but the appeal fhall ftand againft: C. and D.. 41 £. 3. Coron. 93. If three be indiiSted for the fame felony, and they become approvers, and the appellee joins battle with them all, he fliall perform it feve- rally ; but if he vanquilh one of the appellants, he Is thereby ac- quitted againft all the reli, and the approvers fliall be executed, and tiic appellee dcliverd. 7 E. 3. 12. a. But if the appeal be of feveral felonies, tho he vanquifh one ap- pellant, he muft fight fuccefTively with the reft. \9 H. 6. 35. a. Al E. 3. 5. a. for the charges are feveial by the feveral appellants. If the appellee puts himfelf upon trial per patrlam, the approver fliall be fworn as well to the petit jury upon the trial when he gives his evidence, as well as make a general oath at the time of his firfl becoming approver, and hence he is called /)?o^c/or, (qiwd tamcn qu^re, becaufc he is a perfon convi£V,) fo that akho he were a partner in the ofFcnfe, and tho he ftand indicted of it, and tho he be con- victed by his confefTion, yet he is admitted a witnefs upon his own accufation or appeal, and the reafon is, becaufe he accufeth himfelf by his confefhon, as v/ell as he doth the appellee by his appeal, and therefore gains a probable credibility of his teftlmony. And therefore P. 19 Jac. in the ftar-chamber, Noye's Rep. p. 154- in Sir Percy Crcjhy\ cafe, one defendant, that accufeth not himfelf, is not admitted as a witnefs to convidl his companion, but if he ac- cufe himfelf, he is a witnefs againft his companion. But this teftimony or evidence is not conclufive to the r ,."i jury, for the jury may confider as well the credibility or not *- credibility of the witnefs, as the matter he fwcars. And akho it fccms it is now^ no plea for the appellee to fay, he is lioni nom'inh Isf feima, Isf in franco plcgio ^ in ajfifa dotnini regis, l^ habd doviiimm, qui ipfum advccet, as it was in Bra^on's time, il is P 2 good 135 HISTORIA PLACITORUM CORONA. good evidence for the the prifoner, if there be no other evidence a- .gainft: him but the teftimony of the approver; and therefore, if the appellor die, yet the king may proceed v>ith the appeal, bccaufe tho he cannot have the teftimony of the approver himfeif, yet there may be other evidence of the fa£l. But yet, when the approver Is dead after his appeal, and before trial, the party is bailable, bccaufe much of the evidence, which mav con- duce to the conviftion, namely the oath of the approver, is loft, and fo lefs probability of his conviction. If the approver be vanquifhed and klld upon the place in the battle, or if the appellee be acquitted by verdicV, yet a judgment muft be en- tred upon his confeflion ; for his bare contefiion of the felony is a conviftlon, it is true, but not an attainder tiil judgment given, quod fufpendatur per collum, which is not prefently entred upon his beconv^ ing approver, but when either by trial, or for any other caule before ihewn, the court thinks not fit to fpare his execution. And on the other fide, if the appellee be convi6l by vcrdidl or bat- tle, or flain upon the field, yet judgment mull: be given, quod fufpenda^ ttir per colhtm. 8 E. 3. Judgement 225. And in that cafe, altho the life of the approver is faved, yet he fhall be banifhed, unlefs he obtain the king's pardon. Stamf. P. C. Lib. II. cap. 52. lord Coke P, C. cap. 56. faith he fhall have a pardon ex debito jujiitiay And thus far concerning approvers. I fliould now confider the bufinefs of abjuration, which is always accompanied with a confcffion of the felony before the coroner, but becaufe that was a kind of appendant to fan£luary, which is wholly and finally taken away by the ftatute of 2 1 Jac. cap. 28. I ihall not incumber myfclf with that bufinefs. Sre Index to 2 Hawk P. C. tit. Pleading, Index to 2 Hawk. P. C.tit. Approver. Burni tit. Approver. 4 Blackf. Com. ch. a<;. p. 329. ch. 17. p. 346. ch. 33. 418, Index to a Hawk. P. C. Til. Batlei, CHAP. HISTORIA PLACITORUM CORONA. 236 CHAP. XXX. Ctnccrning the picas of the pi ifoncr upon his arranrnment, and firj}^ concerning pleas in abatement of the indidtment. THE prifoncr upon his arraignment either confeflcth, or pleads, or (lands mute ; the firlt of tiiefe is difpatched in the former chapter, the fccond matter comes now to t)c confidcred, viz. his pleas upon his arralgnmcar. Pleas upon the arraignment are of four forts. 1. Pleas that are declinatory of his trial, and fuch were antiently the plea of privilege of fandluurv? and the plea of clergy ; the former is taken away by the flatute of 21 Jac. cap. 2S. the latter ftands ftill in force ; but becaufe for the moft part that benefit is claimed after convidlion, and larely before, I {hall refer the whole bufmefs of cler- gy to a diftinift examination, after I have done with the convi^^ion of the prifoncr. 2. Pleas in abatement of the indiilment. 3. Picas in bar of the iiuli \ E. 4. 3. a. tho the book of 5 E. 4. 2. a. as to the addition of place be contrary. But however in all cafes of indi6lnients of felony, tho the - _ plea in itfelf were a foreign plea, and triable in another L Ji^J county, yet by the ll;iuitc of 22 //. 8. cap. 14. (continued by 28 H. 8. cap. 1. made perpetual by the llatute of 32 H. 8. cap. '6. J ail foreign pleas Ihall be tried by a jury of the fame county where the party is indiiSted, but that flatutc extends not to trcafon, nor to an appeal of felony, but 32 H. 8. cap. 2. extends to ajjpeais of felon v, but not to an indictment of treafon, fo that foreign pleas in cafe of indictments of treafon ftand as they did at common law. Co. P. C, p. 27. And note, that regularly In all pleas, whether to the writ, or in bar by matter of record, or by matter of fa6l, or both, if the plea do not confefs the felony, as the plea of a pardon in cafe of an ind.6tment, or a releafe in cafe of an appeal, tho his plea be found againfl him by iffue tried, or adjudged againft him by the court, yet he fli^iU .not (b) The cafe in i //; 5. 5, b. was a mif- not the point of the cafe, but only faii nomer oT the lirnainc, and in the abridge- cib'itcr ar^uc :do ; and C.-'ard'i cai'e is to the ment of that caff, by Fttx/-. C'^rcn. 274. contrary. Sec alio Ljjtr'i cal'c, State Tt. there is a quarn addtd, yujr,- f, jVi: en nof~ fol, VI. p. 2J 7. nti dc bafti/mt, iaiX i^) 3 Ji, 6, ib. a. it was P4 be 239 HISTORIA PLACITORUM CORONA. be convi6led thereupon, but plead over to the felony not guilty, as welf upon an indi6lment, as upon an appeal, and this in favor em v'ttit, 2i E. 4. 39. per cnr\ 9 H. 4. I. L III. A third fort of pleas in abatement by matter dehors is matter of record. If y^. be indided of the murder of B. and there is another indi^» ment afterwards taken of the fame death againft the fame perfon, and he is arraigned upon the fecond indictment, becaufe it is the king's fuit the fecond fhall not abate ; yet ufually the juftices quafli the other by judgment. Yet nota the corhmon courfe to prefer a new indictment of murder to the grand juiy, altho an inquifition of murder be remrned by thcs corener, and if the coroner's inquifition be infufBcient indeed, it fhall be quafhed, but if fufEcient, it is ufual to arraign the prifoner upon both indidlments, and an acquittal upon one fliall be upon both ; and this is done, becaufe otherwife the coroner's inqucft will fland as a charge on record againfl: the prifoner, tho acquitted upon the indict- ment, and procefs of outlawry will ilfue thereupon So it is the conftant ufc at this day to prefer two indl£tments upon p .. the fame killing againfl: the fame perfon, one of murder, and *- ^ •' the other of manflaughter upon the ftatute of 1 Jac. for flabbing, and the prifoner arraigned upon both pleads to both, and the jury charged with both, viz. that if they find him guilty of both indictments, to return it fo, if not guilty of murder, yet to inquire whether guilty upon the other indictment. If a duke, or an earl, or baron be indiCted by a common name of y. S. miles,- or J. S. armiger, he may plead the mifnofmer to the in- diCtment, viz. that he is a duke, or an earl, or baron, or peer of the realm, nlent nofme, l^c. becaufe that title is part of his name, and in- titles him to be tried by his peers ; but then he mufl fhew forth a writ teftifying it upon his plea pleaded, becaufe it is but dilatory, and (hall not be tried by the country, but by the record 35 H. 6. 46. a. per Forte/cue. 6 Co. Rep. 53. a. countefs of Rutland's cafe, ter mriam. And thus far touching dilatory pleas. See tndex to zJiawk. P.C. Tit. Abatement. CHAP. HISTORIA PLACITORUM CORONi^. 240 CHAP. XXXI. Concerning picas in bar of an indi^ment of felony or treafony andjirji^ cf auterfoits acquit. PLEAS in bar of the indidlment of felony or Ireafon are of \vto kinds, 1//^. 1. Such as are purely matters of record, or ^. Such as are mixt, partly conlilling of matters of record, partly of matters of fa bcc«ufe it is a fpecial plea. Mr. Staynford tells us, that the prifoner need not have the record of his acquittal iti poigncj bccaufe the plea is not dilatory, but in bai, (and fo in the other cafe of auterfoits attaint, as it feems,) according to the difference taken by Frozvick. CI //. 7. 9. a. But if that fliouldbe law, it were In the power of every prifoner to «!elay his trial as he pleafeth, by pleading auterfoits acquit or attaint in anothej- a4i HISTORIA PLACITORUM CORONiE. another court, and fo to put the king to reply nul tie! record^ and theft day given over to the next gaol-delivery to have the record, and to remove it by certiorari into the king's bench, if the trial be there, or the tenor of it by certiorari into chancery, and by mittimus into the court where the trial is. For regularly, if a record be pleaded in bar, or declared upon in the fame court, the other party fkall not plead nui ticl record^ but have - oyer of the record ; but if it be in another court, he fhall plead t2'42'J yi^i figi record^ and a day given to procure the certificate of the record, or the tenor thereof. 5 H. 7. 24. a. b. But it feems, that for the avoiding of falfe pleas and furmifes and to bring offenders to fpeedy trial in capital caufes the prifoner muft fhcw the record of his acquittal, or vouch it in the fame court one of thefe ways. 1. By removing the tenor of the record of his acquittal into chancery h\ certiorari, and having it in poigne, or fent to the juftices by mitti- viusfub pedejigilli and thus the prifoner pleading aiiterfoits acquit (hew- ed the record of his acquittal y«^ pedejigilli 2 £. 3. 26 A. Cor on. 150. 2. Or clfe if he be an-aigned in the king's bench upon an indidment removed, or found before them, and were formerly acquitted of the fame felony, either before juftices of peace or gaol-delivery, the court will give him a writ of certiorari to remove the record before them, and refpite his plea till he can remove his acquittal into the court, that fo he may form his plea upon it, for the record is part of his plea, and thus it was done. 20 E. 2. Coron. 232. and thereupon his plea is put mia form fetting out the record in certain, Et hoc vocat recordum ac- auictancia pradi^a coram ipfo rege hie ad mandatum domini regis niif- fum Iff coram ipfo rege remanens; and thus it is pleaded in 2 E. 4. in Hodfon's cafe, who was arraigned in the king's bench for murder, and pleaded an acquittal before the juftices of peace In Lincobijhire, But it is to be obfcrved, that the record muft be removed by writ; for altho the king's bench may take an indi6lment or other record of the juftices of peace /)j-(9/)rz7j wfljzz^wj, where it is to be proceeded on for the king, yet they cannot take a record of an acquittal to ferve the prifoner's plea without writ. 8 E. 4. 18. ^. 3 E. 3. B. Coron. 218. If a man pleads auterfbits acquit de mefm.': Jelonicy and vouch the record, the court may examine proof, that it is the fame felony, and thereupon allow it without any folemn confeflion by the king's attorney, %^ Jjfiz. 15. But the fafeft way is the confeflion of the king's attorney, or TIISTORIA PLACITORUIvr CORONiE. 243 of an inqueft charge. Coron. 46:i. 16 £. 4. W.a. A. was indi>5ted for the murder of B. by polfoning, and the lndi<5t- ment runs ywo^B. fidcm adhibetis perjuajioiti dicti A. nejciens prardic- tiim potiim cum veneno fore intoxicatum recepit iff b'lbity per quod pra- didui B. immeditate poji recept'ionem vcnenl prtedlfli obiit \ Imt it is not alleged, quod vcnenum pr^diHum recepit isf bibit ; upon this he was arraigned and acquitted, and had judgment, quod eat Jine die. After- wards he was indidled again for the fame ofFenfe, and plead- j. ed auterfoits acquit, and fliewcd the record in certain, and pleaded over to the felony and murder not guilty. It was refolvcd, 1 . That the indidlment was infufficient for this caufe. 2. That in this cafe auterfoits acquit was no plea, becaufe the indiftroent itfelf was infufficient, for it containd not any matter of felony. 3. And fo he is not Icgitimo modo acquictatusy and fo the dif- ference is between this cafe a»d thofe above of an erroneous judg- ment, for here the foundation itfelf, namely the indid:ment contained no felony. 4. But if the error be only in the procefs in an appeal or indidlment, and yet the prifoner appear and plead not guilty and be acquit, this acquittal is pleadable 19 jE. 3. Coron. 444. 5. But if he had been attainted upon this infufficient indidlment and judgment given, he fhould not have been autcrfoits arraigne upon a new indidt- ment for the fame ofxcnfe, unlcfs the former judgment had been firft revcrfed. 6. But autcrfoits coyiviB or o'Uterfoits acquit by verdidl, l*fc. is no plea, unlefs judgment be given upon the convidlion or acquittal in any cafe, 4 Co. Rep. 44, 45. Fauxc^s cafe. And the true reafon of this judgment is rightly given by my lord Coke, P. C. 214- becaufe the judgment upon the acquittal is only, quod eat Jine die, which may be upon the dcfedl in the indidlment, which the judges are bound to look into, and it fliall be fuppofed, that it was given upon that deftdt, and not upon the verdidl, for the judgment is the fame in both, but the judgment upon a convidlion is, quod fufpcndatur, which is all the judgment that can be given. But in the cafe of the fpecial verdidl above, where an erroneous judgment of acquittal is given, yet it is conclufive to the king till the judgment be reverfed by error, for the judgment could be only given upon the verdidl* tlic indidlment being fufficienr, and fo is the divcrfity. And 248 HISTORIA PLACITORUM CORONA. And note generally, that where auterfoks acquit or attaint is plead- ed, yet in favorem vitiP he (hall plead over to the felony, and be tried Cor the fame, tho his fpccial plea be found or adjudged againft likn, Vauxeh cafe, uhi fiipia, tdc, & 22 E. 39. i. r -1 III. The third general is where, and in what fuits outer" [249] ,. ^, ■ ■• -^ ■* foUi acquit IS a good plea. \{ A. he appcald of murder of B. by C. as fou and heir of B. an4 is acquitted, and in truth C. was not the heir, but D. and thereupon T). brings an appeal, this auterfoks acquit is no plea, becaufe not brought by tlie right party. 21 H. 6. 28. ^. neither is it a bar to the kiucr, but he may be indicted notwithftanding that acquittal, or if D. . be nonfuit in his new appeal, he may be arraigned upon that appeal at the king's fuit- 21 H. 5. 28. b If an appeal of murder or robbery be brought by J. againft B. and JB. is thereupon acquit by verdi6l, regularly this is a good bar to aa indidtment preferred by the king for the fame robbery or murder both 3t common law and at this day. But an acquittal by battle upon an appeal is held to be no bar to an indidlment for the fame offenfe : vide Stamf. P. C. Lib, II. cap. 36. f. 106. b. (*) And at common law, if J. had been arraigned upon an indi(5lment for murder or robbery, tho within the year, if an appeal be after brought for the fame crime auter/oits acquit upon the indictment ha4 been a good bar to the appeal, 16 £. 4. 1 1. -^ ftiall be no bar to an appeal againft them, as if there had (*) The reafon afli^ned for this by fays, that if he be acquit by battle, he (hall Stamford is, bccaufc trial by battle does go quit not only agaiuft the appellants, but not lie againft the king, wherefore he fhall alfo from the fuit of the king, quia per hoc not be bound by fu«h trial, yet Stamford purgat innoceniiam fuam "verfui omnes, ac Ji f,: m.-.kcs a tjuaie of this, for Bru^. Lib III. fcneretfuferfatriamf (^ f atria omn'm} JffifXf (•ip.i 9. ^. ^, is exprefs to the coiiliary, and ac^uiecaverit, hem rilSTORIA PLACITORUM CORON.E. 250 "been no fuch acquittal, and therefore tho upon the inJiitincnt the of- fc-ndors be acquit within the vear, the court ought not to difcharge thcin, but at difcrction to bail or coinmit thcrn, till the year and day be pad, vide Ic Jiatutc. So that by this ftatute aiitcrfolts acquit or attaint upon an indi(5t- Incnt of murder or manllau^htcr is no bar of an appeal fcr the fame death, tho on the other fide autcrfolts acquit or attaint upon an appeal llands ftill a good bar to an indictment for tlie fame murder or man- flaughter. Stamf. P. C. iibi fupra. 4 Co. Rep. 40. a. Dar ley's cafe. But anterfolts convl^ of murder or maiillaughtcr, and had his clergy upon an inditftmcnt is a good bar to an appeal notwithflandiug this ftatute, for indeed the ftatute itfelf hath this exception, the benefit of clergy not being hady 4 Co. Rep. 45. b. fVigg's cafe, and this, tiio an appeal were depending, whereunto tlie prifoner had not pleaded at the time of his acquittal. 4 Co. Rep. 45. b. Holcrofi's cafe. But the cafe of other appeals, as of robl^eiy, rape, t^c are not within this ftatule, and therefore auterfohs acquit upon an indictment within the vear flands as at common law a good bar to an appeal of robbery, or any other ofFenfe other than murder or nianflaughtcr. And yet at this day the judges never forbear to piocccd upon an, indictment of robbery, rape, or other offenfe, altho within the year, and the reafon is, bccaufe appeals of robbery efpccially are very rare, and of little ufe llnce the ftatute of 21 H. S. cap. 1 1. gives reftitutioa to the prolecutor upon an indictment, as effectually as upon an ap- peal Index to 2 Hawk. P. C. Tit. Bur. CHAP. XXXII. [251] Concerning the plea of auterfoits attaint or conviiSt of the fame felony ^ or any other offenje. IF A. be indided and convi<5t of felony, but hath neither judgraei t of death, nor hatli prayed his clergy, this is no bar of a new in- didtment for the fame ofFenfe, if the firrt were jnfufEcient. 4 Co. Rep. 45. a. FaHxc'?i cafe, and it fccms, t!io it \\c\q fufBcient, yet :t is no bar without clergy or judgment; but if he l.ad hi. clergy ailowd him, Vol. II. Q auier- 251 HISTORIA PLACITORUM CORONJE. auterfcits convUl and had his clergy is a good bar to an indiilment, or an appeal for the fame crime, and fo remains at this day, not- withftanding the ftatute of 3 H. 1. cap. I. 4 Co, Rep. 40. n. 45. ^. ffigg^s cafe. And fo il is tho he prays his clergy, and the court will advife upon it, tho the clergy be not adtually allovvd. (*) 4 Co. Rep. 46. a. HoU croffs cafe. Co. P. C. cap. 57. Anterfoits attaint de mefme fclon'ie., tho upon an Infufficient indidl- mont, was at common law a bar to appeals, as well as indictments of the fame ofFenfe. 4 Co. Rep. 45. a. Fauxe^ cafe, and remains fo flill at this day in all cafes but in appeals of death, which is alterd by the ftatute of 3 H. 7. cap. 1. If .4. be attaint of felony by outlawry, yet, if he revevfe the out- hwry, he ihall be put to anfvver the fame felony, and plead to the in- dictment, whereof he was outlawd ; but if he reverfe the outlawry for this error, becaufe he was autcrfoits acquit for the fame felony, (which, as before is faid, is afhgnable for error,) he fliall be dif- charged of the indiiSlment, for it (lands as well a plea to the indidt- ment, as an error in the outlawry. _ T ^* ^- ^^^ indiiSled of piracy and refufing to plead hath *- ^ -^ judgment of peine forte l^ dure, and by the general pardon piracies are excepted, but the judgment of peine forte l^ dure is par* doned by the general words ot all contempts, qiteere., whether he may be arraigned for the fame piracy, but by the better opinion he may be arraigned of any other piracy committed before that award, 14 Eliz. Dy. 308. a. If A. be attaint of treafon or felony by outlawry, yet he fiiall not be de 7iovo inditSicd or appeald for die fame felony till the outlawry be reverfed, for autcrfoits attaint of the faiue felony is a good plea. Co.P.C.2\Z. jdnterfoits atta'rnt de murder is a good plea to an indi6lment of petit ocafon. If J. had been indiiSled at common law of felony, and had judg- ment of death, yet he may notwithflanding his attainder be arraigned for treafon committed before the felony for the advantage of the king, who is to have the efcheat, but not for a treafon committed after the felony. iH.e.b.b. Staynf. P. C. Lib.ll.cap. 37. fol, 107. b. But {•) Sec the cafe of Armfrong and Li/Ie^ K.cl, 103, 104. in HISTORIA PLACITORUM CORONA. 252 in this my lord Coke differs from Stamford^ and faith that for a treafon committed after he rtiall be arraigned. Co. P. C. p. 213. (a) \( j4. commit divers robberies, one upon B. another afterwards upon C. and afterwards another upon D. and they bring fevcral ap- peals, and he be attaint at the fuit of B. yet he fluH be put to anfwcr to the appeals of C. and D. for the benefit of the rcftitution of their goods. Stamf. ub'i Jupra. And if there be an indidment and attainder at the profecution of B. yet quicre, whether after at the profecution of C. he may not be put to anfwer an indidlment at his profecution to liave benefit of refli- tution upon the (latute of 21 H. 8. cap. 1 1. Stamf. Lib. 3. cap. 10. It feems in that cafe there may be an inqucft of office to inquire of tlic robbery of C. fo as to intitic him to reflitution without arraigning the party upon an indidlment of C. MA. commit feveral felonies and be attaint for one of thofe ^ . [2CJ] felonies, and the king pardon that attainder and the felony, "^ for which he was attaint, if he be after indided or appeald for the fame felony, he may plead his attainder, and it will be no good repli- cation to fay he was pardoned after. But yet he may be indicted or appeald for the othei' felonies, and if he plead his former attainder, it is a good replication to fay he was par- doned after, whereby he is now reflored to be a perfon able to anfwer to thofe ofFenfcs, 6 H, 4. 6. b. 10 H. 4. Coron. 227. vide contra Co. P.C. p.2\3. And fo if a perfon attaint commit a felony after, and be pardoned the firft felony and attainder, yet he ihall be put to anfwer the new felony. 6 H. 4. 6. b. It J. commit feveral felonies and be convi£t for one of them, but no judgment of death nor clergy given him, he may be indicted for all thofe former felonies. Stamf. ubi fnpra. But if he had been convicfi for any one felony and prayed his cler- gy, and read and been dcliverd to the ordinary, he ihould never be arraigned for any of thofe former felonies. And it feems by the better opinion, that if he had prayed his clergy, is" tradito ei I'lbro legit ut cicricus, but no award of traditur ordinario, yet he fliould not be ar- raigned for any felony committed before his clergy allowd, for it was CaJ The cafe in i H. 6. 5. i. was of a fore lathcr makes againft Stanfsrd in. fa- trc. 164. and n»t barely by an award upon the roll. Or they may make their precept returnable the fame day that the prifoner pleads, vi%. ad horam primam pojl vieridiem, ^f. for juftices of oyer and terminer may take dieir indiut yet by fome fubfequcnt ftatutes the value of jurors freehold in cafes of trial of felony is changed. By the flatute of 8 H. 6. aip. ultimo upon a trial per me- dietatem lingua aliens need not have 40 j. per ann. fo defec- tus annui cenftis is no challenge as to the aliens, but ftill it remains a good challenge as to the other half of the jury, that arc denizens. Stamf.P.C. fol. 160. b. By the ftatute of 23 H. B. cap. 13. upon trials of felony or murder in cities or boroughs a citizen or burgher worth 40/. perfonal eltate may pal's, tho he have no freehold, but knights orefquires living there are not within this provilion. i'he ftatute of Li 3 H. (5. cap. 2. concerning inditflmcnts of perfons living in Lancajhire refers not to trials. By the ftatute ot \\ H. &. cap. 1. a challenge is allowd of any per» fon living in the ftews of Southwark, tho he be of fufficient freehold. When a prifoner challcngcth tor caufe he ought to Ihew his caufe prefently (bj becaul'e it is the king's fuit, 1 H. 5. 10. b. 38 ^JJlz. 22. (cj but fome books are, that he ihall not flicw caijlc till the panncl be perufed G R. 2. Challenge lOj. but he muft ihevv all his caufes together per 24 Eliz. C. B. Bracket's cafe. If in a trial upon an indiiflment of felony eleven be fworn, and th« twelfth challenged, whereby the inqucft remains for default of jurors, " late to the value of one hundred pounds, *' found fhall be admitted as a principal ♦• and rhat no perfon Ihall be impanncllcd " challenge, and ihc perUm fo challcii^td " of returned to I'crvc on any jui y lor the •' may be examined on oath as to the truUt «' trial of any capital ollLnlc, who (hall " of the faid niaitcr. ♦• iioibcijualilicd to ferve aia juror incivil (b) Ah.%\(). Luie znd Cleric ** caufes; ajid the fame matter and caufe (cJ i)CC ChalU'-^e l^Z, *' alieijcd by way oj, challcnirc and fo R3 Ar^ 574 HISTORIA PLACITORUM CORONiE. and a difir'mgas with a tales Kfue, and the jurors appear, ruled I . The king fhall not challenge any of the eleven fworn, unlefs it be for a caufe happened fince their fvvearing ; if it happen before, tho not known till after, It fliall not be allowd. 2. That the eleven, that were laft fworn, Ihall not be now firft fworn, but they (hall be called, as they happen in the pannel. M. 43 ^ 44- Eli%. B. R. JVharton's cafe, Yctv. 23. And the fame law is for the challenge of the prifoner for caufe, but he may challenge them peremptorily not\vithftanding they were for- merly fworn, as before is fliewn, p. 270. Touching the trial of a challenge for caufe made to the poll, vide |. , Co. Lit. p. 158. a. If a juror be challenged before any jury *- ^ ^^ fworn, two triers {hall be appointed by the court, and if he be found indifferent and fworn, he and the two triers fhall try the next challenge, and if he be tried indifferent, then the two firft triers lliall be difcharged, and the two jurors tried indifferent fhall try the reft. If the plaintiff challenge ten and the prifoner one, then he that re- mains fliall have added to him one chofen by the plaintiff, and an- other by the prifoner, and they three {hall try the challenge. If fix be fworn, and the reft challenged the court may affign any two of the fix fworn to try the challenges. If the array he challenged, it lies in the difcretion of the court how it fliall be tried, fometimes it is done by two attornies, fometimes by the two coroners, and fometimes by two of the jury with thii dif- ference, that if the challenge be for kindred in the iheriff, it is moft fit to be tried by two of the jurors returned ; if the challenge found in favour of partiality, then by any other two afligned thereunto by the court. 29 Ellz. C. B. Z^a's cafe, Trin. 21 Jac. B. K. Loyd and IPilUmjis (e). But all this learning touching challenges to the poll, whether pe- remptory or for caufe, is intended of trials by ordinary juries, not of trial by peers, for there no challenges is allowable, for they are not only triers of the fad but in fome refpedls judges. P. 1 Car. 1. Cafus comitis Caftle-haven (fj^ but of this more hereafter. 2 Hiwk. P. C. ch.43. 4 Blackf. Com. ch. 27. Burn. Tit. Jurors. Index to Fofter, Tu. Challenge. Ct) 2 Rd. Rip. 363. (f) Stcl* Tr, Vol. I. f. 366. > . CHAP. HISTORIA PLACITORUM CORONA. 276 CHAP. XXXVII. Concerning evidence and vjitncjjcs. HAVING gone thiougli thofe things, tliat are previous and pre- paratory to the trial, I come now to conhder the trial iifclt" by jury, and the things concomitant with it, and tirft concerning the evidence to be given to prove the prifoner guilty. To give a full account of evidence of this kind tlicre will be thefe things examinable. J. The quality and qualifications of witnefles. 2. The manner of their teftimony, what upon oath, and what with- out oath. 3. Thofe eviilences and examinations, that are in writing, what, and when allowable, and what not. 4. The things teftificd, and therein of prefumptions and prefumptive evidences by the commoa law, and by adts of parliament. 5. What variance between the evi^- deuce and indictment maintains the inditSlment. I. Concerning the quality and competency of witnefles to be pro- duced. It is to be obfcrvcd, that there be many circumftances that difabla a juror or are fufEcient caufes of exceptions or challenges of him, that are not allowable exceptions againft a witnefs. The exception of kindred is a good caufe of challenge againft a juror, but not againft a witnefs, therefore the father may be a com-i petent witnefs for or againfl his fon, or e convcrfo, the mafter for his fervant or e convcrfo. Thefe and the like exceptions may be to the credit or credibility of a witnefs, but are not exceptions againft his competency. For that I may obferve it once for all, the exceptions to a witnefs are ot two kinds. 1 • Exceptions to the credit of the witnefs, which do not at all dilable him froni being fworn, but yet may bleinidi the credibility of his teftimony, and in fuch cafe the winefs is to _ _ • • 277 1 be allovvd, but the credit of his teftimony is left to the jury, ^ ' ' ■' who are judges of the fa6l, and likewife of the probability or ini- pio' ability, credibility or incredibility of the witnefs and his teUmonv, and thele exceptions are of that great variety and multiplicity, that they cannot eafily be reduced under rules or inftances. 2 Exceptions to the competency of thp witnefs, which do exclude him from giving R 4 ins 277 HISTORIA PLACITORUM CORONA. his tcftimony, and of thtfe exceptions the court is the judge, and of thefe latter kind of exceptions I am here to treat. If a perfon be outlawd in a p<;rfonal adlion, it is a good caufe of challenge asfainft him as a juror, but vet he lliall be fworn as a wit- nefs notwichftanding his outlawry. Coke [up cr Lit- §. \- fol. 6. ^. The common incapacities or incompetencies of witnefles are rec- koned up by my loid Coke ub'i fupra^ viz. 1. If he be attaint of giv- ing a falfe verJicft. 2. Or attaint of a confpiracy at the king's fuit, for then he is to have a villainous judgment and am'ittcre liberam le- gem, othcrwife it is if he be only attaint at the fuit of the party: Vide 24- £. 3. 73. b. 4:i E. 3. 33. b. 4 i7. 5. Judgment 220. 46 JJfiz. 11. 27 ^JJi'z. 5y. 3. If he be convidt of perjury. 4. Con- vidl of a praviunlre. 5. Convid of forgery upon the ftatute of 5 £//z. cap. 14. but [not] a convidion upon the flatute of 1 H. 5. cap. 3. 6. If he be convicfl of felony (a). And therefore it fliouJd feem, that an approver fhall not be fworn as a witnefs, if the appellee plead to the country, but only his general oath, that he taketh at the time of his becoming an approver, fliall be taken, quod tamen queere^ for this cafe differs from the teftiinony of a perfon convi6t, for the approver accufeth himfelf as well as the appellee. 7. If by judgment he hath loft his ears. 8. Or by judgment ftood upon the pillory. 9. Or tumbrel. Co. P. C. 219. for they are thereby infamous. 10. Or been branded, Jilgviatictis. 11. Or being a champion in a writ „, of right becomes recreant or coward, for thefe render a per- '- ' -' fon infamous, fo that he lofeth llbcravi legem. But yet in thefe exceptions thefe things are to be obferved. 1. That he that allegeth this exception ought to Ihew forth a copy of the re- cord attcfted or vouch the roll in court. 2. That if the king pardon thefe offenders, they are thereby rendered competent witneffes, the their credit is to be ftill left to the jury, for the king's pardon takes away poenam l^ culpam in foro humano, M. 1 2 Jac. B. R. Cudding- ton & fVilkins fbj : but yet it makes not the man always an honeft man, and therefore he fhall not be a juryman 1 1 i7. 4. 41. but yet may be a witnefs againft the opinion of my lord Coke in CraJ/iaiv's cafe, A/. 11 Jac. B. R. Buljirode 15 i. quod vide. If a man be convidl of felony, and prays his clergy, and is burnt in tbit hand, he is now a competent witnefs, for by the ftatute of , a) See Dariptrfidd'i cafe in the trial of Sut. Tr, Vol. III. />, 35. Rffyn. 369. V,id Cofiltmcfi^^tat. Tr. P'ol. 111. f. 42. ( k) H(h. 67 iS 89. lU^m. yiij. and :ht lUiil ot £//». Ltliier, HISTORIA PLACITORUM CORONiE. 278 IS Eliz. cap. 1. it countervails a purgation and a pardon, and he is thereby enabled afterwards to acfiuire goods. Hoi. 2SS. Searlg and IP"} I Hams. And lb it is if he be in orders, wliereby burning in the hand Is dif- chargcd by the ftatute of 4 H. 7. cap. 13. Hob. uh'i fupra. And fo it is if the burning in the hand be pardoned, Hob. Ibid, or if he prays his clergy, tho the court do refpit his reading, -jw^m', vldt Holcroft's cafe, 4 Co. Rep. 4o. a. There are certain otiicr matters, that render a man incompetent to be a witricfs, rho they are not fuch as render him infamous by judg- ment or award in any ot the king's courts. 1. Some are difabled in regard of defe6b of intcUeduals : A perfon of non fane memcry cannot be a witnefs, while he is under that in- fanity, but if he have lucida interval/a^ then during the time he hath underftandln^ he may be a witnefs. Co. Lit. ubi Jupra. But it is a difficulty fcarccly to be cleared, what is the minimum^ qiiodjic difables the party. If an infant be of the age of fourteen years, he is as to this pnr- pofe of the age of difcretion to be fwom as a witnefs, but if under that age, yet if it appear that he hath a competent difcretion, he may be fwom. But in many cafes an infant of tender years may be ex- r -i amined without oath, where the exigence of the cafe requires ^ it, as in cafe of rape, buggery, witchcraft, dc quibus vide qua fupra^ J^art I. cap. 24. p. 302. i5^ cap. 5S. p. 634. iff infra, p. 283. 2. It is faid by my ioid Coke ubi Jupra, that an infidel is not to be admitted as a witnefs, the confcquence whereof would alfo be, that a Jciv, (who only owns the old tellameni) could not be a witnefs. But 1 take it, that ahho the regular oath, as it is allowd by the laws of England, is tattis facroJ'anBis Dei evangdiis, which fuppofeth a man to be a cluilliau, yet in cafes of ncccffity, as in foreign con- tra(5ts between merchant and merchant, which are many times tranf- afted by 'Jev.'ijh brokers, the teftimony of a Ji^v ta^o libra legis Mcfuiccv is not to be rejecled, and is ufed, as I have been informed, among all natioiis. Yea, the oaths of idolatrous infidels have been admitted in the mu-» nitipal laws of many kingdoms, cfpecially y? y«>viWK> per vcrum J)cum crtatoreniy and fpccial laws are inllitutcd in Spain touching the v:\x\. 279 HISTORIA PLACITORUM CORONiE. form of the oaths of infidels. Vide Covarruviam^ Tom. I. part \. de jurament'i forma (cj. And it were a very hard cafe, if a murder committed here in Eng- land in prefence only of a Turk or a Jew, that owns not the chriftian religion, ihould be difpunilhable, becaufe fuch an oath fhould not be taket>, wliich tlie witncfs^ioids binding, and cannot fwear otherwife, and poflibly miglit think himfelf under no obligation, if fwoni accords ing to the ufual ftyle of the courts of England. But then it mufl be agreed, that the credit of fuch a teftimony muft be left to tiie jury. 3. Some regularly are difabled in refpe<£t of the civil unity of their perfons, as the hufband regukrly is not allowed to be a witnefs for or againft the wite, or c ccnvcrfo \ but vide touching this alfo at large Fart I. cap, 21. in fine tdl ibid. cap. 64. p. 693. fuper Jiatut. i . J^c. cap. U. 4. Some are difabled to be witneffes in rcfpe£l, that they are con- cerned in intereft. P^p -I And therefore a party to an ufurious contra(^, if the •' money be unpaid, ftiall not be received as a witnefs to prove the ufury, becaufe he avoids thereby his own fecurity, but otherwife it is, if the money be already paid, and the fecurity taken up, for then he is allowable to be a witnefs for the king fdj. J. wounds B. for which he is indi£led, yet B. may be a witnefs for the king: but this.fhall be no evidence in an adlion brought by B. for the aflault, tho A. be convi>5t at the king's fuit. If a reward be promifed to a perfon for giving his evidence before he gives it, this, if proved, difables his teftimony. And fo for my own part I have always thought, that if a perfon liavc a promife of a pardon, if he gives evidence againft one of his own confederates, this difables his teftimony if it be proved upon liim (ej. Yet in fome cafes a confcquential benefit to the witnefs doth not dlfable hii tellimonv, tho it may abate the credit of his teftimony. A. B. and C. are feverally indiiled for perjury in proving a bond, ji. traverfeth the indi6lment,'j?. and C. tho indicted for the famQ fc) P. 249. Edit. Antwerp. 1614. Layer'i cafe Stat. Tr. Vol. 6. p. 257. but (dj Co. Lit. 6. b. mort certainly it is a great objc6tioH to (tj l-Iowrvcr the rontrary opinina hath the credibility, if not to the competency prevailed, ice 7iP^'i cafe, Kit, i3. and ot the witnefs, vidfjupia^ Fart 1, p. 304. offenfc, H4ST0RIA PLACITORUM CORONA. 280 offcnfc, yet not being conviclcJ may be witncfles for A. to prove the bond feuletl. P. ly Car \. B. R. Rot. '1. adjudged in the cafe of Billmore, Gray, and Harbin, and accordingly ruled P. 40 Ellx. C. B. Cunjhn and Dovjns (f) in three anions fevcrally brought againfl three pcrfons for perjury In Chancery in one and the fame point, for the other two are not immediately concerned in this trial, tho con. fecjuentially they are concerned, the point being the fame. If A. bring an aflion upon the ftatutc of IVhiton againfl tlie hundred, none that live or have land in the hundred ihail be admitted to give evidence fgr the hundred. M. 165U. Bennct verfus Hundred dc Hertford (g). Yet if a pcrfon be taken and indiiled for the robbery, they of the hundred may be admitted to prove the defendant guil- '- ■* ty of the robbery, and that he was taken upon their purfuit, tho this doth confcquentially difcharge the hundred upon ih^jiatute of JVinton^ y 27 Eii-z.. cap. 13. A. brings an aftlon againft B. wherein C. is produced as a witnefs for A. and A. recovers upon his teltimony, C, is thereupon indicted pf perjury contra fotmam Jlatnti (*) ad grave dampnurn ipjius B. C. pleads not guilty, ruled that B. (hall not be received to give evidence againft C. becaufe he is the party grieved, and Ihall recover 20/. M. liijO. B. R. Bacon's cafe, 2 Rol. Abr. 685. pi. 4. and yet it feems he fliall \\ox. recover the 20/. upon the iudidment, but mufl: bring his action upon the ftatute ; and yet conftant experience, and the very Aatute ot 21 H. S. cap. 1 1 . that gives reilicution of goods to the party profccuting an indictment of felony makes it evident, that he may be, and indeed ought to be the witnefs to convidt the felon, tho thereupon he is to h^ve reflitution of the goods ftolcn. If the tenant robs his lord, or the leffce for life the revevfioner, or a reliant the lord of the franchifc that luitli bona fclonian, thcfe may be ■witneffes upon an indivStment or trial of the felon, notwithftanding the confequential advantage that accrueth by the attainder or convicftiou ot the party, yet the credibility of their tcClimony is to be left to the jury. But if A. hath a promife or grant of the goods of B. arrcftcd of felony in cafe he be convidt, I Ihould never allow A, to be a witnefs (fj 2 K. A. 685. //. 3. <« behalf of the hundred in the fame man. ( %) 2 R. A. 6S5. //. 6. Siyl. 23 J. but " ncr, as if he vvcic not an inhabitant cf this. !S now altcrd by 8 Gm 2. cap. 16. lor » that hundred, but refidtd m any otfacf by iliii Uatute, " Any perlon inhabiting " hundred whatloevcr. *» within the bundled or any francmlc (*J I'lx,, 5 ILiix,. ta^. 9, *' thetcuf fliall be admitted as a wiincfj «u 28 1 HISTORIA PLACITORUM CORONA. to convl>fl B. for he by liis own a(5l after the felony committed acquire* the intereft, and fo avfls and fvvears for his own advantage. j4. brings an appeal againft B. for the death of C. his father or her liiifband, A. cannot be a witnefs againft B. upon not guilty pleaded, bctaufe it is his or her own fuit. -. g - But if j^. be nonfuitupon theappeal, and fo the prifoner is *-~ ""' arraigned upon the appeal at the king's fuit, now ^. may be a witnefs, becaufe now the profccution is merely for the king. If a man be indi(5^ed of high trcafon, the king cannot by his great fcal or ore tenns give evidence, that he is guilty, for then he fliould give evidence in his own caufe ; vide fupra, cop. '2S.p. 211. t^ Fart I, cop. 26- p. 31-4. the cafe of the earl oi La}icajier. Nay, altho he may in perfon lit on the king's bench, yet he cannot pronounce judgment in cafe of treafon, but it is performed by the Jenicr judge, for as he cannot be a witnefs, fo he cannot be a judge in propria caufo. And the fame law is for felony for the fame reafon, yet in feme cafes the king's teftimony under his great feal is allowable, as in an eflfoin de fcrvitio regisy the warrant under the great feal f/ij is a good teftimonial of it. F. N. B. 17. Stat, Glouc. cap. 8. Now as touching the compulfory means to bring in witnefTes they are of two kinds. 1. By procefs oifubpoena iffued in the king's name by the juftices of peace, oyer and terminer, gaol-delivery, or king's bench, where the plea oi not guilty is to be tried. 2. Which is the more ordinary and more effectual means, the juftices or coroner that take the examination of the perfon accufed, and the information of the witneffes, may at that time, or at any time after, and before the trial bind over the witp.cflcs to appear at the feffions, and in cafe of their re- ftifal either to come or to be bound over, may commit them for their contempt in fuch rcfufal, and thii is virtually included within their con^.niiflion and by necefTary confeqnenccs upon the ftatute of 1 i^ 2 P. & M. cap. 13. whereof before, p. 52. But that whicli is a great dcfc6l in this part of judi'-ial adminiftra-* tion, is, that theie is no power to allow witnefTes their charges, wliere- by many times poor perfons grow weary of attendance, or bear their own charges therein to their great hindrance and lofs. (*) II. As (hj But Bot urtder the privy fcaii I Co, {*) On convi£lion, in general, for any lafl. yj^. fup'.rjiitt, Ci»Cff(.r. felony, chc reafonatle cxpeuces of profe- Z "* cution HISTORIA PLACITORUM CORONA. 28j II. As to the fcconcl matter in what manner the evidence is to be given. Kcgularly the evidence for the prifoiicr in cafes capital is given without oath, tho the rcafon thereof is not manifeft, (l) but [otlicr- v/ife it is] in all cafes not capital, tho it be mifprifion of trcafon: nei- ther is counfel allowed hini (k) to give evidence to the fadt, nor in any cafe, unlefs matter of law doth arife. I H. 7. 23. Co. P. C. p. 137. But in fome fpcclal felonies by a6l of parliament the prifoncr's wir- neflcs in cafes capital Hiall be examined upon oath at his trial, namely the ftatutc of 31 Eliz. cap. 4. againft imbczzelling of the king's ord- nance, giving liberty to the prifoner to make lawful proof by witnefs or othcrwife, fccms virtually to allow the prifoncr's tcflimony upon «jath. Co. P. C. cap. 12. p. 79. And the ftatute of l- 'Jac cap. 1. touching felonies upon the borders, i^Sc. gives examinati(jn of the prifoner's witnefTes upon (Kuh. If a witnefs be produced and fworn for the king, yet if that witnefs. allcdge any matter in his evidence, that is for the prifoncr's advantage, (as many times they do,) that flands as a tcftimony upon oath for the prifoner, as well as for the king. Kcgularly the king's evidence is given upon oath againft the pri- foner, and ought not to be admitted otherwife than upon oatii ; nav, inrtances have been given of very young witntflcs fworn upon evidence in capital caufcs, v'i%. one of nine years old. DaU tonh Jujl'ice, cap. \\\. p 2\)1. (IJ Yet fuch very young people under twelve years old I have not known examined upon oath, but fomctimes the court for their infor- [284] cution arc by fiat. 25 Goo. 2. c. -^(y. to be allowed to the profccutor out of the coun- ty ftock, if he petitions the judge for that purpofc; and by flat 27 Gfj. z. c. 3. poor pcrfi)ns, bound over to give evidence, are likewife iiititlcd to be paid their charges, •s well without conviftion as with it. (ij Nay, it is inanifcfllv a^Dinll all rca- lon, (hat the prifoner fhoaJd not be allow'd the iaruelibcity to m:ikeout his innocrncc, as is allowed to prove his guilt, and tho it has been an ufual practice not to fuHcr wit- ncfles lor the prifoner in capital cal'e< to be examined upon oath, yet as lord Cote ob- ferves P. C. p. 79. there is not fo much as fiiniUla jurii for it, it being unfopporttd bv «ny aft of parliament, aniient author, book cafe, or record : Sec Sir 7<;/'« ILiw.'ej's tcmarks on CoJJcgt's, trial. Siau fr. I'uU IV. p. 178. To remedy this inconvenience it was provided by 7 /!'. cjb. 3. " Th.it eve- " ry pcr!on indifted tor high trcalon, '* whereby corruption of blood may b# " ni.uie, fhall be admitted to make his de- " Icnlc by w'itnefTfs on oath," but ibis ftl- tutc being delctlive it is further provided by I A':n cip. q. " That the witnefHs for " the prifoner in »nv trial for trcafon or fe- " lony fball give their evidence upon oatb " ill like manner, as the witnefTcs for fh« " crown, aiui if convifled of perjury fhali " be fubjeil to the fame pcnaliics, torfei* " lures, &^i-. fi) Upon an indiflment, but it i» othcrwife in an appeal. Corcne ji. . 299. for tho he hath not an original jurifdidion of the caufe, yet he hath a confequential jurifdidlion thereof, having the party before him, and it is in order to the prefervation of the peace. If a juflice of peace takes information in a cafe of high p -^- Ireafon, it feems thefc cannot be read in evidence upon an in- ^ -• didlment of treafon, becaufe high treafon is not within that commif- fion, but it is of ufe only, as an information upon oath, which they mav take, tho they cannot proceed upon it, for all treafon is a breach of the peace ; qiKvre tamcyi^ if It be not allowable to be given ia evidence. Sec Burn. Tit. Evidence, SetS. 11. of writcen evidence, CHAP. 286 HISTORIA PLACITORUM CORON^E. CHAP. XXXIX. Concerning evidences requijite, or alloived by a£ts of parliament, and prefumptive evidence. BY the ftatutcs of 1 E. 6. cap. \2.bE. 6. cap. 12. there ought to be two witncffes to an indiclmcnt of high treafon, and thefe ' ■witneffes are to be fworn before the jury alfo upon his trial, unlefs he wirlingly without violence confefs the fame. Thefe two witneflcs are ftill required upon his indi 2 P. i£f Al. cup. 1 1. feems to import, that in new trealons concerning counterfeiting foreign coin made current by proclamation, there would have been a nccelfity of two witnelfes by the ftatute of 5 iff 6 £. 6. and therefore provides againft it. By the ftatute of 21 Jac. cap. 27. the mother ofa baftard child con- rcaling it's death fliall fuifer as in murder, unlcfs Ihc prove by one witnefs, that the child was born dead ; this ftatute ftanJs \-ct continued ^f) I cannot fee vvliy thcfe general words intended only of offenfes hereafter to be fliould be confined only to ila fo/A'TTTu'; /(i-ry, cDinni.ttcd, bccaulc iiiat is provided for lincc f/jf /awi in ilic plural number do as by ihe other words iintntdiately fjUovMng, fully exprcis, and (eeni moft naiurally to i<:b:(b fnall hereafter be pe-pietuUd, commit'' include all the laws ol die land, whether tcJ ir ibre : but to obviate all doubts, it if tcmmin or fiutute. (incc piovided by 7 IV. 3 caf. 3. " That [d) The llatntc of 5 £f 6 £. 6. fcems ex- •' in all caics of liigh trciifon, whereby any frejly S? in ttrmirh to extend to tre.U'ons, " •oriupiion of bluod (hill cnlue, no pcr- ■whicli (hould be alu.rwards cnaclcd ; what " Ion Ihall be indid^cd, trcd ot atmnied, ellc can be the nicairng ot the words, tzry " Oi-t i:pi>n the uait-i ol two hwiui wu- ctLer trejfoiis, that iiniu he, or h:rcajnr JJjoil *' ui-iles. bif for tliefe woidi cauuot icilonably be Vol II, S among 288 HISTORIA PLACITORUM CORONA. among many others by a claufe in the latter end of the a6l for relief of the northern army. 16 Car. 1. cap. 4. (*) until by parliament it be ptherwife ena6led. The indidlment to put the prifoner to this proof by one witnefs, that the child was dead born, muft contain this fpecial matter, that the prifoner was delivered of a child, which by the lav/s of the kingdom was a baftard, and that it was born alive, and ihew how (he killed it. -. g T But the inditSlment need not allege, that fiie concealed it, *• "^^ but it mufl: be proved upon evidence, (dj if advantage be. taken of this ftatute againft her. The indidlment doth not conchide contra formam Jiatutt^ for the ftatute only directs the evidence, where the cafe is within it, but created not a new crime, (c) If there be no concealment proved, yet it is left to the jury to in- quire, whether flie murdered it or not, by thofe circumftances that occur in the cafe, as if it l)c wounded or hurt, l^c. but it doth not put lier upon an abfolutc ncccfllty of proving it born alive by one witnefs, and fo the evidence ftands but as at common law. If upon the view of the child it be teftified by one witnefs by appa- rent probabilities, that the child was not come to it's dc'o'itum partus tempus, as if it have no hair or nails, or other circumftances, this I have always taken to be a proof by one witnefs, that the child was born dead, fo as to leave it ncverthelefs to the jury, as upon a common law evidence, whether (he were guilty of the death of it or not. In fome cafes piefumptive evidences go far to prove a perfon guilty, tho there be no cxprefs proof of the fadl to be committed by him, but then it muft be very warily prefTcd, for it is better five guilty perfons Ihould efcape unpunilhed, than one innocent perfon Ihould die. If a horfe be ftolen from A. and the fame day B. be found upon him, it is a ftrong prefumption that B. ftolc him, yet I do remember before a very learned and wary judge in fuch an inftance B. was condemned and executed at Oxford affifes, and yet within two aflifes after C. being apprehended for another robbery and convifted, upon his judg- ment and execution, confefled he was the man that ftole the horfe, and being clofely purfued d-jfired B. a ftranger to walk his horfe for him, while he turned afide upon a necefTary occafion and efcapedi and B. was apprehended with the horfe, and died innocently. (•) Vidi 3 Car. I, cap. 5.^. 22. in fine. were prefent at the time of the delivery. (d) If no intent to conceal, it is not Kelc Z3' „ murder withm the ftatutc, tho no body (c) See Ann Davis & cafe, Kel.iz. I woulu HISTORIA PLACITORUM CORONiE. 290 I would never convi(5l any perfon fur flcaling the goods cujufdam ignot'i merely becaufc he would not give an account how he came by them, unlefs there were due proof mdde, that a felony was committed of thcfe goods. I would never convict any perfon of murder or manflaughter, unlefs the fa£l were proved to be done, or at lead: the body found dead (f)y for the fake of two cafes, one mentioned in my lord Cokc\ P. C. cap, 104. p. 232. a WarvjickJJtlrc cafe (gj. Another that happened in my remembrance in Stafford/Jure, where j^. was long milTmg, and upon (trong prcfumptions B. was fuppofed to have murdered him, and to have confumed him to aflies in an oven, that he fliould njt be found, whereupon B. was indid:cd of murder, and convi6t and executed, and within one year after A. re- turned, being indeed fent beyond fea by B. againO: his will, ^nd {o, tho B. jufily def rved death, yet he was really not guilty of that ofFtnfe, for which he fuffered. But of all difficulties in evidence there are two forts of crimes, that give the greateft difficulty, namely rapes and witchcraft, wherein many times perfons are really guily, yet fuch an evidence, as is fatis- fadlory to prove it, can hardly be found; and on the other fide per- fcfris really innocent may be entangled under fuch prefumptions, that • many times carry great probabilities of guilt. Tut'tus femper eji errare In acqitu'lando, quam in pumendot ex parte mifericordits., qudm ex parte. jujlitia. Sec a Hawk. P. C. ch. 46. fe£l. 42."4jr (f) This •wasalfo a rule in the civil law. brought another child as like her in perfon Dig, Lib. XXIX, Tit, 5. §. 24. and years as he could find and apparelled fg) That cafe was thus, An uncle, who her like the true ciiild, but on examination had the bringing up of his niece, to whom flic was found not to be the true child ; he was heir at law, correfting her for fome upon tiiefc prcfumptions he was found oilence, fhe was heard to fay, Good uncle do guilty and executed; but the truth was, noikillme; after which time the child could tiic child being beaten ran away, and was cot be found, whereupon the uncle was received by a Itranger, and afterwards, committed upon fufpicion of murdci, and when Ihe came of age to have her land, admonilhcd by thejullice-! ofaflifc to find came and demanded it, and was dirc^ly out the child by the next aflTifes, againft proved to be the true child. which time he could not find her, but S3 CHAP. 291 HISTORIA PLACITORUM CORONi^. CHAP. XL. Conctnung variance bctiveen the indl(51ment and evidence, and where the evidence proves the iudidtment, and u>here not. IF y/. be indided, that the firfl: of July 21 Car. 2. he robbed or tTJurderd B. and upon evidence it appears, that it was committed another day, or another year, either after or before the time laid in the indidment, yet this proves the ilTue for the king ; only it is requi- fitc, if there be an efcheat in the cafe, and that the felony -were com- mitted after the day laid in the indidlment, for the jury to find the day, bccaufe the relation of the efcheat to avoid inefne grants and incum- brances relates to the time of the felony committed 32 EUz. per o?/ines jiijiie' Co. P.C. cap. 104. p. 230. If >f. be indi6lcd for a robbery or murder apiid A. In com^ B. if it were committed in another county, regularly he ought to be found not guilty, becaufe regularly an ofFenfe of that nature in one county IS not prefentable out of the county where it was done, but tho it were done in another vill in the county of B. yet he is to be found guilty, for the vill is not material. It the evidence in murder differ from the indi6tment In fpeclc mortis^ as if the indictment were for killing by poifon, and the evidence be. of killing by ftabbing, it doth not maintain the indidment. 9 Co. Rep. 61. a. Afackally's cafe. But if the indi£tment were for poifoning with one kind of poifon, and the proof be of another kind of poifon, or the indiftment be for killing with a fword, and the evidence be of killing with a ftaff, or with a gun, it maintains the indiftment, for the common effedlual word in both is percujfit : vide 9 Co. Rip. 67. a. Mackally\ cafe,. Co. P. C. cap. 62. p. 135. Sir Thomas Overhury\ cafe, (a) [T And the fame law holds in relation to the acceflkries to '' ^ fuch principals, and with the fame difference. If Jl. B- and C. be indidled for the murder of D. and it is laid In the indi(5lmc)it, that J. gave him the ftroke, whereof he died, and that B. and C. v:trc pra'fentes, auxiHantes tfl abettantes^ tho upon the evidence it appears, that B. alone gave the fbroke, whereof he died, (,ir) Stat.rr. V^l.l. />, li8. and MISTORIA PLACITORUM CORONA. 292 and A. and C. were prtrfcntcs, auxUiantes isf ohcttantesy it maintains the indicluient, for they are all principals, Alackall/s cafe, uhi jii- pra. (b) If A. and B. be indided of the murder of C. and ui)on the evidence It appears, that A. committed the fail, and B. was nut prcfent, hut was acceflary before the fu6t by commanding it, B. fluiU he dif- charged. 26 i/. S. 5, It A. and B. be indi6led as principal, and C. is indi6lcd as acccffary to both after the fadl; done, A. and B. are conviiSVed, or only A. is conviiSled, and upon the evidence agaiufl C. it appears he was ac- ccffary only to A. it maintains tlic indictment. 9 Co. Rep. H'-*- o. . lord Sanc/iar's cafe per curiam. ( c) A. is indiiSled for murdering B. ex maUtla pr^vcorttatu^ evidence of malice in law, as killing an officer or watchman in the execuiion of his office, or killing a man without any provocation maintains the in- diClment, becaufe the law interprets it malice. 4 Co. Rep. 07. b. A. is fpccially indidlcd upon the ftatute of I Jac. cap. 8. for ftab- bing B. not having a weapon diawn, nor flricken tirft, contra formam Jiatutl, upon the evidence it appears, that the perfon kild ftruck fivft, yet it is good evidence to convi\5l A. for manflaughter. H. 23 Car. 1. HarwoocVs cafe, (dj So if A. be indj6led for petit treafon for killing his mafter fclonicc^ proditoric, ^ ex mal'itia fua pr^cogitata, tho he were not his mafter, he may be found guilty of murder, fcj and tho it were not ex mahtiu praccgltatc'iy he may be found guilty of m-indaughter, and not guilty as to the petit treafon ; and fo I have known it ruled oftentimes. So if a man be indi6led of burglary, and qmd f clonic c isf r^ -t hnrglaritcr ccpit bona, If^c. he may be acquit of the burglary, and found guilty of fimple felony, if the evidence rifeth no higher. So if a man be indi6led of murder ex malitla pracogitatih iiu evi- dence proving the killing upon a fudden falling out is a good evi- dence to prove him guilty of manllaughtcr, and the jury ought ac- cordingly to find it. Plozv. Com. \0\. a. Co. Lit. 2>S2. a. And ib I in an appeal. 2 Hawk. P.C. ch. 46. fed. 36, 37, 38, ^-'c. ice. (h) Sec I Salk. 334. irallU'iak, (cj r,Ji Part I. />. 378. hi f.fie$^ cafi (c) Vide Part 1. p. 6z4. 46. fubfint. (d) Style 86. S5 CHAP. 253 HISTORIA PLACITORUM CORONiE. CHAP. XLI. Ccncc) fling the demeanor of the jury, and how their verdt6l Is to he given. AFTER the arraignment of the prifoners, and their pleas of not guilty received and recorded, the flierifF returns the pannel of the jury, the prifoners are again called to the bar, and the jury being called, and appearing the prifoners are told by the clerk, that thefe good men now called and appearing are to pafs upon their lives and deaths ; therefore, if they will challenge any of them, they are to do it before they are fworn. If no challenge hinder, the jury are commanded to look on the prifoners, and then feverally twelve of them, neither more nor lefs^ are fworn, You Jliall well and truly try, and true deliverance jnake be~ ivjecn our f over eign lord the king and the prifoners at the bar, whom you /liall have in charge, [and true verdi^l give'\ according to your evidence. So help you God. After the jury fworn proclamation is to be made, " That if any *' can Inform for our lord the king againft: the prifoners at the bar, ** let them come forth and they fliall be heard ;" then the prifoners _ - are called fucceffively to the bar, firft ^. and he is com- *■ " -' manded to hold up his hand, the indi6lment is repeated, ** To this he hath pleaded not guilty, the ifTue is to try, whether he ♦' be guilty or not guilty ; if you find him guilty, you fhall fay io, *' and inquire what goods or chattels, lands or tenements he Iiad at *' the time of the felony or treafon committed, or at any time after. *' And if you find him not guilty, you fhall inquire, whether he did •* fly for it, and if you find, that he fled for it, you fhall inquire of ** his goods and chattels, and if you find him not guilty, and that he *' did not fly for it, you fhall fo and no more. Hear your evidence.'* I have fet down the clerk's charge to the jury, becaufe it contains the efFe6l of their inquiry. Tho there be twenty prifoners at the bar for feveral felonies, and the oath is general to try between the king and the prifoners at the bar, yet the jury is to inquire of no more than what they are parti- cularly charged with, as before; and therefore, tho twenty have plead- ed. HISTORTA PLACITORUM CORON^E. 294 ed, and ftand at tlie bar vvlicn the jury is fworii, yet the court may flay at any number of the prifoncrs, and (o the jury ftand charged ^vith no more than what arc thus particularly charged upon them. And when they go from the bar, and have brought in their verdidl touching thefe particulars thus charged upon them, then, if the fame Jury pafs upon the remaining prifoncrs, yet they arc to be called over again, the prifoncrs reminded of their challenges, and the jury fworn .'a:c Tr. yd. /'#/. IV. p. igo. and yet I do not find any II. p. 710, 827. iicc .;'fa Kfl. 47, 52. iniUncc, wliLic a jiiry once Iworn was ever But ilie reafon given for tfiis i)i;;ftilc, il it difcharged, becaule the prijff.-.'tr's evidence were law, (which yet wiihont liic prifon- was not ready; on the contiary m loid cr's confcnt is unwarraiitrd by antient RnJJil's cale, the court refufcd to put oif ufage ; vidi 3 Co.Iiifi. 1 10. €>. L.t. zz-j. I'. the trial only uV 'he aftenioou of the fame I /iiiJ. 103. Raj'ii. 84. State 'Ir. Fol. II. day, pretending ;hty could not do il with- ^.951.) fc«ms to hold as liron^'ly in behalf ou' '•- -^r-ir ^ :h- utoriicy gcntui. .S J. ailiio £95 HISTORIA PLACITORUM CORONiE. many notorious murders or burglaries may pafs unpunifhed by the acquittal ot a perfon probably guilty, where the full evidence is not learchcd out or given. If after the jury fworn and departed from the bar, one of them, vfz.. J. wilfully goes out of town, whereby only eleven remain, thefe eleven cannot give any verdlcl without the twelfth, but the tweltth lliall be tined for his contempt, and that jury may be dif- -- charged, and a new jury fworn, and new evi;lence given, ""^^ and the verdi<5t taken of the new jury, and thus it was done by good advice at the gaol-delivery at Hertford ^ug. 15. Car. 1. in the cafe of Hanfcam tlie departing juryman- And fo it is ufual at the gaol-delivery at Newgate, if a jury he charged with fcveral prifoners, and the court finds by probable dr- cumftanccs, that the jury is partial to one of the prifoners, the court may difcharge the jury of that prifoner, and put him upon his trial by another jury, and this is ufed alfo in other circuits. (*) Upon net guilty pleaded twelve are fworn to try the iffue, after their departure J. one of the twelve leaves his companions, which being dif- coverd to the court, by confent of all parties B. another of the pannel is fworn in the place of J. and afterwards yf. returns to his company, which being made known to the court, j^. is called and examined why he departed, he anfwered to drink, and being examined, whether he had fpoken with the defendant, denied it upon his oath, where- upon fi. was difcharged from giving any verdi6l, and the verdidl taken of //. and the other eleven, and yf. fined for his contempt, 34 E. :?. Ojfice dc Court 12. m trcfpafs. If thirteen are by mifbake fworn, the fwcaring of the lafl of the thirteen is void, and the other twelve fhall ferve. If only eleven be fworn by miflake, no verdicSl can be taken of the eleven, and if it be, it is error; and fo in a pref ntmcnt, but if t^^elve be recorded fworn, no averment lies, that one was unfworn. Lainb\ Jujiicc 395. jliho in that cafe fhr jury were not fworn, verdicl, and the cafe of Whluhread was Mild the piifoiier urged, that he had wit- tliought a very extraordinary one. See nciTcs, who coiiid not be in to-.vn till iiiffht, lord Dela>n<'e's cafe, State Tr. Fel. IV. in whicli cafe it v»as certainly in the dif- p. z^z. and Roikwooii 's cafe, Stan Tr. crction o! the coart to put it oif or not. Fol. IV. f. 659, 601. and food's cafe, StJtt Siatclr. Vol. III. />. 630, 631. It hath Tr. Vol. IV'. p. 751. FoJ'cr 16, 39, 76, hovn;vcr been fince holden for law, that a 328. juiiy on-J,-tcTarKcntumJuuK, (fc. and then peril ot being ftar\cd to de-.Ui, lor how follows the di':um of the twelfth Et tr^~ can it be txptrtcd, that tvM-lvc- cuniidering diciui Radulphus Jiiiui Simonis du'ti j'upcr nien fhould in all cdts happen to be of J'acramcntum j'uum, csft . men follows the ll'.c fame IcntinicnLs ? and thtrcfure an- judgment, bed quia pra-difii undeajK cor.t ticntly »t wab n;)t ncctrlTaiy, (at leall in ci- coiditer €£?" prccie dicunt, quod prcediiiut vil cautcs,) that all the twelve fhould agree, iihh>is c? ecdefta. fua pradiita majus jut ha- but in cafe of a d'tfcence among ttie jury, Leant te'utidi isfc. id^o ccnftdtratum ' fil« HISTORIA PLACITORUM CORON.^. 300 court go together again and confidcr better of it, and alter what they have delivered. Plow. Com. 211. b. Saundcr's ca{c. But if the verdiiSl be recorded, they cannot retracSl nor alter it. Co. Lit. 227. 1 R. 2. Coion. 108. 20 Jflz. 12. 5. H. 7. 22. b. In a cafe of felony or treafon :hc vcrdidt mud be given in open courr, and no privy verdi»5l tan be given. Co. Lit. 227. b. Co. P. C. 110. If a man be arraigned upon an inqucft of murder or manllaughter taken by the coroner, and be found not guilty, the jury that acquits him ought to inquire, who committed the fa6t, and that lliali fervcas an indidment againfl: that pcrfon, that the jury find did the fact. " fifa: prardifl.T. Et quia praedifti 'Jtban- " wfj & Wilhdmui aliud rccordati fuerunt, " quain compertuin fuit per rccordiim ro- " tulorum ipfius Jihanhis ; & euam quia •' juratorcs pracdicti minus lufficicnicr fue- •' runt examinati fupcr articulis pra:di£lis, *' ficut patcl in rccordo prsdi^to, itcraio *' fuerunt juratorcs jurati, Sc examinati ; •' qui dicunt (uper lacr;imctitum fuum, *' quod prsdiftus Martiniis fuit villanus " iplius Prioi is die quo ejeilus luit dc pias- •* diftis tcnemcntis, &c. El quia com- •' pcrtuni eft, ^c. Sc quod Prior ad prac- <' di6lam aflifam coram prsefatis y. Sc IV. •' refpondebat per ballivuin (uum, qui qui- " dcm ballivus non potuit deducerc in ju- ♦' dicium jus fangiunis nativi doniini !ui " ablque prxfcntia domini lui, &c. ac *' etiam in fupradidto rccordo quod nulla *• prseicriptio longi tcmporis potefl; liberum " ianguiiiem in fervitutem reducere, quad " oninino lalluni eft, &c, videtur, qucd •'judicium J. de Lij-vetot crroneum eft; *' idco coufidcratum eft, quod piadittus •' Prior rthabeat prasditla tenementa, ita *' quod omnia lint in eodcni ftatu, in quo ♦' tucruni ante captionen-; i):a;did;eairira;." Afterwards by wi it of error the i ccord co- ram cpifcopo IVjiititH and fociis luis audi- toribus qucrelarum was brought coiani rcge, and Martin Fitz.-0/heyt rfligncd for error, that he had recovered feihn againfl the faid Prior " in grodo veredicto Taper •' dnfcifina iecundum legem communcm; •' & auditorcs line brevi regis iiide cis di- *' re£lo, & fine aliqua pjasmunitionc iplo '* Martino rite faft.i, contra legem commu- •' nem, ipfum a pra:di£lo tencincnto abju- *' dicaverunt, & contra tenorem Magns •' Caitac domini regis : Dicit infuper, quod " pridifti auditoies venire fetciiuit coram " eisjuratores prxfatas alFifae in forma crr- ♦' tificationis, & ipfos juratorcs per facra- *' mentum faum rccxaniinaveruiif & idmi- " fcrum vcredtftiim coiura cttuiiaiium ve. " rediftoper ipfos prius pronuntiato; un- " de dicit, quod in hiis & aliis erratum ell, " &c.'* To this the prior replied, that the faid ^'ariii] had been " Praemunitus per " bievc, quod vocatusycVj-yjcwj ; & quod " prxdifti auditorcs habuerunt plcnam po- " tcftatem, tarn per breve domini regis, " quam per Ipccialc pracceptum doratnt " regis, ad corrigenda recorda jufticiano- " rum vitiofa & crronea inventa & hoc " latis conftat domino rcgi & ipfus confi- " Ho, & quod prjcdiftus Martimn non rc- " cupcravit per grolfiim verediftum ; quia " non fuit ibi veiediclum nifi talc, quale " imperfcftum, quia per xi juratorcs cap- " turn ; & quod praedidli auditorcs non ad- '• miferunt contrarium verediftum priori *' veredifto, quia vercdiftum prius captu6i •' coram y. dc Lovetot fuit tale, quale im- •' perfeflum, & contra legem terrse captum " per xi juratorcs, dc llatu fanguinis ultra " tempus limitatum ; fecundum vercdic- " tum magis debcret dici fuppletio prioris " vercdidli defeftivi, quam eidem contra- " riiri." To which A/i7r.'/« rejoined, and infiftcd, " Quod prxdifla alLfa fuit plena *' & pcrfc6la coram y . de Lcvetot & fociis " fuis juftic' capta, &• hoc liquat esprefiC " in codem rccordo, ubi dicit yur.:tl di- *' cunt, &CC. Et quod ipfe recupei-avit prx- " difta tenementa per groffum vcrcdidum " pra'faia; aflifn?, petit judicium, fi prae- " ditlum groffum verediclum fuper dilTei- " fina precise facH aliquo modo fecun- •' dum legem & confuetudinem rcgni ^n- '■^//rf- debet adjiichillaii, abiquc brevi de " attinfta, &c. The judgment in this cafe docs not ap- pear, but it fliould fcem, that the reafon why the record of the vcrditi is faid to be impcrfetl, wai not, bccaufc all the twelve did not agree, but becaufe the Jifia uit'tuf- ^•jc partis were not diftindly fpcciHcd and recorded, which isdc-clared to be the ufage in fuch cale, />■!/;<( i}:ii is ejl in tali cafu. But 300 HISTORIA PLACITORUM CORONiE. But it is held, that if a man be arraigned upon an indi6lment found by the grand inqucfl:, and be acquitted, the jury fliall not make fuch further inquiry. 14 H. 7. 2. b. 13 E. 4. 3. b. 37. H. 8. B. Coron. 1 17. 11 H. 4. 93. a. B. Coron. 32. 2\ E. 3. 17. b. B. Coron. 39. But furcly the antient law was otherwife, and that the jury that ac- quits, whether upon a prefentment, or upon an indidlment of homi- cide, (hall he chaccd to fay, who did the fa6t. 37 ^JJiz. 1 3. »^o if a man be inditSled dcmortc cujufdwn ignoii, the inqueft (hall be charged to tell the name, if they can. 2 E. 3. Coron. 159. A man is indivflcd of robbery and acquitted, but it appeared to the court, that , a robbery was done, but the prifoner «o/ ^wiZ/j, and there- fore upon the ftatutc of IVineheJicr the court compelled the jury to prefenc who did it, for the hundred is to anfvver for the bodies of the o6Fenders, and the book concludes generally, Et del courfc t'lendra^ ou home ej: Indite dc mort de home l^ acquit 3 E. 3. Iter North. Coron. 307. fo that they made no dilFerence, where the [indidlment was by the grand inqueft, or by the coroner's inqueft.] The fame law in a appeal 22 4lpz. 39. Coron. 178. 4 H. 7. Rot. 21. RaJIai's Entries 57. a. r - But at this day the law and pra6lice hath obtained, that only upon an arraignment upon the coroner's inqueft the jury, if tliey acquit the prifoner, ftiall inquire who did the murder or manflaughter, and commonly it is a bufmefs of form, for they ufually fay, if it be not known, that John a-NokcsdiA it. 37 H. S. B. Coron. .32. 21 £. 3. 17. h. B. Coron. 39. Dy. 238. b. And as to indidments of robbery, if the petit jury acquit the pri- foner, they do not inquire who did it, and the reafon of the differ- ence is, that for the moft part in Eyre the petit jury were all of the fxmc hundred, where the ofFenfe was committed, and then upon the ftatnte of PVinton the hundred were to anfwcr dc corporibus malefa^lo- rum^ and therefore it was reafon to put them upon the inquiry, who committed the robbery, if it appears to the court, that a robbery was committed, and the cafe of 3 E^ 3. Coron. 307. was in Eyre, but now the jury, that tries, as well as inquires, is for the moft part of tiie reft of the county, and therefore they anfwcr only the point oi guilty or not guilty : vide Stamf. P. C. 1 S 1 . a. The jurors of the petit inqueft arc charged to inquire If the party fled, and fo of his goods and rhattcls, this is but an inqueft of office, and travcrfable; 'u'i4^Jul>ra Vart I. a?|). 27. p. 362. But is hath been held, that HISTORIA PLACITORUM CORON/E. -Jot that a prcfcutmcnt of flight before the coroner fupcr vifum corporis ;s concluhvc to tlie party, and not travcrfable : ^■iJe qute Jupra dixi^ Pun I. cap. 3\.p. 416, 4n. And therefore it is, that if the coroner's inqtieft fnper vifum corporis prefcnt xi/ugam fecit ^ and the party be taken and arraigned, and pleadt to diat indidmcnt, the jury fhall not be charged to iu(iuiic of the fu* 'ram fecit, becaufe found before by the coroner's in4ucll, and if thcv be charged therewith and acquit the prifoner, and hkewifc fay, that he did not fly, yet the record of the inqulfition before the coroner finding the flight lliall take place to intitle the king. 3 E. '6. Forfeiture 35. F. 1 Eliz. By, 23 S. h. Tlie jurv tnay find a fi)ecial ver»h6l, or may find the defendant guilty of part, and not guilty of the rclV, or may find the defendant _ guiltv of the fadt, but vary in tlic manner. '-'' 'J If a man be indidtcd of burglaiy, quod /e/otiic? iff burHaritcr aplt {fT afportavity the jury may find him guilty of the liniple felony, and ac- quit him of the burglary and the burglariiir. So if a man be indi6ted of robbery with putting the party in fear, the jury may find him guilty of the felony, but not guilty of the robbery. 'I'hc like where the Indictment is clam if} fecrete a perfonci. So if a man be indi6led upon the flutute of 1 Jac of flabbing centra feimamjlatuti, the jury may acquit him upon the ftatute, and find him guilty of manflaughter at common law. 23 Car. 1 . Harwocd's cafe fdj So if a man be indidlcd of flealing of goods of the value of IOj. the jury may find him guilty only of goods to the value of 6d. and fo guilty only of petit larceny. 41 E. 3. Coron. 451. Stamf. P. C. L. Ill, cap. 9.foL 1G5. a. So if a man be indicted of murder ex malitia pracogitata, the jury rnay find him guilty of manflaughter. Co. Lit. 282. a. or that he killed himy^ dcfcndcndo, or per infouiimum; but nota in thcfe cafes it is not fufficient generally to find it done fe defcndcudoy or per infortunium, hut the fpecial matter mufi: be fet down how it was done, and if upon the fpecial matter fhewn it fliall appear to be murder or manflaughter, the court will accordingly judge of it, tho the jury conclude, Et Jic per infortunium, or Jic fe defcndcmh. 3 E. 3. Coron. 284, 2S6, 2S7, (S* 43. jijfiz. 31. Cortn, 226. {d) S:jk 86. Ani 302 HISTORIA PLACITORUM CORON^^. And in thefc cafes, tho it be found per hifortunium, or fc defendendB upon tl\e fpecial matter fet forth, yet this fpecial matter muft be re- corded, for tho it be not fiich a felony, as hath judgment of life, yet it is fuch an oiFcnfe, as gives the forfeiture of goods, and therefore they may not hnd a general not guilty^ but muft find the fpecial mat- ter, and leave it to the court to judge. -- 1 -^^^ ^'^^ fefTions at Nczvgate 16 Car. 2. upon the evidence ^ -^ it appeard, that J. a boy riding in the ftreet upon an horfc, B. another boy whipt the horfe, the horfe ran away againft the will of A. and ran over a child and kild it, for this A. was indi6led of murder by the grand incjueft, and the jury found him generally not guilty ; the court was in doubt of receiving the verdidl, becaufe it was per infortunium^ and fo ought fpecially to be found, but becaufe the coroner's inqueft had found the fpecial matter, and concluded it, as in truth it was, per infortuyilum, which prefentment A. was ready to confcfs, that fo he might have his pardon of courfe, the yerdifl of not guilty was recorded, and fo it was faid was the ufual courfe ia that cafe ; but it was agreed, that if A. had of his own accord put the horfe into fpeed, and he had fo kild the child, it had not been per infortunium but manllaughter. Richard Pretty^s cafe for killing Anne fones. But now fuppofe the prifoner kild the party, but yet in fuch a way as makes no felony, as if he were of non fane memory, or if a man kills a thief, that comes to rob him, or to commit a burglary, or if an officer in his own defenfe kills one, that affaults him in the execu- tion of his office, which are neither felony nor forfeiture, whether is it neceflary to find the fpecial matter, or may the party be found not guilty? Foflcr 26b. And I think, and fo I have known it conftantly praftifed, the party in thefe cafes may be found not guilty, and the jury need not find the fpecial matter. And the reafon is, that in thefc cafes there is neither felony nor forfeiture. • And this is in efFe6l declared by the ftatute of 2't H. S. cap. 5. " If ** any attempt to commit murder, robbery or burglary in or nigh " any common high way, or in the manfion-houfe, &c. and the evil " doer be flain, and if the fame by verdid be found or tried, the " flayer fhall not lofe any goods or chattels, but fhall thereof be " fully acquitted and difcharged in like manner as he fliould be, if "he HISTORIA PLACITORUM CORONA. 303 *' he were lawfully acquit of the death," and accordingly ruled in Coopers cafe. P. 15 Car. B. R. Croke, p. 544. But it is ufcd in fuch cafes (and prudently enough), for - f'le coroner's inqueft to find the fpccial matter, and the bill "-^ "*"■' of indi<5lment of the grand jury to be fv>r murder, and to have the party arraigned upon the bill of indidlment, and to be acqui:ted there- upon upon trial, and to enter the acquittal upon the bill, and then to confcfs the coroner's prcfentment, and to liave judgment alfo thereupon ; thus jt was done in the cafe of Richardjon keeper of Newgate, who kild Hyde, that had committed a robbery and made re- fiftance, that he could not be taken without being kild. A^. 25 Car. 2. at Kczvgate. And therefore, wlicre a tliicf \v;.s kild in puifuit becaufe of ncceflity, if the fpecial matter be found, i!ie killer (hall have judgment, quod, eat fine die. 22 yf/^z. 55. Coron. 179. 22 £". 3. Coron,2b'6. 2G JJfiz. 23. Coron. 192. 22 £". 3. Coron. 261. and the reafon is, becaufe it is no felony, nor caufeth any forfeiture fo much as of goods, but is a juftifiable a(5l, and fo differs from fe defendendoy ox per infortunium, which give a forfeiture of goods. And fmce in an indi6tment or an appeal of. felony the defendant cannot plead a juftification, he fliall have the advantage of it upon the general ifTue pleaded. 26 H. 8. 5. b. 37 //. 8. B. Appeals 122. Yet vide 37 i/. 6. 20 y 21. per Need/iam upon an indi6lment of murder the defendant may plead, that in an appeal before the con- flable and marfhal of treafon he being appellee kild the appellant ; yet in that cafe it feems, if he pleaded not guilty, he fliall have advan- tage of that fpecial juftification upon evidence. But [notwithflanding] this, that I have faid, where the matter itfelf appears not to be felony, the prifoner upon not guilty pleaded may be found nat guilty, without finding the fpecial matter, and accordingly- ruled. P. 15 Car. 1. Croke, p. 544. Yet if the coroner's inqucfl: find not the fpecial matter but murder or manflaughter, and the prifoner is ariaigned upon it and plead njit guilty, and upon the evidence it appear, that the prifoner kild the man, but in fuch a manner as makes no felony, as a thief , that afTaults him upon the highway, or a thief that refifls ^ ^ tlie arrets, in this cafe the jury cannot find a general not guilty, but mufl find, that the prifoner did it, and the manner how, and this is to be cntred of record, as in cafe of a verdidt fe defendendo. And 305 HISTORIA PLACITORUM CORON.^. And the reafon of the difference is, becaufe in the former cafe the jury "-ives a verdir.l\e,.pl. 20. If A. be challenged off, and twelve more fworn, yet A. goes alor>g with the twelve fworn and is prcfent at their confukacion, if -^. give no new evidciice, nor advifcd or diredled them to find that ^ -, party, for wliom the verdidt is given, the verdidl is gooJ, '- ^^ but A. (hall be fined for his mifdemeanor. P. 17 Jac. B. R. Park's cafe. Now touching fining of jurors I (liall add farther. It a many that is one of the indi(5lors, be returned upon the petit jury, and do not challenge himfelf, he fliall be fined. 40 411^^' ^^■ If a jury fay they are agreed, and it being alked, who fhall fay for them, they fay their foreman, but upon farther im^uiry they are not agreed, the juiy (liall be fined, viz. every one apart. 40 Jjfiz. 10. 29 AJfiz. 27. If a juryman be called and refufe to appear, or if having appeard withdraw himfelf before he be fworn, the court may fet a fine upon him at their difcretion : vide Stat. '65 H.S. cap 6. So if he be challenged, and while the challenge is trying withdraw himfelf, and the challenge is upon the trial difallowd, and he be not prefent to be fworn 36 H. 6. 27. a. or being fworn withdraw him- felf from his fellows before the verdi£l given. 34 £. 3. Office dc court 12. If eleven of the jury be agreed, and the twelfth refufe, and make his companions lie by it, heretofore fuch juryman hath been im- prifond for his wilfulncfs, 8 Jlffi%. 35. and fined, and the iuquefl taken by the other eleven jurors. 3 E. 3. Vcrdld 40. But upon great cpnfideration both thefe courfes have been difal- lowd, and the judgment upon the verdi6l of eleven jurors reverfed, and the juryman (fined and imprifond) difcharged, as being contrary to law, for it may be the t\Yelfth was in the right, yet howfoever his confcience is not in this manner to be forced, and therefore for- iner precedents of this kind have been difallowd. 41 E. 3. 11. a. 41 Affix. 11. But what if a juror give a verdid againjft all reafon, conviding or acquitting a pcrfon indidled againlt evidence, what ihall be done ? I fay, if the jury will conviifl a man againfl or without evidence, and againfl the diredion or opinion of the court, the tcurt hath this T 2 lalve 5 to HISTORIA PLACITORUM CORONi^. falve to reprive the perfon convi6l before juilgment, and to acquaint the king, and certify for his pardon. And uh to an acquittal of a perfon againft full evidence it is like- ^•ife certain the court may fond them back again, and fo in the for- mer cafe, to confidcr better of it before they record the verdi(fl, but it they are peremptory in it, and ftand to their verdi6l, the court muft take their verdidl and record it, but may rcfpite judgment upon the acquittal. But as touching punlHilng the jury, I (hall fay, what 1 think may be done, and what may not be done. 1. I tliink in fuch a cafe the king may have an attaint, for altho a man convicted upon an indi6tment can have no attaint, becaufe the guilt Is affirmed by two inquens, the grand inqucfb, that prefents the offenfe upon their oaths, and the petit jury, that agrees with them, yet where the petit jury acquits, they fland as a fmgle verdi6l, for they difaffirm what the grand inqucft of twelve men have upon their oaths prefentcd, and with this agrees the book 10 //. 4. Attaint QO, 64. per Thorn. 2. By the flatute of 26 H. 8. c^p. 4. the jufticlar or fteward, before ^•hom any perfon is acquit of felony againft pregnant evidence in fVales or the marches thereof, may bind over the jurors to appear be- fore the prefident and council of the marches of PVales, who may, as they fee caufe, fine and imprifon fuch jurors by their difcretion. 3. I di) confcfs in the king's bench there have been many prece- dents of jurors, that have acquitted perfons of murder, or other felony tried in that court, if they have gone againft pregnant evidence, that have been fined, imprlfond and bound to their good behaviour during their lives fgj. The like hath been done before juftlces in Eyre, and the court of king's bench is a court in Eyre and much more, for that couit may reverfe judgment given in Eyre. See for this purpofe T. 43 Eliz. B. R. Rot. 979. Noy's Rep. p. 48 & 49. Wharton's cafe, where the jury in the king's bench acquitting the prifoner of murder againft pregnant evidence, and finding it only manflaughter were fined 20/. -, apiece, bound to the good behaviour and for the good be- ^ -' haviour of the prifoner, and committed, and this was don« by the advice of all the judges. See the fame cafe M. 44 ^ 45 Elh. B.R.Yeh. Rep. p,2'!>. MISTORIA PLACITORUM CORD'S JE. 311 Af. 42 bf 4:5 E/iz. B. R. Ctokc, n. 12. p. 77S. IJ'ati & Bralnes. In an appeal of murder there was a confcdtiacy among rhc jury to bring in the vcrdi6^ not guilty, and if the court diniiccd it, tlicn to change their verdicSt, and accordingly they did, and the court difliking their verdidl they went out and found him guilty, and this agreement being difcoverd, the principal confederates were fined and imprifond, but this fine was for their confederacy and pradticc, not for their verdict. 7 R. 2. Coron. lOS. The jury acquitted a notorious robber in tlic king's bench againft great evidence, and the court bound the jur} for the good behaviour of the prifoner ; the reporter makes a quare per quel ley^ vide the notes annexed to Bcnloe 1.5:3. to the fame purpofc. 4. Again, in cafes of inqucft of office there have been precedents in the Exchequer , and more frequent in tlie court of wards for fining of jurors, that would not find according to their evidence. H. 28 Eliz. in Scaccario coram Thcff. is* baro)iibus. 3 Hughes 19G. 5. The pra6llce of the king's bench to fine jurors for finding vcr- di6ls contrary to their evidence was endeavouring to be brought in praftice before judges of niji prius \ and about 14 Ca*-. 2. in an O.v- fordjhire cafe Huntingdon and his eleven companions jurors were fined 5 /. apiece for fuch a verdi6l, and the fine eftreated into the Exchequer, but by tlie whole court by the advice of the greater part of the refl of the judges procefs was ftayed upon that eftreat, as being impofed jcontrary to law (hj. G. Before juftices of oyer and terminer and gaol-dclivcry, if tlie jury acquitted a felon contrary to their evidence, the ufe was to bind them over to appear in the king's bench to anfwer an information, but I never knew any prefcrd, and indeed it were impoflible almoll for any judge or jury to convict a jury upon fuch an account, becaulc mipofiible, that all the circumftances of tlic cafe, that might p , move the jury to acquit a prifoner, could be brouglit in evi- '-'^ ^ dence , this therefore fecms to me to be but in terrorem. 7. But then it was endeavoured to bring the pra6tice ui the king's bench into ufe before jufticcs of gaol-delivery and oyer and terminer to fine jurors in criminal caufcs for not obferving the judges direc- tions, and acquitting felons againll their evidence, and accordingly a jury in Qloucejlcrjhire was fined 5/, a man for acquitting a perfon in- (Z>) Vtdc antta c'p. zz, p. iCo, Vuugb, 145. T 3 dlded 312 HISTORIA PLACITORUM CORON.1i. diifled of burglary, the fornrt of the fine was much the fame as is hereafter mention^, this fine was alfo eflreated into the Exchequer, but all the court after great advice with the judges of the. common pleas orderd a flay of procefs thereupon, as being neither waixantable by- law nor antient precedents in any court Icfs than Eyre. At the gaol-delivery at Nezvgate 10 AJan H Car. 2. JVagflaff (i) and eleven other jurymen were fined five marks apiece for acquitting Richard Tom/on and others indidled for conventicles, Eo quod ipjt ju- raiores adtunc & ibidem eofdem Ricardum Tomfon ijSc. dc prad-Ma trartfgrejjione Iff contcmptu contra rcgcm hv'jm rcgni Angliae, ^ contra pknam cvidentiam, Isf contra dire^lonem curies in materia legis ibidem de fe" fupcr pramijjis eifdcm juratoribiis versus prcsfatos Ricardum Tomfon l^c. In di£la curia ibidem apertc dat' <£f declarat' de preemijfis cis impojitis in indiclamento pra^di^o acquietavcrunt in contemptum d'Mi domini regis nunc legumque fuarum, Id ad magnam objlm^ionern id im^ pedimentum jujiicia^ necnon in malum cxemplum omnium alioium jura- torum in conjimi'i cafu delinqiicntidm. They were thereupon committed, and brought their habeas corpus in the court of common-bench, and all the judges of England were affembled to confider of the legality of this fine, and the imprifon- iTient thereupon, wherein there was fome little diverfity of opinion, whether without a caufe of fuit returned alfo, the common pleas could give judgment touching this fine, and if there were caufe, de- liver the party, or whether he mufl: go into the king's bench by habeas corpus and certiorari. P ., But it was agreed by all the judges of England, (one only *-^ ^^ diffenting,) that this fine was not legally fet upon the jury, for thev are the judges of matters of fa61:, and altho it was inferteJ in the fine, that it was contra dire^ionem curiae in materia Icgis, this mended not the matter, for it was impo/Tible any matter of law could come in queftion, till the matter of fadl were fettled and ftated and agreed by the jury, and of fuch matter of fa6l they were the only competent judges. And altho the witnefTcs might perchance fwcar the fadt to the fatisfaftion of the court, yet the jury are judges as well of the credi- bility of the witncfTes, as of the truth of the fad, for poffibly they might know fomewhat of their own knowledge, that what was fworn (i) In BuJheWi cafe, Vaugb. 153. ■was HISTORIA PLACITORUM CORONA. 313 wns untrue, and pofTibly they might know the wltneflus to be fuch as tlicy could not believe, and it is the conlcience of tlie jury, that muft; pronounce the prifoner gu'ily or not guilty. And to fay the tiiith, it were the nicft unhappy cafe that could be to the judge, if he at his peril muft take upon him the guilt or inno- cence of the prifoncr, and if the judge's opinion mufl: rule the matter of fa6l, the trial by jury would be ufelefs. Whereupon, and upon view of the precedents in the court of com- mon bench, where prifoners not legally committed or fined had been difchargcd, tho no caufe of privilege were returned, the jurors were difcharged of their imprifonment. And therefore, altlio the long ufe of fining jurors in the king's bench in criminal caufes may give pofiibly a jurifdi^tion to fine in thefe cafes, yet it can bv no means be extended to other courts of feilions of gaol-delivery, oyer and terminer, or of the peace, or other inferior jurifdi6lions. 3 Wilfon, 172, 177; CHAP. XLIII. [314] Concerning ftanding mute, and the punijlimcnt of penance, cr peine fort & dure. [*] I HAVE hitherto confiderd the pleas of the prifoner in capital caufes, namely, 1. ConfclTion. 2. Pleas in bar, and 3. Pleas to the felony, or not guilty. And I have confiderd the proceedings in order to bring the party to his trial, and the trial thereupon by the juiy. If remains, that I fliould now come to conhder what is to be done in cafe the prifoner will not anfwer, but fland mute and make no defenfe. C*] But now by the ftatutc \zGco. 3. been convi£led by verdift or confclTioii ; * 30. If any perfun being arraigned on and fuch judgment (hall have all i he fame any indidlnient or appeal of felony, or on confequences, as a convidtion by vcrdiil or any indiftmcnt for p;rjcy, fhall upon fuch confellion. arraignment tt.ind muce, or will not anlwer And Uic fame law is, with lefpcd to an direftly to the felony or piincy, he fh;ill arraignment for trr.ifon .jr petty lar-i«v. bff conviacd of the offtnfe, and the court Sec Bwn. Tit. Mute. 2 Jnji. 177. 2 Huvfi. ftiall thereupoa award juJ.^incnt and cxc- P.C,^Z) This was the cafe of Stephen k Fc no anfwer ; but this is not a fianding mute rcur, who was indiQcd before juftices of to the purpofc in hand, as our authur him- B\cr and ttrminer pro rcceptoniento fiLn.:,v, iclf hath (hewn at the beginning of this and upon being arraigned mutum ft ten-.nt, chapter. a jury was impannclled ex ofiiio, who {cl\ This was not properly a (landing fo 'nd quuJ fr.utum fi tenet demera (^ fpontd- mute, but a claiming the benefit of ckrgv, neatjcluntate i-ja, i^ quhd loquipotellfl'VLUt, (which in aiiticnt limes was ulually done and he was'theieupou put to penance, cd before pleading,) and was of the like n^- pani;m; the record was removed by wiit ture with the cafe of yJlan d: Beckwr^harr. of error coram rcgc, where he pleaded not Mich. 20 fe' ai Ediv. i Rot^. in dorjo cci am guilty, and v.-as committed to the maiHrill ^re^e, Nottingham, fee Part I. p. 343. in no- and afterwards produced the king's par- tis. znd the cafe of Jo^n de Bcfo, P. 6 B. don, Lko itide guufjs. a. B. R. Rj. 2. fj/lx, ftc Pan I. p. iSo. (c) It appears by the record, that it was ;» notis, the reafon tlicrcfore, why the faft not upon airaignment, that he ftood mute, was inquired of, was the fame in this cafe, for he had (ltd from juftice and was oat- as ia thofe, •vix-. that it might be known lawed, but being afterwards taken he was pro quali ordlnarlo liberari debeat, whether brought into court, and demanded why as a clerk convid or acc^uit. yide 2 Co. cxccu:iou Ihould not be don-; upon him in Ii'Ji. f. 633. courfc 319 HISTORIA PLACITORUM CORON^E. courfe of the common law, (o that any perfon indifteJ for piracv before thefe commiflioners ftanding mute fhall have judgment oipem'^ fort isf dure. T. 7. Eliz. Dy. 241. b. Brooke's cafe. The judgment of peine fort & dure is, as it is recited by Stamf. P. C. Lib. II. cap. 60. fol. 150. b. & 4 E. 4. 11^. viz. " That he be *' fcnt ro the prifon from whence he came, and put into a dark, lower *' room, and there to belaid naked upon the bare ground upon his *' back without any clothes or rulhes under him or to cover him except " his privy members, his legs and arms drawn and extended with cords *' to tlie four corners of the room, and upon his body laid as great a ** weight of iron, as he can bear, and more. And the firft day he *' {hall have three morfels of barley bread without drink, the fecond *' day he fhall have three draughts of water, of ftan. 704. By 321 HISTCRIA PLACITORUM CORONIE, By the Hatiite of Iftfim' 1. ffl/>. 12. Purvicu cjl enfemsnt que les felons efcries, i^ quenx font apertcmcnt dc male fanie^ t^ ne foy voilent viittercn enqiteji de felonies^ que homes met fur cux dcvant jufices a la fuit le roy fount nufes en laprfon fort l^ dure, come ceux queux refufcnt ejire al common ley de la terrc, mes ceo ncji my a entender pur prfonns^ que font prifcs per legier fufp'icion. Some (h) have anrlently thought, that this a>5l: of parliament intro- duced the penance, and therefore they did antiently think it did not ex- tend to an appeal, becaufc that Is the fuit of the party and not the fuit ot the king, de quo antca p. 317. But it feems, that altho this ftatute is in fome points dircdlive, namely, that it (liould be applied to thofc, that are of ill fame, and not thofe, who are taken upon a light fufpiclon, and therefore the court before they give this judgment ought either by inqueft of office, or at leaft by examination of witne^es to inquire concerning the pro- babilities of tlie guilt: vide Stamf P. C. Lib. II. cap. 60. fol. 150,' a. yet this ftatute doth not originally introduce the pe- nance, but it was to be done by the common law, and accordingly it is agreed by wj lord Coke in his comment upon riils ftatute 2 Inf, p. 119. And this appears 1. Becaufe this ftatute only fpeaks ofimprlfon- ment/o»'/ fff dure, but enafts not the punirtiment itfelf by this linger- ing painful death, therefore the puni{iiment, as it istlms infli6i:ed, was at common law, and is by force of the common law. 2. Becaufe tho fome antient opinions were, that it extended not to the cafe of an appeal of felony, yet the law hath conflantly for many ages extended it to an appeal ^/y, which cannot be by force of this ftatute, but by the common law. 3. The antients, as Fleta fkj, Britton (I) and Horn (m), tho they ■wrote fince the making of this ftatute, mention the penance without referring of it to this ad of fVeJlm' 1 . (nj. CHAP. (L) Stamf. P. C. 145. i. Pculton de pace taken notice of in any antient author, book, revis ill. b. cafe, or record before ilie reign of E. i. (i) Ktl, 37.' on the contrary I find iome inftanccs in {k\ Lib. I. cap. 34. S 33* *'^^ preceding reign of perfons arraigned (/) Cap. 4. ^ 23. &" cap. 2Z. ^ 73, for felony {landing mute, -who yet were (jb) Mirror, cap. 1.^9. no' V^^ to 'heir penance, but had judg- (n) TTiis flatutc was made 3 £. I. and ment to be hanged : at which time it feems tho by the manner of the exprefTion it does to have been the ufual practice, that if the not feem to have introduced this penance, prifoner flood wilfully niute, a jury of but rather fpeaks of it as a thing already twelve were impannelled ex officii, and if known, yel I cannot find, that it is ever they found him guilty, another jury of twenty HISTORIA PLACITORUM CORONA. 323 CHAP. XLIV. Concerning clergy //ozv itJIooJ at common law, and ho'jj generally at thii day. HAVING In die former chapter gone through the pleas and trials of the prifoners, and the proceeding upon {landing mute, I come to confider the privikgium dcrlcale^ and I the rather refer it to he ex- amined in this place, hccaufe tho antiently clergy was prayed and al- lowed upon the arraignment of the prifoner, yet at this day it is rarely done but upon his convi^lion or {landing mute, and this is, 1 . For the convenience of the court to be afcertained {ir{l of the nature of the crime by the conre{lion or trial of the prifoner. 2. For the advantage of the prifoner, who po{rihly may be acquitted, and fo need not t",e benefit of clergy: v'ldc Hob. Rep. 288. Searlc & JVlliiams. And for the full difcu{rion of this matter, (which I muft needs fay is one of the mo{l involved and troublefome titles in the law,) I fhall, as near as I can, hold this method. 1. To confider fomewhat in general touching the original and alteration of the privilege of clergy- 2. In what cafes it is to be allowed, and in what not (a), j. What pcrfoiis are capable of this privilege, and what not (b). 4. At wiiat time it is to be allowed, and when not (c). 5. The manner how it is to be allowed, and who the judge of it fdj. C. The confcquencc of the praying or allowing of it fej. twenty-four were chofen to examine the verilift of the former j 'and if tiicy were of the fame opinion, the prifoner was fcnten- ced to be hanged, Iflacita corona: coram juj}u' itinerant'' in comitatu Wai v-ficenfi «nno 5 //. 3. R'jt. r. ♦' ji^ms, qiijL fuit uxor Bobcrti de Bofco, <' appellat Tbomam filium Huhertl de inorte ♦' Robcrti viri fui, Ik 1'homai vcnit, & quia •• ipla habct virum Ri,bcitum de ytrdun " nomine, qui nullum facit appellum, ipfa •' non habct voccm appeilandi, &■ idco ui- *' quiratur Veritas per pncriam, & Tbo/zuts •' dtknjit mortem, fed non vult ponere fc ♦' fuper patriam, & xii juvatores dicunt, " quod culpabilis cftdemorte ilia, d:x.\iv " milucs, alii a prsdidis xii, ad hoc e- " le6li idem dicunt, & idco fufpendatur. Catalla Thoma xxxiv. fulidos & vi dciu« rioi, undc vicecoint^ lefpondcbit. Ibidem in d:rfo. '* Thomas de la Hethe "■ captus per indiflamcnium pro fuviis & " aliis nequitiis & pro reccptamcnto venit, " & non vult ponere fe fuper patriam ; ic «' jaratorcs dicunt fuper facramentum iuum, <' quod male crcdiint eum de rcceptamento '• Hoii.e Golightly, qui fuit latro cognitus, " & pollea fufpenfus apud Caunted'em, &c " de hoc & de aliis turns cum male ere-. " dunt, & xxiv milites ad hoc dctli dicunt «' idem, quod prxdifti xii juratores, & «' quod latro ell dc o mart, rettoie ecclcfiae " fant, & fine ordinaiiis fuis nolunt re- " dc Kyngejhn, & '1 boma k Clctl: de Ihi- *' fpondere. Et quia querela ilia non tan- *' rengton de hoc, quod 1 homai funul cum " git vi'am & inembruin, fed eft dcqua- " aliis ex prreccpto pr.tdifli Guv:'.or,',i ip- " dam tranfgiellionc pcrfonali, net ipfi *' fuin lViUiclmu:r iiifuliavcrunt, veibcia- " volunt in cui ia domini regis refpondere " vcrunt, & male traftavcrunt, ita quod " ad queri lam i.lain, tonudcracum cit, *' de vui ipGu. adperabaiur ; & didus " (]ij6c1 praedi£li Guy.io & Thor.a^ dc pras- •' G«y,/c> inanu fua propria, & knypulo fuo " ditti tranfgrclFionc convincaiitur, & fa. " labium ipfius '.''//i*(w« fupcnus ablcidit, " tisfaciant piaeditlo Wi.ltelv.o jo\'c dc •• undedicitquod J'jttiioratus elj S.- damp- " danipnis, fcilicet quilijc LOiumdc ceii- " num habet ad valcntiani cciv.um libra- '• turn libris. Sc domino regi de mifcri* ♦' rum; &■ indc pro^utu fcttJiu. Et pra- " cord'.S, & commutaQiur gaol* pro •' diiU Guyiw & 1 homai vcniunt & dicunt, «' traQT^rcfllone &c. <> quod clerici iunt, & non dcbept hie te- Vot. II. u so 3i6 HISTORIA PLACITORUM CORONA. not allowc! them, and therr fore not in indidtmcnts of trcfpafs, pcfy laniny, or kWYmg fe defendendo- Stamf. P. C. foL 124. a. III. If they were not indidled of high treafon, clergy was not al- lowable, and therefore Hill, 2 H. 4. Rot. 4. B. R. rex, where the biihop of CLtrtijU was indi6^ed of high treafon, and infifted upon his ptivJegium clcncalc, quia epifcopus unilus, yet this claim was difailowd ai;d he put upon his trial, and conviftcd (p). Yet Hill, n E. 2. Rot. 87. in dorfo, Heref. coram regc, the bifiiop of Hereford indi6led of high treafon for levying war againfl: the king alleged, that he was epifcopus Hercf. ad vohmtatcm Dei ^ ftnnvii pouiificis, and could not anfwer abfque offenfii divind l^ fan^la ecclefia. Thereupon the plea was adjourned into parliament, where the bifhop anlwered as before, and the archbilhop ot Canterbury claimed hitn and had him ; thereupon it was ordered, that day Ihould be given in the king's bench to the bifhop, and the arclibifliop was to have him there at the day, and in the mean time a writ iffued to the fiicrifF ot Heref. to return twenty-four to inquire, as if he had pleaded, \^quld 'Venire facial tot iff tales, iffc. ad inquirendum prout moris eji, Is'c. pro quali, l^c.'\ returnable at the fame day ; the biihop appcard accord- 1 '"g'y ''^ ^^*^ cuftody of the archbiihop, and the jury found him guilty, Ideo conjlderaC eJi, quod pr'esdi^us epifcopus tan- quam convi^us i^c. rernaneat penes pradi^ium archiepifcopum ut prius^ ^c. and all his goods and chattels, lands and tenements were feifed into the king's hands by writ direvfted to the fherifF: Upon which it is obfervable, 1. 1 hat a kind of allowance is made of clergy in high treafon. 2. That notwichflanding his claim of clergy, yet a writ iflucd to fummon a jury, who inquired whether guilty or not. 3. That upon this plea and this inquilition, tho he had his clergy, it was ut clericus convi^us. Nota in the parliament of the 1 E. 3. this judgment was reverfod for this caufc, that the juftices took the inquiiitlon, licet idem epifcopus in aliquam inquifitioncm fe non pofuifjct. Claiif. \ E. \]. Fart]. Af. 13, fo that the judgment was given upon the inquili- Cp) llie treafon given in the record is •' Anglia indc refpondere. in thefe words, " Quitumque lii^eus do- Yet in aiiiieiit tunes a difference iv-as •« rnini regis, cujufcamquc flatus, leu con- made between treaions, that were immt-^ «« ditionis, fpiritualis, vcl temporalis fuc- diately againtl the king's perfon, and other «' rit in terra Af/l'^e pro aha proditione treafoni; vide Part 1. p. 185, 186. 212. " In criminc lifamajellatis :ndi£latus cil, In notis; and the cafe of the biiaop oi Herd' ** & coram icge, vel jufticiariis fuis ijide ford hcjt; mentioud. «« axrcnaius tentlur, & debet per legem tion. HISTORIA PLACITORUM CORON.^. 317 tipn, and not upon nihil dicit for (landing mute, and therefore er- roneous (q). But afterwards T. 2\ E.Z. Rot. 23. Hertford, rex, John Gerberge, was indi<5ted for a conftrudlive treafon namely, accroaching royal power, de quo vide fiiproy Part I. cap. \\. p. 80. 138. and thcreupoa claimed the privilege of clergy, Et quia prlvilegium clericale in hujuf- inadi cafu feditionis Jecundtim legem Isf confuetudtnem regni haffenus ob" tentas &" ujitatas non eji allocandutn l^c. quafitum ej} ab eo fepius quali- ter fe velit acquiciare, he ftill replied, that he was a clerk, p „- ajferensfc nolle aliam refponjionem exhibere ; and thereupon he ^"^ "* is committed to the mardial ad pcenitentiam fuam fecundum legem Id confuctudimm regni ftibiturum i^c Nota clergy denied in fuch a treafon, yet penance awarded, tho the charge was treafon. Yet at common law before the ftatute of 25 £". 3. cap. 4. pro clero, it feems that clergy was allowable to him that was indidled for coun- terfeiting coin, or for counterfeiting money. B. Clergy \. But that i^ alterd by the ftatute of 25 E. 3. pro clero. IV. If clerks were indicted with thefe claufes injidlatores v'larwn l^ depopulatorcs agrorum, clergy \vas denied them, and therefore the adt of 4 H. 4. cap. 2. was made to put thefe claufes out of indidlmcnts and to allow clergy, if they were in the indi(Stment. Again, as it was denied iii refpedl of fonic offenfes, fo this privi- kgium clericale was by tlic common law abridged In refpei^l of the perfon ; for certainly by the canon laws Nuns had the exemption from f'^) The error of this judgment con- vift. Thus are the entries upon the rolls, filled not inertly in its being given upon '• A. B. indidatus dc fcloiu.i, c6 quod, an inqnifition •' in qiiain epiicopus fc non •' &c. & duftus coram rcgc, & allocutus " pofiiiffet," bat becaufc it was given up- " qualiter Ic velit de feloiua praedidti ac~ on an inquert, " in quam cpifcopus fe non " quietarc, dicit quod cleiicus ell, &: line " pofuillct," (^Jtcr he bud ban alkivd i'-s " ordinaiio fuo non debet hie refpondere. tlergy and dehvsrd tb hli '>rd.r.tiry. lor the " tt fuper hoc vcnit C. Z>. &c. Et petit P/rff/ftf Cerof?^ ot thofe times {bcv/, that it '• iplum lanquam clericum hbi liberari; vas the conftant piaftice of mquelts ex " led ui fciaiur pro quali cidcm ordinario cficio to pafs upon clerks pleading their " liberari oeb^at, inquiratui r«i Veritas per p>lv:legtu>-r cUricalc, where clergy was al- " patriam." Then a jury £x jjficio was Jowabic tlic method whcicof was thus. fummoncd, by which if it was found, 'I he clerk upon his arraignment pleaded " Quod A. B. non eft culpabiiis, libcratur h\i prh'ileg'nim clericale; then camc'thc or- " ordinario pro tali &c." But if culpa- di nary and demanded him; then a jury r.v bilis "libcratur ordinaiio tanquam cleri- cffcio was fummoncd to inquire into the " cus conviftus, falvo cuftodiendas, fub truth of the charge; or as it is cxprcif in " pxni qua dccet &c." V'Ji M. 20 ctf this recoid, «' ad inquirendum, prout mo- 21 £. i. Rot. 4. in dcrfo, B, R. Hill, il «* ris efl, pro quali, Sec. (ut. pro qualt a- E. I. Rot- 15. Hid. Trin, 30 E. 3. R:t. *• di-m ordinario liicni'i d.beat," j and ac- 11. B . R. Hex, 'Inn. 3I A". 3- ^«f. IJ* cording to fuch inquclf , the clerk was du- Ikid, Rex, iiverd to the ordiuitry as acquit, or con- U 2 tciTiporal 328 HISTORIA PLACITORUM CORON.^: temporal jurifdic^ion, but the privilege of clergy was never allowd them by our law; vide Jlat' 21 Jac. (r). Again, tho the ordinary took himfelf to be the judge of rlie allow- ance of the clergy and of the purgation of the ckrk, yet the king's courts took that courage to make the ordinary but a minifter, and themfelves judges of the allowance and difallowance of the clergy and purgation. 2\ E. \. 2\.h. 9 E. 4. 23. a. And fo the judges of the common law would oftentimes deliver the clerk to the ordiiiaiy, but ahfque furgationc, as where the clerk is attaint by outlawry or by judgment, or convidl by his own confeflion, or upon an appeal. Stamf. P. C. Lib. II. cap. 49. 3 H. 1. 12. n. 10 E. 3. Cofon. 247. Hob. Rep. 288. SearU & miliams, or if he were a notorious malefador, 'v'lde 10 E. 3. Co^rn. 247. or if he be convidl by verdidl of counterfeiting the fcal or coin at common Jaw before the ftatute of 25 E. 3. Lib. Pari. IS E. 1. Bertons cafe r -I (*)j or if he be committed by record to the ordinary abf^ue ^ pmgat'ione. Hob. ubifupra. And in thefe cafes, if the ordinary admitted him to his purgation, he was fineable for it as a great mifdemeanor, and the party deliverd by fuch purgation fhall be again committed to prifon, Af. 31- ^ 35 E. 1 Rot. 59. Kane B. R. the cafe of Plugh ForJIiam deliverd by William Tcjla^ and another commiffionated from the pope (s) ; and the entry in fuch cafes is, liberatur ordinario tanquam cicricus conviflus l^ utkgatus ad falvo cujlodicnd^ periculo, quod ijicumbit ^c. t^ inhibi- tum cjl eidan ordinario.^ ni ad aliquam purgatiotiem ipjius A. B. procedat domino rcgc inconfulto, eo quod pr adieus A. B. pro feloniis isfc. utkgU' tmejl l^c. H. \iE. 3. B. R. Rot, 19. Rex. Suff. Loud. The cafe of John de Hcmmyngcjion chaplain. But indeed, if the clerk had bad his clergy and were generally deliverd to the ordinary, he might (r) Cap. 28. ',. 6 £f 7. g'lol ■^'38 alTo arraigned for biingin^ tlie faid i*) ByUy's Plac. Pari, p' $(>. clerks " coram piai.iio Hug'^.te ad f.ar- (sj That cafe was thus : W^hilft the " gandum, abfqut pr^ccp'o doniim re- tetnporalitics of the archbifhop of (.anter- " {;is;" and were botli convifted by ihcir bur.wcKt'iu the king's hands, two clerks own confcinon, and c;nmniitted to the convift of felony iinprifond in the arch- marlhal, " lit poitea finem fe; erunt pra bifbop's prifon had been admitted to pur- •' tianfgrefHone & comcmptu piifididii.'* galion and dc.Tveid out of cnftody by Afterwards the two clerks, who bad been inaftcr Hugh Forpam, *' Per mandatiim dchverd by fuch purgation, were brought *• magiftrorum JViilidmi Tejia, & HcaUt, from the tower, where they had been ino- •* clcricorum papx, adminiftratornm fpi- prifond by the king's writ. " Et fepara- •' ritualitatis archiepifcopatus piadicli, " tim allocuti qualit&r de felonia praedic- «« abfque mandato domini rogis." For- •• ta fe velint acquietare, dicuni quod cie- Aow was brought (■»r«m r-^f, and arraigned " rici funt, & liberantur ordiuario lub for the fdid ofFcnfc ; aud the ketpci of chc « p«na, qua decet, &c, iidmit filSTORIA PLACITORUM CORONA. 3'^9 admit him to make his purgation, and upon li;^nification thereof by the ordinarv into the chancery a writ rtiould iffiie to the iliciitF to deliver unto the party To purged all his goods and chattels feifed into the king's hands upon that occafion, niji fugam fecerit ca occajione. F.N.B. 6C. a Ar.d all this is to fhevv, that whatfoevcr weight the clergymen laid upon their canons and their exemptions from the fc- cular jurifdidions, yet their canons cr conllitutions, or pretcnfions or claims of this kind were not binding here, nor fo taken fartlier than ciiher by ads of parliament or the common acceptation of the kingdom they were received, and therefore thcfe privileges r -i received divers alterations and corrections and reftridions by the temporal judges, as the occafion required. 2 Hawk.. P. C. c!i. 33 per totum. 4 Blackf. Com. ch. 28. per tot. Sec Index to Folkr. Tit. Clergy, liuro. I itle Clergy, f. 2. BciKtii of Clergy. 3. Pccrc Wil- liams. 439— 504. CHAP. XLV. Lt what ofFenfes clergy is allowable or not. NOW touching the ofFenfes, wherein clergy is or was allowable, and in what not. There are thefc general rules, that have influence in this whole difcourfe. 1. That in cafe of high trcafon againft the king clergy was never allowable in this kingdom. 2. That at common law in all Cafes of felony or petit treafon clergy was allowable, excepting two. 3. 7"hat where a flatute makes a new felony, clergy is incident thereunto, unlefs it be fpccially taken away by ads of parliament ; but where it makes a new trcafon, there is no clergy. Upon thefe generals much of the fuccecduig bullnefs of this chap- ter, and dome that follow will be built. I. As to the firft of thefe I fay generally in all cafes of high trcalon clergy was never allowd. And this propofition will be confiderd two ways. 1. How the common law ftood before the flatute of 25 E. S. pro cUrOy and 2. How it ftood after. U3 The 330 HISTORIA PLACITORUM CORONA. The rtatute of 25 E. 3. for the clergy was made in the parliament held in Hill. 25 E. 3- which was in the fame parliament, wherein the ftatute of declaration of treafon is made, commonly called the The Jlatute of purveyance. By this ftatute pro clero cap. 4. it is enafted, " That all manner of |- -| " clerks, as well fecular as religious, which (liall be from ** henceforth convi6l before fecular judges for any treafons *' or felonies touching other perfons than the king himfelf or his *' royal majefly, fhall from henceforth have and enjoy the privilege ** of holy church, and fliall be without impeachment or delay de- ** hverd to the ordinaries demanding them, and upon this the arch- *' bifhop promifeth, that upon the punifliment and fafe keeping of ** fuch clerks offenders, which (hall be dcliverd to the ordinaries, he *'' fhall thereof make a convenient ordinance, whereby they fliall be *' fafely kept and duly puniflied, fo that no clerk fliall take courage *' to offend for default of correction. At the fame parliament it was declared what was treafon, and a- mong the reft counterfeiting the great or privy feal, or the king's coin is declared treafon, and put in the fame rank with compaffing the king's death or levying of war, and it is thereby enacted, " That no *' other offenfes, than what are therein declared, be treafon till de- *' clared by parliament. Before this ftatute there were two forts of treafons, that concerned the king, one was of a greater note, and another of a lefs note. Thofe of the greater note were cinfp'iring the king's deaths levying tf war againfi the king, adhering to his enemies, and two others, that are fmce abrogated by the ftatute of 25 E. 3. which came under the general and obfcure names of fedition^ and accroaching of royal power. In any of thefe a party convid had not his clergy at common law, this appears by the judgment cited in the former chapter (aj. T. 21 E. 3. B.R. Rot. 23. Rex. But there were other treafons, that concerned the king, which were of an inferior note, namely counterfeiting the feal and counterfeiting the coin and thefe, (the latter efpecially,) had only judgment as in cafe of petit treafon, namely to be drawn and hanged. And it feems before the ftatute of 25 E. 3. de proditionibus clergy- was allowd in both cafes, as appears by the old book of jE. 3. B. R» (a) p. 327. Cerberge'i cafe, title MISTORIA PLACITORUM CORONA. 332 title. Clergy, placito ultimo^ and the judgment in parliament oi \^ R. I . in BtrtoH:, cafe, who being conviiSl for countei teiting the king's fcal had his clctgy, \mi tradatur ordinario Jine purratione (0). But now as to the ftatutc of 25 E. 3. pro clero, and the flatute of 25 E. 3. at the fame paiHamcnt dc prodiiiotiihus laying them both to- gether in all cafes of trcafon touching the king liimfelf or his royal majefty clergy is wliolly taken away, and in all oiher cafes of treafon or felony clergy is allowd ; and confeijuently in murder, robbery, petit trcafon clergy is fettled by this avft of parliament. But whatfoever is declared treafon againft the king by tlie ftatnte of 2j E. 3. de pioditiombus, as well counterfeiting the fcal or the money of the kingdom, as any other treafon therein declared, is wholly exempted from clergy. \9 H. 6. 47. b. Stamf. P. C. Lib. II. cap. 42. fo!. 124. a. Af. 31 £.3. coram rcge Rot. 18. Rex., in dorfoy Bucks, cafm ahbat'is de Ahijjoidcn (c) pro rcfccat'ione i^ f'^l/^- ficatione legal'is inonetce, 2i //. 8. SpehnanS Rep. accordant adjudge. 2 Co. Jnjiit. 633, 636. fuper Jrtic' clcr'i. .So that at this day in all cafes of high trcafon, whether thofe de- claicd by the ftatute of 25 E. 3. de proditioiiibusy or any other trea- fons newly enacted fince, the privilege of clergy is wholly taken away; and, (which is the fecond propofition above mentiond.) If. In all felonies, that weie at common law before the ftatute of 25 E.. 3. pro chro, and in all cafes of petit trcafon by that fiatute tiie privilege of clergy is reflored and fettled. And therefore in all fuch felonies or petit treafons, which were fuch at the time of the i^atute of 25 E. 3. cap. 4. pro clero clergy is allowable, unlefs in fuch cafes wliere it is taken away by fubfequent a>5ls of parliament, and fo far forth only as the lame is fo taken uway. But in what cafes fubfequent a6\s of parliament Jiavc taken away clergy, where at the time of the fiatute of 25 £. 3. it was allowable, (hall be the bufuiefs of the next chapter. But yet there fcem to be two felonies, wliere cl^gy was not alluwable notwithflaiuling this ail, namely certain a^^ts, ^J^JJ that by interpretation of law were hoftile acts, which was the reafcn, that I long hncc heard Mr. Ncy then the king's attorney give for k (b) Vldefuprap. 3jS. Sec alfo Part I. (cj Part I. /, n6. p. 1S5, i86. in notis, &f p, 213. in nods. U 4 in 333 HISTORIA PLACITORUM CORONA. in the king's bench about 7 Cnr. 1. viz. 1. Jnjidiato yiarwn & de^ popuLitio ogromm. 2. Wilful burning of houfes. 1 . Concerning the former of thefe it appears, that injidiatores via- rum and dtpopufatores agrorum were oufted of their clergy notwith-. (landing the ftatute of 25 E. 3. cap. 4. pro clero. Rot. Pari. 4 H. 4 n. 30. there was a complaint in parliament by the archbi/hop of Canterbury and clergy, whereupon it was enadled, that that general claufe Ihould be left out in indiiSlments and words of the fame cffedl inferted, and that notwithflanding the indictment carried the fame effed, yet benefit of clergy (liould nut Lc denied, as appears at large by the ftatute of 4 H. 4. cap. 2. 2. As touching wilful btirning of houfes I have heard, as before, that clergy was not allowable by the common law, but of this more fully in the next chapter. Now touching facrilcge tho fome later ftatutes were made to ouft clergy in that crime, yet it feems at common law or at leaft after the ftatute of 25 E. 3. cap. 4. pro clero it was allowable, as appears 26 jijjix. 27. where it is agreed by the juftices, that a perfon indidled of robbing a chapel and breaking a church fhould have his clergy ; but it feems, it was with this difference, that if the ordinary refufed him, as he might, he fliould not have his clergy, 20 E. 2. Cor on. 283. Stamf. P. C. 123, 124, but otherwife the court would allow it him. £6 Jfiz. 27. Sec the references at the end of Cli. XL IV. aate. [334] CHAP. XLVI. Where and in what ofFenfes, that where capital at common lavj^ clergy is taken away in part or in all by a^s of parliament fubfcq^ue7it to 25 E. 3. andfirji, of petit treafon. I HAVE before declared what capital ofFenfes were exempt from clergy at common law, and how the law ftood in relation there- unto before and by the ftatute of 25 £. 3. and have there fettled it, that regularly in all capital ofFenfes, except treafons, which touch the Jting, the offender is to have the privilege of his clergy. But Ic HISTORIA PLACITORUlVr CORONA. 334 But as touching trcafons, that touch the king, by virtue of the common liiw and the dcthuation of that ftatute the benetit or privi- lege of clergy is not allowable, neither is there any flatute, that hath altered the law in that point of treafon, but it llands ftill excluded from the privilege of clergy. But as to petit tteafon and felonies fubfequent flatutes have mad great alterations as to the point of clergy from what was declared by the ftatute of 25 E. '6. cap 4. pro c/cro. The inquiry therefore touching the alterations made by fubfequent ftatures in j-oint of petit tieafcm and felony may be confiderd in tliis method. I. What alterations have been made by a6ls of parliament in relation to new felonies made by ads of parliament fince 25 £. 3. And 2. What alterations have been made in fuch ofFenfcs, as were petit treafon or felony at the time of the making of that ftatute. I. As to the former of thele this general rule holds, that if an ac!^ of parliament make a felony, and doth not take away clergy r -1 in exprefs words, in all thofe cafes clergy is allowable. And if it doth make a felony and takes away clergy not generally, but in fuch or fuch cafes, regularly in other cafes clergy is allowable, as if it takes away clergy in cafe the partv be convi»£ted by verdi*5t, yet he (liall have his clergy, if he ftand mute. But if it enadts generally, that it (hall be felony without benefit of clergy, or that he Ihall fufFcr as in cafe of felony without benefit of clergy, this excludes it in all circumftances, and to all intents ; and becaufe I have before in the particular enumeraiion of tclonies by a6l of parliament taken notice all along what are excluded ot clergy and what not, 1 ftiall difmifs that part of the inquiry referring myfelf to the fevcral a£ts of parliament, that enad the felonies themfelves ; and fliall proceed to the fecond part of the inquiry. II. ITierefore as to thofe felonies, that were fuch at the time of tlic ftatute of 25 E. 3. cap. 4. pro clcro. I ftiall firft deliver fome general pofitiens, and then proceed to the particular felonies themfelves. 1. Therefore it is certain, that whatfoever petit treafon or felony there was at the time of the malting of that ftatute, it w^as within the privilege of clergy by force of that ftatute at leaft, except thofe two above mentioad in the hift chapter. 2. That 335 HI5TORIA PLACITORUM CORONA. 2. That therefore all fjch petit treafons and felonies are at this day within clergy, unlefs where it is oufted by fubfequent ftatutes now in force, 3. That where any fliatute fubfequent to 25 E. 3. cap. 4. hath oufted clergy in anv of thofe felonies, it is only fo far oufted, and only in fuch cafes and as to fucli perfons as are exprcfly comprifed within fuch ftatutes, for in favorem vita l^ privilegii clencalis fuch flatutes are conftrued literally and ftridily. And therefore, if clergy be oufted as to the principal, it is not oufted as to the acceffary ; if as to the acceflary before, h is not extended to ,- the acceffary after ; if where the prifoner is convi6l by ver- *-^^ -' di£t, it holds not as to a convidion by confeffion, nor as to an attainder by outlawry, nor to a {landing mute, as we fhall fee in the fubfequent inftances. 4. That in all cafes, where a fubfequent atfb of parliament oufteth clergy in cafe of any felony, the indidment muft precifely bring the party within the cafe of the ftatute, otherwife, altho poffibly the fa6l itfelf be within the ftatute, and it may fo appear upon the evidence, yet if it be not fo alledged in the indidment, the party, tho convidt, fhall have his clergy. Siamf. F. C. foL 130. a, Dy. 99. a. I8'i. b. 224. b. 261. a. 5. Altho the cafe be fo laid in the indictment, that It comes with- in the ftatute to exempt the prifoner from clergy, yet if upon the evi- dence it fall out that, tho it be a felony, yet it is not fo qualified, as laid in the indidment, the jury ought to find him guilty of the felony fimply, but not as to the manner laid in the indidment, (as for in- ftance guilty of the felony, but not of the robbery, or not of the breaking of the houfe,) and thereupon the prifoner fhall be admitted to his clergy ; and this is commonly done. And now I come to the particular offenfea, wherein clergy is taken away from fuch felonies, where by the common law and the ftatute of 25 E. 3. cap. 4. it was allowable. And thofe offenfes are thefe that follow. 1 Petit treafon. 2. Murder. 3. Manflaughter. 4. Rape. 5. Robbery. 6. Burglary. 7. Larciny of feveral kinds and degrees. And I ftiall now purfue them in the fame order, as they are fet down. fhflt Petit treafon, as the fervant killing his mafter, ^c. It HISTORIA PLACITORUM CORONA. 336 Tt is plain, that after the ftatnte of 25 E. 3. cap. 4. clergy was to be allowd until 12 //. 7. cap. 1. t^ 23 H. 8. c,p. 1 . The firrt flatiite, that oufted clergy generally in petit treafon, was that of 12 H. 7. cap. 1. which yet extended but to convidlion or at- tainder, and only to tlie principrd not to the acccffary. Bv the ftatyte of 23 H. 8. cap. 1. it is cna^^ed, " That no _ _ ** perfon, which (IvdW be found guilty after the laws of the ^'^-^'^ *• land for any manner of pt tit treafon, or wilful murder of malice prc- " penfed, or for robbing any churches, chapels, or other holy places, or ** for robbing any perfon or perfons in their dwelling houfe or dwelling *' place, the owner or dweller of the fame houfe, his wife, children, *' or fervants then being w!thi«, and put in fear or dread by the fame, " or for robbing any perfon or perfons in or near the highways, or *' for wilful burning of any dwelling houfes or ibarns, wherein any *' corn or grain rtiall happen to be, nor any perfon found guilty of *' any abetment, procurement, liclping, maintaining or counfelling of *' or to any futh petit treafons, murders or felonies (hall from hencc- *' forth be admitted to the benefit of clergy, except clerks in holy *' orders, viz. in the order of fubdeacon or above ; and that fuch *' peifons in orders convidl of thofe offenfes ihall be delivered to " the ordinary, but fhall remain in prlfon without purgation, unlefs ♦' he become bound by rccognifance before the king's juftices, *' where he was convidt, with two fufficicnt furetics for his good *• behaviour. *• Perfons attaint by judgment upon confeflion, outlawry, or verdi'^ " admitted to clergy tp remain in prifon without purgation. " Clerks conviiSt, and upon their clergy allowd deliverd to thcordi- *' nary may be degraded, and then fent into the king's bench by the " ordinary to receive judgment upon their conviction, and the juftices *' having the record before them fliall give judgment upon fuch con- ** viction, as if had not had clergy. This ad, tho temporary, was continued by the ftatute of 2S H. 8. cap. I. and made perpetual by 32 //. 8. cap. 3. and by the fame acl perfons in orders are put into the fame condition, as other perfons not in orders, notwithftanding tliis ftatute of 23 H. S. cap. 1. or 25 H. 8. cap. 3. This ftatute of 23 H. 8. as to all thefe crimes extended to prlncipaU and accelTarics before the fa6l, but not to acceftarics after. But 33S HISTORIA PLACITORUM CORONA. But yet it extended to exclude principals and acceflaries before^ only in cafes where they were found guilty after due courfe of law, ^iz. bv verdi(5l or confefiion, l^c. and extended not to {landing mute, i^c. And therefore by the ftatute of 25 H. 8. cap. 3. it is cnaded, " That ** every perfon that rtiall be indic'T:cd of petit treafon, wilful burning *' of houfcs, murder, robbery, or buiglary, or other felony according *' to the tenor or nieanincr of the faid ftatute of 23 H. S. and there- ** upon arraigned do {land mute of malice or froward mind, or cb.al- *• lenge peremptorily above the number of twenty, or do not anfwcr *' diredly to the indi<5lment and felony, whereof he fhall be ar- " raigued, {liall be excluded from clergy in like manner, as if he had •' pleaded to the ofFenfe antl been found guilty according to the laws *' of the land. And provides, " That if any perfon be indided in a foreign county *' for {lealing of goods in another county, and be found guilty, {land " mute, challenge above twenty peremptorily, or will not Jire. 2; judgment of death is to follow in that aa H. 8. cap. 9. cafe, but only the challenge is to be over- faj This ftatute omits the cafe of chal- ruled, -uide^u^ra p. zyo. isi infi a cop. jfi. lengiag above twenty, but this our author however this omiflion is fupplied by 3 ^ thinks unneceffary to be inferted, becaufe ^IV.iSiM, cuf. 9* as to indiAments. Cui^c II H, 8. cap, 14. neither penance noi 6. But HISTORIA PLACITORUM CORONi^. 344 6. But acceflaries to murderers after the fadl have tlieir clergy irx all cafes. So that the principal Hands at tliis day onfted of clergy in all cafes, and the acceflary before is alfo oufted of clergy in all cafes, but the acceflary after is in no cafe oufted of clergy. But it muft be remembered, that the party indI6led mufl be brou'^ht ^vithiu the very letter of the flatute If the indidtment be felontce isf ex malltia fua pr acogitata interfecUy yet he Hiall have his clergy, becaufe there wants the word miirdravlt Dy 261. a. So if it be felontce Interfecit isf miodravit, and fays not ex via/:tia fuiji pracogiiata^ it is but an indidlment of manflaughter, and the pri- i(;ner flxall have his clergy. So if a jwan be indidled, as acceflary before, vi%. quod pracepil^ and fays not malitiose pracepit. P. 2 EUz. Dy. 183. b. II. As to manflaughter, regularly in all cafes the perfon indi6lcd or appealed ought to be admitted to his clergy. But if A. B. and C. be indidled fpecially upon the flatute of 1 Jac- cap. 8. fctting forth, (as the indldlment muft) " That A. felcmce pU' *' /*".f ^ pcrcujfit D. not having any weapon drawn, nor having *' ftrickeu firft, and that 5. and C wcrcpiefent, aiding and abetting," tho y/. B. and C. are all principals in manflaughter at common law, yet J. only, that gave the ftroke, fliall be oufted of his clergy. H. 23 Car. {. B. R. Page's cafe. {bj. And therefore it feems in that cafe, if it be found, that J. gave no^ the ftroke, but B. and that j^. and C. were aiding and abetting, not only A. and C. that gave not the ftroke fliall have their clergy, but aJfo B. becaufe, tho the cafe of ^. is within the ftatute, yet as to him the indiilment brings him not within the ftatute, and fo differs from the cafu of a general indidbiient of murder, where tho it be laid, that j^. gave the ftiroke, and B. was prefent, aiding and abetting, p yet if upon the evidence it appears, that B. gave the ftroke, Ljt"->J and A. was abetting, Iffc. both ihall be convicl of murder, for both are equally murderers, and the indI6lment is true as to both quod ex 7nalitia fua pracoghata interjecenint ^ murdraverunt (*;. By the ftatute of 1 Jac. cap. 8. clergy is oufted as to him that fo ftabs upon any convidion by verdift, confeffion or otherwife, and that as well in cafe of an appeal as of an indidlment; but it extend , (i) Siyl. %6, (•) Vldefupra i>. 292, j Stlk. 334. Vol. II. X not 545 HISTORIA PLACITORUM CORON/E, not to (landing mute or not clire6tly anfwerlng, for there is no con« vivSlion in that cafe, and fo it feetns as to an outlawry (c). III. As to rape, by the ftatute of IS Ellz. cap. 7. If any man be convi*5l thereof jby verdict or confeffion, or be outkiwd for the fame, he is e^^cluded of clergy, but this a6l extends not io a (landing mute or not dire6lly anfvvcring, for this is cafus omijjus fdj, and he (hall have his clergy 1 1 Co. Rip. 35. b Pou/tct's cafe. But at this dav in all cafes challenging above twenty makes nothing either for or againft clergy, for the party fliall not be put to his penance nor be convi£l thereupon, but only his challenge fhall be over-ruled and he put upon his trial, as hath been before obferved (t), and there- fore the claufe in the a(5l of parliament oufting clergy, where he chal- lengeth above twenty, or the not mentioning of that claufe makes no- thing at this day one way or another as to the point of clergy. But neither acceflTaries l/cfore or after are upon this (latute exempt from the privilege of clergy. IV- As to the cafe of wilful burning. It (lands now a fettled point, that if the principal be convid by ver- di6l or confeffion, or dand mute, or will not dire6lly anfwer, he (liall not have his clergy, this is the point refolved 11 Co. Rep. 35. a. Pouherh cafe, and the conftant practice is, and always hath been accordingly. J. ^, And the (latute of 4 i^ 5 P. U M. cap. 4. (Irongly proves Lot J ji^g j^^^. J.Q ^g ^y^ £qj. clergy is taken away from the acce(rary before, and it were a (Irange overhght, if an a6t of parliament (hould exempt the acce(rary from clergy in this cafe, and yet the principal fliould have the bene(it of it. * That which caufed the doubt was the (latute of I E. 6. cap: 12. ■where it enumerates all the offenfes, which were then to be exempt from clergy, and mentions not the cafe of wilful burning and enadls, " That in all other cafes of felony the offenders flaall have clergy, as *' they Ihould have had before 1 H. 8." and the hrfl (latute that took 'away clergy from wilful burning of houfes or barns tvith corn was a (latute made after 1 i/. 8. vi%. 23 PI. 8. cap. 1. ^sf 25 H, 8. cap. 3. llaere have been three anfwers given hereunto {*), viz. • (c) But in all thcfe cafes the offender is (d) But this is provided for in cafe of eJK.luiled irom clergy \iy i^^ e^W.^ M. an indidmcnl by 3 &* 4 //''. &f M, cJf. 9. eft. -6, upon an indictracnt, but not lo an (+] />. ^lo. appca:. (*; ^i^i ■?<"•' i- ^' 670> ^f' 1. That HISTORIA PLACITORUM CORONA. 346 1. That this wa-s a felony, that even by the common law before 1 H. 8. was exempt from clergy, being an a<£t of hoflility, and this I remember was given by Noy attorney general about S Car. 1 . but pof- fibly this may be doubtful as to the fadt, whether at common law clergy were not allowable upon this ofPenfe, and if it were not, yet it is a greater doubt, whether that law wcie not altered by the a6t of 25 E. '6. cap. 4!. pro clero, wherein clergy was fettled in all cafes, except treafons or felonies, that touch the king or his royal dignity. 2. Others have agreed, that clergy was taken away in thefe cafes of wilful burning by the ftatutes of 23 if. 8. cap. 1 . and 25 H. «. cap. 3. and confequently this ofFenfe not being enumerated in the ftatute of 1 E. 6. cap. 12. is by the general concluding claufe of that ftatute ref- tored to the benefit of clergy: But then they think, that by the ftatute of 5 ^ 6 £■. 6. cap. 10. the ftatute of 25 H. 8. cap. 3. is wholly re- vived, and confequently now the repeal of the exemption of clergv in cafe of wilful burning is repealed by the revival of the ftatute of 25 H. 8. cap. 3. by the fubfequent ftatute of 5'£^ 6 E. 6. cap. 10- and thereby exemption from clergy in cafe of wilful burning is again eftablillied. But this hath in it many difficulties. I. It fecms by the whole fcopeofthe preamble and the ftridl penning of the LJ't/J body of the avSl of 5 ^ 6 E. 6. cap. 10. that that aiSt revived only fd much of the a6l of 25 H. 8. cap. 3, as concerns the oufting of felons of their clergy upon examination, where robberies or burglaries were committed in foreign counties. 2. Again, the ftatute of 25 H. 8. took away clergy from wilful burning, only in cafes of indictment, and that only where the prifjner ftands mute, anfwers not directly, or challengeth above twenty, but the oufting of clergy in cafe of appeals, as well as indictments upon convi6tion by verdict or confcflion ftood purely upon the ftatute of 23 H. 8. cop. 1. which h no whv.re revived as to the point in qucftion, and yet that is the cafe, that muft molt ordinarily occur, namely, where the parry is conviit. 3 Therefore the laft and I think the llireft anfwer as to this diffi- culty is, that the ftatute of 3 ^ 4 P. ^5* M. cap. 4. taki:ig away clergy in all ciifcs from him that malitionfly commands, hires, or couufels tJie wilful burning of any dwelling-houfe or barn with con), in all cales of convivStion, attainder, ftanding mute, outlawry, peremptory challenge of above twenty, or not diretftly anfwcring, doth by uecei- fary confequeacc take away clergy in all thefe cafes from the principal offender in fuch wilful burning. X2 ■ J3u: 347 HISTORIA PLACITORUM CORONA. But quiicunque via data the law ftands fettled, that clergy is taken away in all cafes from the principal in wilful burning of a dwelling- houfe or a barn with corn, quod vide 1 1 Co. Rtp. Alexander Foulter's C2le per tot urn. And iherefure I can by no means think, that outlawry of the prin- cipal in this ofFenfe is within the privilege of clergy, for the accefTary even in that inftance is exempt from ffj clergy by 4 ^ 5 P. isf M. cap. 4. Now as touching the accefTary by the flatutc of 4 ^ 5 P. ^ J/. P Q cap. 4. they that ihall malitioufly command, hire, orcounfcl '' this facl, viz. acceflaries l^efore, are exempt from the benefit of clergy in all cafes. But acceflaries after are within the benefit of clergy in all cafdSL See the references at tlje cnJ of ch. XLIV. jntc. CHAP; XLVIII. Concerning clergy in robbery from the lioufe, or robbery from the perfun. ROBBERY is of two kinds, from the perfon, and from the lioufc of another. /zV/?, Robbery from the perfon is a violent aflault upon the perfci^ and felonious and violent taking away his goods putting him in fear. The principal in cafe of robbwy in or near the highway is oufted of his clergy, viz. 1. By the ftatute of 23 H. 8. cap. i. " Where he is convi6Ved by '* vcrdicl or confeflxon, whether it be in an appeal or an indidlment. 2. By the ftatute of 25 H. 8. cap. 3. '* In an indidlment, where *' the party flands mute, will not directly anfwer, or challengeiii '• above twenty And in cafe the robbery were in or near the highway in the county of y/. and he carry the goods Into the county of B. and there be in, Ui(fled of larceny, and upon examination it appears it was fuch a rob- fej The MS. has it [»j Juh}c£i »] biit boih tht ftatute and the fenfe rcguire it (hould k« [ir ttctmpr/rom.] bery niSTORIA PLACITORUM CORON.^. 343 bery in the county of //.that hm.1 he been iiul'ufled in the county ol A. he fljoulil have been oudcd of his clergy bv the ftatute of 23 H. S. cap. 1. the juftices of the county of B. (hall oult him of his clergy in the county of /^. whctli'rlie he convidted, Hand mute, challenges above twenty, or nnlvvcrs not dirctflly. And tho this claufe be repealed hy the llatute of 1 E. G. r^ -j cap. 12. it is again revived by 5 ^ G E. 6. cap. 10. and fiands now in force as to all rt^bberies, where the party, if convicfl, is to be ourted of his clergy by the llatute of 2'i H. 8. cap. I. But il extends not to any felony, where clergy is ouftcd by any ftatutc after 2:5 //S. Co. P. C cap. 50. p 1 1.3. Stamf. P. C. fol. 128. a. (*). \( J. ctMTinilts a robbery near the highway in the county of B. and takes away but to the value of bd. yet if indiiSled for robbery in the county of B. he ihall have judgment of death without benefit of clergy, but if he carry thofe goods into the county of C. and there is indn5\ed and pleads, and the jury find him guilty to the value of 6^, tho upon the evidence it appears that it was a robbery in the county of B. yet he Ihall not have judgment of death, bccaufc as it now ftands, it is but petit larceny fa J, where the prifoner is not to have his cicrgv but to be whipt, antl the examination given by the ftatutc of 25 H. 8. is only to oull clergy, where demandablc. AI. 31 Ehz. Moons Rep. ». 739. p. 530. if a man be indided for a robber^' in via rrria (f), or in altd via^ or /;; altu v-a rcgia, anil be convidt, he ihall he outted of his clergy by the ftatute of IZ h. 8. but if it be laid to be in in via rcgia pedeJivL ducent' de Lo7ido?i ad I/lingtou., tho he be convid, he fhall have his clergy; adjudged 38 H. 8, A^ooic's Rep. n. 16./). 5. Hut in that cafe it miglu have been laid prope altam viam rcgiam^ and he fhould have been oull of his clergy, for the words of the ilatute are in or near die highway. If a man be robbed upon the river Thames^ or other public river within the body of a county, this is a robbery u[)on the king's high- way, and may be fo laid in the indictment, and the party (liall be oulled of his clergy upon thcfe ihitutes, and fo it was agreed in Hidc% (♦) rUc Part 1. p. 5tS. But by ^ & -^ ( + ) According to what our author fav3 //'. (sf M. cop. q. the like claulcis cuartcd Pan I. p. 535. li the indictment be laid as to all felonies, whticm clcr^'y wa&oullcd only in via regia, lUis will uol be {uficicnc ty thjt or anv other lUtutc. toouftcleigy. (aj i'idc^art I. p. 5i,6. X3 cafo 350 HTSTORIA PLACITORUM CORONi^. cafe at Tsezcgate^ M. 23 Car, 2. for the public ftrcams are highways, and tlicrefore they are called haull Jlreames le toy (*). But this ftatute of 25 H. S. extends not to (landing mute, or not direvftly anfwering in an appeal^ but only in an indidment^ and therefore, 3. The ftatute of I E. G. cap. 12. oufts fuch robbery of clergy as well in an appeal as indidmcnt, where the offender ftands muie, or will not diredlly anfwer. But mentions nothing of challenging peremptorily above twent}% neitherneed it, for, as hath been faid (f), he fliall be only put from his challenge, and the jury fliall be charged to pafs upon him, and no convi£llon or pehte fort Isf awe fhall enfue upon his peremptorily challenging above twenty, as the law now ftands. But whereas Stamf. Lib. H. cap. 42. fol. 129. b. affirms, " That *' upon all thefe ftatutes, and in all the cafes mentioned in them there *' are two cafes, wherein the offender in murder, robbery, iJc. fhall *• have his clergv, namely, where the offender is outlawed, or convid *' by battle," it is not true of the former, for outlawry is an attainder, and tho 23 H. 8. ts* 25 H. 8. fpeak neither of outlawry nor attainder, vet the ftatute of I E. 6. cap. 12. faith, if any perfon be attaint or con- \iSt of murder, Uc. he fliall be oufted of clergy. And the fame law it Is, if the appellee of robbery be vanquifticd in an appeal, for he is thereby convict, and the ftatute doth not mention only a conviction bv twelve men, but any perfon in due form oj law attaint oy convI£lcf,l of murder, &c. And thus far coiiccrning principals. As touching acccflaries by malitious commanding, hiring orcoun. felling any fuch robbery, they are oufted of clergy by 4 ^ 5 P. £5" M. cup. 4. in all cafes, namely being convld, ftauding mute, not directly auiwerlng, or outlawed, i^c. liut acceffaries after having the benefit of clergy In all cafes. Secondly, As touching a rubbery from the houle of any perfon. 'J'his divides itfclf intj thefe feveral heads. 1. Robbing in the dwelling houfe, the owner, his wife or ^^^ -' family in the houfe and put in tear. 2. Robbing in the dwelling houfe, any perfon being in the houfe and put in fear. (») r ic Par. I. ;. 536. (+) S^'^^ ^ 17 >• '6. Robbing HISTORIA PLACITORUM CORONA. 351 3. Robbing in the houfe or tent, the owner, his wife, or fcrvaius being in the Iioufc, the not being put in fear. 4. Robbing a houfe, and no perlon being therein. As to thcfe in tlicir order. I. Robbing any perfon in his dwelling houfe or dwelling place, the owner or dweller, his wife, children, or fervants being within the fame and put in fear or diead by the fame. By the flatutc 01*23 H. 8. cap. 1. as wxU in an appeal as an indi6l- mcnt, the principal and acceflary before the id^ are ouftcd of clergy in two cafes, namely, ' 1. If convid by verdi6l. 2. If convi<5l by confeflion. By the flatute of 25 H. S. cap. 3. there is farther provifion made, but only in cafe of indiiSlment, not of appeal, and only againfl the- principal, but not the acceflary ^t/or^ or ^j/z^r, v/z. 1. It the princi- pal ftand mute of malice or froward mind. 2. If he challenge above twenty peremptorily. 3. If he will not diredlly anfwer. There is farther provifion made for oufting of clergy, where rob- bers of houfes carry the goods into another county and be there in- dii5\ed of larclny, if upon examination they fhould be oufted of cler- gy, had they been indi^fled in the firfl county ; but, as hath been before obfervcd, 1. This ouding of clergy by examination In a foreign county refers ©nly to fuch robbery, as by the flatute of 23 H. 8. cap. 1. is oufted of clergy, namely, where the owner, his wife, children, or fervantt are then in the houfe and put in fear, not to fuch robberies, as by ads of parliament made hnce are put out of clergy. 2. In cafe ot an ar- raignment in a foreign county, if the goods prove to be but of the vuluc of 12^'. here is no clergy to be demanded or allowd, being but petit larciny, and therefore no oufling of clergy by examination. Dorothy Cole (*) was indi6led in ShJJcx for ilealing goods, .. upon the evidence it appeard, that fhe broke a houfe in Kent, and brought the goods into Sujjex, the jury found the goods to be of the value I ut of Is. yet in as much as there was no putting in fear of the owner, his wife, or family, flie was to have the beneht of tke ftatute of 21 Jac, and could not be oufted of it by examination, for tho by the flatute of 39 Eiiz, cap. 13. clergy was taken away, yet the taking 9\vay of clergy upon examination in a foreign county extends only X 4 to ^$1 HISTORIA PLACITORUM CORONA. to robberies where clergy is taken away by 23 H. 8. but if it had been with a putting in fear, fo tliat in cafe of a man he ihould have been oufted of his clergy, it deferves confideration, whtthcr the wo- man, if uiuler 10s. lliauld have been oufted of the benefit of the fta- tutc of 21 yac. cap. Q. by examination, tho originally it were a burglary and rohbviiy. Sed de hoc infra. But thefe ftatutes did not extend to any fuch robbery, where 1. There was no putting in fear. 2. Where the ouner, his wife, chil- dren or fervants were not in the houfc, but only a ftranger were there and put in fear. 3. Neither did they extend to one attaint by out- lawry or battle. 4. The ftatute of 25 H. 8. extended not to ap- peals. As to the acceflaries before the fad, by the ftatute o( 4 i^f 5 P. isf J^I. cap. 4. it is enafted, " That if any Jhall command, hire, or *' counfel any perfon to do any robbery in any dwelling houfe or *' houfes, they (hall be excluded from clergy in all cafes, v'lx. convi6l, *' outlawd, ftanding mute, l^c. Upon this ftatute thefe things are obfervable. 1. It requires an adlual robbing, v'lz. taking away fome goods; a bare breaking of the houfe is not fufficient. 2. It extends to a robbing, without mentioning put In fear. 3. It extends to outlawry, which 23 or 25 H. 8. extended not to. 4. It extends to appeals as w-ell as indictments ; but acceflary after are in no cafe excluded from clergy. - 1 II. Robbing of any perfon by day or night, any perfon Lo3JJ being then in the fame houfe, and put in fear or dread thereby. By the ftatute of 1 E. 6. cap. 12. clergy is taken away in all cafes, 'vi%. if he be attaint by outlawry or otherwife, convidl by verdiil, confeflion, or wager of battle, ftands mute, or will not dire6lly an- fwer : And this as well in appeals as indi6lments. It is true, it mentions not peremptory challenge of above twenty, neither is it material for the reafon before given. But this ftatute, tho it fpcaks generally of breaking a houfe by day or by night, hath had this conftruflion always allowd, viz. If the breaking of the houfe be in the night, then it muft be fuch a breaking as amounts to burglary, vi%. with an intention to commit a felonyj and then it oufts clergy, if it be with a putting in fear. If HISTORIA PLACITORUM CORON.^. 353 If it be a breaking the houfe in the day-time, then it muft be alfo a breaking, as hath an actual robbery joined with It, and then if there be a putting in fear alio, the clergy is ouflcd in all the cafes mentiond in this ftatute. But in both cafes there mufl be a putting in fear, otherwifc this ftatutc oufts not clergy. '1 his llatute therefore hiith made thefe additions to the ftatutes of 23 y 25 H. 8. viz. 1. It exempts burglary from clergy, tho there be no robbery, if there be a putting in fear. 2. If there be a burglary in the night, or robbery in the day committed in the houfe, and any Aranger be then in the houfe and put in fear, it excludes from clergy, tho it be not the owner or any of his family. 3. It excludes the prin- cipal from clergy in all cafes, where he is not excluded by any of the two former Itatutes (h). But again on the other fule, it reftores clergy to the acceflarv be- fore the fail, tho convi6l by verdi6l or confe/Tion, and repeals fo much of the flatute of 2;i H. 8. as excludes the acceflfary before from clergy. But as hath been faid, the flatute oi '^ Isf 5 P. Isi M. cap. 4. p , takes off the clergy again from accefiarics where there is a ^'^^^■^ robbery and a putting in fear, but not where there is only a burglary with a putting in fear, but without robbery ; but acceffaries after ia all cafes have their clergy. III. If anv perfon be found guilty of robbing any perfon in any part of his dwelling houfe or dwelling place, the owner or dweller of the fame houfe, his wife, children, or fervants then being within the fame, or in any other place within the precin^l of the fame houfe or place, fuch offender fhall not be admitted to his clerg)% whether fuch dweller or owner, liis wife or cliildren then and there being fhall be Ueeping or waking. 5 & 6 E. 6. cap. 9. And the fame provifion is made for excluding clergv, where a perfon rtiall commit a robbery in a booth or tent in any fair or mar- ket, the owner, his wife, children or fervant being then in the fame booth flecping or waking. ITpon this a£l we are to obferve, 1. There mult be an adlual breaking of the houfe, fuch a break- ing as would make a burglary if committed in the night, and the indidlment muft run /regit l^ intravit domiman manjionalem J. S. (h) Fix. in cafe of attainder by oullawry, and alfg ia cafe of Handing mute, or not ditcdJy aiifwcring in an appeal. 354 HISTORIA PLACITORUM CORON JE, tr^efato J. S. uxore t^ liherls fuh in eadevi domo ex'ijlent\ and fuch a breaking of the houle muft be provided in evidence : vide Jupra^ Lib. 1. cap. 44. p. 522. 2. 1 he alleging of fuch a breaking of the houfe is fufficient to bring him. within the llatute to ouft him of his clergy, if it be proved> tho it be not alleged by the way of robbery, viz. violenter ^ a per- fona, but only c domo ptutdicid, for it countervails a robbery within this (latme. If the fervant fleal goods out of his mafter's houfe in the day or iiight, tlie nraftcr, his wife and children being in the houfe, the fer- vant is not to be oufled of clergy by this ftatute, for here is no break- ing of the houfe. If the fervant unlatch a door, or turn a key in a door in the houfe and (leal goods out of that room, tho if he had been a ftranger, that had not to do in the houfe, he fliould hereupon be oufted of his clergy, yet it fcems to mc the fervaiit ft^all not be thereupon ouded ^ of his clergy, for the opening the door in this manner is Lj55J ^vitiiiii his truft and fo no breaking of the houfe, nor rob- bery within this ad, and the fame law feems to be upon the flatute of 39 Eliv^. cap. 15. But if the fervant break open a door, whether outward or inward, (as for the purpofe a clofet ftudy, or counting-houfe,) and Heal goods, this- is a robbery and breaking the houfe within this flatute, as alfo . within the ftatute of 39 Eli-z. for fuch a breaking, tho by a fervant in the night, would make burglary, for fuch an opening is not within his truft. 3. But there muffc not only be a breaking of the houfe, the owner, his wife, children or fervants being within the fame, but there muft be alfo a felonious taking of the goods out of the houfe to exclude clergy by this ftatute. 4. But a bare felonious taking of goods out of the houfe, whether by night or day without fuch a breaking, as would make burglary, if done in the night, excludes not from clergy within this ftatute. 5. This ftatute both as to robbery in dwelling houfes or booths re- quites, that the dweller or owner, his wife, children, lervants or fer- vant be then within the houfe \ fo that the being of a ft ranger in the houfe excludes not clergy no more than upon the ftatutes ot 23 H. 8. cap. 1. Stamf. P, C. fol, 129. ^. 6. It HISTORIA PLACITORUM CORONA. 355 6. It extends to no other cafe, but where the party ib fourvl guilty viz. either by verdi£t or cont'cflion, and not to outlawry, Handing mute, or not diredlly anfwering, therefore in all thcfe cafes the of- fender Hiail have his clergy, fcj. 7. It extends to an appeal, as well as indi6linfnt, S. It doth not exclude acceflaries neither afur nor lefore from clergy. Neither doth the ftatute of 4 iff 5 P. iff M. cap. 4. extend to ac- ceflaries in tliis cafe, but only where robbery is committed, and any perfon within the houfe put in fear. So that upon this flatute all acceflaries to the felony defcribcd by this ftatutc are to have their clergy. IV. Robbing from the houfe goods to the value of 5;. in - the day-time, no perfon being in the houfe. ^^^-^ J By the flatute of 39 Eliz. cap. 15. it is ena(5led, *' That if any *' petfon be foimd guilty by verdidt, confeflion, or otherwife for the ** felonious taking away in the day-time of any money, goods or *' chattels of the value of 5 s. or upwards in any (iweliing houfe or *' houfes, or any part thereof, or in any outhoufe belonging or ufed ** with the faid dwelling houfe, altho no perfons fliall be in the fuid ** houfe or outhoufe at the time of the felony committed, fuch pcr- *' fons fliall be excluded from their clergy. 1. Akho this flatute fpeak only oi ftionioits taking in the body or purview, yet inafmuch as in the preamble it fpcaks of roblnry of houfes, a bare taking of goods out of a houfe, no body therein, with- out an actual breaking of the houfe, fuch as would make burglary were it in tiic night, is not fuch a taking out of a houle, as excludes from clergy, and thus it hath conftantly obtained in practice againft; the opinion in Popham\ Reports 84. Bayrtch cafe fd). 2. The indidtment mufl run according to the flatute, viz. quod tempore diurno, jcilicet inter horas i^c. dcmiim manjionalem J. S. freait iff intravit nulla, perfona in cadem domo tunc exijiente, iff ibidem tfSc. in eadevi domo inventa adtunc i^ ibidem felonice furatus fuit, ccpit isS afportavit, for breaking the houle in the day without taking goods is no felony. U Co. Rep. 3G. a. b. Fcidter's cafe. (c) But by 3 &" 4 »^. fif M. cat. 9. and fclonioufly fteal to the value of 5 j. is clergy is taken away in tliefe cafes alfo. any (hop, ware-houfc, coach-houfe or fia. (dj This cafe iheiefoie watnot eftecmcd ble, or by 12 ^-inn. cap. 7. to tlic vjIuc of f\o be law, Kil. 68. but now by jo &" 11 40/. in any dwelling houfe or outhoufe "'• 3 ' P- ^l' clergy IS taken away from thereto bclougiiig, altho it be not brokctt, all, who fhall by uighl or day piivatcly noi auy pcriuu tfaacui. And 35^ HISTORIA PLACITORUM CORONiE. And if upon the evidence it fall out, that it was In the night, or that any perfon was in the houie at tlie time, or that he ftole, but broke not the houfe, he ihall be found guilty of a fimplc felony and have his clergy, but not guilty according to the ftatute (e). But there need not either in this cafe, or upon the flatute L35/J Qf 5 ^ 5 jc;, 6, above mentiond be a formal mention of a robbery, as is ufed in an indidment for robbery from the perfon, for f regit domum imports it. 3. It takes away clergy only from the principal, and that only, where the perfon is convidt by verdift, confeflion, or otherwife, and therefore excludes not clergy, where the party (lands mute, or is out- lawd (f), or will not diredly anfwer, nor from the acceflary. 1 1 Co. Rep. 36. h. Poulter's cafe. 4. If a man break the houfe in the day-time with intent to Real, but fteals nothing, this is no felony, but otherwife in cafe of bn aking the houfe in the night with intent to fteal, this is burglary 1 1 Co. Rep. i\. h. Foulter's cafe. If a man enter by the doors or windows open and fteal goods, this excludes not clergy upon this flatute, nor upon the ftatute of 5 ^ 6 E. 6. cap. 9. for it mull be fuch an act to make a robbery within either of ihefe flatuies, as would make a burglary, were it in the night ; it mull be fregit Isf tntravlt. And therefore the couftant ufe at Nezvgate is, and always hath been upon thele ilatutes, that if a man enter the doors being open, and breaks open a cheft and fteals goods to the value of 5 s. this fhall not ouft him of his clergy within this ftatute, or the ftatute of 5 ^ 6 E. 6. c. 9. (gj. But if a man enters an houfe the outward doors being open, and when he is in the houfe, breaks open, or unlocks or unlatcheth an inward door and fteals goods out of the room to the value of bs. he /hall be oufted of his clergy upon this ftatute, the fame being done in the day-time no body being in the houfe ; or if he fteals goods of any value out of that inward room fo opened by day or by night, the owner of the houfe, his wife, children, or fervants being in the houfe, ft) But thcfe cafes are now provided clergy is alfo taken away from all who »gain(t by lo csf II ^. 3 Gf iz Ann a- comfort, aid, abet, affift, counfel, hire, or bovc-mcntiond. Vidt Fart I. p. 564. in command. not,,. Cg) yide Part I. p. 5S3. S»4. 5*?. ^ (f) 1 hefe cafes arc fmce taken in by 3 Kcl. fig. iSi ^W.i^ M, caf. 9. by which ftatute IlISTORIA PLACITORUM CORONA. 357 he nuill be ouftcd of his clergy, being iiiUiaed upon the ftatute of 5 y £". 6. cap. 9. T. IG Car, 2. SimpforCs cafe (h) at Cambridge aflTifes. J. r. .3-1 being indidcd upon the llatute of 39 'lUrz. it was found by fpeciai verdia, that J. breaking into the houfc by day, no body being in the houfc, and breaking open a chamber-door and a clicft, took out goods to the value o(5s. and laid them on the floor, and before he could carry them out of the houfc was taken : By the advice of all the judges of England he was oufted of his clergy ui)on this flatuie, for the taking ihcm out of the chea was fch)ny, and the ftatute doth not alter the felony, but excludes from clergy, if it were done in the houfe, and of the value of 5 5. and none in the houfe. Trin. 1:3 Car. 1. Evans & Finch (I J were indiaed, for that they tempore d'lurno, viz. circa horam 12. did break domwn manjionalem Hugonis Audley in the Inner-Temple London, nul/d perfona in cudem domo exljlente, and ftole thence 40 i. Upon a fpeciai verdid found in this cafe, thefe points were refolvcd. 1. That a chamber in an inn of court is domus manjionaiis within this ftatute. 2. That if no body were In the chamber at the time, tho othei-s wore in other chambers of the temple, yet this was a breaking of the domui manjionaits Hugonis Audley nulla perfona in eadem domo ex- i/lente^ and maintains the indiament. 3. Becaufe only one of the perfons Indited did aaually enter the chamber and took out the money, viz. Evans, and the other ftood ■without upon the ladder and received it, Evans was excluded his clergy, and the other who ftood upon the ladder and received the mosey had his clergy. And poffibly the fame law may be upon the ftatute of 5 Sff r ^ - -. 6 E. 6. cap. 9. that he only, that enters the houfe in the day- time without putting m fear, and adually takes the goods ftiall be excluded from clergy, and thofe, that ftand without the houfe an4 (h) According; to this ftate of the cafe wicli relation to the taking away, whether herr was a breaking not only of ^ cl'i/i, the taking goods out of a chcll and laying but alfo of a cbamhc<-do->r, which is on all theni on the tloor without carrying them hands agreed to be an att fufHcicnt to out of the chamber was a :ak'wg away or make a robbery within the llatutc, and fo pealing within tli« llatuie, aud not whether llie difficulty removed, which arifes from it was a rMtry, for jf it were a Healing, this cafe, as ftatcd above Part I. f. 524 that would be clear by the breaking opca fef i;i7, and indeed as that cafe is reported the chambcr-doov. in ke^vrg />. 31. and in hoc libra Part I. (i) Cro. Car. 47a- ♦'a^ Part I, /. 517. p. (joS. fe" />. 5z6. the queftion about the 556. chcll or uunX teems to have bctn only ai c 559 HISTORIA PLACITORUM CORONA. are prefent and abetting, tho all principals, yet fhall have their clerg)', for I can fee no difference in the cafes; quftre tamen (k). But if It were a burglary, then as well thofe without, that were prefent and aflifting, as thofe within, fhall be excluded from clergy by the general words of the ftatute of 18 EU'z. cap. 1. they that commit any manner of burglary; and the like in rape and in murder. And fo I do take it without any difficulty, if A. B. & C. come to commit a robbery upon the perfon of a man, and J. only takes the money from the perfon, and B. and C. are prefent and aflifting, or if they break a houfe in the day-time and commit a robbery in the houfc putting in fear, tho ^. only enters the houfe, and B. and C. watch without, they fhall be all excluded from clergy, for they are all robbers. And if it fhould be otherwife, this great abfurdity would follow, Aat B. and C. that are prefent, aiding and afTifting in the robbery, Jhould have a greater privilege, where they are prefent and fo prin- cipals in the felony, than they Ihould have had, if they had been ab- fent, and only acceflfaries before the faft, in which cafe the ftatute of 4 y 5 P. ^ A/, cap. 4. excludes them from clergy In all cafes. See the references at the end of ch. XLIV. ante. fkj This doubt is now at an end, for by 3 £f 4 of fV. &~iJf. cap. 9. clergy is eyck- ded from ail aiders, abettors, ££fi.'. [360] * CHAP. XLIX. Concerning clergy in burglary. BURGLARIES may be of two kinds. 1. Simple burglary, that hath no robbery joined with it. 2. Burglary, that hath rob- bery or theft joined with it. I. The former of thefe is, when a man in the night-time breaks and enters a hcmfc to the intent to commit a robbery, theft, or other felony. And this, as it had the benefit of clergy by the common law and by the flatutcof 25 £. 3. cap. 4:. pro cleroy fo it was not oufted of clergy neither HISTORIA PLACITOkUM CORONA. 3'5q neither by tlie ftatute of 23 H. S. nor the ftatute of 25 H. 8. but the firft ftatute that ouftcd clergy i'^ burglary was 1 E. f>. cap. 12. Tliis fimple burglary is again of two kinds. 1. Where any perfon is in the houfe and put in fear or dread. 2. Where no perfon is put ni fiar or dread, as poflibly where no perfon is in the houfe, which yet takcth not away the offenfc of burglary. Pop/iam's Rep. 42. per cmncsjuJliciariosAngUa, or if any perfon being in the houfe, yet is llceping and perceives not the burglary till the next morning, ^c 1, In the fir fi of thefc cafes of fnnple burglary, namely with put- ting in fear or dread, the ftitutc of 1 E. G. cap. 1 2.- takes away clergy from the principal in ail cafes, v'l-z. tho attaint by outlawry or other- wife, or convldl, or ftanding mute, or notdircdlly anfwcring, as ap- - pears by the flatute itfclf, and the interpretation made of it. Stauif. P. C. fol. 126. a. II Co. Rep. Poultet's cafe. But clergy is not taken away from acceflaries before or after by this or any other ftatute, for as to the ftatute of 4 ^ 5 P. ^ -^- tho it take away clergy from thofe, that maiitiouflv command, or hire, or counfel any perfon to do any robbery in any dwelling houfe, yet unlefs there be a robbery in the dwelling houfe, as well as a r-^.T burglary, it takes not away clergy from the acccflary he/ore {aj, nor at all from the acceffary afier. 2. As to the fcconJ kind of fimple burglary without putting in fear, fhe ftatute of IS E/iz. cap. 1. generally takes away clergy from all perfons that fliall commit any manner of burglary in three cales. 1. If he be outlawed for it. 2. If he ftiall be found guilty of it by ver- dict, or 3. If upon his arraignment he fliall confcfs it. But iu all other cafes of ftanding mute, or not direclly anfwering he is to have his clergy (*). And therefore, if a man be generally indi6ted of burglary without purfuing the ftatute of 1 E. 6. cap. 12. viz. without alleging in the in- dictment, that the owner, his wife, children or fervant were in the houfe and put in fear, the prifoner ftanding mute, or not dire^ly an- fwering fliall have his clergv, (namely, where the indictment is gene- ral,) notwithftanding the ftatute -of 18 E/iz. cap. 1. But tlic acceflaries as wcllhcfore as after are widiin privilege of cler- gy, for neither this nor any other ftatute hath excluded them fa J. (•) By the faid Hatute of 5 &" 4 of /f. (c) Dut by 3 &= 4 of Jf^. 1-• acccffary Ihall have his clergy, altho licre were a robbery committed in the dwelling houfe, and fo within the flatute of 4 ^ 5 P. tsf Af. cap. 4. and the reafons arc apparent. 1. Becaufe the principal is not oufted of his clergy in refpe6l of the robbery, fur that not being laid according to cither of the ftatutes of '2'i H. 8. or 5 {fJ* C R. 6. if tliere were no burglary in the cafe, he Ihould have had his clergy, and he is oufled of his clergy merely upon the account of the burglary by the flatute of 18 Elix. cap. 7. and not of the robbery, becaufe not laid purfuant to either of thefe ftatutes of 23 i/. 8. y 5 £s^ 6 E. 6. and the ftatute of 4 ^ 5 P. {sf M. ouQs the acceflury of clergy in relation to the robbery in the dwelling houfe, and not in relation to the burglary. 2. Becaufe the ftatutc of 4 ^ 5 P. ^ M. cannot at all have any refpcvSt to the ftatute of IS Elh. which was made twenty years after, and at the time of the ftatute of the queen neither funple burglary, nor burglary joined with robbery had oufted the principal of clergy, unlcfs the robbery were purfuant to the ftatutes of 23 H. 8. or 5 is* 6 E. 6. which is not laid in the indidtment purfuant to either, and therefore the acceffary could not he oufted of clergy by i iff 5 P. isf M. in this cafe, when if the principal hiinfelf had been indiiSled of burglary and robbery generally, hre ftiould have had his clergy both as to the burg- lary and as to the robbery ; io that upon a general indictment of the principal of burglary and robbery in the houfe, the acceflary can in no fort be excluded of clergy, unlefs the principal be fpecially indiiled of the robbery purfuant to the ftatute of 23 H. 8. the owner, his wife or children being in the houfe and put in fear, or according to the ftatute of 5 £=?' 6 jE. 6. cap. 9. the owner, his wife or fervants being in the houfe, for tho the principal upon a general indi6lment of burglary and robbery may be oufted of his clergy by the ftatute of IS E/iz. if found guilty of the burglary, yet he cannot be oufted of his clergy upon the account of the robbery, becaufe not particularly laid accord- p /- ^ ing to the old ftatutes, and confequently the acceflary muft ■* in that cafe have his clergy fbj. (bj But as to this point the law is now clergy is taken away fron the accefTary alttred, tor by j ^ef a }i^. ec" M. ^ap. o. A/^i/rc in all crfci of burgUry. Vol IJ. "^ Y ' Bu: 3^4 HISTORIA PLACITORUM CORONA. But in all cafes accefluiries after, muft have their clergy. See the references at tlic end of ch. XLIV. ante. I CHAP. L. Coneerntng clergy In fimple larcchy and other f domes. Come now to confider of fome other kinds of felonies, wl'.erein clergy is taken away, and efpecially in larcenies of feveral kinds. 1. Stealing of horfes. 2. Sacrilege. 3. Taking from the perfon clam Iff fecrcte. 4. Servants robbing their mafters. 5. Taking clothes off from racks. 6. Stealing king's ftores. 7. Taking away women againft their wills. 8. I Hiall confider of piracies and rob- beries upon the fea. 9. Concerning clergy of prifoners arraigned before the fteward and marflial. I. By the flatutc of 1 E. 6. cap. 12. the felonious ftealing of horfca, mares or geldings is put from the privilege of clergy. 1. If the perfon be attainted. 2. Or convia by vwdift or confef- fion. 3. Or ftands mute. 4. Or will not direaiy anfwer. This tvas l!i efFea enaaed before by 37 H. 8. cap. 8. but it was neceffary to be re-enaaed here, becaufe otherwife the general claufe in the ad of 1 E. 1. cap. 1 2. reftoring clergy in all cafes where they had it before 1 H. 8. had reftored clergy in this cafe. There arofe a doubt, whether, if there were one horfe, ^^^^ mare, or gelding (lolen, the ofFender fhould have had clergy ; and the reafon of the doubt was not fingly, becaufe the ftatute of 1 £. G. was in the plural number, /lorfes, marcs, or geldings, for then it might as well have been a doubt, whether upon the ftatute of 23 H. S cap I. he, that had wilfully burned one houfe, fhould not have had his clergv, becaufe the words of that ftatute are in the plural number dzvellmg houfes or barns ■ and fo for robbing any c/iurc/ies or c/iape/s. But the reafon that made the fcruple was, becaufe the ftatute of 37 H 8 cap. 8. was exprcdy penned in the fmgular number. If any man do deal any horfe, mare or filly : and then this ftatute of 1 E. 6. thus va'rying the number, and yet exprefly repealing all other cxclufions of dcrgy introduced ftnce the beginning of H. 8. made fome doubt, HISTORIA PLACITORUM CORON^E. 365 whether it were not intended to cr\large clergy, wht;ic only one horfc was ftolcii. lo remove tliis doubt was the ftatute of 2 ^ 3 ZT. 6. cap. 33. whereby clergy is excluded from him that deals one horfe, gelding or mare in all the cafes of attainder, convivStion, ftanding mute, or not dire6lly anfwcring. llicfc ftatijtet exclude the principal from clergy in all thefe cafes, but the acccflary before or after have the privilege of clergy. 1 Mar. Dy. 99 a. Butby theftjtute of 3 1 Eliz. cap. 12. infinejlatutl acccflaries both before and after in horfe Healing are oufted of clergy, as the principal ought to be. II. As to facrilcge, viz. the felonious taking of any goods out of any parifh church, or other church or chapel, the principal is oufled of clergy by the ftatutes of 23 H. 8. cap. 1. 25 H. 8. cap. 3. and laflly by 1 E. 6. cap. 12. in all cafes above-mentioned. And by the ftaiute of 23 H. 8. cap. 1. the acceflary before, if found guilty by verdid or eonfcflion, was of clergy, but that is repealed by ,1 E. 6. cap. 12. as to all acceflarics. And the flatutc of 4 b" 5 P. Isf AT. cap. 4. extends not to - -^ this cafe, tor it takes away clergy from robbery of any dwell- ^ ■' ing houfe, but doth not extend to robbing of churches or chapels (c). And certainly cleigy was not taken away in cafe of facrilege aC common law, or if it were, yet the ftatute of 25 E. 3. pro clero cap. 4. reftored clergy in that cafe as well as others, and the ftatutes of 23 H. S. i*f I E. t). had been needlefs in this cafe, if facrilege were oufted of clergy at common law, and accorJingly in the book of 26 ^l//iz. 19. fdj and confcqucntly it is miftaken in Fouiter^s cafe 1 1 Co. Rep. 29. b. III. As to picking of pockets, by theftatute of 8 Ellz. cap. 4. " If *' any perfon be indi^led or appealed for felonious taking any money, ** goods, or chattels from the perfon of another privily vjithout his *' knowledge in any place whatfoever, and be found guilty by twelve ** men, or confcls upon his arraignment, or be outlawed, or ftands ** obftinately mute, or will not direkftly anfwer, or challenge peremp- ** torily above twenty, he Ihall be excluded from cleigy. (c) Bat if this Ihould be conftrued a (d) Vide aicordam 26 j^JfiK. 17, Cortne burglary, as it f.cms to be according to ii^i. ndi contra lo E. 2. Curtne 283. but the book ot 22 A£iK. 95. then clergy according to 5Mm/. P. C./o/. 123. A. it w«« would be excluded tiom the accclfaries Le- left to the difcrction of the ordinary to claim fore, by the 3 cif 4 ot kF. fef iVf, r. 9. hinj or not. Ftdc Ct. F, C. p. 114. Y 2 Upon 366 HISTORIA PLACITORUM CORONiE, Upon this ftatute thefe things are obfervable. 1. It inufl: be taken from the prrfon. 'J. It mufi: be taken prhii'y ivithout Ills btotvlcdgc, and fo laid in the indi£tinent , othervvife he iliall Iiave his clcrcry. 3. Tiie goods muft be above the value of i 2^. for tho in robbery of never fo fmall a value clergy is oufled, becaufe done violently^ yet here it is orherwife, for if it be ncit above the value of \2d. it is but petit larceny, for the ftatutc did not intend to alter the nature of the crime, but to exclude clergy, where it wiis grand larceny. Co. P. C. cap. 16' p. G8. (cj. P ^^, 4. It doth not oua: the acceiTary either before or after of ^ the privilege of clergy. IV. Concerning fervants carrying away their maflrers goods to the value of 405. this was made felony by the ftatute of '21 H. 8. cap. 7. (fj. And by the flatute of 27 H. 8. cap. 17. clergy was taken away. By the llatute of 1 E. 6. cap. 12. reftoring clergv in all cafes, as it was before 1 H. 8. exxept the cafes mentioned in that flatute, clergy ij icftored to that otfenfe. By the flatute of 1 Mar. cap. I. repealing all felonies enabled fince 1 H. 8. the very a6t itfelf of 21 H. 8. making this felony is repealed. But by the ftatute of 5 Ellz. cap. 10. the flatute of 21 i/. 8. is again re-enadted to have continuance for ever; but the flaiute of 27 H. 8. cap. 17. taking away clergy in that otfenfe is not revived and fo clergy' (lands allowable as to that offenfe at this day fgj. V. By a flatute made the 22 Car. 2. cap. b. clergy is taken away from thofe that fleal clothes otFche racks, with power in the judge to tranfport them to the king's plantations (h). YI. By fe) V\de Part I. cap. 44. p. e,i^. (f^ Thii ftaiutc is to be taktii flriftly *vith relation to luch goods, as aie actually delivered to keep by the tnafur or mijirep Dy. 5. a. b. for as to other goods, it was a felony at common law, tho under the value of 401. but wh-^rc there was a delivery, the ieryant being in lawful polfellion, u could Hit at common law he a lelony, "vide Part I p. 667. Othcrwifc iherelorc it is in the cafe of a lodger Healing goods or furniture belonging to his lodgings, bc&iufe he is not intriillcd with the poflefTion, but only wiih the ul'c, and therefore it wa* fcl jny at com- mon law; -vide Part I. p. 506. however to obviate ali doubt, it is enafted and decla- red by 3 d'' 4 ff^. &" M. cap. 9. " That if «* any perfoa or pcrfonj fhall lake avvay w ith " an intent to fleal, imbezzle, or purloin •• any chattel, bedding or furniture, wliicb " by contrjft or agreement he or they aie «* to ule, or Ihall be lee to him or ihcm to " uh in or wiili fuch lodging, fuch takintr, '' inibezzelling, or purloining fhall be tj " all intents and purpoles taken, reputed " and adjudged to be laitxny and felony, •' and the ortendtr Ihall fufler as in cafe of " felony. fgl But fince our author wrote is taken away again by 12 Ann. cap. 7. from "ail perfons, (except apprentices under the age of fifteen years, who (lull rob their ma«- llers,) if the offenfe be committed in a dwelling houfe or ouihoufe. (h) By 4 G r,. 2. cap. i6. the ftealing linen, tuliian, Csff. from any whitening ground ' IHSTORIA PLACITORUM CORON.^. 36S VI. By the ftatute of 22 Gar. 2. cap. 5. clci'^y i^ tukcn away fiom thofe that linhczzlc or ftcal tlic kings (lores fij. VII. By the ftatutc of 'VJ El'iz. cap. 9. clergy is t ikcn away from offenfes commlrtcd agalnft i H. 7. cap. 2. concerning laklng away and marrying or dt filing of women in ail cafes, viz. upon aitanKkr, conviiflion by vcrdid or confeflion, ft^inding mute, challenging above twenty peremptorily, outlawry, n.ot diredly anfwcring. It extends to takeaway clergy in ihcfc cafes from all principals anl accefTarics before the fad in exprefs words, but not from acceffaries after. VIH. As to the natute of 2S H. 8. cap. 15. concerning piracy robbery, murders and manllaughters upon' the fea, it is enacted, " That for treufon, murder, robbery, felonies and confederacies done *' upon the fea or in any places whereto that commiflion extended (kj, ** the ofFendfTs (hall not be admitted to have the benefit of clergy or " fandluary, but arc excluded from tlie fame (I J Upon grounds to the valor of ici. or buying or rtctiving the fimr, knowing it to be ftolcn is cxcluilcfl tiou) clcigy with power to the court upon tlic circumftanccs of tlic cafe to iranfport the offender for fcven years. ft) Fin in fuch manner as is foibidby II Ei'tX: cap. 4- wlirrrby it was made te- ionv : -vide Fori I p. 6^8. (k^ It was a doubt upon this Ibitnte, whether an acceffary at land to a felony or piracy at Tea -was included w ithin the ex- tent of the comniiflion dirtftcd by this att, Yel-u, 134, 135. but by it & izlV. 3. taf. 7. (continued by 5 Ann. c.-'p. VV 1 Geo. I. cap. Zy and made perpetual by 6 (rcn. I, cap. ly.) it is piovided, " 1 1'dt •* accefTarics to piracy beto'c or after Oull •' be iru-d and adjudged according to 28 " Hi S. and fhall fuller the (ante penalties " iind in like manner as llic principals. If a mortal llr.tkc be giv< n on the hi>;h fea, or on the fljoie at lull lea, and tlie pAity die upon the Ihore at low water, this IS not within this ftatutc, nor fhall the admiral have juritdirtion to try the oilcnfe, TMT yet can 11 be irud at common law by a general commiiiion of *v-"'' I'-nil temittiir : Titit [upra. p. 20 & Part \. p. 416. 'Jo remedy this inconvenience 11 is piovidid by z Geo, 2. cup. 21. •' Thiit where any '■ perl'on fhall be telonioufly {liiiktn or <• poifoncd upon the fea or any pLi-c out «' of Eri^lord, and fhall die thcie«f in • ' Fnglar.d ; or fh.ill be felonioufly (liicken • or poifoi>5d at any place in England, Y3 «' and fhall die thereof upon the fea or any " place out of Englnnd, an indiftmciit •' may be found in fuch couniy, where " fuch death, ftioke, or poifoiiing Iball '• h.ippen, aghinft both principals and ac- •' celTanes, and may be pioceedcd upon in " the fame manner as if fuch felonious '< ftroke and death, or poifoning and " death had happened in lUr fame coun- •« ty, where fuch indirtment (ball be " found. (7 J It was doubted, whether this fta- tute of 2? /■/. 8. had not taken away the- trial ol thefc otfenfes bcfoic the admiral, or iiis lieutenant or coinmiirary, whicli bad occalumcd a total dilufcr of fucii niinner of trial to the cncourageim-iit of pirates, who could not be tried bv this Oatute, unkfs (at great trouble and i;x. pence, brought to England, and thereto! e the afoielaid Uatulc of 11 fe" Tl H'- \ c-p. ■J. provides, tliet they may be tried p-\ the court of admiraliy according to the di'cc- tious of that ad, which arc there particu- larly mentioned. By the fjuie ftatutc it is enabled, " fhat " if anv <>f the king's naiuial born fub- " jcfls fh;«:l commit any piracy, robbery, «' «)r aa of hoftility againft oth'-r: the " king's iubj.tls, aliho it be unde- colour " of a comniifTion from any iorcign «' prince; or being a conimander or maf. «« ter of a ftiip, or fcaman fhall leloniuufly " lun awvy with his (hip, <^c. or vnlan- lauly yield up the faio« to any pirate, »' or 3^ HISTORIA PLACITORUM CORON^E. Upon confideration of the flatute of 1 E. 6. cap. 12. which in fell cafes not mentiond in that ftatute reftores the privilege of clergy, as it was before 1 i/. S. it is faid in P culler' a cafe 1 1 Co. Rep. o\. b. that thereby clergy is reflored in cafe of piracy. But upon confideration of both thefe ftatutes I think as followcth, viz. 1. Fir/}^ That by the (latute of 1 E. 6. cop. 12. in all other felo- nFes (not particularly excepted by t!,e fcatute of 1 E 6. cap. 12.) that the cornmon law takes notice of, clergy is rcllored by the flatute of I E. 6. cap. 12. notwithftanding this ftatute of 28 i/. 8, cap. 15. even for felonies within that jurifdidion or commiffion of the admi- ralty fettled by that ftatute. And therefore, if a man be flain below the bridges upon the river Thames, but not ex malitia, or if a larciny be committed there, that is within clergy, if committed up.on the land, the party fhall be ad- mitted to his clergy by force of the ftatute of 1 J?. 6. cup. -1-2. 2. Secondly y if ftich a felony were committed upon the high fea, that were not excepted by the ftatute of \ E. G. cap. 12. but (hould have had clergy by that ftatute were it upon the land, in fuch cafe, tho the proceeding be by the ftatute of 28 H. 8. the party fliall have his clergv, for the ftatute of I E. 6. is general, in all ether cafes cf felony clergy fiall be allowd as it was before 1 H. 8- and the exemption of clergy (*) was before that ftatute of 28 H. 8. extendible to the admiral's jurifdidion, as well as to courts of com- mon law. 3. Thirdly^ But as to piracy or robberv upon the fea by pirates and rovers I think clergy remains ftill taken away by the ftatute of [370] " or bring any feducing meffage from any •' pirtte, enemy, or rebel, or cndcavoui <' to corrupt any commander, &ff. to yield " up or run away wiih any lliip, ii^ c. or ♦' turn pirate, or go over to pirates, oi if •' any perfon fhall lay violent hands on his «• commander to hinder him from fighting «• in deftnfe of his (hip or good?, or ftiall «• confine hi&fnafler, or endeavour to make <• a revolt in his Ihip, etery fuch perfon *• (hall be adjudged a pirate, fclou and " robber. By 8 Gto. 1 . cap. 24. " All perfons, who " by II fe? 12 '^- 3- f^^' 7- ="^ declared " acceffaiicstoany piracy th< re mentiond, *♦ are declared to be principal pirates. By the fame ftatute it is provided, " That " if any one fhall trade with or furnifh •< any pirate, G?f. with proTifions, fsfc ot " fhall fit out any fhip or veffel with fuch " defign, or fhall confult or correfpond " with any pirate, i!^ c. knowing him to '* be fuch, or fhall forceably board and '• enter any merchant fhip on ihe high feas, ♦^ or in any port, haven or creek, and " (ball thiow over-board or deftroy any " part of the goods or merchandizes bc- •• longing to fuch Ihip, fuch ollender iball " be adjudged guilty of piracy, and (hall ♦' be tried according to the ftatutes of 28 " W. 8. fef n . cap. 12. ftands renewed by 1 Eliz. cap. 1. if at all impeached or repcald by I isf 2 P.lsf M. Aoain, at common law, if the clerk convid deliverd to the ordi- nary h:id broke the bifhop's prifon and been after taken, he had loft the benefit of his clergy, 2'2 E. 3. Coion. 257. bnt at this day lliat can never come in quell ion, for by the ftatute of 18 Eliz. cap.T. clerks convi6l are not now to be deliverd to the ordinary, but burnt in the hand and fo difcharged. Again, antiently the law was held, that if the prifoner had not ka- litian tsf tonfuram clerlcalein, he fhould not have the benefit of clergy, 26 /i£iz. 19. 20 E. 2. Coron. 233. or the ordinary might have rcfufed him, tho he could read; but in procefs of time Lj/jJ that law was altered and the court would admit him to his clergy, if the cafe were within clergy, tiio he had not habhum i^ tonfuram, if he could read, and tho the ordinary rcfufed him upon that account. 9 £. 4. 28, b, 34 H. 6. 49. a. b. A man attaint (*) of herefy, a Jczv, or a Turk fhall not have their clergy, but a perfon exoominunicate (hall have his clergy. 1 1 Co. Rep. 29. b. Poidters cafe. A Greek or alien, who knows not our letters, fliall have his clerpv and fliall read in the book of his own country. B. Cler^v 20. A baftard, a man blind fhall have his clergy (cj, if he can fpeak Latin congruoufly- B. Clergy 21, 22. By the ftatute of 4 H. 7. cap. 13. ** A man not within holy orders, *' that hath once had his clergy, fliall be burnt in the hand with " with M or T, and being after arraigned for any fuch oiFenfe, (viz. *' an offcnfe within clergy,) he fl)all not be admitted to his clergy a " fecond time. ** And if any man upon a fccond arraignment for " fuch offenfe claim liis clergy, as being a clerk in orders, if he " have not his letters of orders, or certificate of the ordinary witnefl:'- " ing the fame, the juflices fliall by their difcretion give him a day " to bring them, at which day if he fail, he fliall lofe liis clergy that " fecond time. ' (•) Thij fhould be ccn-via, and fo it is Co. Rep. 29 *. & Br»h, in the place cittd rxp.eft in the authority here c.tcd, ^te. above makes a ^uarrt of it, becaufe he can II Co.z^.b. for hcrcfy wrought :io atta.i.- by no difpcnfai.on be a clerk in orders der, aitno by UI. j. cap. 7, fec-fimple lands ^lUcr of a balUrd, for he may be a prS vcre forfeited upon conviaion, by liccnfc, / "*^ <» prieu (cj This is denied of a blind man, ij Note 373 HISTORIA PLACITORUM CORONj^. Note no man fhall be oufted of his clergy a fecond time by l}jr bare mark in his hand, or by a parol averment without the record teftifying it (t), and it feems, that if he deny he is the fame perfon, iflue niuft be joined upon it and tried to be the fame perfon, before he can be ouft;ed of clergy. The orders, that come under the name of holy orders, were four, ^ viz. a bijhop, a priej}, a deacon, and afubdeacon ; other infe- IJ74J j.Jqj. orJers, as exorciflie, kit ores, acoluthi, i^c. were not called holy orders, but were called cler'ici In minoribus. By this and fome other inftances, which appear in the ftatutes, it is evident, that the clergy in orders had a greater privilege allowd them than others. 1 . A clergyman in orders in fucb cafes, wherein clergy is oufted by the ftatute of J E. 6. cap. 12. as murder, robber\, Isle, hath no more privilege than a layman, becaufe the ftatute makes no exception or provifion for him. 2. If a ftatute be made after 1 E. 6. oufting clergy generally, as the ftatute of 4 ^ 5 P. ^ AI. cap. 4. 18 Ellz. cap. 1. a clergy man in orders hath no more privilege than another, for the ftatute provides not for him. Starfif. P. C. 135. h. 3. And therefore, tho the ftatute of 23 H. 8. cap. 1. and 25 H. 8. cap. 3. excluding clergy from thofe found guilty in petit trealon, mur- der, robbery, ^c. excepts fuch as are in the order of fubdeacon, or any fuperior orders, and direds them to be delivered to the ordinary to remain in prifon without pmgation, or to be degraded, and then fent by the ordinary into the king's bench to be executed, it feems, that this privilege is at this day gone, 1. Becaufe by the ftatute of 1 8 jE//z. cap. 1. all delivery of clerks convidl to the ordinary is wholly taken away. 2. Becaufe in all thofe cafes, where clergy is oufted by the ftatute of 23 H. 8. clergy is oufted by the ftatute of 1 E. 6. cap. 12. (except burning of houfes, and acccflaries before the fa6t, which ftand within clergy by the ftatute of I E. 6. cap. 12.) and in that ftatute there is no faving of any privilege for clerks in orders, as there is by 23 H. 8. And then as to acceflaries before the fa6l clergy is likewife gene- rally taken away by the ftatute oi 4 tsf 5 P. i^ M. cap. 4. without faving of more privilege to clergymen than to laymen. (•f) Or a tranfcript thereof, for the raaftttcr of certifying which i« 34 & 35 H. 9. tap. 14. aad ^ ^ Aiy.isf M, cup, 9. 4 But HISTORIA PLACITORUM CORONi^. 374 4. But as to the privilege of a fecond allowance of clergy, it ft^oulJ feem at this day, clergymen in orders (hall have benefit of clergy, a fecond, third time, or oftener. The ilatutc of 28 H. 8. cap. 1. puts clergymen in orders under the fame pains and dangers in relation to the ftatute of ^^' J'' 23 ti. 8. cap. 1. 23 H. 8. cap. 3. as other perfons not in orders; tliis takes away the privilege given by 23 H. 8. and 25 H. 8. Then by the ftatute of 32 H. 8. cnp. 3. which makes the former perpetual, it is farther enaftcd, " That fuch perfons as be witliin *' holy orders, which by the laws ot this realm ought or may have " their clergy for any felonies, and fhall be admitted to the fame, *' fliall be burnt in the hand as lav clerks be accuftomcd in fuch cafes " and {hall fuffer and incur afterwards all fuch pains, dangers, and *' forfeitures, and be ordered and ufed for their offenfcs of felony to " a'.l intents, purpofes and conftruflions, as lay perfons admitted to *' their cleigy be, or ought to be ordered or uft d by the laws and " ftatutcs of tliis realm, any law or flatute to the contrary not- '* withftanding. This aft was perpetual and fubjcfted clerks in orders, not\^'ithfland- ing the flatute of 4 H. 7. cap. 13. to two inconveniences, z'iz. I, To burning in the hand. 2. Exclufion of clergy a fecond time. But then the (latute of 1 E. 6. cap. 12. reftores the privilege of clergy in all cafes, (except thofe otFenfes contained in the flatute of 1 E. 6. and exprefly excluded from clergy.) as it was before 1 H. 8. And altho by this ftatute of 1 E. 6. the burning of a clergyman in orders in the h^nd is not taken away by cxprefs words, yet he is re- flored to his clergy a fecond or other time, notwithftanding he had formerly his clergy and was burnt in the hand. But altho in exprefs words it reftores not to clergymen in order* the exemption from burning in the hand given by 4 H. 7. cap. 13. yet it doth in equivalence, for it reftores clergy in all other cafes in like manner and form .^ as it ivas before I H. S. which as to clergymen in orders was without burning in the hand, and accordingly to this day their privilege in that kind continues : vide 2 Co. hijl. 637. Hob Rep. 294. Searlc & JViUiams. And tis a miftake to fay, that if he challenge above twenty, _ -- lie (hall lofe his clergy a fecond time, becaufe the ftatute of '- ' ■' 1 E. 6. in letting loofe the clergy in other ofFenfcs mentions not that cafe, 376 HISTORIC PLACITORUM CORONi^. cafe, for in cafe of challenging above twenty, there follows neither penance nor judgment of death, but only his challenge is over- ruled {*). But indeed the cafe of outlawry is cafm omiffus, for tho in the claufe excluding clergy the word attainder is in, which extends to an out- lawry, yet in the fecond claufe reftoring clergy as it was before I ii/. 8. in other cafes attainder and outlawry are omitted. As to clergy of noblemen. By the flatute of 1 E. 6. cap. 12. " Peers of parliament commit- ** ting felonies within clergy may pray, the benefit of this act, and *' fhall not be put to read, nor be burnt in the hand for the hrfl of- «* fenfe, without any attainder or cormplion of blood to be incurred ** thereby, and for the firll: offenfe fhall be deemed, taken and ufed as *' clerks convia, which make purgation,' without any further privi- •♦ lege of clergy from henceforth at any time after for any caufe to *' be allowd or admitted. This privilege of peers to be difcharged in this manner by this flatute, I. Muft be prayed by them. 2 Extends to all cafes, where a common perfon may have his clergy. 3. To all cafes ex- cepted from clergy by tliat ftatute, except murder and poifoning of malice prepenfe. But it extends not 1. To felony put out of clergy by any'fubfe- quent ilatute. 2. Nor to felonies within this Aatute, where he can- not make purgation, as if he abjure, confefs the felony, or be outlawd, by the opinion of Stamf, P. C. fol. 130. a. but this latter feems doubtful, efpecially at this day, when delivery to the ordinary and purgation are both taken away by \9> Eli%. cap. 1. I chink it was never meant, that a peer of the realm fhould be put to read or be burnt in th? hand, where a common perfon fhould be put to his clergy, neither is it faid, that he fliall be difcharged by his praying the benefit of this ftatute, where a common perfon I 377 J jjjgjj \^^^iQ the privilege of clergy and may make his purga- tion but only where he may have the benefit of his clergy in the firft claufe of the ftatute, the other claufe, (JJiall be in cafe of a clerk convict y that may make purgation.) is only for his fpeedier difcharged and farther advantage, and not to reftrain the general claufe, (•j Vidcfupra p. 270, 345. And HI5T0RIA PLACITORUM CORONA. 377 And therefore a great lawyer in the late times hath been much blamed for buriiin;^ a peer of parliament in the hand, that confclFed an iadidmciit of manflaughter ; and it was the only error of note, that tlie pc-rfun erred in to my obiervution. CHAP. Lll. ^t what time clergy Is to be allowd. ANTIENTLY the law was \ery unfettled in this point, till fettled by fubfequent ads of parliament and rcfolutions of the judges. Before the ftatutc of JVeJlm. 1. cap. 2. the ordinary would chal- lenge clerks as foon as they were indided, nay fometimes, as foon as they were impjifond (*}, before they were indidted, as appears by the ftatute oi Madhr. cap. 28. (aj. By the ftatute of IVeJlm. 1 . cap. 2. it is provided, Que quant clerke ejl prife pur rette de f clonic i£f foil demand per Pordinarie, U lu'i foil liuer folonque le privilege de Saint Efglife en ticl peril come it appent folonque le cujlome avant ces /leures ufe, and a diredlion given thereby to the ordinary, Que ceux que font endit£s de tiel rette per folemne in- quc/ls dcs probes hommes fait in le court le roy, en mil manner _ „- les deliverent fans due purgation^ iffint que roy ncit meflier de ^^ inctter autre remedy ( b ). After this flatute the prifoner was not only to ^c indided before clergy allowd, but man^ times inquifitions ex officio were taken (f). 1 . Whether he were a clerk or no, and if not a clerk, he was not delivered to the ordinary. 2. Whether he were guilty or not, and if not guilty, he was difcharged. 3. If found guilty, he was then delivered to the ordinary, vide 2 Co. Infl. 164. 8 E. 2. Coron. 417. n E. 2. Coron. 386. 3 H. 7. 12. b. but his goods were feifed. But this was found a great inconvenience to the prifoner, becaufe in cafe of an inqueft of office he loft his challenges, and belides poffi- bly he might be quit of the felony, were he put upon the jury. (•) Vide Bran. Lib. III. /. 123. i. ( + ) ^•''^ P^'' !•/>• >8o in nctis. f, 343I (aJ 2 Co. Inji. 150. in notit, iS Ji'^^a f. iiS, in tietit, CbJzCo.I.Ji.ibi. And J78 HISTORIA PLACITORUM CORONiE. And therefore in the time of H. 6. the court was changed by PrU Jot, and the prifoner hath been always fince put to plead to the in- diclment, and if convi<5l, then to pray his clergy : vide 3 H. 1. 12. l>. Stainf. P. Co. fol. 131. a. 1 1 Co. R.ep. Poultet's cafe. But if the prifoner will wave that advantage and will pray his clergy, he may, for no law oufts him of it, but then, if the inc!ie convidl, and it be demanded of him, what he can fay why judg- ment fiiould not be given againft him, he may pray his clergy, tho there be no ordinary to demand him, for as (hall be faid in this cafe, the ordinary is but the minifter of the court, and it is not now, as antiently, ufed for the ordinary to demand a prifoner, but he may pray his clergy himfelf. If in that cafe the ordinary demand not the prifoner, nor the pri- foner himfelf prays his clergy, yet if it appear to the court, that he iS _ , a clerk, or be fo named in the indi6lment or appeal, the court '•'^' " may, and it feems ought ex officio to allow him his clergy, b»t howfoever they thought not to execute him. 22 E. 3. Coron. 254. Jbridg. JJfiz. 74. (cj. If by any miftake or overfight the court fhould give judgment a- gainft him, yet they may, (and as I think,) ought to allow him his clergy after his attainder. And therefore the prifoner condemned fhall in fuch a cafe be al- lowd his clergy under the gallows, if the judge come that way, 34 H. 6. 49. a. b. This is agreed may be done by the judges of the king's bench, as juftices of peace, becaufe their commiflion continue?, but it is doubted, how it can be done by juftices of oyer and terminer after their feflion ended. Crompt. Juji. 119. a. And it is true, that tho they may allow clergy during the adjourn- ment of their commiflion, yet they cannot do it after their feflion is over, but they may reprieve him after judgment, notwithftanding their feflion determined, upon confideration that he can read, and then may allow him his clergy as a clerk attaint at the next feflfion. .3 l^ 4 Elix. Dy. a. (tj Tbij cafe is in i2 /^«. 15. ^. is HISTORIA PLACITORUM CORONi^. 379 A. is incli6led of a felony within clergy, and hath his book delivered him but cannot read, and the ordinary returns accordingly non legit^ ami it is entered of record non icgity and the court reprieves him till another feffions, and by that time he hath learned to read, tho the gaoler, that taught him to read in the mean time, was anticntly pu- nifliahlc, yet he fhall be admitted to his clergy and be delivered. 27 Afjlx. 44. «. 11. Dy. 205. a. b. per omncs jujiiciarios, Dy. 214- b. St otters cafe. And the fame law it is, if judgment of death were entered againft him upon non legit returned, yet if he can read after, he (haM be de- livered to the ordinary and have his clergy per omncs jitjiiciarios. 3 h H. 6. 49. Corou. 20 (*). If a man abjure the kingdom, (which is an attainder in law,) and come back again, he fhall have the privilege of bis clergy, as a clerk attaint. 8 H. 6. Kelw. 18fi. b. Rajl. Entr. fol. 1. b. But in antient time he was not delivered to the ordinary, r « . but remanded to prifon till he obtained the king's pardon for "^ returning into the kingdom Avithout licence, and that being obtained he (hould be delivered to the ordinary, 1 E. 3. 16- b. Coron. L55. Stamf. P. C. Lib. II. cap. 50. but this law is antiquated : vide Raft. Ent, fol. \.b. exT. 15 H. 7. rot. 2. If a man indi6led of a felony within clergy ftands mute, yet he {hall have his clergy. Moore's Rep. n. 738. p. 550. IFinter^ cafe, yea tho judgment oi peine fort \^ dure were given againft liim, if the cafe, as it appears upon the indidtment, he within clergy, for the court in this cafe ought to be of counfel with the prifoncr infavortm vit^, tho he be wilful. If the approver difavow his appeal, or be vanquillied in battle, or become recreant therein, yet he fliall have the privilege of clergy, if the canfe, for which he is indidled, be within xrlergy. But in thefe cafes of attainder antiently they were delivered to the ordinary abfque purgation. \5 H. 1. Raft. Ent. 1 . b. (•) Thefe points cannot now come in qutftion, for the l)€<;c{&ty of t«adiag il entirely taken away by 5 Ann, (.>/>. 6. CHAP. ^So HISTORIA PLACITORUM CORONi^, CHAP. LIII. Concerning the manner how, and the judge by and before whom clergy is to be prayed er allozvd. ANTIENTLY the ordinary took upon him, as the perfon that was to judge of the competency or incompetency of the clerk. But in truth the king's juftices were the judges both touching the competency of the clerk to be admitted, and the fufficiency or infuffi- j. -, ciency of his performance therein, and the ordinary was in *-*^ ^ truth but the minifter to the court. 5 Co. Rep. 26. b. cafe of ecclejiaflical law (a). If the ordinary had challenged one as a clerk, that the court judged not to be fuch, the ordinary or bifliop fliould be fined, and his tem- porakies feifed, 1 H 4. 41. ^. Stamf. P. C. 132, 133, and the felon fliall-be hanged. 1 E. 4. 29. a. 9 E. 4. 28. a. Again, if the ordinary refufe one that can read, and return non legity yet the court may hear him, and if they judge him to read fufficiently, the prifoner fliall be faved nolvvithftanding the refufal and return of the ordinary, and accordingly, if the ordinary be abfent, the court may give him his book.' 7 E. 4r. 29. a. 9 E. 4. 28. a. 7 H. 4. 41. b. 34 H. 6. 49. a. b. Stamf. P. C. Lib. II. cap. ^h. fol. 132, 133. And therefore the judge may and ufually doth appoint the verfc, that the clerk fliall read, Stamf, P. C. ubi fupra^ and therefore the practice oi Bryan and Starkey^ 21 £. 4. 21. is juftly reprovable, who when they delivered a book to the prifoner and he read well in the prefence of the juftices, yet when the ordinary returned non kgit, gave judgment of death againft the prifoner, for hi ti'uth the ordinary is but the minifler, or at moft the aflxfliant to the court, and not the judge. Hob. Rep. p. 290. Searle & fViUiams (b). (a) V'tdt Kd.1%. ji. that ftatute, without any reading, be al^ (b) But this learning it now out of ufe, lowd to be, and be punilhed as a ckrk for by 5 Ann. cap, 6. every perfon con- convift, and this Ihall be as cffeftual and viftcd of a felony within the benefit of advantageous to him, a» if he had read as clergy ihall, upon praying the benefit of a clerk,. CHAP. HISTORIA PLACITORUM CORONi^. 382 CHAP. LIV. Concerning the confequences o/" clergy granted or prayed. THE confequences or efTci^s upon clergy granted are confiderable In t.vo ways, 1. VV^hat they were before the flatutc of 18 Eliz and 2. What fince. Touching the confequences of clergy before the ftatutc of 18 El'iz. tliey vere thefe I. Regularly when clergy was granted, there \v^s an entry made by the court of kind's bench, Kt tradito ci h'lc per curiam libro legit ut cicricui, & J. S. (the ordinary or liis deputy,) petit ipfum, ut clericum'^ prafato ordinario dctlbcrari, idco conjidcraiwn cjl^ quid pradiflus A. B, liberetur frafato ordinario. And if it be without purgation, then there is this added, falvo cujlodisnd'' abfque aliqa purgatione inde de aetero fa- cienji' fub periculo, quod incumbit. \1 H.l. Rot. 2. Rajl Entries 12!. a. But if it be not without purgation, then that claufc is omitted. This is the form of the award in the king's bench, but before jufkices of gaol-delivery the entry commonly is, Et tradiiiir ordinario, eithev n;cneraUy or abfque purgatione, as the caufc requires. M.2l^ Z Eliz. Dy. 205. b. ^ ibid. 215. a. II. When he was fo delivered to the ordinary, he was to remain in the ordinary's piifon; viz. if committed generally, then he was to re- main till he had made his purgation, \{ abfque purgatione^- then he was to remain there during his life, unlefs the king pardon him, And if the cleik had broke prifon, this was not a felony within the ftatute of 1 E. 2. de frangentihus prifouavi (*j ; but if the clerk were attaint and delivered to the ordinary and broke prifon and ef- - caped, and were after taken, he fiiould have been executed "^ -^i upon his firll attainder, quod vide 27 y^fjiz. 42. But by the llatute of 23 H. 8. cap. 11. if fuch a clerk break the prifon of the ordinary and cfcape, this is made felony without clergy; only the clerk, if in orders, being convitSl was to be delivered to the ordinary without purgation, and he might, ifheplcafed, degrade him and fend him into the king's bench wijh letters fignifying his degra- (•) Becaufe that flatut: was conftrucd to extend only to the k'fg'e P'tfcn : xidcFa>t I. p. 6o8. WoL. II. Z ding 3^3 HISTORIA PLACITORUM CORONA. fling, and that court, have the reconl of the convidion before tlicnv might give judgment and award execution, as if he had been a lay- maii and found guilty before them. But this among the reft of the felonies enabled in the time of H. S. was repealed hy 1 E. 6. cap. \'I. isf 1 Alar. cap. 1. III. If the clerk were committed generally, he might make his purgation (*), the form whereof is unneceflary to reclrc, being it is now taken away by IS Eliz. and is fully defcribed and directed by Stamford Lib. 11. cap. iS./oI. IDS. and the ftatutes oi IFcJiin. I. cap. 2. i- U 4. cap. 3. And if the ordinary would not admit a clerk to his purgation, a writ might iflue out of the chancery to command it, where by law it might be done. \b H. 1. 9. a. per Fincux. And when he had made his purgation, he had always rcftltution of his lands felfed, unlefs he were attaint. 8 E. 2. Forfeiture 34. But as touching gsods the difference was thus : If before conviction upon his arraignment the prifoner hadhis clergy, fas was ufcd commonly before the time of H. G.) then if he made his purgation, upon fjgnificqtion thereof to the chancery he had a writ to The flierifFto reftore him his goods, niji ea de caufa fugam feccrit, for then he had no reftlcutlon, F. N. B. 66. a. but if he died before pur- gation, his executors could not have it. But if he had pleaded to inqueft, and were convi£l, then the goods J- J. -J were forfeited by the convldon, and he fhould not have refti. '-'^ ^^ tution of his goods upon his purgation, and altho the law was taken anticntly, that even in cafe of a conviction, unlefs there were an attainder alfo by judgment, he fliould upon his purgation have had' rcflitution. 3 E. 3. Coron. 365. 40 E. 3. 42 a. yet of latter times tlie law hath conftantly obtained otherwife, as appeareth 8 // 4. 2. a. 20 E. 4. 5. B. Coron. 1G6. Flozv. Com. 262. b. Stawf. P. C. Lib. 111. ca/i. 23. vide 3 E. 3. Coron. 332. And the fame law fcems to be, if he come not in upon the exigent awarded, if he fled, if he ftood mute, or challenged above thirty-five, for in all thefe cafes he forfeited his goods, and fliould not have reftitu- tion upon his purgation, vide 8 E. 2. CoroTh 417. where, the he prayed his clergy before convidtion, yet u^on an inqueft of office find- (•) This was a trial before the ordinary was acquit, he W3S diTcliarged ; if found by i jury of twelve cIoKj, wbcrcui if he guilty, lie was degraded. ing HISTORIA PLACITORUM CORONA. 3S4 ing him guilty he forfeited his goods; the hkc H. 17. E. 2. B. R. rot. 87. Hcref. in the bilhop of Hereford^ cafe before cited cap. 41. p. 32G. But if the clerk were delivered to the ordiuarv ahfquc pur^atloncy there he continued prifoner during his life, unlcfs pardoned by the king, and the king had not only his goods, as abfolutely forfeited, but alfo the profits of his lands during his life, as appears by the books above cited. And if the clerk were fo delivered afjf^ue pur'gatione, if the ordinary went about to adrait him to purgation^ a writ might iifue out of the chancery to pro liibit lilni. Cir.uf. 22 H. 'J. m. 17. clor/o, Rplfccpo Exon. H, 14. E. 3. B. R. rot. J 9. Loud' and he fliall for it be fined, and his temporalties feifed for the contempt, and by fomc books it is an efcape in the ordinary. 9 E. 4. 2^. a. 7'here were certain cafes, wherein the clerk was delivered to the ordinary abfque purgatione. 1. Where he was outlawed of felony 23 H, 8. cap. I. Raji. Entries 121. .tj.f. ii-^.h. and HISTORIA PLACITORUM CORONi^. 386 and fhall not prejudice liim i but he (hall be adjudged in tlicculiody of the ordinary iVom the firft prayer of his clergy. But afrcrwards 2S Afuii 8 Eliz. he was indi»5tcd for murder com- mitted the firft of ^pri/ I Eliz. and was convjift and had judgment, and was executed, and yet (hat murder was before his clcigv prayed, and before the ftatutc of 2 E/iz. cap. 4, therefore it foems the former opinion obtained, tor if he had been difchargcJ by his reading as to the felony, wlicrcof he was hrl} indiclcd, he mull: have been diftharged of all felonies committed before his hrft arraignment. I'he oulv falve that I can think of is either, 1. That he Oiould have />/fa^/^d' it, and did not ; or 2. That the k^it ut clcricus mud be intended to ^ be applied to the fecond felony only, and not to tlie tirll, '■'^ ' * ■whereupon non legit was entered. Dy. 215. a. And thus far touching die cflccl of cLrgy, as it flood before ,S ^ IS E/ii. By-thefe two flatutcs two great alterations were made in the whole bafinefs of clergy, which took away many of thofe intricate queftions» tedious proceedings, and great inconvenicnclcs., tliat were therein before this time. 1. By the firatutc of 3 Eliz. cap. 4. it is ena^fled, " That every *' perfon, wliich lliall hereafter U|)on his arraignment for anv felony " be admitted to the benefit of clergy by the laws of this realm, and " delivered to the ordinary for the Hime, and (hall make his due pur^a- *' tion for rlie fame offenfe or ofFenfes, whereupon he was fo a.imicted " to his clergy, and (liall before his adiniflion to his clergy have com - *' miftf-d any other fuch offenfe, \\hcreupon clergv by the law.s or *' ll.itntc's of this lealm is notailowabb, and not Ijcing ilicrof hfjfore " iiiJic"t-d and acquitted, convicted, or attainted, or panloned Ihall " and may be indiiftcd or appealed for i\\^ fame, and thereupon put to •' anfwer, and ordered and ufcd in all things according to the laws *' and llatutes of this renlm in fuch manner and tonn, as tho no fuch " admiffion to clergy had been. By this {latute, tho all other felonies within clergy before clero-y admitted Hand difcharged, as they were at common law, yet felonies out of clergy commiiied before clergy allowed may ftili be profcciiied, notwithlhuiding clergy allowed, and fo as to fo much it repealed the ilatute of 25 E. ^.pro clcro, cap. 5. Then at the parliament of 18 Eliz. cap. 7. it is enacted, " l'!iat *' every perfon, which at any' time herealter Ihall be admiucd aVid ai- Z J '* lowed 3S7 HISTORIA PLACITORUM COKONIE. *' lowed to have the privilege of clergy, fhall not thereupon be deliver- *' ed to t:ie ordinary, as hath been accuftomed, but after fuch clergy ** allowed, and burning in the hand according to the flatute in that ** behulf provided, (hall forthwith be enlarged and delivered put of ** prifon by the juftices, before whom fuch clergy (hall be grajiteJ, P^p„^ •' that caufe notvvicliflanding, provided, that thejuftices inuy LJ J .V Tq,- farfi^gj. pvinilhrncnt detain the clerk in prifon for any *' [ime not exceeding one year fcj. '* Provided that, if any one Ihall be conviiled of carnal knowledge, «' and abufing a woman child under ten years, fuch oftenfe {hall be ** felony without clergy. " Provided, that any perfon admitted to the benefit of clergy (hall *' notwithftanding the fame be put to anfwer other felonies, whereof *' he fhall be indisTtcd or appealed, not being thereof before acquitted^ *' cnnvicled, attainted, or pardoned, and Ihall in fuch manner be ar- " raigned, tried, adjudged, and fuJfer fuch execution for the fame, as " he or they (hould have done, if as a clerk or clerks convi6t they had *' been delivered to the ordinary, and there had made his or their due *' purgation. Upon this ftatute thefe points are clear. 1. That if before his clergy admitted, he had committed any other felony within clergy, he is cleared of them as well as of that where- upon he hath his clergy, for his burning in the hand is in lieu of his delivery to the ordinary and purgation. 2. Tiiat as to former fclordes out of clergy he is not difcharged by his admifhon ro clergy, but fhall be put to anfwer them. 3. That by his convi»5lion he forfeits all his goods that he hath at the tin".e of the conviftion, notwithftanding his burning in the hand. {'ej Bv 5 yinn. cop. 6. it is cnafted, " (lolcn goods, knowing them to be ftolen,) " That whcje any puion ftiall be convitl " inOtad ot bciiij; bunit in the hand or " of larceny ilic judges fhall award hm to " whipt, to be traiilportcd to any of his •* the VNork-iioule or houlc of lomtticn, "Ma'nll)'s ji'antaiions in America, tor '• thirc to he kept without bail at the dil- " lie fpace ot leven years ; and pirfons '* ♦crci.on of the judges, not lets than fix *' convic) for receiving flolen goods, know- " mor.tlis, nor more than two years from " ing them to be itolcn, or for offcnfes *' ilic convitlion, r.n entry wlx-icof is lo be " vi ith.oni ticrgy, but paidontd gcnerjlly <' mode on lecord, iiid if fuch oiTcndcr " upon coiiduion of triuilportation, to be •' ef<"ap'"s tie fhall be rommitttci to fuch " trdifpoited for the teim of fourteen *' houfc tt-.eie to Tinjain not lets tuan "yt.us; and it any fhall refcue or aid ♦' Iwche months, nor more than four " fucli offender to make his cfcape, or if " yeais. " fuch otfcnder fhall return or be found at by 4 Gio, 1. fi^- ''• '"^'^ ^ ^"■'^- '• cp- " large without leave bcfoie the expiiaiion . 213, 214. II. The judgment in cafe of allowance of clergy is thus. Super quo adtunc ^ ibidem quafitum ejl per cur. domini regis de eodcm Johanne, Ji quid pro fe habeat vel dicere fciat, quare curia domini regis hic ad judicium id exscutionem de eo fuper veredidum praditlum procedere non debeat ; idem Johannes dicit, quad ipfe cfl clericus. Id petit bencficium chricale f.bi in ca parte aJlocari, & tradito eidem Johanni hbro idem Johannes legit ut ctcricus, fuper quo confideratum efl per curiam hicy quod idem Johannes in nianu fua lava cauterizetur id delibcretur, and the execution is accordingly enterd, Id infanter crematur in manufua licva, Id delibcraii'.r juxta formam Jlotuti. And if he be a nobleman, and be demanded wherefor-e VSy i judgment ihould not be given upon the verdidl, he may aver, that h% is a peer of the kingdom habens locum id vocem in parliamento, and pray the beneirt of the flatutc of 1 E. 6. cap. 12. and if it appear fo in the indidment, or in cafe it do not, if the court be afcertained thereof eitlier by writ of certiorari to the cleik of parliament, or If it be confcffed by the king's attorney, then the judgment is ideo con- fideratum eft quod delibcreiur fecunditm formam fiaiuti in hujufmodi caf-A edit, id provif.-' And HISTORIA PLACITORUM CORONiE. 396 And if it be alleged, that lie is a clerk in holy ordeis, fhcn it Hiall be cntcrd after his reading, Et quia curia' hk conftat per ceruficat'ionem Epifcopl, l5fc. or per literas tcjltmon'utles Epifcopi, quod ipfc eji cUricus in facris ordinlbus conjiltutus., viz. in orciine fubdiaconatus, idn con- fidcrat. ejl per curiam, quod delibeyclur fecundumformamJlMuti in htjuf- Viodi cafu edit, is! provif. fine cauterizatione And the like, if he ple^'l the king's pardon of burning in the hand. And if a layman pray his clergy, an.fupcr vcrediSV pradiH'' judicium l^ esccutionevi pro diHo domino rege habend? l^c. but this is not of abfolute necefTity, for the court ex officio ought to give judgment. Et fuper hoc vifs tsf per curiam h)c pleniiis intellecJis cm- p - nibus Isi fngulis praviiffis confideraC cji, quod pra:di5lus E. D. ducat ur per vicecomitem com^ Middlefex, or per marejcalhon hujus cu- ri^, or per con/Iabu/ar' tiirris London ufqite marefcalciam tffc. or uf- que turrim London, or ufque gaolam domini regis com'* pnvdidi (ac- cording as the prifoner is in cuflody,) Et de inde per medium civi- talis London dire^e ufque ad fwcas de Tiburne trahatur^ Isf fuper furcas illas ibidem fufpcndatur, '^ /ureas ibidem fufpcndatWy and fo forward as in the jndgment. Thus the judgment was cnterd againft Barkly a feminary prieffc upon an indi6lmcnt in Middlefcxy P. 38 Eliz. upon the ftatute of 27 EH%. But the judgment againfl a woman in all cafes of high treafnn is to be drawn and burnt. Co. P.C. 211. Upon an indidment of treafon for counterfeiting the king's coin the judgment is only, as in petit treafon, ■y/z. quod ducatur ufque gao- lam domini regis de Newgate per vie' com' Middlefex, ffJ* ab inde uf~ que ad f ureas de Tiburn trahatur ^ ibidem fufpcndatur, quoufque mor~ tuus fuerit^ And the judgment againfl: a woman is alfo, as in petit treafon, to be burnt. 25 E. 3. 42. (ej. This is agreed, of all hands, but as to clipping or impairing of coin [there hath been fome doubt,] and likewife as to counterfeiting of foreign coin made current by proclamation, becaufe thefe are new created trcafons. Co. P. C. p. 17. But yet in cafes of clipping or wafliing made treafon by l39°J the .ftatutc of 5 Eliz. cap. 11. ^ 18 EUz. cap. 1. the judg- ment is now fettled to be only drawn and hanged, as in cafe of coun- lerfftitlno- of the coin of the kingdom by 25 E. 3. de proditionibusy and this was agreed, and accordingly judgment given againfl: two Frenchman^ Hill, 25 Car. 2. (fj, according to the book of T. 6 Eliz. Dy 230. b. And with this agrees the rcfolution of 24 i7. 8. in juflice Spilman's jeports cited 2 Co. Injl. p. 636. A prieft drawn and hanged for clip« pin^ the king's coin, and yet clipping was not held to be treafon within the ftatute of 25 E. 3. but made fo [by the ftatute of 3 H. 3. cap. 6. according to the common opinion and the recital of the ftatute of 5 Eliz.'l fgj, and fo repeald by the ftatute of 1 Mar. cap. 1. yet even while that ftatute of 3 //. 5. was in force, the judgment was onlv drawing and hanging in that cafe. (e) N. Edit. 85- i. recital of thofe tiuo ftatutcs! but it appear* Wj BdUiiJ & No>rrMn, I K^. 254. by what follows, that the ftatute of 3 H. 5, fir) In the original MS. the vvords in was intended here to be mcntiond, nor is thi/place are, Uy the Jiatutes 0/ 5 C£f 18 it recited in the ftatute of l8 £;i». but only Ehz. aciQrding to the common v^mn and the in thit o. 5 £/;»? And MISTORIA PLACITORUM CORON7E. 39? Ami upon fearch of precedents both in tlic kind's bench aiv.l at tlfc OU Baily, tho fomc precedents were ot" hanging drawing and quartering for clipping, yet the moft ufual were only drawing and hanging f/ij. And upon the fame rcafon I think, that in caic of counterfeiting of foreign coin made current by i)roc!amation, made trcafon bv the fla- tute 1 Afar. cap. G. and tlie chpping or \va(hing thereof, likcwifc made treafon by 5 and 18 Eliz. I think there ought to be no other judgment but drawing and hanging, for by the proclamation and the a»5l of I Afar, it is now become as the coin of this realm, and it were an incongruous thing for a man to be hanged and quaricvcd f<.r counteifeicing foreign coin made current by proclamation by inteipre- tation of the flatute o^ I Afar, and yet to be only drawn and hangcti for counterfeiting tlie proper coin of the kingdom. For counterfeiting the great or privy fcal certainly there was anti- ently no other judgment but that of petit treafon, namely drawing and hanging, as appears by tlie book of 2 H 4. Lo"yj 25. a. fij, and the record of that cafe, tho my lord Coh excepts againll: it in P. C. p. 15. fed de his vide qncs fupra dlxi Pan I. cap, 16. p. 187. IV. The judgment in petit treafon is for a man to be drawn and hanged, for a woman to be drawn and burnt, as alfo in high treafon, Co. P.C. p. 211. for the other judgment is unfeemly for that fex. Stamf. P. C. Lib. \W. cap. 19. fol. 182. b. V. The judgment in all cafes of felony is, quodfufpcndatur per coU Inm^ quoufque mortuus fucrlt. But if a man be outlawd of treafon or felony, tho there be no other judgment, but iitlcgatus eji per judicium coronatorum, vet it is of itfelf an attainder and fubjc.fls the offender to an award thereupon to be made by the court, where he is brought, as is fuitable to the offcufe for which he is indii?ted :md outlawd. And this judgment is as well to be given againfl: a nobleman as an- other in cafe of felony, and cannot be given otherwife by the court or executed otherwifc by the iheriff. Co. P.C. p. 211 isf 52. fk) VI. The judgment oi peine fort iff dure at this day ia cafe of felony is only where the frifoner llands mute of malice upon his airaign- (A) Viie Part I. f. 351. p, ,gj. .„ f,^.;^^ ^ p (t) CUment Peyiciiin'i cafe, vide Par: I. f^kj fiile Part 1. p. joi. ment 399 HISTORIA PLACITORUM CORONA. ment or will not directly anfwer, for upon challenging above twenty his challenge Hiall be only over-ruled fIJ, and the trial proceed. But at common law in all rafei. of felony and at this day in petit treafoH, if he challenge thirty-fix percmpujrily, he (hould have his judgment of penance fnij, and this holds as well in an appeal as in an indidlment, and as well in cafe of women as men. 2 Co. Injl. 171. fuperfiat. JVeftm, 1. cap. 12. The entry of the judgment is thus : Et quajitiim cjl per curiam ah eo qualiter fi vel'it hJe acqu'ictarcy qui dicit, quod ipfe non vult fe fuper aliquam jurafam pairue ponerc, nifi folummodo in DeM7i ; tunc hi fuper d'ltlum ejl ei per curiam luc, quod mji P , alitir in hiic parte refpondeat mori debet, qui dicit, quod non *■ -* vu/i aliter rcfpondere in hac parte nift ut prius, idco confidcrai' ejl, quid idem R. B. ducatur ad pr'ifonam marefcalcia domini regis co- ram ipfo rege, U ibidem vudus prater baccas fuas ponatur ad terram fuper dorfum fuum direfle jacon, l^ J or amen in ten a fuh ejus capite fiat l£f caput ejus in codem ponatur, ^ fuper corpus fuum ubi libct ponatur tantum de pctris i^ ferro, quantum portarc potcjl l^ plus, quamdiu Vfvit, ^ quod habeat de pane ^ aqua pejfimis t^ prijona ei proximis, Ie^ ilia die qua comedit non bibat, neque ilia die qua bibit non comcdaty fic vi' vendo quoufuqe mortuus fuerit (n). And if he ftands wholly mute, then the entry is thus : Rt allocutus quommodo fc velit de felonia pr(sdi£la acquietare, qui qui' dem R. nihil rcfpondct, fed fe mutum tenet, iff fi. 270, 314. f>n f>' 322. in notts: (w) Supra p. 268, 316. (p) But by fubfequent ftatutcs the offen- («) yide fupra cap. 43. />• 3 19. Rojl. Entr. der may be tranfported. See ^Geo.i. cap. fat. 385. f)l.2. II. and 6 Geo. 1. cop. 23. wde Jupra p. ■ lo) Vide ihe cafe Qi7i>mas de la Hetbefw 388. in notis. ^' ¥11 1. Judg. HISTORIA PLACITORUM CORONA. 400 VIII. Judgment in mifprifion of treafon is forfeiture of all his goods, forfeiture of the profits of his land during his life, and impri- ionment during his life (q). IX. Judgment in thcftbotc is fine and imprifonment.' 4 Blackf. Com. ch, sg. per tot. 2 Hawk. P. C« ch. 48^ CHAP. LVI. [401] Concerning giving of judgment, by whom, and when. WHAT courts have jurifdi<5lions in caufes criminal and capital have been handled before in the beginning ot this Part; I arn now to confider when one judge may give judgment upon a convic- tion before another judge, and how. The king's bench is the center of all fubordinate jurifdi£tions, ef* pecially in matters capital. If y^. be indicted of felony before juftices of peace, oyer and terminer, or gaol-delivery, and be convi6l by verdi6^ or confeflion, if the record of the conviiSlion be removed into the king's bench by certiorari, and the prifoner alfo be removed thither by habeas corpus, that court may give judgment upon that conviction, but there muft be firft a filing of the record in the king's bench, and a commitment of the prifoner to the cuftody of the marrtial, and he muft be called to fay what he can, why judgment (hould not be given againft him, and thereupon judg« ment may be given: vide 23 H. 8. cap. 1^11. \0 H. 4. 9. a. Coron. 467. And indeed there was no other remedy before the ftatutes of 1 1 U. 6. ca^ 6. t5* J £.6. cap. 7. for judgment to be given upon perfons reprieved before judgment, for the former commifllons are determined by new ones at common law. But if the conviction were not before the judge of the king's bench, fo that the offender continued not always in cuftody of the marfhal or of thofe that are his bail, but be removed by habeas corpus or brought in by proccfs, the party fo removed may plead he is not the fame perfpn and give fomc diverftty of name, and if the kind's attorney Vol. ii. A a «;onfefs 402 HISTORIA PLACITORUM CORONi^\ confefs it, he (hall be difchargcd and proccfs made out againft the other pcrfon, thus it was done in the cafe of 'John Aparcy Lib. placitot^ Coion. fi. 1. who was taken upon a cnpias utlegat^ &n<\ pleaded he was not the fame perfon. Or the king's attorney may take iflue upon it and aver him to be the fame p.rfon, and known by one name or the other. 21 £.4. Surry. Lih. pUicitor" Cor 0)1. placho 31. Nicholas Btoivne\ cafe. Or if he anfwcrs nothing but ftands mute, it (hall be inquired whe. ther he be the fame perfon by inqucft, before judgment be given atrainft him, for he Hull not be concluded bv the return of the flicriiF either upon a ccpi corpus or habeas corpus, if he was not always in cuflody of the fame court from the time of his firfl arraignment, vide accords 10 E. 4. 19. b. but if he had been always in cuftody of the court of king's bench from the time of his arraignment, or had been bailed by the court, and came in and rendered himfelf upon his bail, then no fuch inquiry ihall be made upon his flanding mute. 10 £. 4. 19. b. And that I may fay it once for all, the fame law is where a party is oullawd or abjured, and comes by capias utlegat' or other procefs into the king's bench, he fliall be demanded what he can fay why execution fhould not be awarded againft him upon the record re- moved, which 7 H. 6. 25. a. B. Coro7u 44. is called an arraignment; if he confefs himfelf to be the fame perfon, execution fliall be awarded; if he deny himfelf to be the fame perfon and the king's attorney con- fefs it, he fliall be difcharged ; if the king's attorney take iffue upon it, it fliall be tried ; if tlie prlfoncr fay nothing, it fliall be inquired by an inqucft of office whether he be the fame pcrfon : vide 8 H. 4. :i ^ 18. B. Corori. 22, 23. 10 E. 4. 19. b. M. 5 Car. Crokc, p. 17b. Coxe's cafe. If an iflue be joined in the couit of king's bench in an appeal of felony, or in an indidment of treafon or felony either upon a record originally begun in iliat court, or removed thither by certiorari^ the ixfual courfc now is to try it at the bar, or if it were removed by cer^ iiorari out of another county, to remit the record according to the ftatute of 6 H. 3. cap. 6. to die juftices, before whom fuch "^ ^^ indictment was originally taken, with a writ to command them to proceed therein, whether the record was fo remitted before • or after iflue jomcd in the king's bench. - But HiSTORIA PLACITORUM CORONA. 403 But many times that court anticntly did, and at this dijr may fend down the tianfciipt to l)e tried by «////>//«;, as well in an iudictmeut as an appv^iil, and upon tlie return rhcreot the courc mav give judg- ment of death or ucquictal, acconliiM^ lo the veidi- and terminer^ of the peace, ** or other the king's commifTioncrs lliall in any wife be difcontinued ** by the making and publilhing any new commifTion or aflbciation, " or by altering the names of fuch jufticcs oT commifTioners, but tha,- " the newjufl'ces of alhfe, gaol-delivery, and other commifTioncrs ** may proceed in every hih.ilf, as if the old commifTion and juftices *' and commifTioners had ilill remained and continued not altered. Tho this ftatute in the tirfk part thereof mentions giving oi judgment upon a perfon conviiSt, vet I take it very clear they may award execu- tion upon a party reprieved after judgment by former commiilioners, for by the fcrond claufe they may proceed in every behalf as the former commiffioners might have done, aiid therefore there is little ^ ,- Caufe for the quarc made touching that point in Dyer (g)^ ^ ^ yet I have generally obferved this one rule, that I would never give judgment, or award execution tipon a pcrfon reprieved by any other judge but myfcif, bcraufe I could not know upon what ground or reafon he reprieved hir^i (h) See the rffcrcnce* at the end of tiie ch. next fupra. (g) Dyer fcl. 1^^. a. "pcrfon fnppafed to be murdered waj Ch) The ufefulncfs of this caution may '•' not to be found, that he reprieved the be fcen froip what is obferved by Sir J-^hn " perfons condemned ; yet in a circuit Haivlts \n his remarkj on C^rnijh'i trial, " afterwards a certain unwary judge, with- State Tr. Vol.W . p. 203. where he reljtes "out inquiiing into the reafons of the the cafe of fome perfons, '* Who had been " reprieve, ordered execution and the " conviftcd of the murder of a perfon ** perfons to be hanged in chains, which *' abfent barely by inferences from foolifli " was done accordingly; and afterward* •' words and atbons ; but the judje before " to his reproach the perfon fuppofcd ta ♦« whom it was tried was ib unfatistied in " be rr.urdercd appeared alive. " the maticr, bccaufe the b^dy of tiic A a 3 CHAP. 4o6 HISTQRIA PLACITORUM CORONiE, CHAP. LVII. Concernittg executions. 'UCH of what concerns thfs matter hath fallen in under the former chapter, and tlierefpre I {hall be brief in it. I fliall confider. J . Who may award execution. 2. In what manner it is to be awarded. 3. By what warrant to be made, 4. By whom it is to be dpne. 5. In what manner. C. Concerning reprieves or refpite of judgment or execution. 1. As to thefirfl: of thefe it hath been difpatched in the former chapr ter, they that may give judgment may award execution. And therefore the court of king's bench upon on habeas corpus and a certiorari to remove the body of a prifoner and the record of his out- j. .. la wry or attainder before them may award execution upon ^^^' •' him. M. 5 Car. B. R. Croke p. 176. Coxe's cafe, vide qu^f diclafunt jupra cap. 56. II. Touching the manner of it there be certain cafes, wherein tho the prifoner be attainted, yet he is not to have execution awarded ^gainfi: him, till he be demanded what he can fay why execution fliould not be awarded againft him, viz. 1 Where a woman is convjvfted and attaint by judgment, tho fhc re;nains always in cuftody, fo that couJJat de perfona, yet execution is not to be awarded againft her till The be demanded what ihe can fay why execution (hould not be awarded, for fhe may allege preg- nancy, which, tho it be no caufe to refpite judgment, is a goodcaufe to refpite execution. 2. Where the judgment was given at a former feffion, for in that interval between this and the former feflion he may have a pardon to j)Iead. i Whue the prifoner hath not always remained in the cuftody of the court, where he firft had judgment, for in that cafe, if he be brought in by a capias by the {}icrifi~, he fliall not be concluded, bu^ that HISTORIA PLACITORUM CORON.li. 407 thiit he may Aiy he U another pcrfon, and iflue may he taken upon it, and that iiruc Hiall be tried before he (hall have execution awarded againft him, and if he ftands mute, it Ihall be inquired whether it be of malice. 10 E. V. 19.^. Again, 4. If judgment were given in another com t, or by other jufticcs, as in cafe where a record ot an attainder comes from another court by certiorari into the king's bench, or it a man he outlawed for felony, and the outlawry either removed or returned into the king's hencii, and the felon brought in by habeas corpus or capias ui/cgat^ he fliall be demanded what he can fay why execution Ihould not be awarded againfl: him, which 7 H. 6. 25. a. is called an arraignment, for in thefe cafes, I . He fhall not be concluded by the return of the Iheriff from faying he is not the fame perfon that was outlawed, and upon that, ilFuc may be joined, and it (hall be entered of record and tried (*), unlefs the king's attorney confefleth it: vide fupra cap. 5t. 2. He may have the king's pardon to plead. 3. In cafe of an „ outlawry he may afTign error in the outlawry, and pray ref- pite to purchafe a writ of error, and the court uiually in fuch a cafe prcfixcth him a day, and gives him rcfpite to purchafe a writ of error, and in the mean time remits him to the marflial and rcfpitcs his execution. I'hus it was done in tiie cafe oi David Dene, H. 16. E. 4. Plaeit, cor. n. 57. who was taken by a capias utlegat' returnable in the king's bench, Etjiatim qucvjitum cji ab eo, Ji quid pro fc habcat vel dicere Jciat^ quare ad cxecutionem dc eo fupcr utlegaria preedifla proccdi wm debet. He alleged, that at the time of the outlawry pronouaced he was in prifon in the tower of London, Et /latim queejitum ej} ab eo per cur'' Ji habeat aliquid breve de errore necne, qui duit quod tioni idea injunclu/n (JI eideni l^avid ex gratia per curiam, quod ipfe breve de errore m hue •parte habeat coram domino rege in o^abis Hillaiii, and upon his failure a fecond and a third peremptory day was afligncd him, at which day he fliewed to the court a writ of error and a/hgned the fame error in fact, and ifTue was taken upon it, ami a ventre facias returnable in Mich, term, the prifoner ftill remaining In cullody, and execution rcfpited till the iffue tried. But it is to be noted, that he that will delay his execution by allege ing error in the outlawry and praying liberty^to purchafe a writ of error, muil allege error in fail, or error in law upon the outlawry to obtaia (•) Kcl. 13. Thr cafe Barkfrdi Qhj and Ctibit. A a 4- that 4o8 HISTORIA PLACITORUM CORONJE. that refpite of execution before his writ of error be brought, for if the court be fatisfied, that it is merely a pretenfe, they may chufe, whe- ther they will allow him a day to fue forth a writ of error, but may award execution prefently. 1 H. 7. 13. L John Collin's cafe, vide Co. P. C.p. 212. If either the prifoner himfelf, or any as amicus curia, inform the court of any error in the outlawry, the court ex officio muft prefix him a day to purchafe his writ of error, and in the mean time refpite execu- tion, but if he purchafe not his in convenient time, execution fhall be awarded. III. By what warrant the execution is to he made. P -J In the king's bench there is no other writ nor warrant but *- ^ an award of the court upon the judgment, vix. Et didiim eji riarefcallc, quod faciat exccutionempcriculo incumbente, for in the king's bench the marfhal is the immediate officer of the court to make execu* tion in thefe cafes, for that court never gives judgment againft any, that is not in cujlodia marcfcaUi in cafes capital, and fo are all the an- tient and modern precedents, njide 3 H. 7. 7. a. M. 5 Cat. B.R. Cro' p. 176. Coxc^s cafe, and fo was direfted by the court upon view of the precedents themfelves mentiond in my lord Cokeys book oi Entries y Tit. Indictment per totum., P. 25 Car. B. R. in Browns, cafe (a J. When an attainder of felony or treafon is againfl: a nobleman, the judgment is pronounced by the lord high fteward, and the warrant for execution is under his precept and feal in his own riame. Co. P. C. /). 31. When judgment is given by commiffioners of oyer and terminer^ regularly the precept for execution fhould iffue to the (lierifF in the names and under the hands and feals of three of the commiffioners, whereof one to be of the ^«or«»2, before whom judgment was given, Co. P. C.p. 31. but by ufage (as far as I can learn of late times,) it is now done only by leaving a calendar with the {herifF declaring their judgments (*). When a man hath judgment of death before juftices of gaol-deliverj', the regular way is, either to iflue a precept to the flieriiF, in the names of the commiffioners, reciting the judgment, and commanding execution to be done, or other wife by an award upon the record, Ee dUlum eJi per curiam h)c vicccomiti comitatus pradi^j^ quod facial €xe» cutionem periculo incumbente. {a) I Keb. 193. I Vent. 243* (•) Supra p. 31. But HISTORIA PLACITORUM CORON.^. 409 But of latter time there is no more done, but after judgment entered the judge fubfcribcs a calendar in paper, dirc(5ling the fcvcral judgments of deliverance of the parties acquitted, or the execution of the parties condemned. Only Rolle would never fubfcribc any fnJi calendar {^), p but would command the flieritF openly in court to take notice •- ^ of the judgments and orders of what kind foever, and command the IherifF to execute them at his peril. The reafon of the difference between jufticcs of gaol-dj?livcrv anl of oyer and terminer is this ; all the precepts, that iflue at a fefhons of oyer and terminer^ as for a venire facias talesy l^c. ought in true order of law to be by precept in the names and under the feals of the juftices, but the precepts by juftices of gaol-delivery need not be otherwifc than by a fimple awai^d upon the roll: Jdeo praceptum eft vicecomitl, quoi venire facial Iiic l^c. IV. By what officer execution is to be made Regularly the officer, that is to make the execution, is that officer in whofe cuftotly by law the prifoner is at the time of the judgment given, for into his cuftody he is to be remanded after judgment pro- nounced, and there to ftay till jiidgment executed. Tlierefore, where judgment is given at the feflions of gaol-delivery, the execution is to be made by the (herifF, or his under-fheriffor de- puty, for regularly he is in his cuftody ordinarily, but if the prifoner be in the Tovjcr o'l Londott, (which is oftentimes the cafe of perfons indidiedfor great trcafons,) and he be arraigned before jurtices of oj-cr and terminer, he is commonly brought before them by a precept to the conftable of the Tower, (which is an exempt prifon from that of the (heritf,) and if he be convift and attaint, he is commonly remitted thither, and tlie precept or warrant for execution muft go to tlic lieu- tenant or conftable of the Toiver, for it is purfuant to the judgment, viz. quod pradifius E. ducntur per prafatum locumtencyii* turris London ufque ad di£lum turr'im, & deinde per medium clvitatis Lond. d:rc6le trahalur ufqucfiircas de Diburn i^c. And thus it was done in the cafes of the traitors at the powder-treafon 3 Jac. But ufually a command or precept is made to the flicrilTs of Londor. and Afiddlefex to be aflift- ing to the lieutenant If the prifoner be arraigned in the king's bench either for treafon or felony, he is or ought to be alway* fii ft committed ^^ J (•) FiJePanl.f. 501. to 411 HISTORIA PLACITORUM CORONA. to the marfhal, and by him is to be brought to the bar upon his trial and judgment, and Jo hini he is to be remitted after judgment till exe- cution, and whcrefoever the felony or treafon was committed, yet the marflial is to make execution, for he is in this cafe tlie immediate offi- cer to the court, and the prifoner is not in the cuilody of any fheriff, but of the marlhal. And therefore the entry in this cafe of felony is, Et diSIum eft ma- rc fcallo. Quod fac'iat executionem pcrlculo utcunibcnU. But in cafe of high tieafon the marflial is mentioned in the very judgment, viz. (Juod ducatur per prafatum marcfeallum ufque prifonam marefcalli marefcallia dom'ini regis ^ i^ dcindc ufyue ad fur c as fanfli Thomas Watrings trahatur CfJ* ibidem fufpendatur l^c. thus is the entry of the judgment, P. 44 Eli-z. againfl Patrick Dalph B. R. T. 43 E/iz. B. R. againft John Tippingy T. 39 Eliz. B. R. againft John Jones. And in the cafe of Broivn P. 25 Car. 2. that had judgment in the king's bench for felony upon the fratute of 3 H. 7. for an offenfc com- mitted in JlFiddlefex, and there prefented and convidtcd, the execu- tion was made by the marfhal in the ufual place of execution in the county of Surrey (b). Only in thefe and the like cafes the court gives order to the fherlff of the county, where the execution is made, to be aflifting to the marfhal. V, As to the manner of the execution, as it is to be done by the proper officer ; fo it is to be done purfuant to the judgment. The judgment in cafe of felony is, fufpendatur per colUwi, quoufque fucrit moriuus. The Jheriffmay not alter the execution, if he doth, it is felonv, and fome fay murder. Co. P. C. p. 2l\, 217. fcj. j- , If the party be hanged and cut down and revive again, yet *- ■' he muft be hanged again, for the judgment is to be hanged by the neck till Ac be dead fdj. The judgment in high treafon is complicated, viz. hanging, be- heading imbowelHng, t^fc. The king may pardon all but the beheading, for tliis is part of the judgment, the judgment is not altered, but part of it remitted. Co. i*. C.p. 52. But this muft be under the great feal. Co. P. C.p. 31. a Hawk. P. C. ch. 51. 4. Black. Com. ch. 33. (tj The like wai done in ^/fipe's rafe Cc) Fide Part I. cnp. j^z. f. joi. In 1". 9 Gt>, I, H, R, vidt/iijra in n-tn Pari I, r.t'is. >.4€f. (d) rjt Cksron. 335, -C H A P. HISTORIA PLACITORUM CORON/E. 412 CHAP. LVIII. Concerning reprieves before or nftcr judgment. REPRIEVI'lS, or ftays of judgment or execution are of three kinds, viz, I. Ex mandato regis, thus we find it done in 3 //. 7. 7. a. tho ore tenus, or by fomc inclfagc, or by fending his ring, but at this day it is ordinarily lignified by the privy fignct, or by the mafter of requefls. II. Ex arljitriojiidicis. Sometimes the judge reprieves before judg- ment, as where he is not futisfied with the vcrdi(5l, or the evidence is uncertain, or the indidlment infufficjent, or doubtful whether witliin clergy ; and fometimes after judgment, if it be a fmall felony, tho ' out of clergy, or in order to a pardon or tranfportation. Crompt. Juji. 22. b. and thcfc arbitrary reprieves may he granted or taken off by the juftices of gaol-delivery, alrho their fclTions be adjourned or finished, and this by rcafon of common ufage. Dy. 205. ^- p -, III. Ex ncccjfitate legis, which Is in cafe of pregnancy fcj, ^-^ «^J where a woman is convitSt of felony or treafon. Co. P. C, 17. Siamf, P. C. Lib. HI. cap. nit. 1. Enfcinturc is no ground to flay judgment, and therefore if a woman convi>5t b^- afked what flic can fay why judgment fljould not be given, enfei?iture is no cauie of ftay ; but when judgment is given, fhe ought again to be demanded why execution fhould not be made and there fhe may allege enjeinture in retardationem cxecutioms. 22 JJiz. 17. Coron. 180. 2. Enfcinturc is no caufe to ftay execution, unlefs fhe be enfeint with a quick child, or which is all of one intendment, if fhe be quick with child. 22 /Iffiz. 71. Coron. 130. 3. VV^hen this is obje6led in delay of execution, it ought to be in* quired of by a jury of twelve difcreet women, and their verdict is to be recorded, and according as they give it the execution is to proceed or flay. Ibid. 4. This privilege is to be allowd but once, for if f])e be a focond time with child, ihe /hall not thereby delay execution, but the gaoler {{] Thus it was by the civil law. Dig. I. 3^. -v'ld: Sr„-/7. .6 In creeks, ^c. infra corpus com. they had jurifdiCtion at common law. ii. 15 General commillions of oyer and terminer infra com. extended not to mifdemeanors on fea-coalls, fave in creeks, ^c. infra corpus com. ii. 16, 17 Expolition on ^b R. 2. giving ad- miral juriidiction in any river or creek within body of county, ii. ib. It extends only to death of a man and maiheni. ib. B. R. and general commiHioners of ojtr and terminer have a concur- rent jurifdiction. ii. ib. 18 Coroner of county, as well as of admiralty may inquire of fuch' deaths happening in great rivers, -viz. arms ol the lea flowing and redowing beneath firll bridges. ib. What rivers this ai^ extends to. ii. 16 Extends to deatlis happening in great fliips, not fmall veifels. ib- This jurildiction being annexed to the admiralty, they may proceed by marine law, tho before 28 H. 8. they proceed by commif- fion CONTAINED IN THE TWO PAUTS. fion under great feal, and by in- quilition ii- -^^^'^ 1^' Expodlion on 28 H. 8. of proceed- in trcalbns and felonies dof.e on (lie lea. ii. 1(J, 1"? One Urickcn on fea dies on ihore after the reflux, admiral by this a^l liatii no jiirildiction. ii. 17, '20 Of the coinmiflion directed by this acl. "■ n Proceedings thereon by the courle of the common law. ib. Atcellary difpunilhable by this ad^ but how otherwile punilhable. ii. J7, IS In all crimes within it, clergy al- lowed, fave in trcalbn, piracy, and murder. ii. H A mute fliall have peine fori ^^ tiitre. ib. Whether attainder thereon works corruption of blood, and how in- dictment to be for tiiat purpole. 355. ii. 18 If formerly a moral ftroke had been given on the fea, and party had died within body of county, nt'itlier admiral nor common law had junidiclion. 4-'t). ii. 19 to 21, 1G2 A robbery at fea, goods brought to land tnfra carpus com. not tri- able at common law. ii. IS Trealon or felony at fea, not tri- able at common law, but on this ad. ib. To commilTions on this ad is ge- nerally added a coinmilhon of peace, oyer and terminer, and vaol ■delivery. ii. 18, 19, 20 1 II -relbre Sellion ought to be nifra com. li. 19 Vide 4&jracp. Second blow makes the affray. 436 Vide 4^r^m-5'. 3iDins auD ^Iffiiiing* Vide 3Jn.» Oictimnt. ti3uruir, ^rincii-nl aiiD UiiTiffarp, ^^tatuti,*? in fitiunfi. &:c. Where aliens guilty of trcafon, where not. Pa^e 59, GO, 92 to 96' How merchant alien enemy Ihall be ufed. 60, 93, 9+ If aliens renounce king's protec- tion, not to be dealt with as fub- jeds. GO, 93, 9 1 Sometimes alien enemies contlraind to give lecurity, quod fe bene ^e- rant eroa re/em, isfc. al otiier times to fwcar fealty to the i/;/;;. 60, 93 Tlieir Debts and goods contifcate. 93 What a good plea in bar to debt brought by alien enemy prima facie ; what a good replicati<;i\ to avoid it. lb. How Aing may authorize alien enemies to lue for their debts //ere. ib. A fubjeft of an hoflile prince is prelumed to adhere to him ; he Ihall be ranfbmed, and his goods //f?f conhlcate. 1G+, lo5 Where lUtute ("peaking of lubjeCU txtends to aliens here. 5 + 1,542 How alien indicted and tried. Vide ^.ijalltriae, ^iirp ano 2briaU Vide 4iUigtiincc, ^^mbaaaoorjer, STtafon* Divided and fubivided. 62 Oaths of alligeance by common law and Uatute. ib. Antient oath how comprehenfive ; \\ here and by whom to be taken. 63, G4, Ci Alligeance, oz fJrlitas rcgia, due only to a love reign. 6+, 6^ Double kind of lige fealty, as where one prince is lubordinate to another, and yet hath futnma impena over his lubjeCts. 65 Exemplihed from hiUory. 65 to 6S, 72, 7S Inftance of rex pater &" rex fHusj (lupieine alligeance being re- fervcd to the lather,) and of a ktvg fuburdinate to both. 65, 66, 67 Oaths A TABLE OF THE PRINCIPAL MATTERS Oath applicable to kin^^s perfon, as well as crown. f^gt! 67 Sail' d fide (jf li tyrant iu liomini re^isy in all oatlis of fealty, as well as profeliion of homage to a fiibor- tlinatelordj omiflionpunifliable. 67, 68 Ought not to be two co-ordinate, ablolute alligcances to feveral independent princes. 68 Divers before lofs 0*1 Nor man Jy, ad ftiiem regis jitiglia ?sf Francia ; how they ordered their homages and fealties. 68, 69 Difficulties thence arifing. ib. Homage, its divifion, and in what homaglum ligeum differs from al- ligeance, and by whom to be performed, and when. 71, 72 Wherein that agrees with and dif- fers from homagium feudale. 72 Qi mixt homages, partly lige, partly not. 72, 73 Inftance of mixt homage, when a fovereign prince hath a valfalagc or pofleffion in anotiier prince's dominions. 73, l'\y 75 3lmbaffaiior» If a fubjeft born, tho he never look oath of alligeance, become a fworn fubject to a foreign prince, and is fent hither as his minifter, and confpirc againlt king's life, treafon. 96 Whether a foreigner being agent of a foreign prinee, either in amity or enmity, come over with or without ki?ig'% fafe con- duct, and here confpire againft king's life, or t6 raile rebellion or war, ought to be treated as traitor or enemy. 96 Whether punithable as a^;j enurny for inconfummate attempts. 97 98, 99 The prince to *vhom fent the pro- per judge. 98 For rape, ^c. inc^^able in ordi- nary courfe. 99 Whether comttes legatl have fame privilege as ambaflador. lOO 3Immoment. Clerk ofaflife forgets to enter ad- journment of coinmiflion oigaol- J f livery ; record not amend- able. Page +9+ 8 H- 6. gives liberal power to juf- tices to amend records. 649 Where caption of indiflment re- turned is faulty in form, it is fame term amendable by clerk of affile or peace, but not ia another term. ii. 168 In another term clerk, that re- turns it, fliall be fined for his informal return. ib. 3imercemmW* A man drowned in a pit, coroner may charge vill to ftop it, and if not dctfie before next gaol-deli- very, vill amerced. 424- Vill amerced for burying body be- fore coroner fent tor. ib. One flain in the day in a town walled or not, town amerced ; if infufficient, hundred ; and in detault, county; fo upon an efcape. 448, 603. ii. 73 So if out of any vill, hundred, and in their default, county amerced. 448, ii. 73 Murdrum^ what fort of amerce- ment; how far taken away by flat. 425, 447, 448. Not impofed in cafes of death per infortunium. ii. 73 Lairocinium, what, 425 A man killed either in day or night, and offender committed to con- ftable or vill, upon elcape vill, where party flain, or otfender taken, tineable. 448 Felon in bringing to gaol efcapes, is killed in purluit, yet town amerced. 489, 490, 602 A man flain within precindl of the vill before day-light gone, of- fender elcapes, vill amerced; otherwife, if flain in the night, except town be walled, and then in either cafe it ih«U be amer- ced; CONTAINED IN THE TWO PARTS; ced ; becaufe gates ought to be Ihut from fun-let till i'uii-rifing. Fag€ 4+8, GOJ-. ii. '73 Amercements on country for e- fcapes of felons, by whom to be lot. 600, GO.'i Vill amerced, If felon efcape from private perfon without default. 001 If felon in carrying to execution efcape, vill not amerced. 602 If vill commit a felon to four men to convey to gaol, who lulfer an efcape, vill amerced. 605 If a ftrangor prevents aneil, where- by felon elcapes, vill amerced. 606 Negligent efcape prefcntable in a leet^ but they cannot (el a com- mon fuie or amercement there. 603 Amercement called efcapium takes place in cales of death per infor- tunium, ii. 73 Felon taken by townfliip, and de- livered to IherilK, idc. elcapes, townlhip not chargeable, but Qieriff, ^c. ib. But if in guard of conflable, who is bringing him to gaol, he c- fcapes ; tho gaoler refuled to take him, vill chargeable ; nav, tho he be flain, becaufe he re- filled, ib. Vill amerceable only in cafe of death of a man ; but in other felonies, as theft, tho thief not taken, no amercement or other penalty at common law, but by llat. of IVinton. ii. 73, 74- But if they had a telon in their cuf- tody, or in cuUody of a conftable, and he elcapes, vill had been a- merceable, and fo of the hini- dred. ii. 7 t In cafe of manflaughtcr, where the decenna was antiently amerce- abla, where vill. ib. If any of the family of clergymen, noblemen, or knights antiently committed a murder, GjV. and fled, his mailer was ametceable. ib. vot. ir. How one prefent that takes not oHender, is punilhahle. ii. Page 75, 76 Where three amercements for one efcape. ii. 75 TownHiip amerced for efcape, tho i'elon never adually taken, ii. 93 3Ipo(!acp» Vide 3ivtliaioa» 3tppfal,ff» In treafon longdifufed; appeals of treafon in parliament wholly ta- ken away by llat. 34-9. ii. 150 Year and day for bringing appeal of murder, how computed. 4'27 Whether jury may find guilty of manllaughter one appealed of murder. 44.9, 450 In appeals, juftices of mji priui may inquire of abettors, and give judgement, and if plaixililF nonfuit, arraign prifoncr at k'ai^'s fuit. ii. 41, *l"49 May allow clergy to a convict of manllaughter on appeal, ii. 41, *149 If appellant die or releafe, tho appellee be indided alfo, yet on nonfuit of plaintiff, proceeding for king fliall not be on indict- ment, but appeal. ii. •*149 What caufes of abatement of ap- peal, ii. 149, 150 Where party ftricken in one coun- ty dies in another, appeal ia either. ii. 1G3 In appeal of death by writ, per- fon killed is certain, but an ap- peal of robbery writ general, and it appears not what goods are till declaration. ii. 221 Auteifoiti coirji^ and clergy had a good bar to indiclment or ap- peal for farae crime. ii. 25 1 And fo, if clergy prayed, and court will advife upon it, tho clergj not adually allowed. ib. For pUas to appeal. \'ide ^ICfl. If appellee lland mute, judgment of peine fort (J dure fliall be given. ii. 317 Vide ^Ute» B b Fov A TABLE OF THE VRINCIPAL MATTERS Tor rffiitutlon in appeah of robbery. Vide Krffitutibn. For appeal cf rape. Vide Hapf* For poKver of cerovers in taking ap' peals. Vide cToroafra. Fir proce/s in appeal. Vide ^Ttl;* V'^here clergy oufuci in appeal, or not. Vide CUrgr, For appeal by approver. Vide ^p;; proDiT* For arraignmrnt on appeal. Vide Coroner has power to take his ac- culation. ii. Page 67, 'I'll Approvement defcribed. ii. 67 In dilcrction of court to admit him to approve or not. ii. 2'1q Admitting approver long difufed. ib. Of what offenfes approvement may be. ii. 227 In what fiiits. ii. 228 When one (hall become approver, ii. 228, 229 Before whom he may become fuch. ii. 229 Of the manner of approvement and allowance of it. ib. What duty of court on party's confeffing felony and praying a coroner. ii. 229, 230 What procefs on appeal by ap- prover, ii. 230, 231 Of proceedings on appeal after appearance of appellee. ii. 232, 233 Arraignment Definition and various etymologies of tke word. 344-. ii. 2i6 to 219 A refcuer of a traitor, or one fut- fering a wilful cfc^ipe, or re- ■ ceiveP ©fa traitor, e ne foity then to the felony, not j^uilty. ii. 219 Prifoncr to be brought to bar without irons, iinlels danger of cfcape. ib. But ulually brought to bar in vin- cuiis ibr fear of clcape; but itandsai bar unbound, till judg- ment, ib. In murder antiently court forebore to arraign priloner on indidt- mcnt, till year and day pall, whether pending appeal, or not, ii. 220, 249 But now by ftatiite juftices Ihall try him on indictment of mur- der, is^c. tho within year, and if acquitted, he Ihnll not be difchargcd ; but at dilcreticn of jullices continued in cullody ; or on bail, till yirar and day pall, ii. 220, 249, 250 Where an inquifition before coro- ner is returned, and there is al- /b an indictment for lame of- fenfe, on which belt to arraign priloner ; and where there ought to be a cejfet pyocejjus on coroner's inqueit. ii. 221, 2J2 In cale of appeal and indictment for fame otfence, where there ought to be a cejfet procejfus on indictment. ii. 221 If indictment be of manllaughter, and coroner's inquelt of murder, belt to arraign of highell offence, and (pare the other. ii. 222 If both of murder, but one infuf- iicient, then to arraign oa good one. ii. 222, 239 If both good, and returned into f^ €OU{t i«uu<; fellions, belt to ar^ raign prifoner on both, (fp as they be put on lame inqucll to be tried), and to indoile ac- t|uittal or attanidcr on both pr«- fentraenl"; ; jury to be directed to acquit tiim on both, li' ac- quitted on one, and e convei/o. ii. 222, 239 Felon may be arraigned of breach of prifon before convitt ot tirJt felony ; contra of elcape or ref- cue. ii. 224 Yet if A. be acquitted of princi- pal felony, he may plead that acquittal u\ bar to indictment for breach of prifon. 611, 612. ii. 224. Where one brought in on exigent Ihall be arraigned de novo^ ii. 224, 225 If any exception taken by way of abatement, counlel Uiali be af- figned. ii. 236 Priloner lliould not formerly in any cafe have had a copy, but only rvt.;- of indictment ib. If exceptions to inuiclment appear material, court can quarti it, and direct new bill to be lent to grand jury, wherein the faults may be amended, and prifoner arraigned ile novo. ii. 237 One indiCled on two indictments; one for murder, other on 1 Jnc. of ftabbing, he fnull be arraign- ed on botn. 408. ii. 239, 240 If on fpecial verdict findiiig a fe- lony, court erroncoufly adjudge it none, and that judgment be reverft, whether party ihall be executed or arraigned de novo. ii. 247 Juftices would rarely arraign pri- foner on indiclmenl, cfpccially for murder, within year after death, in favour of cippsal, uu- lels appellant an intani, or evi- dence very pregnant. ii. 249 A. attaint of felony bv oulawry; outlawry reverled, he Inali be put to aiifwer fauie felony, ii. 251 One by coroner's inqueft found to have killed a thief alTauiting to £b 2 rob. A TABLE OF THE PRINCIPAL MATTERS. rob, Zifc. fliall not be arraigned on that indJdr.uMit, but diiV.iincd \\ithoiit any judgmej.t. ii. 39b JulHces oi njfije cannot arraign at K.'-- fuit on nonliiit before them on appeal, but this done in £. /v. on return o'i pojtea. ii. /"/j^c 404- Hciv a madman fionld be treateii on his arraignment. Vide ^^DtOt. For arraignment of accejjary. Vide arrra. Who piirfues not a felon is fin cable. 44S, 449, 484, 593 ii. 75, 16 On cap. ail Jatisfaciendum^ doors cannot be broke open ; but on an habere facias fojj'ejfioneniy they may. 458 Officer entering by outward door open, may break, open inward doors. ib. If warrant not ftriftly latvful, yet if matter within juftice's jurif- diction, and %varrant tinder his i'jal, officer not to difpute vali- dity. 460 Juftices warrant where void, and officer fubjeft to lalfc imprifon- ment. 577 Where matters being within juf- tice's jurifdidion, officer ex- cufed. ib. Warrant not exprcffing certainty of crime, irregular, and olhcer cannot break open doors. 57 7, 584 One taken on fuch, how to be dif- charged. 578 If reftued or wilfully let go, fuch efcape or refcue not felony, ib. .Such v\ arrant erroneous, not void ; it excufeth in falle irnprilou- nient, real crime being felony, or crime withm juliices cogni- zance, ib. General warrant fo take all fuf- fpefted void ; falfe impriibn- inent lies for one taken there- on ; contra of rule in B. R. of /ame import. 580, 586, 587. ii. 105, 112 JuftJtes may iflue warrant for trea- f&n, exathine and commit. 5S0 Where juliice of foreign county may ilRie his warrant agaiiiit a felon, and commit. Fa^e 5St> Wairaut ilFued by juilicc of proper county to take a felon, he be- fore arreil flies into Ibreign coun- ty, and is purfued and taken, he muft be carried before juftice of foreign county ; but if taken in proper county, heefcape into the foreign, he may be brought before juftice of either. 581. ii. 94. 115 Conftablc hath fame protection on purfult and arrefl in foreign county, as proper, whether he hath a warrant or not. ii. 94« Warrant, to whon* directed. 581. ii. 110. May be direded to a private man, but he not compelliblc to exe- cute it. 581. ii. 110 Ollicer refufing or neglecting may be indicted. 581 Conftable cannot fubftitute. ib. Coftftable not bound to execute warrant out of his diftrift, yet faduffi % !• Juflice of peace may grant a war- rant on probable liirpioioii, and doors may be broke open by him to whom directed. 579, 580, 58!^ For what end tondable, or any other, during allray, may breaK. open doors, unlefs one dant^er- oufly wounded or killed. d89. ii. 93 Of what offcnfe? conllable having received information, or any private man, without a warrant may arreft, and break open doors on rcfufal to open them, or deliver up party. 589 Where law makes a private man an oiHcer, and he may arrelt a felon, and in order thereto bieak open doors. 588. ii. 76, 77, 92, -202, 203 Where conflable ex officio may break open doors to take felon, ii. 90, 92, 202, 20J Where conflable on hue and cry may break open doors, or not. ii. 102, 103 What previous to breaking open doors. ii. lOj Difference between private man's and conflable's arrcfting on fuC- picion. ii- -2 On excommunicato capiendo doors cannot be broke open. ii. 1 U> If juftices iffue a warrinit to take a I'elon, who is in jufticc's houle, oilicer afler demand, isfc. may break open the door; and fo for fufpicion of felony, ii. 116, 117 Where flieriiT on civil procefs may break open the houfe of an- other than the party againil whom procefs is. ii. 117 Judge of ^. R. may ore tenus com- mand a tipitaff to arrert, without expreiliug the caufe ii. 586 Officer or private man breaking open a houle to take a felon, a trefpaffer to the owucr, if felon not there. ii. 117 Julticei of oyer and trrminfr may iO'ue a coinmillion to take one iiidiclcd before them, wiiereby doors may be broke open, but cominillion muft be (hewn if de- manded, ii. Pa^e !06 Conllable, on his watch may break open doors to keep the peace, or in cafe of diforderlv drink- ing, or noife in a houle at un- feafonable hours ji. 91', 95 Conftable ex officio may arreft one, that has broke the peace in his view, and keep him in his houle or ftocks. 587 Where one is dangero'ifly hurt, conllable may impriloii on com- mon fame, or report of another. ib. Whether on an aflVay out of view, he can arrell witiiout warrant. ib. Where private man may arrell without warrant, whether fe- lony done in fame county, or not. 5S7, 5S8. ii. 76 j^. dangeroiifly wounds B. C. be- ing prefent may imprilon y/. till brought betbre jultice, or de- livered to conftable. 558. ii. 77 Felony committed, a private man may arrelt on probable caufe of fufpicion. b'yS, 595. ii. 7S 81 What arc probable caufes. 588. ii. SI How and in wliat time private man to dilmifs himlelf of ofen- der. 5S9. ii. 77, 81 Molt ufual and fafe to bring hinx before a jul'ice, or if tiiat can- not be done m tiiric, to call con- ftable to one's alhllance. 590. ii. 76, 77 Whether private man caw railc power to take or detain a felon. 60:. ii. 76 Prevention ofarrefts, amifdemea- • nor, not felony. 606 Oi'perlbns that may arrcH. ii. 72 What required to u^iinJam a jnf- tification o4" iniprifonmcnt, on B b 3 fuf- A TABLE OF THE PRINCIPAL MATTERS fufpicion, and liow officers and private men are to juliii") in fuch cafes, ii. Pa^e 78, 79, SO, 91 No felony, no ground of lufpicion. ii. 78 No felony done, party arrefted may be inlarged, and efcape dif- punifliable. ii. 78, 79 But in cafe of a felony, tho party arrefled innocent, who lets him go not being duly delivered, is punilhable. ii. 79 Regularly, party fufpeding niuft arrelt. ib. What party fufpeding is to do to oblige conllable to allift. ib. Juftice to be acquainted by him with whole caie. ib. Juftification in aid of conflable on felony done, and a fufpicion. is good. ii. 79, 80 Sulpicion may be by any ; inipri- fonment muft be by conftable. ii. 80 If goods of ^. be ftolen, and found in ^.'s cuftody, and yJ. makes tlie cale appear to the conllable, and requires him to bring B. be- fore a jultice, this is a good jiif- tihcation in ^. Jans averment, that he fufpedted him. ib. A felony committed, J. has pro- bable caule to fufpccl B. and acquaints C. with the whole matter, C. hereupon having pro- bable caufe to iufpeft B. may juftify by his own fufpicion ; and lb may one coming in aid of ui. to arrefl B. ib. One may alledge twenty caufes of fufpicion, and it fliall not make his plea double : what makes an iffue upon the whole. ii. 81 If private man difcharge party fuf- pefted without bringing him to juftice or conltable, it is an e- fcape, but makes not imprifon- ment illegal. ib. He mufi; not carry him to gaol of any other county than where taken, unlefs there be no gaol in that county. ii. 81 Arrell on fufpicion permitted by Jaw, not commanded, ii. B2, 84- Not fame privilege in all points allowed to him, that arrefts on iulpicion, as to one arrefting on hue and cry, or by warrant, or his certain knowledge of the felony, ii. Page 78, 82, 84. If he, that arrelts on fufpicion, break open doors, it is at his peril ; if party be a felon, it is jullifiable, otherwife not; but he may enter by the doors open to arreft. ii. 82 To prevent murder a private per- fon may break open doors, ib. But in all arrefts mufi; acquaint party with caufe thereof. ib. Party not bound to take notice of a private man as authorifed to arreli, and may tiy from him if innocent. ii. 83 But is bound to take notice, and fubmit to a conllable arrefling in king's, name, or offering fo to do. ib. Private man cannot beat innocent man arrefted on fufpicion, but only lay his hands gently on him. ib. A bailiff cannot beat defendant before the arreft, yet after arreil and efcape, a bailiff may juUify beating him. ib. Of officers of publick juliice z)ir- tute officii impowered by law to arreft felons and perlons fuf- pefled of felony, and who they are. ii. 85, 86, Qfc. How they are protected by law. ii. 85 Their actings not arbitrary, but neceifary duties ; they under fevere punilhments for neglect, ib. Need no warrant to arreft felons, and thofe probably fufpeded. ib. All perfons bound to be aiding and afftfting to thofe officers upon their fummons in preferv- ing the peace, and apprehend- ing malefadors, efpecially fe- lons, ii. 86 If any refuf#, how punilhable. 581 ii. 86, 115 Affiil- CONTAINED IN THE TWO PARTS. Aflirtniits under common protec- tion ol law with oHiccrs. ii. Pa<;e S5 hy rtatutc may plead general iilln', and have double tolls, as w<'ll as ollicers. ib. Where a private man may arrelt a felon, thele oillcors luny do it. ib. What power jufticcs of peace have, ^«o/7i-/ arrell ol I'clons. ib. Jiiltice feeing a felony, or other breach of peace done in his prelcncc, nui) arrelt felon. 5j»7. ii. 86 So he may by word command any one to take him, which is a good warrant without writing. ib. But If done in his abfence, then dull illue his warrant in writ- ing, ib. If tkere be* any riot or breach of peace like to happen by a tu- nmltiious meeting, (ifc. he may comman«l his lervant or others, to prevent it by arrelting par- tics, ii. 86, S7 If he hath, either fVom himlelf or by a credible information, know- ledge of a felony done, and juft caule of lufpicion of any one, he may iiimlell arrefl and commit that perlon. ii. .S7 By Itatutc Iherilf injoincd to arrelt feloijs, and all perfbns required to alFilt on his fummons. ib. Taking felons belongs to Ihcriff, as tonlervator ofjteace. il). .^'ir-* ;^ may arreii one luipecled of felony. ih. Coroner confervalor of peace vvilh regard to all felonies, and (:iin command them to be apprehend- ed, tlu) he can take no uujuili- fion but of death. ii. SS Office of c9nj}(ibU, minlfterial and original, or primitive, as con- fervalor of peace at common law. ii. 88, DO Ought to execute preceptjt of juf- tices, coroners, (Jc. or in de- ikult, fineabic. ib. hy his origin nl power may, for breach ol peaue and fome mil- demeanors lefs than felony, im- prifon. ii. Page 88, 90 Il Oneexpofe an infmt in the cold to deftroy it, or charge parilh, conltaLlcmay take him and put Uim in the itocks. ib. If alfaulted, tho in his own cafe, may imprifon party and carry him to gaol. ib. But for opprobrious words, or a general hindrance (5f him to lummon trained bands to attend mayor o^ London on his precept, held he could not julHfy im- prilbning, but ought to have brought party to a juiiice. ib. Wl«it may be done by conllable, nia^ be done by his deputy; for by law he may make a deputy, who wilhin 7 Jnc. may plead general illue. ib. If one menace to kill another, on complaint, conftable may arrcft and put him into th'.; Itocks, till he can conveniently bring him to a juftice, and to avoid preferit danger. ii. S8, 89 Conltable cannot take furety of peace by rccognifance, but whc- tlier by bond, and that ^(^r affray or menace of breach of peace in his view. il. 89, 90 If he be informed, that a man and woman are incontinent together, he may take neighbours and ar- relt them, and commit tlienj to find furetiesfbr good behaviour. ib. Whether he may arreft one fufpi- cioully reloriing with women of ill fame to a houfe fufpected of common bawdry, and what a goo'.l jultilication for him, or any in his atliflance to plead. ib. May arrefl fufpiciousnight-walkers and men that ride armed in fairs or markets, or cl(V\vhi."re. ib. May execute bis ollice on inform- ation and requelt of others, that fulpcd and i:hargeoHendcrs but ■with iuij.icion. ib. B b -i Where A TABLE OF THE PRINCIPAL MATTERS Where felony done, he may ex officio arreft and imprifon, lill je\oTi can conveniently be con- veyed to a jufiice or common gaol, ii. Page 89, 90 All one, vhether felony done in lame vill, or in any other vill or county, if felon be within vill, where ho is conftable. ib. Is by law injoined to take a felon, and. if he negleds his duty, in- didable. ii. 91 Kot material, whether he faw fe- lony committed, or hath it by complaint and information ; in both cafes bound to take felon, and fearch for him within limits of his jurifdiftion, and to raife hue and cry. ib. If a felony done, J. fufpefts B, on probable grounds, and ac- quaints conftable, and requires his aid, conftable may appre- hend B. thofufpicion arife in A. ftrft. ib. But J. ought to be prefent. ib. He ought alfo to inquire and ex- amine circumftances and caufes of fufpicion of J. which tho he cannot do on oath, yet Inch in- formation may make it confta- ble's fufpicion. ii. 91, 92 A felony in fa6t muft be done, and conftable muft aver it in his plea, and it is iftiiable. ii. 92 Conftable, officer known within vill, prefumed of fufficiency. ib. Conliable to do his duty, as well in cafe of probable fufpicion, as actual felony. ii. 93 On a fudden aftray he may put parties in ftocks or prifon, till their paftion or intemperance be over. ib. If crime committed, for which con- ftable may arreft, whither he may convey prifoner. ii. 95 Safeft to carry him before a juftice. ib. Till he can conveniently convey parties arrefted to a juftice, or common gaol, he may detain them in ftocks, if none i(4 that vill, then in thofe of next. ii. Page 95, 11^ If he be of quality or ftck, how long, and where conftable may, and ought to keep him. ii. 96, 119, 120, 122 Charges of fending malefactors to gaol by common law are to be, born by vill, where apprehend- ed ; but by ftatute by prifoner, if able; if not, how levied, ii. 96 Commiffion in"uing out of Chancery to take "J. S. and his goods, before indicted, againft law. ii. 106 Yet a good juftification in officer. ib. Sheriff at common law might iffue a warrant, to take a felon before indictment. ii. 107 Coroners by their warrants may attach man-flayers after inquift- tion finding them guilty. ib. May alfo make out warrants a- gainft perfons prefent, and not guilty ; againft burglars and robbers. ib. If warrant be barely for a mifde- meanor, officer cannot purfue party into another county ; but in cafe of felony, afl'ray, or dangerous wounding, officer may purfue him, and raife hue and cry upon him into any county, ii. 115 Jtijlice\ warrant fufficient caufe of fufpicion and purfuit. ib. One having warrant to arreft for felony, i^c. cannot make a war- rant to another as his deputy, or command another to execute it in his abfence. ib. Warrant directed to a known of- ficer, enough for him to fay, / arreft^ &c. ii. 116 Safe for officer to acquaint party with what he arrefteth him for. ib. A warrant of a juftice may be ex- ecuted in a franchife. ib. If juftice hath jurifdidtion, tho he err in granting his warrant, of- ficer CONTAINED IN THE TWO PARTS. ficer in executing it excufable. ii. Fai^e 1 1 9 Yet in fomc cafes, as touching rates for the poor, the he hath jurifdictionhy 43 EHz. ollicer is punifhable for executing war- rant, where none ought to itTue, becaufe a circunifcribcd jurif- (liaion. ii- 119 After arrcrt officer forthwith to bring party to gaol, or to juftice, according to warrant. ib When he hath brought him to juf- tice, yet in law he is in culiody, till either jultice difcharge or bail him, or till he be actually committed. ii- 120 For More touching warrants. Vide luCicf cf 4diace. JF/iere killing peace-officer is murder or manjlaughter. Vide tpufOCr and !6i))analaiifl!it£r. Where killing a ftlon^ that rejifts or jlies before or after arreft^ is juf- tifiable or not. Vide ii^omiClQe* Vide Commitment, il}ue anD , liuflifiiatiou, anD i^cacp C5fiticin 3irfon» Defined. ii. 566 Felonv at common law ; irreple- vifable by ftatute j antient judg- ment burning. ib By 8 H. 6. letters of menace were treafon. 567 Not laid in indictment domum man- /ionaleniy but domum. ib What Ihall be faid domus. 5G1, 568 Where felony, or not, to burn a barn or out-houfe. 567 In Northumberland i\i\oT\yhy ftatute to burn a ftack of corn. 568 Burning houfe of another, felony; but if tenant for years burn his own with intent to burn ano- ther's, and none but his own is burnt, only a mifdemeanor ; contra^ if houfe of another burnt. 567, 568 Setting fire to a houfe without burning any part, no felony; contra, if part burnt, felony by common law, ^Qif 56t^ Mud be a wilful and malicious burn- ing, elfe only trefpals. Fage ^G^ yl. intending to burn B.'s houle, burns C'b; felony. jb Where burning a houfe, out-houlc or barn, Ihall be ou/l of clergy, c«r not. 567 to 573 AccelFaries htfore oufted by 4^5 H. til" M. 572 to 575 Whether attainder by outlawry iormerly oufted them of clergy. 573 Whether men in orders convift hereof fliall have clergy. 574 aioauit* Where one enters on pofTefTion of another, where juftiiiabJe, where not. 4b5, 486 Vide il^omiciDe, ^iirDrr anO £panj8laufil)tcr, aiCTrmblp* Videitjiot, Slfffnt, Vide principal anD ^cccCfarp. ^iflTife* Vide 3!iifficc of aiffiff , 3iroriation» Vide Commiffimi, (3aoI^DctibErp, -flPpec aiio a^crmincr* aittainDer, None to be attaint without being arraigned. ii. 344 to 350 Clergy allowed to one attaint 521 Whether outlawry is an attainder 521. ii. 350, 352 Vide ;jforffiturp» 3iutfrfoitjer acquit, attaint or fontict. Vide JuDament, O :i5ail. NE bailed is in cujlodid; cori' tra of one let to mainprize. :;25, 620 How A TABLE OF THE PRINCIPAL MATTERS. How the feveral entries are, and of other differences between bail aud mainprize. ii. 35, 1'24; Page 125 Admitting bail, where it ought jiot, a negligent efcape, but »ot voluntary, except by defign. 596, 597 Bail antiently taken in no funi certain, but trtditur in hallium to J. S. which is the ufual form in all civil anions ii. 125 Of bail corpus pro corpore; now rarely ufed ; why difufed ; only ■tilled, if he brought not in prin- cipal at the day ib In civil adions this bail fometimes in ufe ib Ufuallybail only a recognifancrin a ium certain, for appearance of a felon ; principal bound in double the (um. A'zVg the form ib What fort and number of furcties are required, bat thefe things, as well asthefum, difcretionary in him who takes recognizance ; therefore fureties may be exa- mined upon oath. ib. What the words ad ftandum juri import. ii. 126 Form of the true and regular bail, whereparty an infant, orinpri- fon, and fo abfent ; hereupon a warrant iffues under hand and fealof the perfon who takes the bail, for his iulargement, called liberate. ib Seal of juftice not necefTary ; fub- fcription fulhcient. ib ii party bailed by juftice before commitment, or if conmiitted and brouglit into jS. R. or ieilions to be bailed, thenhimfelf is alfo bound ib Sometimes recognizance fimple, with a condition added for his appearanctj, and fometimes con- dition contained m body of re- cognizance, ib When any is bailed for any mifde- meanor by B. R, either on re- turn of habeas corpus, or other- wife, the return or record ought to be rlrft fdcd, and a committi- fur marffcallo entered, and then bciil taken. Page ii. 126, 127 All bailed in B. R.axe de fa^io, or fuppofcd in law to be in cujiodid niarelcalli. ii. 127 Such bail not only a recognizance in a fum certain, but alio real bail, and they are his keepers, and, ifcaufc, are punifliable by fine beyond the fura mentioned, and may releife prifoner, if they fear his efcape, or render him in their own difchargc. ii. 126, 127 Regularly, in all offenfes againft common law or (latutes, that are below felony, offender bail- able, except after judgment, or bail be oufted by ftatute ii. 127 What ftatutes relate to bailing of- fenders ii. 127 Who antiently were principally concerned in bailing them. ii. 127, 128, 136 Who bailable by common law, or not. ii. 128, 129 Expofition on 3 £. \. ii. 127/0 136 B. R, may bail in any cafe whatfo- ever, either in treafon or mur- der, but this difcretionary, not dejure. ii. 129, 148 Whereon bail may be taken by B. R. -viz. on original indict- ment, ^c, ii. 129 One found guilty of homicide /e defe7ide7}do, jultices of gaol-deli- "very may certify it into chance- ry, that he #iay fue his pardon on courfe, and may bail him till next felfions. ib. They On inquifition before coroner finding iije deft-ndendo fpecially, may bail party till next feffions to procure luch pardon. ii. 130 They may in the interval of the feffion bail a convid of raan- flaughter having a pardon to plead, to another feflions ib. But if one be convidl on trial a- gainft opinion of the judge, judge cannot bail Ium to lue his pardon. ii. 130 While court advifeth, whether convl6t within clergy, he is not bailable, ii. 130, 131, 132 CONTAINED IN THE TWO PARTS. One indi6led of murder at a fef- fions of ^aol- {Iclivdry prays his tijiil, but profeculor lor king is not ready : on caulc llievvn, julhcc vl\;aol-c/eUotry may bail, li. Fage i;?! One arreficd by a/«^'s pcrlonal conin.an.!, not bailable on writ Jt homiite repltgianc/o, yet by B. R. on chancery on un habeas corpus. ib Such a mandate under the great feal, void ib Common writs dc homine replegi- ando^ or de manucaptiont direclcd to fheriff ii. 132 Some crimes not bailable for the heiuoufnufs, other for the noto- riety of Ihem ib Perfoiis outlawed not bailable by 3 ii. 1. ib If an outlaw of felony be taken on a capias Jtltgatumy and plead in avoiJaiicc of outlawry, or oring error to avoid it, B. li. may bail, whether outlawry on appeal or indidmcnt ii. 132, 133 If one be indicted or appealed for a bailable olfenfe, indittraentor appeal hinuers not his bailment; "vide wliure not allowed till he had pleaded to the indictraciit ii. 133 If one be indided before juUices of a higher jurildidion ; as be- fore jullices oi oyer and terminer^ he cannot be bailed by jullices of peace ib Pcrlons having abjured' for felony, not bailable ib Taken in the mainouvre not bail- able, but that is intended of thief hinifelf ib Felons breaking prifon,, not bail- able ib Nor notorious thieves; herein common fame may be oppofed againlL their bailing, unlelsthey Ihew realonable evidence to prove their innocence ib Nor perlons approved, except ap- prover be dead, or hath waved his appeal, or perfon accufed be 9i good fame ib Nor perfons arrefted for ar/on n. Page 133, 134. Nor for faltifying king's coin li. 13* Nor for counterfeiting king'% great or privy leal jfj Nor one excommunicato, unlefs lor a temporal caule, and then on a prohibition granted, Jut may not only be bailed, but de- livered, or on an appeal, and a fpecial writ de cautione admit' tendd^ which if not obeyed be the ordinary, a fpecial writ may illlie for his enlargement ii. 134 Nor one imprlfoned for fome opea mifdeed ; as if A, dangeroufly wound B. he may be imprlfon- ed till it be known, whether party will die or live, and xe- gularly, not bailable till danger appear to be over ib Nor prifoner for treafon, that toucheth the kmg^ whether in- dicted or not il) But all thefe crimes are bailable by B. R. ib Who bailable by iherifFby 3 £. i. ii. 134-, 135 Perfons indicted before him of lar- ceny, if of good fame ii. 134. Or impriloned for a light lufpi- cion ib Or indicted for petit larceny ib Or accufed of receiving felons ib Or of commandment, force, or aid to felony done i^ Regularly in all felonies, even murder, acceflary bailable, till principal attaint ii. 135 But principal once attaint, and then accelfary taken, he lliall not be bailable till he hath plead- ed to indictment, but after plea pleaded he fiiali ib One indicted for ofTenfe, where- fore he ought not to lole life or member, bailable, fave for ofFen- les againll acis oulting bail ib One appealed by an approver fince dead, bailable ib If tenor of mittimus be to detain one without bail 01 uxiiinpxiie ; yet A TABLE OF THE PRINCIPAL MATTERS ret if offenfe bailable, he may be bailed ii. P^zge 135 Penalties of 3 E. 1. for bailing one not bailable, and for detaining perfons replevifable, aller furety offered ib. Jultices of peace being inftltutcd, bailing ofiender devolved on them ii- 136 Their power of bailment extended farther than (herilf's, and in fomc kinds, than limits prefcri- bedby3£. 1. ib. In fome refpecls (heriff's power, as to bailing in crimes not ca- pital, inlarged by 23 H, 6. ii. 136,137 By 34 £. 3. Juftices of peace have power to take and commit ma- lefa(5iors, or bind them to good behaviour. ii. 136 1 R 3. gives to any one juftice power to bail any prifoner for felony, and excepts not man- flaughter. ii. 137 Before this a^ doubtful, whether they could bail till indidment at their feflions. ib. 3 H. 1. repeals 1 R 3. as to bail- ing by one julHce, and gives it to two jullices, whereof one of t\\e quorum', it limits their power of bailment to cafes bailable by law, and takes in 3 £. 1. as the dircilory^ who &re bailable by law. ib. 1 Ctf 2 /*. Cs* M. exprefly makes 3 £. 1. a direction for bailing of- fenders, ii. 128, 132, 137 By 1 ^ 2 P. Csi" M. one arrefted for marflaughter, or other fe- lony bailable by law, or fiifpi- cion thereof, fhall not be bailed but by two jullices, one o^ quo- rum, both to be prefent at bail- ing futh offender, and certify it ie hole, burglary 551 Antiently barely coming with in- tent to comniit it, capital ib, Di 332 Clergy allowed in facrilege after 25 E. 3. pio clem, but if ordina- ry refufed the clerk, he had not his clergy ii. 333 Sacrilege not oufled at common law ti. 36d But oufted by 23 //. 8. 517. ii. 333, 365 4 &" 5 P. y M. extends not to it ii. 363 A ftatute generally enacting, that a crime (hall be felony without clergy, or that offender ftiall fuffer as in felony without cler- gy, clergy oufted to all intents ji. 335 Acts CONTAINED IN THE TVVO PARTS. Afi? oufting clergy conftriicd (Iriaiy ii. J^age p5, 37 1 Clergy ouftcd as to principal, not oiilh'd as to accelrary ; if as to acccirary before^ not as to ac- celTary after ; if where priloncr ;s convict by verdict, it holds not as to conviction by confcl- ficn, nor attainder by outlawry, nor /landing mute. ii. 334-, 335 Every indidnient to oiift accelfary before of his clergy on I ZaJ 2 t. ^ M. nuill run malltioje. ii. .339, 34-2 Where a8 oufiing clergy mentions indidmenls, but not appeals, appellee within clergy ib. Whether clerk attaint of petit tjra/on by outlawry may claim fiis clcrgv, and be delivered to the ordinary as a clerk attaint without purgation ii. 341, 31-2 //; robbery committtd on a maris per/on, thofe, who are prefent and aflifting as well as taker, oufted ii. 359 How far piracy and feloniei on the y^fl oufted of clergy ii. 36'S, 369, 370 piracy, being not taken notice of as felony hy common law, was not thereby oulied of clergy ii. 270 Exemption of clergy extendible to admiral's jurifdiction before 28 H. 8. ib. How much of 33 H. 8, pulling fe- lonies in kind's houihold of cler- gy, repealled by I E. 6. ib. Py tlatute of bigamy, Bij^anjus oufted of clergy, but now fliall have clergy ii. 372 At common law, if clerk convict had broke bilhop's prifon, and been after taken, he had loll, his clergy ib. Clerks convifl are now to be burnt in the handy aad diichargcd ib. JBy antient law prifoner, not hav- ing habitum i^ toiijuram clerica- leniy had not his clergy ib. Or ordinary might have refufed him, if lie foaldrcad ii, 372, 373 Hercticky convi^, a Jeii) or Turi Ihall not have clergy j cjntra of one excommunicate li. Page 373 A Greek or Jlitn ftiall have his clergy, and read in a book of his own country jb. So (hall a baftardy one blind ib. Ky -i H 1. one not in orders that hath once had his clergy, (hali Le burnt in the hand, and Hiall not have his clergy again ; but a clerk in ord'-rs ihall have his clergy a fecond time ii. 27J, 389 How clerks in orders fliall prove themfelves (uch ib. None ouited of clergy a fecond time by the bare mark ; if pri- foner deny himfelf to be the fame perfon that had his clergy, how tri( d ib. Of holy orders and inferior orders, or clcrici in minoribus. ii. 373, 374. Clergymen, whoflier principals or accelfuries. have now no more privilege than laymen, fave that they are not burnt in the hand; but qiuere, whether, if attaint by outlawry, tbey fliall have more privilege than laymen ii. 37J-, 375, 376, 389 Tis a miflake, that if a clerk in orders challenge above twenty, he fliall lolc his clergy a fecond time ji 376 By 1 E. f'. Peers to have clergy, but for firfl offenle not to be burnt in the hand, or put to read ib. How they mull pray their clergy ; how court to be alcertaiiied of their peerage 37fj, 396 This aSl extends not to clergy oulled by any fubfequent ftatute, but to what cafes ib. Whether it extends to felonies within the fame, where they cannot make purgation, as if they abjure, confels, or be out-, lawed ii. 27G, 277, 390 Never meant that a peer fliould be put to read, oi burnt in the hand in any cafe ii. 376, 377 Clergy A TABLE OF THE PRINCIPAL MATTERS Clergy allowed to an attaint. Page 521. ii. 379 Where judges may allow clergy under the gallows, it" they go that way ; but whether it may be done by juftices of oyer and teiminn after their lellions, oute- re \ but they may reprieve him, and allow him clergy at the next felhon ib. ■* If one cannot read, and non legis be recorded, and court reprieve him to another fellions, and in the mean time he learns to read, he ftiall have his clergy lb. So if judgment of death be entred upon non Itgit returned ib. One abjuring after his return (hall have his clergy ib. Approver difavowing his appeal, vanquithcd in battle or recreant, (hall have his clergy ib. If ordinary return non legit^ court may give him the book and hear him, and fo in abfcnce of ordinary ii. 381 Judge ufually appoints verfe the clerk Ihall read ^ ib. The entry of clergy ii. .'582 By 18 Elix. a convid within cler- gy forfeits al! his goods he had at the time of conviction, tho burnt in the hand ii. 388 Yet maypurchafe and retain other goods, and on burning in the hand ftiali be reflored to his lands ii. 388, 3^9 If king pardon it, he may pur- chafe and retain goods ii. 389 After clergy and burning in the handy a clerk in orders fliall not be proceeded againit by eccle- haftical judge to deprivation, or other ccnlure, for it amounts to a pardon ib. He (hall have fame privilege as if he had been burnt in the hand . ib. Plea of auterfoits con-vifl, and had his clergy, as good bar as belbre 18 Eliz. ii- 3yO // con-vidion of manjlatightcr, and that he uas a clerk and nady to rtndy if court tuotild have allo-vd, a good bar to an appeal, thu court hid called him to judg- ment, but continued him on a curia advifare vtilt. ii. Page 390 How prayer of clergy entred ib. Where principals and accejjaries before oujled of clergy 'in proper burglary. Vide ©Ur^i.^rp* In ivhat cafes, as -vtrditly &C. and under what circumfances princi- pals and acceffaries before ou/led in fpecial or improper buiglaries^ or not. P^ide fubdivifions under Vide ^lonie^ bp statute, &c. CterJi of tije Croton, Sffife aiiD To certify into B. R. names of perfons outlawed, attaint, or convi6l ii. 36, 37 Tho clerks of affife enter refpites and awards of execution only in a book of Agenda, yet re- gularly are fuppofed to be en- tred of record, and thefe me- morials are warrants for inch entries 370 Clipf ing* Vide Coin* Coin* A diflertation on the coin and coinage of England 188 to 210 What fierlitig imports, what the Itandard of it )88, 189, 203, 20'1' Weight, allay, and intrinfic value of coin inter jura mc^jejlatis 191, 192, 204. Franchifes of coinage antiently granted by the king 191, 1 92 Where proclamation necefl'ary to inhanfe or decry coin, ^c. 196, 197, 198 Where neccflary to make foreign coin current, and what evidence to prove it legitimate 197, 198, 213j 310, 316, 327 How CONTAINED IN THE TWO PARTS. iTow Iinpnirnicnt In weight and allay may liappcn J'a;^e 2o5 Payment in numei o^ ad fcalant^ ad penfum, explained ib. Dealbnve fiymam expounded 201j Diflcrence between fo much »;/<- meroy and lo much blanc 20G, 207, 2Urf Exportation of bullion^ gold and jili'er^ not felony, but caules a forfeiture C51- to G57 Conuttrfciiing foreign coin U^itiKnte by prociamaiiotiy trcafon ly2, 210, 2H Counterfeiting foreign money not lenitimalc, not trealbn within 2.'{ £. 3. but milprifion of trea- lon 2 1 Whether counterfeiting farthingi or halfpence be within 25 E. 3. ib. What fliall be faid the if/>;§'s coin 211, 212 What evidence that it is fuch 196, 197, 213, 310 In what cafes the minters guilt of trealbn 213 Not coinpading, but a6tual coun- terfeiting, trcafon 214 Yet if many conlpire, and one counterfeits, trealbn in all ib. Receiver not a principal in this treafon 233 Uttering counterfeit money pur- fuant to agreement precedent to the fact, treafon 211- One knowing counterfeiter, and uttering the fallc money after the fact without fuch agreement, is quaji a receiver of liiin ib. Barely uttering falfe money know- ingly is only a cheat, and not milprifion; but to know coun- teiiiLiiter and conceal it, mil- prifion 214, 373, 375 Knowledge of the fact, and bare concealment, niifprilion only 214 Counterfeiting the famps barely [till late adi], not treafon ib. Counterfeiting coin^ without utter, ing, treafon 215, 228 Tho in another metal, and with a differtn; imprclfion to elude tlie Uw, trcafon 215 Clipping, walhing, or impairing foreign coin legitimate by prti- clamation, treafon 5 Eltz.. but no corruption of blood, or Jof* of douer ^'^gt: 215 Whether clipping, ^c. king' 9, coia be treafon wiiJun 25 £.3. ma- terial as to judgment ib- How the law flood with refpcft to clipping, waQiing, f^c from 25 E. 3. 21,') to '222 Fcillit)ing, impairing, ftaling, ox lightning iing\ coin, or foreign, coin legitimate, treafon by 18 EHz. but without corruption of blood, or lofs of dower 218, 219 What evidence nccelfary on 5 (sf 18 Eliz. againfl impairing and clipping foreign coin to prove it legitimate 213 Indictment for clipping or impair- ing, ti/r. mufl purine 5 ti;" 18 Eliz. and how conclude 220 Two witnefTes not neccflarj^j^ either on trial or indi(5finenOE21, 2y7, "& 29S Irif/ coin of bafer allayj[ho king's coin, not current here^21, ii22 Whether counterfeiting it "be trea- fon within 25 £. 3. 211 But clipping, (sfc. Iriflt comV/fr/-, treafon 2;W, 222 How counterfeiters ofcoin punilh- ed before 25 £.3. and how fince 222 to 225 Knowingly importing falfe money ad injiar the ,e/'«^'s coin, witn intent to merchandize or pay, trealbn; by what intent to be tried 225,228,229,317 Counterfeiting out of the reajija triable by fiatute in B. R, or before fpecial commifliojiers; but otherwifc at common law 225 Importing counterfeit coin from Ireland, or the Ijlc of Man, not treafon 225, 22b, 317 Antient flatutcs agaiiift importing falfe money 226, 227 This offenle never fettled to be trealbn before 25 E. 3. which makes only the a|)porters and their A TABLE OF THE PRINCIPAL MATTERS their aders, traitors, but not receivers at fecond hand Page 227 Knowingly importing falfe mojiey ad ir.jiar foreign legitimate coin, trealon by l^ 'ZP.'^ M. 227, 228 Counterfeiting foreign coin not current here, a fubftantive mil- prifion of trealon by 1+ Eliz. 228, 376 CommanO, \'ide principal auD aicitOarj'* Commiffion* Juftices of gaol delivery fit one day, and forget to adjourn their commifTion, or clerk to enter it, and a felony being done next day, they proceed in feffions, and take indictment, and give judgment of death, it is erro- neous, and record not amend- able 498, 499. ii. 156* Where necefTary to enter adjourn- ment or not ; feflion relates to iirft day, and no longer; re- cords 'entred as of firlt day 499. ii. 24, 261 Where proceedings of judges in capitals, -without ftrid extent of their commiflions, or where de- termined, is a great milprifion 498, 499 King dies after commiffion of gaol- delivery ilTued, they lubfift till notice 499. ii. 24, 25 By what means commilTion of gaol- delivery determined ib. Of the different kinds of fpecial comraifiions of oyei- and terminfr ii. 10 to 22 Commiffion pro Idc vice may con- tinue their fellion from day to day by adjournment ii. 24 Superjedeas lufpends power of com- miffionj, but proctdendo revives it ii. 25 Where a fpecial new commiffion determines a ibrmer general commiffion po tan to \\. 2U, 25 Where a general and fpecial com- miffion are dated ianie day, both ftand ii. Page 26 A commiffion of one nature fuper- fedes not commiffion of another ib. All aflbciations are comraiffions ii. 40 Former commiflions were deter- mined by new ones at coaunon law ii. 401, 404 In which cafe record and prifoner were removed into B.^R. who ceeded where jultices left off ii. 404 By 11 H. 6. proceedings before juftices of peace, not difconti- nued by new commiffion ii. 405 Nor before juftices o'i gaol- delivery^ and oyer and terminer by 1 £. 6. ib. Vide iDmiraltp, Court, (3.iot^ Delibcrp, ^ufiice of aiilife, 3"^* tiie of ^cace, %\xi^'si JSenci), ilDptr anD %tx\imxx. Commitment* One bailed or committed not to be difcharged till convidt or ac- quitted, or delivered by procla- mation 583 Mittimus ground of felony in cafe of breach of prifon ib. Ought to be in writing under feal, unlefs by court of record .; if not, what the effect 583, 5S4, ii. 122 It muft exprefs the caufe, and if felony, the /pedes ib. Tho caufe not inferted, gaoler iu falfe imprifonnient may aver that it was lor felony 584, 585, 609. ii. 123 Ought to be to the common gaol of the county ; but if oflt-nfe committed, and party taken within a franchiie, then to gaol thtre by ftatute 585. ii. 123 If it exprefs larciny above value or nianflaughter, tho in fact only petit larciny, or je defendendo \ elcape, felony 609 Suf^ CONTAINED IN THE TWO PARTS. Sufliclcnt, If it be generally for fe- lony Pa^r,0Q9,6lO Anticntly more conwnittcd with- out mittimus than with it GIO Mittimjn not of fo antient date as juliices of peace ib. The no caufe eiprcft, fufficient that gaoler or prilbner hath a proper notice of otienfe to make voluntary efcape or breach of prilon felony 610. ii. J 23 In chancery, if order be made for conimitment, till party enter into bond, fe'f. warden of Heet may thereby jullify imprilon- inent ii- l'-"-^ Proper to mention name of judice and his authority in beginning oi' mittimus^ the not always ne- celfary ib. It nuili have a certain date of the year and day, and an apt con- clufion ii. 1'-^'-^) 123 Thofc things are regular, viz. caufe, jttjiice committifi^, datt,, apt roiicltijioriy yet warrant not void, that hath not all thefe cir- cumlhmces 58-1-, 585, 609. ii. 123 Ifconclufion be till further order by jufiice, it binds not up hands of other juliices, quoad bailing or delivering prifoner ib. Sometimes juliices fend bailable prilbners, not having their bail ready, to fome private priion, as new prifon, ^c. till they can find bail; but this diiliked by the judges ib. If priloner bailable, juliices not to demand, but prifoner to ten- der it, othcrwife juitice may commit him ib. Vide aimU, Brfiifl) Of prifon, efC'^pe, S.uttice of ^lacc. Computation » Of thc^f^r, day, and "jjaji SCO Of the year and day wherein to bring appeal 427 Conccalineiit. For concealments by grand iiiv qucft. Vide 3,uri\ \'ide tpifprifion* CouDition* Vide ^forffitiirf, Conftffion, Court not to record confeffion of infant under twenty -one, but to put him to plead not guilty, or iiuiuire by inqueli of office of the fact Page'lV Voluntary confeflion of treafon be- fore a privy counfellor or juftice of peace, fufficient to fatisly 5 Cif o E. G. not neccflary to bt^ in court 30* A limplc confeffion is a conviction ; but court, if crime oufled of clergy, ufually advifc party to plead ii. 225 If it be but an extrajudicial con- fcllion, tho it be in court, as where prifoner freely tells the facl, and demands opinion of court, whether it be felony, tho it appear to be felony, court will not record his confelTion, but admit him to plead to felony not guilty ii, 225, 22(5 Confent* Vide principal auD ^ifceOfarp* Gonlfablr. Vide aJrrfl!, Jiiffife of -l&faff , l^cact-^offtcer, f^omi* riDiT, i'aurDtT aiiD tt5an.erlaugl)* ttTr ConSaWc aiiD ^ar(T;a!, 'Ju dices cidinarii of cafes within martial law; their jurifdiftion defined 500 Where it Is murder to execute an- other by martial law in time of a peace 499, 500 Neither A TABLE OF THE PRINCIPAL MATTERS, Keither foldiers, nor mariners on land or at fea, in adiial h-rvice, to be capitally proceeded a- gainft by martial law in time of peace P^Z*' ^^ Leges maritimte differ from martial law ; by thofe admiral had jurif- diclion in capital offcalcs com- Hiitted on the fea ib. CLcnffrurtion* For (onputiioH of grants. Vide Far confiru^lioit of flatutes. Vide Conbictioit. Where fecond offenfe fubje6l to feverer punifliment than former, there muft be a previous con- viction of former 324 Where forging a deed after former convidtion, is felony by 5 Eliz. it muft be conviction by judg- ment 384, 682 to 687 Prefcntment by grand inqueit not fufficient convidion of a negli- gent efcape 603 What a proper convi6lion thereof ib. Vide ^lca;e?, ^erDut* Coronfr* Whether inquifition before him of flight be traverfable 365, 414, 415. ii. 63, 64, 301 Where his inqueft, as to flight, (liall be taken for the kin^;, be- fore that of a petit jury 363, ii. 63, 154, 301 Such inquefls only quafi inquefts of office 363. ii. 63, 154, 301 Has power to inquire of acceflaries before^ but not after 363, 416. ii. 63, 65 Two in a county, whether outlaw- ry to be given by one or both ; one may take inquifition fuper •vifum corpotii 417. ii. 56 Inquifition i^e -villis A. tffc. vsr>tfr«' out faying de quatu'sr ■villatii ■proxime ad]acen\ according to itatufe inquifition good; ftatuie only directorvj coroner to iflTue precept to conilable to fiimmon jury, twelve at leaft Poge 41 6» ii. 59, 152* By ftatufe io return inquifitions taken by him to next gaol-deli- ■very, or B. R. 418. ii. 53 Where one is killed per ivfortuni- ut7t, but not by man, what he is to enquire of 418, 413 One drowned in a pit, he may charge lownfliip to ftop it, and enter it in his rolls ; and if not done before next gaol-dslivery; towiifhip amerced 422. ii. 62 If he on notice rcfafe to inquire of one come to a violentdeath, how and before whom punifli- able 424. ii. 58 Ought to inquire of death of o«e dying in gaol 432. ii. 57, 157 Ought to hear evidence on both fides 415. ii. 60 Where coroner ordered to inquire de novo fuper vifum corporis 415. ii. 59, 60 Where a writ o^ melius inquirendum iliall, or not be granted 415, 416. ii. 59, 60, 69 In homicide by neceffity, the mat- ter may be fpecially prefented, either by grand or coroner's in- quelt, and thereupon party pre- fently difcharged, without be- ing put to plead ; but he may be indided again, if matter of former indidment falfe; contrpy where indidment fimply of war- der or manflaughter 491, 492 Whether inquifition fuper vifum corporis, finding one felo de fey be traverfable 414,415. ii. 59, 60, 154 If body cannot be feen, death in- quifible before juftices of oyer and terminer, or peace 414, 419 Where either coroner of county, or admiral may take inquifitions in great rivers ii. 16 Stroke CONTAINED IN THE TWO PARTS. Stroke in one county, death in another, jiiltices, or coroner of county where party died, Ihall ijiqiiire and proceed, as it ftroke in lame county. Page 4'26, -Vll ii. Qii £. R. is fovereign coroner in Eug- land ii- 5 Coroners may attach manflayers by their warrants after inqiiilition, finding them guilty ii. 107 May alio niaiie out warrants lor taking perlbns, that neither are, or can be prefented before them, as perlbns prefent and not guil- ty ; and alio burglars and rob- bers, tho they cannot take an inquifition touching them ib. If it be found fuper ■vljum corporis^ that the felon fled, and was killed in the flight, this prcfent- inent, tho after party's death, is conclulive as to forfeiture for the flight ii. 154. 1 1 H. 4-. of the return of inquelts extends to coroners inquells ii. 60, 61, 155* Inqneft to be f^robi (if Irgales ho- mines^ and of the proper county ii. 167 Where two coroners in a county, in minitterial adts return to be by both ii. 10+ Jull.ces oi oyer and terminer, or of peace cannot aflign a coroner, as juflices oi gaol- delivery may ii. 32 Coroner may take indiclment of Je defendendo ii. 46 Three kinds of coroners, and who they arc ii. 53 JUayor of London by charter coro- ner thereof ib. Bilhop of Ely hath power to make them in the IJle ib. Byltatute power of ele6^ing coro- ners conhrmed to counties, yet a laving to king and other lords, ■who ought to make fuch coro- ners ib. So king may grant coroners within certain precintls ; and lords of franchifes, havmg power to no- minate them by charter, may ftill do it without eleflion ii. Page Si- Admiralty and verge by king*«, grants have power of granting, or having coroners ib. Of death of mart, or other articles belonging to coroner, ariling oa the high lea, inquilitions have been ulually taken by coroners appointed by king, or liis admi- ral, and coroners of county have no jurildiction ib. Intiuilitions taken before coroner of admiral are returned before commiflions on 28 H. 8. and inquifition before coroner of county are returned before com- midioners of gaol- delivery for the county ib. Coroner of the verge, or of /i/«_f 's lioufe, by who noniinated, his power; coroner of county by Itatute to join in inquifition of death of a man, what cafe ex- cepted ii. SI-, 55 But he cannot take inquifition without coroner of verge ; but both oHices united in one, inqui^ fition taken before him is good ; and if court remove, he may proceed on the inquifition, as coroner of county ii. 55 In what cafe coroner of houfliold ftiall take inquifition without co- roner of county by a jury of the houlhold ; the return and pro- ceedings on thel'e inquilitions regulated by llatute ib. General coroners of counties, how and where eligible, and how to be fworn ib. How to be qualified ib. Their olHce not determined by kivg\ deniife ib. Being elected by freeholders of county, if they be futiicient, whole county ihall anfwer ii. 55, 5C Some counties have more, fome fewer; by flatute each county of IVales two, and Chejier two ii. 56 If there be above two in a county, mid a writ is directed coronato- riduSf A TABLE OF THE PRINCIPAL xMATTERS rihus, tho one dies, vvhilft plu- ral number remains, a return by the coroner is good; but if only one furvive, he cannot execute and return it till another made ii. Page DO But if two coroners in a county, or more, one may execute the writ, as in cafe of an exigent y but the return muli be in the name oC corona tores ib. Coroners amoveable for caufe, and new ones may be chofen by ■writ, tho caufe not travcrlablej yet if falie, they may have a juptrfciUas to the new writ ib. Their power of proceeding to trial or judgment in pleas of the crown, or execution upon out- lawry, taken away by Magna Chart a ii. 56, 60 Of what they yet retain a jurif- diclion ii. 57 Kegularly have no power to take inquifitions, but de fubito mor- iuis^ and forae fpecial incidents li. 65 If one die of hunger, and villbury him before coroner fent for, it fliall be amerced; contra, if of a fever or apoplexy ib. If vill leaves a body, that died of a violent death, above ground unburied, it fliall be amerced : fuch amercements may be fet on prefentment of grand inqueil, or coroner ib. If prifoner die in iing^'s bench pri- fon, clerk of the crown, who is coroner of that court, is to view the body ii. 58 Coroner mull takeinquifition in perfon, or elfe it is void ib. What inquifition to contain ib. If body buried before he come, what he ought to do in fuch cafe, cannot take inquifition, other- wife than /uper vijum corporis ii. 58, 66 If betake inquifition without view of the body, he may take fe- cond inquilition upon view of iti fecond good, firft void ii. 58, 59 But if firft be taken on view, fe- cond is void ii. Page 5i^ In default of coroner, who may inquire of a felo de fe^ or cilier fuddcn death; juftices of peace, or oyer and terminer may inquire thereof, and fo may B. R. bat then that prefentment is traverf- able ib. If conftables make not a return of coroner's precept, or jurors ap- pear not, conftables or jurors in default, by whom amerced ib. Jurors not challengeable by either party ib. 11 H. \. extends to iJiefe ivquiji- tions ; and if a juror be out- lawed, tho but of trefpafs, this a good plea to coroner's inqueft of murder ii. 60 Of what matters jury charged to inquire ii. 60, 61 If one be killed by another, and it be certainly known that he kilt- ed him, it hath been held, that jury mufl hear evidence only for the king.^ and jury muft find it murder, tho juUifiable or excuf- able homicide ; but this practice neither warranted by law nor reafon ib. His inqueft rather for his inform- ation of the truth of the fad, than for an accufation ii. 6! Tho prifoner may be arraigned on coroner's inqueft finding it mur- der or manflaughter, yet bill of murder may be preferred to grand inqueft, and thereon he may be arraigned and tried, tho coroner's inqueft comes up only to manfiaughter, ^c. ib, Anticnt practice hath been for co- roner's inqueft to find the mat- ter, as they judge it ib. Difference of penning \ IfS 2 P . £3* M. of examinations taken by juflices of peace and coroner ib. Whole evidence to be returned with inquifition ib. Several kinds of fudden, violent deaths ii. 62 If CONTAINED IN THE TWO PARTS. If inquell find he died ex vijlta- tione Dfi^ or per infortunium^ vvliat only to be done. ii. Fa^t hi In no cafe coroner fets any fjne or arnercemenl, but only prclents it to next gaol- delivery^ who inipofe it ib. ]f in(|iiert lincl owfz f do de fe^ what they are ^"yrther to find and do ib. f irft finder of body to be bound over to Jiext gaol- delivery, ii. G2, G:j If parly flainand felon not known, inqucll to find accordingly ; what the antient manner of in- quiry 63 If teloji known, and Jnquifition iouud him guilty, what were tiie proceedings ib. One found guilty by coroner's in- quelt, or that he tied, they arc to inquire of his goods and chattels; and antiently coroner was prefently to feife and in- ventory the goods, and deliver them io iI9 Tho a pardon rellores not blooJ, yet as to ilfues born alter, it is a reftitution 3:iS But reftitution in its true extent can only be hy parliament ib. Such ac'Js conflrued liberally ib. Tho it be to reltore B. only as heir to .4. it rcitores alio his lineal and collateral heirs ib. Vide jf orftitiire, jFclonp hv ,^ta^ tiife, ^t\tut£0 m C3iiuraL She may be guilty of mifprlfion of trcafon of a ftranger; but whe- ther concealing her huiband'4 treafon be niilprilion Pi^ge 4>J Baton and fer/ie joint Ie(r>-*es of a term, he kills himfclf, flic fliall not hold it againii iin^ or almo- rur 413,414. Couiril, Who antlently were the kin^''ile^at council 421 Where prifoner allowed to have council. Vide arraignment. Coimterfdtins Coin. Vide Co.n. Coiintcrrfiting Great S)p:iI, i^ri^ ijp Signet ano ^dribp ^eal. Tide ^tat. Coiintfrff it ing ^\^n SKaiiuaL Vide ^ign ipaniial. Cobrrture. A feme covert indided of a mifdc- mcanor may be fined and iai- priloned 20 But in aliife, if fhc vouch a record, and tail at the day, Ihe fliall not be imprifoned ib. Command of hulband exempts not wife in treafon, nuiidcror mnn- flaughter 45,47,434,516 But if Ihe commit larciny or burg- lary with him, flie is to be ac- quitted 45, 516 Yet coercion is only prefumed till contrary appears ib. Wife acceflary before to a murder committed by hulband, no> ex- cufcd 47 Her alFent to his treafon makes them both principals it). Where he may be accelTary to her, but not flie to him ib. She cannot be accefl^ary rt//'. /?. to be obeyed by juftices fitting in Durham^ or within cinque [orti ii. 3S, 211, 212 Tliey fliall hold their lellion luitliin Juch liberties^ and not elftiv/ure ib. None ■within luch liberties coin- pellible to appear out of larnc before other julticts ib. Where luch franchiles were anti- ently granted to abbots, there is a Ipecial comniillion of gaol- delii'try for that franchile ib. RelhiCtion o{ fitting ivit/nn fran- chife extends not to commilhon oi oyer and terminer ii. 38, 3D This relumption extends not to cities and boroughs ii. 3i) Vide jf raiicijiff, CfFtionru Court. In Juhiis rather to incline to ac- quittal than conviction. Pnge 300, 5oy Not bound to take notice at an- other/_^o«j that a man is attaint ')0 Ought not to 1)C tranfported uiih hcinoufnefs of otfenfo 87, (i.io' Of the court before lord high lleward for trial ol peers ii. 7 Amply treated by lord Coke ib. Expolition on 33 H. 8. for trial of treafoui ■aX\'■ 1^^ ' 1 Can only proceed on indictments taken before thcmlelves, and not on coroner's inciuelts, and there- lore have in fame commiflion one o{ gaol -delivery li. I I Where luch commiffion determin- ed by general coinmillion ofo;r»* and .'f > tnintr in fame county with notice, and where this fpecial commilfion determines the gene- ral pro tanto of county, as within verge ib. Commiffions for verge difufed li. If penalty be recoverable in any of kiiifi courts of record, a^ ex- tends only to the four fuperior courts ii- '-^y Where the words, no "ojager of tazvy ejj'oiny protedio/iy 6zc. fiall be al- iovjcd, lie up jurifdiction to courts, that can allow protec- tion, '^c. li- 30 Where penalty made recoverable by original writ, it is reilrained to fuperior courts, tho many contrary inftances ib. Where one attaint is brought into another court, execution not to be awarded agaiiill him, till de- manded what he can fay againll it 36a D d 3 By A TABLE OF THE PRINCIPAL MATTERS / By 3 H. 7. imagining and confpir- ing to kill tiic kui^, or an)- of his council is made felony ; who thj only judges, and by whom prefentment and trial muft be Page 663 All courts, having judicial power by common law, or llatute, have power to grant warrants for ar- refting ielons, but fiich as are (imply minifterial, and have no juriliiiclion, as confiablcs, can- not illue warrants ii. 105 Cuftom of the court of B. R. part of the law gf the land ib. Vide 3Jt)miraItP, Cfrtiofari, Commuiion, (^aobOflibirp, ICuaui.s of a^ffifc, of gDcaci?, i^nia'.fir Bcnclj, Sb'^ix aiiD DAY aud Night defined 550, 551 Dlftindion between JeoJands ?«»- vintia ad jnorte7n &" quit/cent ifi Paoe -120, 421 What moveable things (hall be dcodands, OX not ib. What things not moveable 422 Where there fliall be Jeodand^ where party flain is within age of difcrellon, or not ib. Where a fiiip, ^c. Ihall be a deo- dand^ or not 422, 423, 424 Bifcontinuance* Indidment not difcontinued by klng"^ death, tho in fome cafes procefsbe ii. 189, 209 Where prifoner hath pleaded not guilty, and then makes default, whereon exigent is awarded, firft ilfue is difcontinued ii. 224, 225 ^omUj8f Sl^anfionalis'. Vide Crqufculum explained 650 i©c^er* Vide ^crfcitute* Where it is lawful to (hoot them 10 ?DciTiife of t\)t ining. vide doir:^ mii'fion, iung. ^runkfimefs^* Where it excufeth or not 32 ^urefs". Vide ij^ereffitj'. ^tmurrfr. Vide ^ita^. Explained 4^7, 4ii Defcribed ; how applied 4?9 I^'ot forfeit till death found ; can- not be claimed by prelcriptlon, and why ib. On deatli by mifadvenlure, what inqueft to incpiire of ib. ntlata, chargeable with procefs for dendands or value^ tho not delivered to them ib. S-vord, is^c. of a flrangcr forfeit lb. '. R. where amerce- ment may be fet ib. txcrutors rined for negligent ef- cape in their tcllator WM- E/capium, and the Jranchife to be quit thereof, explained 604- Coroner hath power to take in- quiiition of elcape ii. 62, o3 If private man dilcharge one lul- peCted, whom he hath arrefled, without bringing him to juftice or conrtable, it is an clcape ii. 81 If felon not once in the hands of the oflicer that hath warrant to arreJf, no elcape ; but yet it may be an efcape in townfliip, for which they (hall be amerced ii. 9.'i Vide ^tmcrffmnit, breaking ^n? fo». (iSijiDmce, InDiamiiit, KffCUP. Where defendant is indifled, and pleads to indictment by a wrong name, that eftoppel Ihall avail Iheriff or officer, that doth exe- cution ii, 175 So in a civil adion, if defendant appear by wrong name, (herilF in falle imprifonment Aiali have like advantage ib. How coin proved ciurent Page 19G, iy7, 201-, 212, 2J3 How foreign coin proved legiti- mate 197, 198, 2i:i, .'no, 31C Intention how to be proved 229 Where by I iJ '2 I^.(:^ M. Iw formations taken before juliices of peace may be lead in evi- dence againft a priloner 305, 306, .')86. ii. 284-, 283 Whether, if informant was bound over, and appear not, they majr be read 305 ^'\ hethcr juftlccs of peace of a fo- reign county may tranlnat fuch infurinations before juftices of gaol. delivery of proper county 30.b, 306. ii. 285 As to examination of prifoner, it muft be teltihed, that it was without menace or undue ter- ror ii. 285 Depofitions taken in a caufe of di- vorce, offered to prove force on indictment for forcible marriage, rejeded, and why 306. ii. 285 Hcar-fay no evidence, but from oflender hinjfelf ib. In murder A. indided, as having given the mortal Itroke, B. ana C. as prefent and alliiting, if proved that B. gave the mortal itroke, and A. and C. were pre- fent and allifting, it maintains indidment, and all oulted of clergy; but contra, on indid- ment on 1 Jac. of Itabbing; for he, that gave the ftroke, Ihall have his clergy on fuch indict- ment 437,463. ii. 185, 292, 344, 345 Whence evidence of malice mull arife to conltitute murder 45 J, 432 Where malice in law maintain^ indidment of murder 460. ii. 292 What circumflances are evidence of a felonious intent on indict- ment of larciny 508, 509 Thieves come to rob A. and force h;m by menace of death to go and A TABLE OF THE PRINCIPAL MATTERS and fetch them money, -which be doth, it maintains a general indiclment of robbery Pagtbil, 533 In indictment of robbery •violenier miili be both alledged and proved 53 !■ ^Vh;it evidence to maintain indict- ment lor TL felonious cj'capt^ breach cf prij'on^ or re/cue 599 Raviilier, having kept the woman as A concubine before the fup- poled ratCy evidence or allent 628, G'29 What concomitant circumftances neccilary evidence of a rape 633 to 63G On indictment o{ fecond forgery to make it felony, record of lirll conviction hy judgment muft be proved 686 If alledged, that party was killed with a fword, and proved that he was killed with another wea- pon, indictment maintained ; but contra^ if by another kind of death, as Itrangling, ?^c. ii. 185 Whether an information taken in treafon can be r-ead in evidence on indictment of treafon ii.28S By 21 Jac. mother of baftard-child concealing its death, fhall fuffer as in murder, unlets (he prove . by one witnels, that child was born dead ii. 288 Indictment need not alledge, but it muii be proved on evidence that {he concealed it, il" advan- tage be taken of this liatute ii. 289 If no concealment proved, left to jury to inquire by circumftances, whether Ihemurdered it or not; but it doth not put her under an abfolute necefiity of jiroving it born alive bv one witnels; lo evidence ftands but as at com- mon law ib. If on view of cliild it be tcfaficd by one witnels from probable circumftances, that child was not come to its delitum partus ttmpusy this is proof by one wit- nefs, that child was born dead, fo as to leave it to the jury, as upon a common law evidence, w hether the was guilty of death, or not ; what fuch circumftan- ces are ii. Pa^e 289 In Ibme cafes prefumptive evi- dences go far to prove party guilty, but better five guilty perfons efcape unpunilhed, than one innocent man die ib. Cautions againft convicling on doubtful evidence, with inftan- ces of innocent perfons having fullered thereby 300, 509. ii. 289, 290 Not fit to convict any man for flealing goods cujujdam ignoti^ merely becaufe he cannot give an account how he came by them, unlefs due proof made, that a felony was committed of thofe goods ii. 290 Nor to convict any one of murder or manflaughter, unlefs faCl proved to be done, or body found dead ib. Variance between indi^ment and evidence in county materia], but not in vill ii. 291 If evidence in cafe of murder dif- fer from indictment in fpecie mor- tis^ it doth not maintain indict- ment ; as if indictment be for killing by poifon, and evidence be of killing by {tabbing ; but comray if indictment vary in fpecies of the poifon, or indift- ment be for killing with a fword, and evidence be of killing with a ftalf or gun ; eft'eclual word in both percuffit ib. And fame law with refpect io ac- cellarics to fuch principals ii. 292 If ^. and B. be indi6ted as prin- cipal, and C. as accelfary after to both, A. and B. are convict, or only A. is convict, and on the evidence againft C. it ap- pears he was only accvifTary tq A. it maintains indictment ib. One indicted on 1 Jac. againfi itabbJng, il' it appears , on evi- dence, CONTAINED IN THE TWO PATRS. aJl have them 41-1< He forfeits his goods and chattel'?, but not his lands, nor wile's dower ^"K' *' * Baron and frme joint lefTees of a term, he kills liimlcllj flie Ihall not hold it agauilt kiu^ or almo- ner 413,414. How tlie forfeiture fliall relate ib. 'I'here mult be an inquihlioti to inlitle the kin^] if the body cannot be fcen, conviction to be before jufiices of oyer and ter~ miner, or peace, and then tra- verfable; but if it can be feen, then before cui oner /uper vijum corporis, and whether traverlable 414 to 418 Where inquifition y}<;)fr •vijum cor- poris quafhed, and coroner or- dered to inquire dt nofo 41,5 Where party found to have died per infortunium, and fuggefted on part of king or almoner, that he vvas/V/o de fe, writ of melius inquirendum denied; if granted, ■would have been void ib. What default of coroner's inqui- fition ftiall be fupplied by this writ ib. Procefs may be made againft thofe who detain the goods in the in- quihtion 416 Vide ccrourr, BfOi^anO* :1ft lorn' bp Common X.ato» Open refinance of jaflices of oyer and tirminer, felony 1 4i'> Every felony ijicludcs mifprifion, and oilender may be indifted of the latter only 652, 703 Vide :irfon, ';3r(3<:\) of ^rifon, 25iiralan', Chape, fdo Oe ff , li^cmicifif. ii.arjinp, £i?)iirt)fr mio £^an;&laugl)rtr, i\ffc«r, filony lip xfAtiiri% ■Wtlim, 2. de uxore ahdufta Jive rapid cum Icnis ".uiij makes it felony 63*7 tx,- A TABLE OF THE PRINCIPAL MATTERS Expofilion thereon Page 37to6+0 Wife voluntarily going away with a llranger, and taking hulband's goods, felony in neither ; but trefpafs in the Granger 637 Judgment of death antiently given in a civil action brought on this fl(f?, but difufed 638 If defendant convided in this ac- tion, it antiently lervcd for in- diftment ii. 150* jirticttli fuper cartat make pur- -jeyors t'elons in certain cafes 639, 61-0 But purveyance now taken away 6-ib 14 E. 3, makes it felony in gaoler by ilurtfi of imprjjonmint to make one become approi'tr againjl his ivilly clergv allowed 6-tO, 641 But exleads not to a gaoler defafio 6U 15 //. 6. makes exportation of loool and iDoolfells other than to tJiefta- flc of Calais or freights rf Mo- rocco, felony ; clergy allowed ; yz/^ri? whether in lorce 6\'2, 6bi 37 E.3. nr^ke^fealing falcons, 'Csfc. felony, what proof required ; within clergy 61-2 5 H. 'U c. 4'. multiplication of gold and fiver ^ clergy allowed, o'^t Cap, 5. malicious cutting our tongue, or putting cut ejes, clergy allowed 6-lo 3 //. 5. coining or hinging in gaily- half pence^ fufkins or dodkins ib 2 H. 6. Payment or receipt of blanks^ clergy allowed; now difufed ib 3 H. 6. Congregation of [nafons to prevent /latutes of labourers, but ads relating thereto repealed ib 33 H. 6. Servants after mafcer's de- ceafe, taking andfpoiling his goods, clergy allovved (ib3 Wherein extended beyond the let- ter 654 I H. 7- Hunting ivith vizors, and refcuingfuch hunters ; expofition thereon 65G to 659 3 H. 1. Imagining and confpiring to kill the king, 07 any of his council^ clergy allowed 661 to 664' Who u felon for confpiring the death of any, and what great perlbns vvithui tliis afl ; who the only judges, by whom prefcnt- ment and trial, and where trial to be Pa^e 663 1 E. 6. repealed all new felonies enacted tempore //, 8. Cs' I M* repealed the fame, and the new created felonies tempore E. 6. 308, 309, 664' But neither extended to piracy, or any a^, which did not coniti- tute a ne':u felony, but only di- rected proceedings in old felo- nies withrefpect to clergy, trial, CiTV. 308, 309, 661-, 665 A divifion of ftatutes of H. 8. (ff E. 6. confitutive of new felo- nies 66':> Which of thefe never after revived or re-enaC"led ib Which repealed, bat re-enacted with or without alterations ib Some offenfes made felonies before H. 8. but extended farther by a^Is in his time, and then o/ ieft knoiv- ingly; no clergy 336, 614, 615, 6SS 31 £//a. iMlezzling king's armour; within clergy il> Expolitiun thereon ib 3b Eliz. cap. I. Arecufantrefufing to abjure, or after abjuration to depart, without clergy ib Expofition on this a^ 688 to 690 Circumlianccii necelTary to be al- ledged and proved 689, 690 Cap. '1. A popijh recufant refufing to abjure, or after abju- ration to depart; without clergy 690 39 Elix. 1 Jac. Dangerous rogue banijhcd, or adjudged to the gal- lies, returning fans licencty with- in clergy 691 But branded rogue brggi>:g or ivan. dcring, oulled of clergy ib 39 Eliz. Meandering foldiers or ma. riners, or idle perfons -xandering asfuch; felony in certain cales, no clergy 691, 692 1 Jac. cap. 1. Witchcraft; no clergy 691-, 695 Cap. 4. Subjects fajjing fea to ferve foreign prince^ ivithout tahhig oath direded: clergy al- lowed 696 Cap. 21. Of murder of ba- Jiard children. Vide (gUlOmce, JnDirtmint» ■ Cap, 26. Acknowledging fme^ recovery, deed inrolled, Jiatute, of recognifance, bail, or judgment in name of another not priiy to fame ; clergy ouftcd, but no corruption of blood or lois of dower ib Bail taken, but not filed not with- in this ad [but lince made felo- ny] ib Cap. 31. Going luith plague fore, but dilcontinued 695, 696 Statutes ena^ing felonies continued down jrom the time the author ivrotc till this time P-.Jge 697 to 7U3 Vide ©rwking ^rifon, Bug* mv, 13un/lan>. forcibit- i-parriiae, yrov^rp, jOol'ma^ mv, Ha|ic, I'xi'.oro, ^titutvs m gem rat, &c. fine. All acis fpoaking of finci or ran- foms at iiiig'?, plealure, mean of king's Juilices 375 Prelentnicnt of a negligent efcape by grand inquell not fufticient to convict ofiicer, becaufe lie nuift be fined; but fiiHicient f<>r an amercement of a vill 60J Where executors were lined for u negligent cicape in ihiir ttjia- tor ij(j I. What the meafure of a fine for a negligent efcape ib Where a prohibitory cd makes a penalty recoverable by action of debt, but mentions not indici- mcnt, party may be indicted, but fine not to exceed penalty ii. 171 jforce. Vide j]?cceffit)% ;f orciblp (2ntrp» If one be indi6led for a riotous and forcible cniry contra formam fiat. and the Itutute is milrecited ; in- dictuient quafhcd ii. 171, 172 Juilices hy jlatute may make refti- tution on indictment found at private lellions before any quar- ter-felfions happen ii. 213 For removal of indidment of forcible entry by certiorari. Vide t^tr^ tiorarK ^orciblf iDftainiT* If one hath been in poflTeflion of a houfe for three years, he may de • lain it by force, by 8 H. 6. 4+5 A TABLE OF THE PR1IS'CIF.\L ^MATTERS By 3 H. 7. Taking a xvoman agninjl her i-cill and marrying her^ made felony Page&W^ 6J9 Expolition on this a^ 614-, 6n9 to 6GJ Acceflarics before and receivers principals CI 4, 661 To what women it extends or not 660 Taking away in one county and marrying in another, where ot- iender indi6lable ib Marriage with confent excufeth not, it'firit taken away againft her will , ib She may be a witnef-;, tho a wife defaiio 301, 302, 660, 661 Principals and accelfaries before oufted of clergy 661 Whether receivers of fuch women be oufted of clergy 6 14-, 661 ;Jforfciture* Fort'eiture of goods for treafon fame as for felony; but fome difference as to grants of goods fo forfeited 239 forfeiture oflands for treafon 239 to 259, 356 At common law lands intailed forfeited for treafon, and fo by 26 H. 8. ^ 33 H. 8. now in force 211 In the cafe of grandfather, father and fon, grandfather is tenant in tail, father attaint of treafon dies firlt, the lands (hall defcend to the grandchild ; father could forfeit nothing, and 26 H. 8. corrupts not the blood by. at- tainder of the father ib Jf after 25 H. 8. and before 33 //. 8. which vefts all in the k:ng without office, tenant in tail had been attainted of treafon, and had died in that interval, the lands would have defcended to the fon till office found; but contra in cafe of tenant in fee- fimple attainted, and dying be- ■foie office ; in this cafe freehold is calt on king without office, and none can take it elfe Fage 2 )-2 King at common law and by 26 H. 8. was intitled to a right of entry, where party was in n^ere- ly by dilTeifin or abatement, but not to a right of entry, where polfelfor was in by title ; but by 33 H. 8. king is intitled to right of entry in both cafes, r-nd tiiat without office; but there nmft be inquifition or feifure to bring king into actual polfeffion ib If king grant over before fuch feilure, how grant is to be, or elle void ib One committing treafon hath then a bare right of adion touching lands, or a right to reverfe judgment given againft him, or to bring a forme don or writ of entry, but bath no right of en- try without recovery in fuch ac- tion ; this right neither by com- mon law, nor 33 H. 8. is given to the kiii^ by attainder of trea- fon ; J~ed quaere ib Tenant in tail of the gift of R. 7- reverfion in the crown, made a feoffment in fee, and then was attaint of treafon, and died, leaving iffue ; the feotibr againfl his own feoffment could r.at claim any riglit at time of the treafon, yet there remained in him a right of intail forfeited to the king ; and king is in as of his reverhon, which is not fub- jeCi to leafes duly made by te- nant in tail before his attainder 242, 213 Tenant in tail general makes a feoffment to the ufe of himfelf in fee, and before 26 or 27 H. 8. commits treafon, and is at- taint, and dies, leaving iffue inheritable to the intail, then a fpecial ad is made, whereby he was to forfeit all eflates and rights; tenant in tail can have no right againft his own feoff- ment; but when eftate -returns to him, that is forfeited by the attainder •, CONTAINED IN THE TWO PARTS. aUainder; and king fliall hold this cftale dilchargcJ o\ the right of'old intail, and that fiiail ne- ver revive to tiie ill'ue; retro- fpe<5l oi' king'9, title by attainder lliall over-reach and avoid the remitter wrought in theillue be- fore >f///^'s actual Ceifin by tlie attainder, or ollicc thereon Fa^e 243 King makes a gift in tail, laving rcverfion to himfclf, attainder of" trealon of tenant in tail bar- red not his ilFue, becaule of 34- h. 8; v^hich derogates from 26 Q>' 3J H. 8. 24-:3, '2+1. But .5 '^ 6 E. 6. being piiijhe to thole afls, makes lands of the gift of the king in tail fubject to forfeiture for treafbns 2+4- At coiiunop law king not intitled to a condition of re-entry in party attaint; but in what cafes he is intitled to fuch a condi- tion, or not, by 33 //. 8. 244- to24S Title to a condition of re-entry defcribed 24 4- Diflx-rence, where condition is tied up to the perfon, or not 214, 245 At common law iin^ by attainder of treafon not intitled to ufes or tru((s 247 1 ruils dilfer not from ufes in fub- Itance 24S Whether aiiy other ufes but trufts at making of 33 H. 8. 248, 249 \\ iiy trufts kept iVom being exe- euicd by 27 //. S. 243 \\ lierein held and ufed as different from ufes ib Whetlier tvnil of a freehold for- feited bv attainder of trealon 248, 249 Ki'g made a leafe for years to one for provilion of wines for the ki/ig in truft for another, who was afterwards attainted of fe- lony, held king fhouid have the trult 2 IS So if one outlawed have a bor,d made to another in trull, it lluul be executed by inforuKilion iii e^tchtquer or (iiunccyy ib Vol. 11. By attainder of cefly que trufi \n f('e-(imple, neither land nor truft comes to the king or lord by cfcheat Page 249 Efcheat only oh defeBum lenentis il> Attainder of felony not within 33 H. 8. it» Dili'erence between a term in grofs in truli lor party attaint, and truft of a term to attend inherit- ances, quoad forfeiture for fe- lony 250, 251 King intitled to a term for years in grofs, not in Y>o\nt o'i ejc he at by his prerogative, but as hav- ing bona ^ catalln felonum ib At common law, ^///^ by attainder of treafon, not intitled to any chattels, which party had en autre droits as executor, ^c. of in right of a corporation aggre- gate '-^51 Baron pofTelTed of a term in right oiWwfefne forfeits it by attain- der of treafon, 'isfc, ib But as to lands of inheritance, whereof he is feifed in her right, if he be attainted of treafonj king hath the freehold during the coverture ib So if tenant for life be attainted of trealon, king hath freehold during life of party attainted ; and fo he had before 26 H. 8. by attainder of tenant in tail 251, 252 Ai common law, and now, in cale of a corporation aggregate, no- thing was, or is forfeited by at- tainder of the head of the cor- poration 252 At common law, a fole corpora- tion, as abbot, ^c. by attain- der of treafon forfeited to the k.tig the proiits of their abbey, fcc- (luring their incumbency; but their luccellbrs not bound by fuch forfeiture it> But by 2(5 ty 33 H. 8. thefe fole corporations forfeited the inherit- ance, and their luccellors were, bound by fuch attainders ib But 5 y 6 E. 6. rcliores the ri^ht of lucceilojs 253 £e By A TABLE OF THE PRINXIPAL MATTERS By common law, all heredita- ments, whether in tenure, or rot, as rents, ^c. are forfeited to the iifig by attainder of trea- lon ; but inheritances purely in privity, appropriate to the ' perion, are not i'orieited either by cornnion law or ftatute, as a foundertlnp, isfc. P^^c --^^ At common law by hulband's at- tainder of treafbn or felony, •wife loft her dower ; hwi conti n by 1 E. 6. ib By 5 ^ 6 E. 6. hullaand attaint of treafon, wife iliall lofe her dower; and it ftands fo now, fave in treafons made by parti- cular a^s, where dower is lav- ed, as, (d'c. ib The thefe are called royal cf- cheats, the kirg hath thefe for- feitures in jure corotiiT, ofwhom- Ibever the lands be immediate- ly held ib A manor is held of the king^ as of his honour of D. and manor efchcats for felony of tenant, it is now parcel of the honour; and if king grant it out again generally, it Ihall be held of the honour ; but if it efcheat for treafon, it is no parcel of the honour; and if granted out ge- nerally, it ftiall be held in ca- pita ' 254. Wliere land comes to the crown by attainder of treafon, all mefne tenures of common per- fons are extinCt ; but if king grant it out. he is Je jure to re- vive the former tenure, for which petition of right lies ib If tenant in tail of the gift ef the kirg, the reverfion in the king jnuke a leafc foryears, and then is attainted of treafon, the king ftiall avoid that leafe, tho to nant in tail have iffue living; ytit if he after fuch leafe had bargained and fold, or levied a . fine to the king, the king ftiould be bound by fuch ieale, as long as there is ilfue ib At common law divers lords had bv (pecial grant, or in right of tlieir counties palatine, royal tfchents of the lands held with- in their franchifes of perfons attaint of treafon, and feveral inftances thereof Pi^g^ 254'. 255, 256 In what treafons or not they fhall have fuch royal eleheats 25G, 257, 258 26 H. 8. in force as to forfeitures for treafons within 25 E. 3. 257 There is a provifo in 5 Eli%. whereby clipping is made trea- fon, to iave or confirm the rights of perfons intitled to fuch royal efcheatson attainders of treafon within this aB ib No like claufe in any other a^ of new treafon ib He, who hath pira regalia, fliall not have Ibrfeitures of tenant in tail for treafon ib Royal efchcats by prefcription ex- tend not to new treafons 256 271 Of the forfeiture of lands in a county palatine by attainder of treafon out of a county palatine^ or e cowverfo 28 S Antiently, if one had been flain in open war againft the ki"g^ the king did de fa^o take a for- feiture, and liow, and where taken 342 But in all other cafes, whether of felony or treafon, if party died before attainder, or after conviction, and before judgment, there enfued neither attainder nor forfeiture of lands 343 If a traitor or felon re/cue himj'elf^ Of ivill not fubmit to be arreft- cd, and on refiftance is flain, on preferitmcnt thereof he fliall forfeit his goods and chattels; but whether prefentment tra- verfable ; per afcuns^ he fliall forfeit the iffue of his lands for a year and day 343, 363, 489, to 492, 602 One arraigned for felony or trea- fon, CONTAINED IN THE TWO PART3. fon, tho he bo acquitted, yet if it be found he lied, forfeits his goods Pape 3 « How far in trcafon attainder after party's death oulted by i'tatute .'M3, 34+ One attaint of piracy before com- niiflior •' "oyer atld terminer on '28 H. 8. according to courfe of common hiw foreits lands and goods; but it works no corrup- tion of blood S.'vl- If hidband leifed in jure uxuris hath id'uc by her, and then flie commits trealon, and is attaint and dies, hulband Ihall be te- nant by courteiy ; contra, if trea- ion committed by her before itTue had 359 Tenant in tail is attaint of treafon ; kin-^ on office found hath the freehold during life of tenant m tail 3.")9, 360 Attainder of treafon, or felony of a copyhold gives the kinj^ no forfeiture; but it regularly be- longs to the lord, if not a con- trary cullom 360 By cuftom of Kent lands of one at- taint of felony dcfccnd to the heir; contra of treafon ; but the lands of one attaint of felony by outlawry, or one abjuring, eicheat ib. In petit treafon and felony lands efcheat to the lord ; but ihig Ihail have t^iem, arinum ^ i.aj- tum ib. riow to be computed il). Tenant in tail, or f()r life, or huC- band leifed in right of his wife is attaint of felony, king (hall have the year, day and iva/i againft wife, illue and rever- fioner ib. Forfeiture for treafon or felony to avoid mefne incumbriinces re- lates to time of olFenfe comn; it- ted ib. Two joint tenants in fee ; one is attaint of treafon, and dies; land lurvives to the other, but fubjcd to the title of forfeiture JfcO, Sol If one be outlawed on indictment of felony or treafon, and pend- ing the procels alien the land, yet kin^' or lord (hall have the land, which he held at time of fllony committed ; attainder by outlawry relates to day and year in indittment Pa^e 361 In appeal of felony or murder by writ, if pending it party aliens, and then is outlawed before ap- pearance, lord's efcheat is loft, becaufe it relates only to the time of outlawry pronounced, the writ containing no certain time of oflenle committed ib. But contra, if defendant had ap- peared, and plaintiff had de- clared on his writ, and defend* ant had been convict and at- taint ; or if appeal had been by bill, and thereon party had been outlawed, tho before appear- ance, eicheat had related to time of fact committed to avoid 7nefne incumbrances 362 Goods of perfons convi6l of treafoa or felony, or put in exigent for the fame, or who fled, or ftand mute, forfeit to the kin^ ib. To what times refpcclively thefe forfeitures relate ib. Alienation made [of goods] bond fide by felon, or traitor, or one that flies, mcjne between offenfe, or flight and conviction, or pre- fentment of flight is good, and binds the kina^ if fraudulent, it is void by 13 Eliz. 362, 367 If a felon be killed in flight, and if be found by inquilition, for- feiture of his goods relates to the flight 362 If party comes not in, his good'j forfeit on award of exigent 365 In murder, title of lord by efcheat: to avoid ;Kf/Hf incumbrances re- lates to Itroke given 426, 591 ii. 179 In homicide per infortunium, party forfeits his goods, tho intitled, quafi de Jure, to a pardon on courfe 477, 47 S, 4y2 Officer killing felon in flight, or E e 2 ihr.t A TABLE OF THE PklXCIPAL MATTERS ' that refifts, forfeits nothing Pa^f 4-81, 4-y3, 491. If the killing cannot be attributed to any a^l of the perfon killing, but of the deceafcd, the former forfeits not his goods, quaie 4-92, 493 Where one killing another in his own defenle forfeits his goods, or not 493, l^i Forleiture for flight dillinCt from that for the felony ib In petit larciny party forfeits his goods, and lo if acquitted, and it be found he fled b'.)0 In appeal of felony or robbery, if appellant omit any of the goods ftolou in his appeal, they are forfeit; and fo in the cale of a falle appeal of robbery, where appellee came to the goods by bailment, or finding 5J3 If it be found /"(^cr ■vifutn corporis, that felon fled, and was killed in flight, this prcfentment, tho after party's death, is conclulive as to the lorfeiture for the flight ii. 154' By judgment of peine fort Cs" dure party forfeits his goods; but it is no attainder, nor gives any efcheat, nor works corruption of blood ii. 319 A convid within clergy forfeits all his goods, tho he be burnt in the hand: yet thereby becoujes capable of purchaling and re- taining other goods ii. 3S8, 389 On burning in the hand, he ought to be immediately reltored to polleiUon of his lands. ii. 389 JVhae alienee may fa>/ify attainder in point of offnift^ ui veil as time er not. Vide ;jfalut"pmS ^U fammr. For forfeiture hy felo de fe, n>id IivTj it relates. Vide ©iOOsnO, -Jfelo Df fp* Vide tcrrtiptioii anD ^S^t^itn^ tion of 131000. :for2frp. Expofition on 5 Eliz. making^ it felony without clergy, after for- mer conviction 68-3 to C37 Former conviclion to be convliftion bv judgment Page 384, 682, 683, 685, 6Ji6 Oflcnfe in anv forgery or publica- tion within this ad after former conviction, felony 68(3 A convicl of publifliing a fallip deed forges a deed, it is felony within the ad; ft> e owvcrfa ib, Ho\v indidment for fecond of- fenfe to be ib On evidence, record of firfl con- vI6lion to be proved, yet the matter of it not be re-examined ib Where antedating a deed lo avoid a man's own feoffment is for- gery ; intent herein confiderable 683 What a making forging, or aflent- ing to a forgery 683 to 686 Adent after makes not a principal, for that end it muft be prece- dent or concomitant Q%\ Making a falle cuftomary, forgery ib W'here inferting a claufe in a will without direction of divifor is forgery, or not ib Forging furrendcrs, admittances, or court-rolls, within this ad lb Forging deed or will, purporting a leale, or rent-charge ibr years is within it ; fo is forging alfign- ment of leafe for years, but not of lands in Ireland ib Where one publiflies a deed, which he has been told to bo falfe, is punifliable witliin this ad mb Forging a will of goods within it ib What ftatutes or recognizances within it, or not ib Jufiices of aliile, or eyfr and termi- ner have exprefly cognizance of ofl"eijfcs aguinfl. this ad ; it ex- tends to b. R. but not to juf- tices of peace 686 j III,', who hath franchife of infapg- ) tJiieff gives judgment of death againfl CONTAINED IN THE TWO PARTS, againft a felon not within liis jurilidiction, it is cuule of fei(ure of liberty, but not murder Page 498 Xarciny cannot be committed of treajure tro'ce^ or wreck till feiled ; tlio be, that hath them in point of franchife, may have a fpecial aclion agauift him that takes them 510 Bailiff of franchife having a gaol and cultodyof a felon is charge- able lor his elcape, and not tiie ftierift" 595 Frauchiles to be quit de murjro^ latrocinio (^ ejcapiis explained 60 i Bailiff of franchife cannot execute procels within his franchife, but by fherifl's mandate ii. 63 For fiancfiifes of coinage. \ ide (Tom* Vide Couutp idalatiuc, ^orfcit^ ure* Formerly all under twelve ought to have been in f'rank-plcdge, fave clergymen, noblemen, and knights, and their families ii. 7i > A mofl excellent conflitulion ii. 75 Vide 3lmfrccmcntjff* :f rell; ^uit ant) ^urfuit* Of reftitution on appeals on frelli fuit 539, 540, 541 How frefli fuit to be inquired 540,541 5fugam ffcit* Vide CoroniT, Jforttiturc, Jnquctt of iiDffact* 1 Sheriffs and gaolers bound to re- ceive felons, whether commit- ted by juflices, or attached ex - officia by conftablcs or private men 585, 59 1 to 597 By llatutc gaols of counties re- joined to counties 593 Where gaolers may put prifoners in irons to prevent their efcape 601 Felony in gaoler by durefs of im- priionment to make a man be- come approver againft his will 640, 641 Tower, an exempt prifon l>oni that of the fberiif i'. 410 Charges of fending criminals to gaol by common law to be boni by vill where taken ; but by ftatute by priloner, if able; if not, how levied ii- 95 Vide 31rreff, Bread] of prifon, Commitment, efcape, Etf:* cue* E e 3 (SSiaoU A TABLE OF THE PRINCIPAL MATTERS. Juftices may aflign a coroner to an approver ii. Page 31 Mint lend their records determined into the exchequer ii. 31,36 The diredion and tenor of their comniiliion ii. 32 By 8 R. '2. no .v.j,'.' cf /aw Hiall be juftice in his own county ib How expounded by 33 h. 8. as to the county ; this prohibition ufually dilpenfed witli by a fion tbftnr.te ib. By charter mayor of London of the quorum^ and lo in Noriuich ib May proceed againfl prifoners, (if in gaol) on inquilition before coroner, or any other jultices ib Jufiices of peace mult fend to them their indictments not determi- ned, whether oi felonies or tref- ' pafies ib. The import of their precept to the ftierifi"; in whofe name, and under whofe tejie it is to be ii.'32, 33, 261 What to be done on return of pre- cept ii. 'i"^ T^Iay take indictment, try and give judgment fame day ii. 29, 34" May command fherilT ore tenus to return a pannel ii. 34 They may deliver by proclamation perfons imprifoned, where no indidtment preferred, or indict- ment preferred, and ignoramus found, which ptr afcuns^ cannot be dpne by juftices of oyer and t'^rminer, or peace ib May originally take indictments of felony of priloners in g;iol ib Where felon is at large, by which of their powers in their com- rniflion they may take indidlment ib Juftices of oyer and terminer^ gaol- delivery, and of the peace may make up their records by all three ol their powers; and if good by any one comniiffion, it is fufficient, and bell IhaU be taken iiur the king ib Prifoner let to bail in law iv in prifon, and therefore juftices ot gaol-delivery may take indid- ment againfl him ; but one let to mainprile, not in cuftody ii. Pa^e 35 They may deliver gaol of perfons committed for treafon ib Others may be added, or their power contracted, by ajfociation^ or fi non omnes ii. 25 Subfequent juftices have power by ftatute to give judgment on one reprieved after conviction ii. 33 May award execution on judgment given by former juftices ib If one be indicted and outlawed for felony before juftices of peace, yet if he be in prifon, by common law juftices of gaol- delivery may award execution on (hat outlawry ib New juftices by 1 E. 6. may pro- ceed in every behalf, as if the old commiflions or commiflioners had continued not altered ii. 35, 405 Juftices may receive appeals by bill againft any one in gaol ib May affign coroner to an appeal, and make procefs againft appej- lee in a foreign county ii. 36 Sherift'is to deliver to them names of all perlons in gaol or bailed ib If an aa limit fpecially an offenfe to be heard and determined by juftices of peace ; quaere, whe- ther juftices of gaol-delivery, or oyer and terminer may hear and determine it ib But where a^i fpeaks only of juf- tices in the county, it may be tried either before juftices of oyer and terminer^ or gaol- de- livery ib By ftatute they have power to re- form pannel ore tenus^ either of grand or petit jury ii. 36, 156*, 265 Clerks of the crown, &c. are to certify into B. R. names of all perloiis outlawed, attaint, or ccnv let. CONTAINED IN THE TWO TARTS. conviCl, and fuch names fliall be certified to jultices of gaol-de- livery ii. Pa^^e 3(i, 37 Jiiliices of gaol-delivery may lend prifoners by /labtas corpus to flieriff of" another eoiinty, witli a precept for him to receive them, viz. for a I'elony committed in that county, tlio it be out ot their circuit ii. 37 Of necellity jaOices of gaol-deii- very have in (oine cafes power out of the precinrts of tiieir county or circuit ib Whether they can iflTue procefs of outlawry ii. 37, 199 /J. and B. are indicted before juf- tices of peace, and by 4 £. 3. indidlment is delivered over to juftices of gael-dclivery, j4. ap- pears, is tried and acquitted, £. appears not, the juftices of peace cannot make out procefs againfi B. becaufe record not before them ; nor can juftices of gaol-delivery make out procefs to outlav^ry returnable before the jullices of peace ii. 37 Neither can they proceed to out- lawry before thcn»(elves, as juf- tices of o^f; and terminer^ where indictment taken before juflices of peace, but tlie intire record mult be removed into B. R. by certiorari, and iVom thencc pro- cefs of outlawry ilfue ii. 37, 3S By 26 H. 8. what crimes commit- ted in JValcs, juftices of peace and gaol-delivery in counties ad- jacent to J'Vales have power to hear and determine ii. 38 Repealed, as to treafon, by 1 (sf 2 P. ^ M. but in force as to other felonies ib They are by ftatute to hold their fefiions, where county-court held but Itatute only directive 'i.'lb) They may, after priloner has pleaded, take his pannel from Iheritf vyithout making any pre- cept to him ii. '261 Where commifTion fpecial, they do not lend out a general j)reeept to the Iheritf to return juries agaiuii they come ib New juflices may award executi'^n on a party reprieved after judg- ment Pa/e +05 But not fit to give judgment, or award execution on one re- prieved by another judge, with- out knowing on wliat grounds the reprieve was ii. W6 Precepts, as venire fac. ^c. by them, need not be othcrwile than by award on the roll ii. +10 For jttry-proce/i iJJucH hy jujilcts oj gaol-delivery. Vide %Xi^\' Power (jf making jujiicts of gaol, delivery in counties palatine, and franchifes rejumed. Vide COUrUp palatine. Vide Commirfion, Court, 3:111* tm^ of M\^, 3uilici0 of ^cacc, itiiiii'sr T5mi^^, ilDpfc ano 2:crmmer,^roccf5^* CE»ooD^» Vide ^forffiturf, EfCs titution, ^C3iure* (SlranD ILarcinp. Vide Klarcinp. C-rauD 5iirp* Vide JJurp, (S>nnt» Grant of judicial, or minillerial olliccs, concerning adininiftra- tion of juiiice, during king s pleafiire, is determined by his death 70G Grant of a judicial oflice, qua^n diu fe bene gefferit, tho a free- hold, is determined by his death ib But grants of oflices of a ditlercnt kind, or of lands durante bene- placito, are not determined with- out fome ad or declaration by the fuccellor ib Forfeiture of goods for treafon, fame as forfeiture for felony ; but a difference in grants thereof 239 A manor held of the king, as of his honour of D. efclieats for fe- lony of tenant, it is now parcel E e 4 o^ A TABLE OF THE PRINCIPAL MATTERS of the honour ; but if it efcheat lor trealon, it is no parcel of the honour; and if granted out generally, ihall be held in capite Page 254 WHERE temporal judge might have taken notice inci- dently. whether a tenet was he- rely or not, and nient ohftnrte return of diocefan, have de- livered party imprifoned on this writ 4-00, 407, 408 Caufe neceflary to be expreiVed in commitment, in order to be re- turned on habeas corpus 384 It is qunji a writ of right, or error to determine, whether impri- f fonment good or erroneous ib Where jultices of gaol-delivery may fend prifoners by this writ to Iherift" of another county out of their circuit ii. 37 Of \vrit of habeas corpus ad fubji^ ciendufi!^ and bailing thereon ii. 143 to 148 What to be done on return being filed ii. 143 Party to be remanded till return filed ii. 146 Whence it iffucs ii. 143, 144 When it iffues out of C. B. or Exchequer^ it is where party is pri\ileged, or to charge hnn with an action \\. 144, 312, 313 •* If one be fued in C. B- or is fup- po*ed to be fo fued, and is ar- refted for a pre-fuppofed mil de- meanor, or for felony, this wnt lies there; and if it appears on return, that party is wrongfully committed, tlie privilege IhaJl be allowed, and party dif- charged ; or if doubtlid, bailed to appear in B. R. ii. 144 If one be fued in C. B. and is ar- reted and imprifoned for feloiij tiTc. tho gaoler on habca^ corpus ought to return the caufes, as well criminal, as that where- with he is charg.ed out of that court, yet C. B. ought not to commit to the Fleef, nor dif- charge him, nor take bail to anfwer there, but may bail on tiiC aclion, and remand him to Iheriff as to the crime Page 144 C. B. have now by jintute original jurifdidion to bail, difcharge, or commit on this writ one com- mitted by council-table, as well as B. R. and that tlto party hath no privilege ii. 144, 143 B. R. and Chancery have an ori- ginal jurifdidion to grant this writ and bail, ^c. tho no pri- vilege returned ii. 145, 147 Of habeas corpus ad faciendum ^ recipiendum granted by B. R, when granted, and before whon^ returnable ib If a civil adion and matter of crime be returned, and aftiou appear to be fraudulent, party may be remanded ; if real, court may commit him to the marflial with his caufes, tho they are matters of crime ib On writ ad faciendum^ ^c. not fingly a matter of crime ought to be returned, for that belongs to writ ad jubjiciendum ib When habeas corpus in criminal caufes iifues out of chancery, and caufe is returned, chancel- lor may judge thereof, and may difcharge or bail priloner to ap- pear ill B, R. or may propriis manibus deliver record in B. R. and thereon B. R. may proceed to bail, &'<:. ii. 147 But if chancellor difcharge him not, but bail him, furety mull: be to appear in B. R. or if cliancellor will do neither, he may commit him to I'leet till term, and then he may be turn- ed over to ^. R. and there pro- ceeded againft ; chrmceilor hath no power to proceed in criminal cauies ib Habeas corpus (before 31 Car. 2.) in criminal caufes ftiould regu- larly have ifTued out of chan- cery in vacation, and B. R. in term 'b Sending CONTAINED IN THE TWO PARTS. Sending habeas corpus ad faciendum to" recipiendum by chancellor for perfons arrefted in f ivil caules not warranted by law, and as to perlons in execution, forbid- den by ilalute ii. i'agc 14-8 Habeas corpus removes body, cer- tiorari record ii. 'iio, 211 Court cannot on bare return of habeas corpus give any judgment, or proceed on record of indict- ment, unlcfs removed by cer- tiorari; but it ftands in fame force it did, tlio return be ad- judged ill, and party be dif- char^ed ; and court below may ilTuc new procefs on indictment, tho contra on habeas corpus in civil caufes, for therein it is a fuper/edcas ii. 2 1 0, 2 11 Py whom habeas corpus to be figned ii. 211 For other matters. Vide ^iXti^i ran* Jt;aU)K0» Vide 5fpIonp bp ^ta^ tutc, Carcinp. iJ^frcfp* Vide a^elision. i;;omage* Vide ^IlUgcance* The fcveral kinds of homicide 42't Homicide defined 425 Involuntary homicide defined 4-71 In this cale, indiclment mull find fpecial ^natter, or if indiclment be of murder or manllaughter, and on trial it appear to he in- voluntary, how jury to find ib Prifoner in luch cale niufl; plead not guilty 471, 478 Pivifion of iuvoluntary liomicide 471 Homicide per infortunium defined and exemplified 472 |f one flioot at butts, and by ca- fualty his hand (liakes, and ar- row kills a by-llanUer^«;r in/or - ^unium ib So if a carpenter or mafon In building calually let fall a j)icce of timber, (sfc. and kills an- other P^^f 472,473 But if he voluntarily let it iall without giving due warning, whereby it kills another, it Wili be at kail inanllaughler, quia dcbitam diligcntiam non adhibuit il> So if one be felling a tree in his own ground, and it fall and kill another, chance-medley ib Tho chance excul'eth from felon r, it txcufeth not from trefpafs lij If two play at barriers, or run a- tilt by iino's command, and one kill the other, it is per infof lunium ; but without it, man • flaughter 473 If a fchool-mafler correct hisfcho- lar, ifSc. who by firuggling, or otiierwife dies, only per infortu- tiium 474, But if corredtion be with a lethal inltrument, or outrageous, it is murder ib Several come to enter the houfe of A. as trefpafiers, A. ihoots and kills one, manflaughtcr ; contra it" they had entered to commit a felony ib Where, on an alarm that thieves were breaking into the houfe in the night, the mailer killed a fcrvant hid in a buttery thro* fear of being difcovcred bf them, (the fervant being mil- taken for one of the thieves, and not difcerned in the dark) it was held no felony; quare^ whether homicide per injortu- nium ib If one knowing that people arp palling along the ftreet throw a llone, or ilioot an arrow over the houfe or wall, with intent to do hurt, and one is thereby flain, this is murder ; and it without luch intent manllaugh- ter, and not per infortunium .^ be- caufe «(*? unlawful 4-75 One, in (hooting at a deer in his own park, by accident kills an- other A TABLE OF THE PRINCIPAL MATTERS other man, homicide per infor- tunium^ but contra^ if it be in the park of a It ranger without his licence, then it is man- llaughter -P"^f 475 A. tlnows a flone at a bird, and thereby kills a man, to whom no harm intended, ftr infortu- 7: turn JO 5ut if he had thrown it to kill the poultry, or cattle of B. and the like accident had happened, it had been manflaughter, but not Eiurder; becaufe not with in- tent to hurt the by-ftander ib An (la prohibits fliooting in a gun without fuch a qualification, and under a penalty ; one unquJiU- fied fiioots with a gun at a bird, and it kills a by-ftander by Jome accident, that in ai.otiier cafe would have amounted only to chance-medley; this no more than chance-medley in him,keep- iug a gun in fuch cale, being only malum prohibitum 475, 47 6 A fervant fet by his mailer to watch in the night in a corn- field with a gun charged, and ordered by him to Ihoot when he heard any buRle m the corn by deer ; mailer himfelf impro- vidently rufhes into the corn, fervant fuppohng it to be deer, llioots and kills iiis mafter, only chance-medley, becaufe iervant mifguided by his orders 47 o BOt it mafter had not given fuch orders, it would have been manllaughter, becaufe he did not adhibere debitam ddigen- r.am to difcover his mark ib J. drives his cart carelelly, and it tuns over a chdd in the ibeet, li A. iiaving feen the child, yet drives on upon him, it is mur- der; but if he law not the^ child, manflaughter; but if child had run crois the way, and cart run over it before it was poffible lor carter to Hop, it is ftr infortunium ib If one riding in the ftreet whip his horfe to put him into Ipeed, and run over a child and kill him, homicide, and not ter in- fortunium \ and if he had rid fo in a prefs of people with intent to do hurt, and horfe had killed another, it had been murder Page 47 i But if one be riding in the ftreet, a by-fiander whips the horfe, whereby he runs away againit will of rider, and runs over and kills a man, it is chance-medley- only, in which cafe jury are to find the fpecial matter; yet where coroner's inqueft finding fpecial matter Hands untraverfed, court will receive verdi6l of not guilty on indictment by grand inquell, and party confeffing in- dictment by coroner, (hall have his pardon of courfe 476, 477 Killing another per infortunium^ not in truth felony, how ver- di(5l concludes; party forfeits his goods, and why; the he ought to have quafi de jure a pardon of courfe, yet he is not to be difcharged, but bailed till next term ©r fellions to fue out fuch pardon 4:77 Homicide ex neceljltnte^ partly vo- luntary, partly involuntary 478 Necclhty of two kinds: 1, Of a private nature. 2. That which relates to public juftice and fafety ib Former obliges one to his own defenfe and lafe-guard, and what inquiries this takes in ib Two kinds of homicide fe defen-. dendo^ and rcfpective confequen- ces thereof ib Homicide fe defendtndo defined 479 What circumftances therein o!i- fervable 47y to 484 There being malice between A. and B. they appoint time and place to fight, and meet, A. gives firlt onlet, B. retreats as far as he can with fafety, and then kills A. who had otherwife killed him, murder ; becaufe tlj,ey met hj compact 479 There CONTAINED IN THE TWO PARTS. There being malice between A. and B. tiiey meet caliially ; A. afFauhs B. 'and drives liim to the wall ; B. in his own det'cnle kills A. this J'e defendtndo Fage 4T9 A. alTauIts B, and B. })refently thereon itrikes A. williout tlight, whereof A. dies, this is mun- flaiighter; but xi B. llrike A, again, but not mortally, and blows pafs between them, and at length B. retire-; to the wall, and being prell'ed on by A. gives him a mortal wound whereof A. dies, o\\\-j ft eie/en- dendo ib A. by malice makes a fudden af- faiilt on B. who ftrikes again, and bearing hard on A. A. re- treats to the wall, and in faving himfelf kills B. whether mur- der, or Je defendendo; what fact the quefiion depends on 4'39, 480 In homicide fe dcfendendo^ fome afl to be done by party killing, jbr if he be merely paflive, only per infortunium 480 ^. affaults B. who flies to the wall, or falls holding his fvvord, ^c. in his hand, A. runs violently, or falls on knife, to'c. of B. without any firoke or thruft of- fered by B. and dies, per infor- tunium; qu But if felon flies, and cannot be otherwifc taken, if he be killed, jufliliable, and officer forieits no- thing i but perfon killed tbrfeits his goods ib A thief aflaults a true man, either abroad, or in his own houfe, to rob or kill him, true man not bound to give back, but may juitify killing affailant, and it IS no felony ib If ^. affault B. fo fiercely, that£. cannot fave his life, if he give back, or if j5. fall to the ground, whereby he cannot fly, if^. kills A. it isy> dtfendendo 482 Where firft affailer may be faid to kill the ■di!idi\G.dfe dejdndendoy or not 482 to 484. If A. affault B. and B. thereoa re-affault A. and A. flies to a- void the affault of B. who pur- fucs him, and then A. being driven to the wall turns again, and kills B. whether fe defen- dendo 482 But if A. affaults B. firft, and B. re-affaults A. fo fiercely, that A. cannot retreat to the wall, or other non idtrn^ without danger of his life, nay, tho A. fall on tiie ground on tlie aflauh of 5. and then kills B. murder or munflaughter ib Where one is affaulted fo fiercely, that he cannot fly, law will in- terpret this necellity to a flight to give him the advantage oty^ defendfudo : but contra^ where firlt affailant is re-aflaulted lo vi- goroufly that he cannot fly, law will not let him take advantage of this neceflity, theconfequcnce of lus own wrong ib Where A TABLE OF THE PRINCIPAL MATTERS Where A. the fir ft alTailant flics, and the affray is interrupted, and B. the tirll aifaultcd purkies J. to kill him, and A. after his flight, on necxtlily of faving his life, kdls B. it is but fe defen- iiendo; but when done altoge- ther, without any interval of flight or parting, and B. gains t!ie prefent advantage by his addrefs or courage to preclude flight of A. and then A. kills him, manllaughter Pfigc 483 Flight to gain advantage ofy'e de- ' fcndauio to party killing muft not be feigned, or to gain advan- tage of breath, Csi'f . it muft be fiom the danger, as far as party can, either by reafon of fome wall or other non ultra^ or as tiercenefs of alfailant will permit ib Whether party killing was guiliy of firft breach of peace, confider- able in thcfe cales ib What oiTenfe, if one kill another in the neceffary faving of ihe life of a man affaulted by party flain 481. A. alfaults the mafter, who flies as far as he can to avoid death, fer- vant kills A. in defence of his mafter, it is homicide dcfendindo the mailer^ and fervant (hall have his pardon on courfe : lo where mafter kills inneceffary defence of fervant 'b Like law, where hufband kills in defence of wife, parent of child, and / coniu.rfo 10 How far relation of acquaintance, and ^^^Ulal fociety will excufo one co.npanion killing in necel- fary fife guard of life of an- other 1^ Killing one attempting to rob or kill' another in caio of necelhty puts him in condition of/e- de- fcndaido his neighbour 4S V, +S,'i A woman kills a man ailaulting to ravilb her in the attempt, fe de- fcndendo 'i^'> So it is, if hufband or father kill him in the attempt, if it could rot be otherwife prevented ; b'it if it might, it is tnanflaughtcr Page 485, 4SG What the oftenfe in killing him, that takes the goods, or doth an injury to the houfe or pot- fellion of another, herein many diflerences, as between a trel- pallable and felonious aSi^ and felonious ads themlelves 4S5 to 4-S9 If//, pretending title to the goods of ^. take them away from B. as a trelpafler, B. may juftify beating A. but if he beat him, fo that he dies, it is manflaugh- ter 4H5, 486 A. is in poffeflion of BJs houfe, B. endeavours to enter on him, A. can neither juftify affault, nor beating of B. becaufe B. had right of entry ; but if A. be in poifeOion of a houfe, and B. as trefpaffer enters on him, A. may molliter martus uuponere to put him out, and if B. refift, and alfault A. then A. may juftify beating him de fon ajfault de- mefne 485 But if A. kill him in defence of his houfe, it is manflaughtcr 485, 486, 487 A. being in poftelTion of a houfe by title, B. endeavoured to enter, and fliot an arrow at them with- in, and A. from within fliot an arrow at thofe that would have entered, and killed one of them ; not fe dt'fendendo^ but man- flaughter, becaufe no danger of yj.'s life from them without 485, 486 If B. had entered into the houfe, and A. had gently laid his hands on him to turn him out, and then B. had turned on him and affiiultod him, and A. had killed him, lb if B. had entered on him and affaulted him firft, and A. had killed him, it had been ox)\y fe defendendo, tho entry of B. was not to murder, but as a trefpalfer to gain poflelfion 486 A. in inch cafe being lu his own hcrufe CONTAINED IN THE TWO PARTS. Loufe reed not fly as far as he can ^^X^' ''■■^^ Hulbaiid kills adulterer in tlie a/-l^ numllaiightcr ib DiffcrciiLc between killing a man attempting an ac^, wliieli is fe- lony or othcrvvilc, as to making life deJendenJo, ^c. ib If one conic to rob me, and take my goods as a ll-lon, and I kill bim, it is vie dtfciuUndo at leali, and in fome cales jullifiable ib hi common law, it" a thief bad af- lauJtcd a mail to rob him, and be had killed him in the alfault, it bad been fc dt:fendcndo\ but qu(cre^ whether he had forfeit- ed his goods 487 One attempting a burglary with intent to ileal, or kill, or at- tempting to burn the houfe of another, if owner of the houle, or any within had fliot and killed the perlon lo attempting, this had been no felony or forfeiture ib By 2i H. 8. killing any one at- tempting any robbery or mur- der in or near the highway, ^c. or in a manlion-houfe, or at- tempting to break a manlion- houic in the night by any pei Ion, tiic. he who kills (tho a lodger or fervant) fliall be abfolulely acquitted and dilcharged of the death of Inch perlon ib There being malice between A. and ^. and having fought ottcn, and afterwards meeting ludden- ly in thellreet, A. laid he would fight him, B. declined it, and tied to the wall, and called others towitnelsit, and A. pur- iuedand Itriick him lirli, and 5. in hisown delenle killed him, he \vas acquit from any forfeiture by this ail 4S7, 4.83 Trerpalles in houfcs, or in or near highways, are left as belbre this adi 488 It doth not indemnilv killing a fe- lon, where lelonv not acrom- panied wiih force as killing one attempting to pick a pocket ib What breaking of a houfe in tlie day this ati extends to, or not Page 4S8 One attempting wilful burning of a houfe is killed in the attempt, the killer is free from forfeiture without aid of this a^ il> If any felon, after felony commit- ted, refift thole that attempt to take him, or fly and be killed, this killing no felony; but this aa relates not to it ib If a felon before arreft refifts and flies, or after arreft elcapes and flies, and the oiHcer, not being able to take him without killing, kills him, ofiicer flwU be found not guilty ; but if he could havo been taken without killing, it is manllaughter at leaft in the olficer, and jury is to inquire, whether done of necellitv or not 489, 490 So where private man without war- rant, of necellity kills a felon refilling and flying before arrell, or after arrell efcaping and fly- ing, tho felon not indicted, it . is julliliable, for in fucli cafe. Jaw makes every one an officer to take a felon 587, 5s8 ii. 77, 78, 8'f A felon is taken, and in biingiiig to gaol efcapes, villagers purlue and of neceflitv kill him, they fliall be acquitted 489, 490 A telony done, but not by A. and B. hath a warrant, or hue and cvM comes to B. as conltable to take A. J. attempts an eicape, or relills, B. kills him of ne- ceiTity, tho A. be not indicted, julliliable ^"^"^ In all cafes of homicide by neceU fily matter may be Ipecially prefented by grand or coroner's inqueli, and thereon party may be prelenlly diicharged without being put to plead, but may be indidod again, if former indid- nvent falle ; contra, where indid" nient limply of murder or man- 491, A9J. ii. 1 >3 fla,ughter A TABLE OF THE PRINCIPAL MATTERS Expofition on 21 E. 1. Je male- fa^^oribus in farc'ts P^^^ 49-L^ Cafes, Avhere prifoner is not to for- feit his goods, but be acquitted, re«capitulated 493, 494- jS. fhooting at rovers, if B. after arrow delivered (jf his own ac- cof d runs into the place, where it is to fall, and fo is killed, yl» forfeits nothing, quaere 492 II' coroner's inqucft find fpecially Je dejendendo^ party ftiall be ar- raigned and tried, whether it Avas in his own defence or not, before he Uiall have his pardon ofcourfe 493 A conrtablc, who commands king's peace in an affray, is refilled, he need not give back to the wall, and if he kill ihofe that refili, it is juitifiable 494 Killing a rioter, who refifts, by (heriff, juftice of peace, orcon- ftable, or his afliltants, no felo- ny at common law, nor makes any forfeiture 53, 294, 495, 49 G What authority homicide in execu- tion of jujiice requires in the judge and officer, w ho executes the judgment 497 Where judge hath jurifdi6lion, tho he err, officer in exccutingjudg- nient juftified ; confra^ where judge hath no jurifdidion 501 If after or before arrell ^. an in- nocent man fufpedled draws his fword and alfaults B. the party fufpeding, and B. preffeth on him, either to take or detain him, and in conflid A. kills B. it is murder i but if B. kills yl. jufiifiable li. 83 If before or after arreft, bailifi'on affault made on him kills the party, it is jufiifiable, neither is he bound to retreat ii. 83, 118 If perfons purfued by peace-ofTi fore taken, or being taken ref- cue themfclves, and refill or fly^ ■«nd are on neceffity llain ; no felony in officers or affiltants, tho parties killed are innocent ii. Paj^e 85, 86 By their refinance againft authori- ty of the king in his officers, they draw their own blood on them- fclves, and are accelTaries to their own death ii. 86, 118 One charged with fufpicion of fe- lony on juii grounds, and where a felony is actually done, tho he be innocent, yet if he refill officer after notice that he is luch, and aflault him, and of- ficer kill him, no murder ii. 92, 93 If he fly, and cannot be other- wife taken, whether officer may kill him 490. ii. 93 One is dangeroufly wounded, and confiable is killed on purfuit of offender, murder; but if he kills offender, jufiifiable ii. 94 A warrant ilfues againft one for trefpafs, or breach of the peace, and he flies, and will not yield to arreft, or being taken efcapes, and officer kills him, murder ii. 117 But if he either on attempt to ar- reft, or after arreft affault offi- cer who hath the warrant, with intent to efcape, and officer iranding on his guard kills him, necelfity excufeth him, and he is not bound to retreat ii. 1 17, ri8 Where a warrant iffues againft a. felon, or only as one fufpeft, and cither before or after he flics and defends himfelf with liones, Cs'^. fo that ofiicer kills him on neceflity, no felony: and fo where conftable doth it -virtute officii, or on purfuit of hue and cty ii. 118 cers for felony, or breach of But where warrant is againft one peace or juft fufpicion thereof, fufpedt only, what cautions to as niglit-walkers, ^c. fliall ntjt be ufed ii. 113, 119 yield ihemfelves to thefe offi- Private man may arreft a felon; cers, but either refill or fl^ be- ilhe kill him of neceflity, he is ex- CONTAINED IN THE TWO PARTS. excnfable; but then it is at his peril (hat he be a felon ; if not, at leaft manllaughter ii. Pa^e 119 in cafe of jultiftable homicide, or that which is not felony, what coroner's inquel't to find, and how indiftnienl to b(;, and what proceedings to be had therein in order lo dilcharge the prifoner ii. :joj In indictment or appeal of felony defendant cannot jultify, but Ihall have advantage of it on general ilfne ii. 3Ut Felony commifted by B. but A. that arrells him, knows it not, law fame as if he knew it, only what he docs is at his peril ii. 7S Vide :forfiiMirf, i:nrtictm£nt, 3[uDc!mmt, t"piirr>cr anD Cl^an0lauci)ter* It^omine rt plcgiantio. vide Bail. Where aflcmbly to defend one's hoiife juftifiable; it is a man's caftle of defence 4-45, 487, 547 If one be adaiilled in his houle by a trefpalfer attempting to gain poirellion, he need not fly as far as he can, for he hath the pro- tedion of his houle to excufe him from flying 4S6 Where an ajjault, battery or fiomi- cide ii excufable or jujiifiable, in Jeff nee of foffff/ioti of a man^ s houfc, or not. Vide il^omillDf, ipurOfr aiiD iluin.slaiiSijtiT* l^ue aiiti CCrp. A good warrant to purfue and take criminals without warrant of juftice of peace, and tlio no conftablc be in purfuit ; and killing any of the purluants by malefactor, murder; all male- factors in fame lield principals in the murder 463 Condable and vill bound to pur- fue, or elle fuieable 58ti. ii. 99, 102 One prefcnt at commiflion of a felony bound to endeavour to take lelon, or raife hue and oy Page 5SS. ii. 99, lO'i It is the old common law procefs after felons, and fuch as have dangeroully wounded a i. other ii. 9S By irefm. 1. perfons iiw^iuc and (ry not purluing felons, how punilhable il> By 4 £. 1. how and in what cafes to be levied ib Statute of JFinton makes a further pro\iliun touching hue and cry ii. 98, 99 Levied and not purfued, an ar- ticle inquilible in the leet ii. 99 Tho lometimes proper to have a jullicc of peace to direct his warrant for railing hue and cry yet not of necflity, or fometicne convenient ii^ 99, 100, 102 Purfuanls in conflable's atlittance may plead the general ilVue un. 1 tsf '21 Jac. therelbrc expedi- ent conllable be called to this adion ii. 99, 100, 104. Yet may be raifed by country iu his abfence, which is called cry de pais ii. 100 If raifed, and no felony commit- ted, or on an innocent man, how they that railed it are pu- nilhable ii. 102, 104 W^here murder to kill purluants, tho without warrant or conllable 46.=). ii. 100 What party raifing it is to do, and what duty of conllable thereon ii. 100, 101 Pufuants on a fuppofed felony, not actually committed, may arreft and proceed, as if real felony done ii. 101, lOJ There needs no averment that a felony was dune in juUification of imprifonment on hue and c>y levied ii. 101, 102, 104 Yet it mull be averred, that an in- formation was given that the felony was done, il arreft bo by that conftablc that firll received the information, and fo railed the A TABLE OF THE PRINCIPAL MATTERS the True and cry \ or if arreft was made by that conftable or thofe vills to whom hue and cry came at Tecond hand, what nuifl: be averred ii- P(^g>^ lOt As hue and cry neither defcribes, nor names perfon of felon, bat only felony done; and therefore arreft of perfon is left to dilcie- lion of conftable, or people of fecond or third vill; he that ar- xefls any one on fuch general hue and c^y muft aver that^ he l'ufpected» and Ihew a reafon- able catife of fufpicion ib If one purfued on hue and cry be in a houfe, and doors fluit, and rcfufed to be opened, conftable on demand, cS'c. may break open doors >!• 102 Same law on dangerous wound given, and hue and cry levied on offender ib If ortender cannot be other wife taken may be killed ib Conftable on hue and cry may I'earch in fufpccted places with- in his vill, yet his entry muft be per oftia apa'tn^ for he can- not break open doors barely to learch, unlcfs party be there ii. 103 It is a fort of procefs, whereby conftable may arreft by defcrip- tion it> Purfuants to take fuch as they have probable caufe to fufpeft ib ' Who are fufpicious perfons ib Where they that live and have land in the hundred are compe- tent witntfte.s, or not, in action againft hundred ii. 280, 2S I i^Ujffbant) ant> Xlli^^. Vide C0;= 3Df0t, jLunatick ,,ant) {paOraan* » ■ REGULARLY no incapacities cxcufc the parties from da- mages to be recovered agamft tliua in. a civil adion lor any a^ done by them ; but contra^ where proceedings are ad pce- nam ^^i^ l^ Jdtocy, maJ/if/sy and Intiacy^ fall under the general name demen- tia _ 29 Tho by law no man ftiall avoid his own ad for thefe defeds, tho his heir or executor may, yet as to capital offenfes he hath the advantage thereof ib Idfof defcribcd ; ideocy or not^ how tried ib Dementia accidentalis, "Jel adven- titial from what caufes it pro- ceeds 30 Diftributed into a partial and to- tal infanity ib Of partial infanity 30,412 It feems not to excufe party in doing any capital offenfe 30 Moft offenders under a degree of partial inl'anity, when they com- mit their offenfes 30, 412 Difficult to define indivifible line, that divides perfect and partial infanity 30 It muft reft on circumftances ib Caution againft inhumanity to- wards defects of human nature, and e contra, againft too great indulgence to great crimes ib What raeafure of underftanding is fuffieient not to excufe in ca- pital offenfes ib A total alienation of mind ex- cufeth ib Accidental dementia, whether to- tal or partial, diftinguilhed into phrcn/lfs and lunacy 31 The moon hath great influence in all difeafes of the bram _ 30 Wlien fuch perfons are in the height of their diftemper ib One abfolutely mad for a day, killing another in that diftem- per is equally f^ot gnilty, as if mad without intermilfion ib When lucid intervals ordinarily happen _ it) Crimes committed by lunaticks during their lucid intervals are fubjftt to faraepunilhment, as if they had no fuch defeat ib ^ Alien- CONTAINED IN THE TWO I\\RTS. Aiicnadons and contnit^s made - during (uch intervals bind tlitir heirs and cxcciUors Page ?>0 Accidental demrniia^ whether /fw- forary or peimauent is, either_/V/- ror^ hjc. or delirium^ ^sfc> il) The caufes and cfretts o\' furor, (sfc. and (o oi' Jelirium, '^'sfc. ib Dementia affe^ata. Of drunkcn- nefs regularly exculetli not ex- Cfpt in two talcs, and what thele are .'2 taiy to counterfoit madncfs ib Degrees whereof various, fome ful- ticient, lonie not, to cxcule in capital ofienles 32, 'Vi How madnels with refpecl to of- fenders to be tried 'S'S Lleocy^ fe'f. how tried in order to the commitnx-nt or cultody of perfon and eltatc ib King has an intereft in an iilcot^ but in cafe of a lunaiick it is only a trull in him ib Parly found ideot^ ^c. may be brought before chancellor or king for inlpection ib All men of age of difcretion fup- pofedyizHf, unlels contrary prov- ed, and that as well in cafes civil as criminal ib If one be a lunatick, and Iiath lu- ciiia itifervalla, and this be proved, )et law prefumes acts or ofi'enfes of fuch a perfon to be committed in thofe lucid in- tervals, unlefs contrary appears, and that as well in civils as cri- minals 34- In civil caufes he, Avho allcdgcs an adl done in time of lunacy, mull Itricily prove it lo ; \et n\ criminals (when; court is to be fo far of counfel with priloner, as to aHiftin matters of law, and true iiating tiie ikfl), if a luna- ticlc be indi<5tec^ of a capital crime, and thi appear, wit- iiclfcs muft be » /camined, whe- ther priloner un .er aflual lunary at time of otlenfe done ib Stirdus and mutus a ni.tiiiitate pre- fumed an iileot, unlefs contrary appear ; if lo, he may be tiied Vol. 11. and cxeculed, tl»o caution to be uled herein Page .'> !• If one, while fane^ commit a ca- j)ilal ollenfe, and before ar- raignmcjit become ablolutely mad, he Ought not to be ar- raigned during fuch phrenlv, but remitted to prifon till he re- cover :> i, .35 If fuch a man after his plea, and before trial, become of non fane memory, he fliall not be tried ; or if, after his trial, he become io, he ihall not receive judg- ment ; or if after judgment, his execution ihall be fpared and why .'>5 Proper to impannel a jury to inquire ex officio touching fucli inlanity ib If a madman commit homicide during his inlanity, and continue lo till he fomes to be arraigned, he Ihall neither be arraigned nor tried, but remitted to gaol, to remain in expetlation oiking'^ grace ib But ht in fuch cafe to fwcar a like incjueft ex officio ib If one in a phrcnfy happen by fome over-light to plead to in- diclment, and is put on his trial, and it appears to the court that he is mad, judge in difcretion may difcharge jury of him, and remit him to gaol to be tried after his recovery ; but if there be no colour of evi- dence to find him guilty, or there be pregnant evidence lo prove his inlV.nity at time of fact done, in favour of life and li- berty, it is lit that the court pro- ceed to trial in order lo his ac- quittal and enlargement' 35,36 One during his inlanity commits homici ranee, Jnfant, ^\n% SpaCtr anD *>(rmnt, jiieceiCtp, i^-a* rent auD C.I31ID, For cafualty. Vide i^OmiClDe, 3;nt)irtment, The fpecification of high treafon confills principally in this ag- gravation, that it is contta Ii' geanti*^ Jufs debitum, 58 Proiiitorie CONTAINED IN THE TWO PARTS. Predttorie imports a breach oftruft owing to the kin^ P'^Z' 5y I low iiididmcnt of trealbn Ihall conclude ib Indidtment oftreafoii againft alien amy IhuJl be laid to be contra dominum fuum^ and not natura- Itm^ ^(. but Ihall toncludc con- tra l'tgtanti- lonice inter/ccit 4.')0, 46"6 ii. ISfi, 187, ;J44. Implied malice, or malice in law- maintains general indictment of murder 4-60 Where homicide is within 1 Jac. of jiabbini, ufual to prefer two in- didments ; one of murder, an- other on the a^l, and put pri- foner to plead to both, and to charge jury firft with indictment of murder, and then with the other on the a^, becaufe if con- vid on either, clergy oulted 4t)8. ii. '2:>9, 240 How indidment on this a^ to be to ouft clergy 46S It need not conclude contra for mam flat, becaufe it makes not the oftcnfe, but oufts clergy ib Tho none oufted of clergy but lie who ftabs, }et being formed on the a^ is a good indidment of nianllaughter againlt thofe who were prelcnt and aliifting, and thereon principal in firft degree may be convict of ling'.e man- Oaughter, and acquit of man- flaughter on the atl 46S, 46"9 In cafe of involuntary homicide, indidment may find the fpecial matter 47 1 In homicide of neceffity grand in- quert may prefent the fpecial cafe, and party be prefently difcharged; but he may be in- -^ Y i 2 dided A TABLE OF THE PRINCIPAL MATTERS d'£led de novo, if matter falfc ; contra, if indi(5tment fimply of murder or nuinilaughter faf^e 491, 4-92 One indicled on coroner's inqiieft is acquitted, petit jury are to inquire of the manllayer, which ferves as indictment againll him ii. 65, 300 Indidment /c (hfendetulo good be- fore jultices of gaol-delivery, but not of the peace. ii. 130 ji. indicted quod prima die Maiiy^- cundo Eliz. apud C. habens in mann, G^c. nladium, ^c. [ftfo- tiici] pacujjit, (Sc. and not faid adtunc ©" ibidem-, mall ; bccaufe day, year and pl^ce TcVdie only to the having the fword, not lo the ftioke ii. na, 179 In indictment of murder, day and place as well of ftroke as other act done inducing death as of death muft be exprelt ii. 179, ISO Indidment againft ^. that he apud K. in com. prad. afTiiuIied B. of O. it: com. prad. ^J" ipfum adtuttc ^ ibidem cum^ ^c. petcitffit nought ; it cannot refer to both ; andif only to one, it mull be to the laft. and then it is inlcnfible ii. 180 Indictment of murder cujufdam ig- noti., good 1 8 1 No need of addition of perlon robbed or murdered, fave for diliindion ii. 182 Indictment charges that J. S.Jidem adliibcns to the prifoner, and nefcicns potum prad, cum vene-no fore intoxicatu?n accepit Of bibit, and fays not ■ventnum prad. nought, M'ot to be iupplied by implication ii. l^t Indictment quod A. exonera-uit tormetitum, Cs'c. •v^rfus B. dans ei unam mortalem plagam, with- out faying percujfit, nought ib So \{ dedit morlalcm plagam, with- out percu£it ib If J. be indided, qrfod 1 Dec. ^c. apud, ^c. fclcnicc, £5" ex muli- tid JuH praco^itatd in i^ futev B. infult. fecit, &" cum quodam, iSc. adtmic y ibidem percuffit, idc, thefe words ftlonice Z^ ex malitid fud applied to the aflault run alio to the firoke, becaule placed in the beginning of the ienteiice, and done adtunc ^ ibidem Page 184, IS.'i What requifites to indidment of murder or manflaughter more than other indidmcnts ii. 185 to JS9 If alledged that party was killed with a Iword, and proved that he was killed with another wea- pon, indidment maintained ; but contra, if with another kind of death, as ftrangling, ^c. 185 The kind of poilon muft be al- ledged ; but if proved to be done with another kind, bene ib If killing was with a fword, it mull be fhewn in what hand offender held it ib In dextrd fuu, without f'V'^J''g ^^x- trd manu, nought ib Price of weapon to be f^c down, or elfe muft be faid to be nullius i-aloris 419. ii. 185 Indictment muft flievv i>»what part of body party killed was wound- ed, if fuper brachium, KJc. without faying right or left, male ii. 185 In finijiro bracio, inftead o^ brachio, infenfible and ill ii. 185 Wound laid circiter pectus, ill ib Super partes pojierioies corporis, nought lb ^ui fuper faciem, or caput, or dex' tiam partem corporis, or infimd parte -vcntris, certain enough ib Where length and depth of wound to be fhewn or not ib If in evidence it appear to be an- other kind of w ound in another place, indidment maintained ib Ulual to alledge deceafed was ia pace Dei, but unnecefTary ib Neceflary to alledge party died of the wound, and alfo time and place, as well of death, as the wuuud given, and wliy ib The CONTAINED IN THE TWO PARTS. The form of fuch allegation Pa^e 186 As well in indi6lraent of man- flaughler, as murder, the flroke is to be alledged to be mortalis ficiga \\i Plaga expounded ib Jf indidment of murder wants ex mail tin Jud pi acogitatd^ clergy allowed ii. 187 What indiclment on 21 Jac. a- gainft concealing death of bnjlard children by the mothers nnill let forth ii. 190, 'JS8 Jt need not conclude contra for main flat, ad creating no new crime, but directing only the evidence ii. 2S9 If one be indifled and appealed before fame jufticcs for fame murder ©r other felony, where there fliall be a cejfei procejjus on the indictment; and fo where there is an inquifition before the coroner of murder, and return- ed, and likewile indiclment for fame otienfe by grand inqucll ii. '2'Jl What words neceffary in indid- ment of murder to oali ( lorgy ii. 344- ^. indicted as having given the mortal llroke, B. and C. as prc- fent and allilting, if proved that B. gave the mortal ftroke, and jl. and C. were prelent and al- fifting, it maintains indictment, and all oult of clergy ; contra on luch indictment on 1 Jac. of Jlabbing^ he that gave the ftroke in luch cafe (liall have his clergy 437, 4-63. ii. 1 S5, 292, 3++, .'3 lo Every indictment to oull accellary before of his clergy by -t ^ 5 P. isf M. rault run malitiofe^ as in murder, isc. ii. 31)9, o\^ How indiclment for robbing houlcs (within 5 i5 6 E. 6.) tu be laid in order to ouil perlons prelent and alUUing, but not entering, of their clergy, by 4t iff b P. ^ M. ' 521, 522 Jjow indiclment laid on 5 U 6 E. 6. for breaking the lodgings of j1. at WhitehnUy {H/ig's man- fion-houfe,) and taking thence (everal goods ol j4. and others Pag" 522, 523 How indiclment to be formed on this a^J ii. 35V, [i62 All lodgings in Jl'hitehall part of the king\ houfe, but in an inti at' court each chamber is a fc- veral manlion-houle, and whole it Ihall be fuppoled to be 522, 52:i, 527, 528, 551-, 5jfi Indiclment on 39 Eliz. againit b^ raking a houfe in the day mult precifely, and in what manner, follow the a^ b'lb. ii. 170 Ulual to add tempore diurno to oufl clergy ii. 179 If either indiclment purfue not the a^,\ or evidence maintain not indiclment, prifoner to have his clergy; and on fuch indictment may be acquitted of Healing againft the ad^ and convicl of limple felony, tho indiclment conclude contra formam fiat, fo on indiclmeot on 23 H. 8. or 5 i5 6 £. 6. 525, 526, 535 Tho indiclments in thofe cafes be Ipecial, and conclude fometime contra formam flat, yet they in- clude felony at common law ; for contra fo) mam flat, is unneceffa- rv, fo as circumfiances required by the «^ bo purfued ; for (hefe «<.?/ make not the felony, but ouft clergy 525, 533 One indicled on 39 ¥Ji%. Ihall not be oufted of his clergy b}' any other aa " 526 If A' commits brciny in a dwell- ing-houie within 23 H. 8. and carries tlie goods into a foreign county, and be indicted there of larciny and convicl, and jiuy iind value of goods to be only Vld. tho it appear on trial in foreign county that it was with- in the atly he ihall only have jvidgnient of petit larciny 53o How indictment of burglary to be laid, and what words efl'ential 54;^^ 550. ii. 168, Ibi- r f 3 Ho^v A TABLE OF THE PRINCIPAL MATTERS How inJi»51ment of burglary fhall be laid lor brtakiug and intring a ihutch with a felonious intent Page 556 \i A. hires a chamber in the houfe ofJ5. for a certain time, and it is broke open, whole maniion- houle it ihall be iuppofed ib It iV.all be Iuppofed manhon-houie ofovvner, where lodgings of ler- vants are broke open 557 How indictment tobe laid to coni- prife both burglary and felony 559, 560 Where in burglary thefe words ed intent ionc aa furandunt^ or com- mit fome other felony are necef- fary 560, 561 How indictment tobe for burglary, felonv, and lelony on 5 to" 6 £. 6." 560 Where time of day is material to a'.'certain the nature of the of- fenle, it nuift be expreft in in- dictment, as in burglary, ^c. 'ii. 179 Indifiraent of burglary muft be/V- lonice €3" burglar iter f regit (jf in- travit ii. i 84- In cafe of burglary or robbing houfes, on what ftatutes princi- pal to be mdided to ouft accellary before of his clergy 363, 364^ What words in larciny eflential 504, 508 If A. felonioufly lake my horfe from me, and B. from him, B. may be indided as of a felonious taking from me 507 Every indiflment of larciny ought to fuppofe the goods ftolen to be the goods of lomebody 512 ^tiod /elotiice cepit quandam pedant faiini-^-J. S. without laying ^^ botiij ^ catallis J, S. nought ii. ]H2 Indictment, quid f clonic e cepit bona ignoti^ bona capella tempore va~ cationis^ or bona capellce in cujlo- did i. S. good 512. ii. 181 How indictment to bo for itealing bells, or goods from a church ib If A. have a fpecial property iu good.^, as !)y pledge, l:Dc, and the goods be ftolen, Lliey mull be fuppofed in the indidlment the goods of A. Pcige 5 1 2 If ^. bails goods to B. to keep, isfc. and B. be robbed of them, felon may be indicted for larci- ny of the goods of A. t>r B. 513. ii. 181 Indictment for flealing goods of a feme co-vert^ male 513 If goods of an inteitate before ad- miniftrationbe Itolen, they fliall be fuppofed the goods of the or- dinary; or if the goods of au executor before probate be ftolen, they Ihall be fuppofed the goods of the executor; nei- ther ordinary, nor executor need Qiew his title 514-, 515. ii. 181 But without faying de bonis Cf? ca- taliis of the executor, or ordi- nary, male 515. ii. 181 Digging a dead body out of the grave, and Itealing (hroud, whole it fliall be fuppofed ib If^. piit a winding flieet on the dead body of ii.~and a thief digs up the body and fteals the flieet, it may be fuppofed de bonis A. 515 Indictment o? larciny from the per- Jon how t© be laid to ouft clergy by 8 Eli%. 529 ^."commits a robbery on the high- way in com. B. of goods to value ol 12^. only, and carries them into a foreign county, A. may be indicted of larciny in foreign county; but he muft be indict- ed of robbery in proper county 507, 536. ii. 349 If ^. be indicted of larciny in fo- reign county, and jury find va- lue to be only 12^. he fliall only have judgment of petit larciny^ tho it appear on examination on trial, that it was a robbery 536 Larctnies committed of leveral things, tho at feveral times, and from feveral perlbns, may be joined ii- 173 Indictment, quod tnvenit quendam hominem inortuum^ ac fe^oniceju^ ratus efi duas tunicas, without laying CONTAINED IN THE TWO PARTS. fa^'ing tie bonu (if cntalHi cujttf- dam ignoti^ ill ii. P^^i^e IS I !^iod cffit 63* uj'portavii—hona CJ* catalln R. williout Ihewing what in certain, ill ii. 1 ^'^ Number and value of tilings fiolen to be exprcft ii. 1»2, 183 Where proper to ufelhe worA pre- tiiy ox ad valtnciam ii. 183 But not material, if thefe terms, be converted ib If one pretii, ^Jfc. be added to fe- veral things where it Ihould iu clerk (liip be applied feverally, it is good, if party be convict of all; but pollibly contra, if convici but of part ib ^odfeloncie ceptt '2.0 ovts matrices (sf agnoSf or matrices CiJ" verveces^ ill ; but contra.^ if 20 oves ge- nerally ib Pe quatuor irfcis Cs* ciJUs^ gOOflj becaufe^/yo'^OT^j ib ^oJ felonice abdu.xit unum equum^ nought, without faying cepit, ijfc. ii. 184- ^od furatus efi unum equum, but trefpafs for want oi felonice ii. 172, 183 Ifa thief finding little about A. by menace of death force him to fwear to fetch him a greater fam, which he doth, a general indidment of robbery will do 532, 533 fiolenter in indictments o'i robbery inuft be both alledged and prov- ed 534. How indidment miift be ib To ouft clergy indidmcnt and conviclion mull be o'i robbery^ in vel propc altam viam ngiam, and not via re^id pedeftri, idc. 535. ii. 34.9 But if laid^ro^ir aham viain rcgiam., fufticient ib Pisjunftive in vel prope ufual in thefe indictments, tho they ought to be certain, yet not llibltance, but only to afccrtain point of clergy ib ^hamts alia via rcgia, and il it were not, yet near it ; how in- ditlment to be of a rubbery committed in a ftiip below the bridge Page bib, 536. ii. 34-:^, 350 How indiflment oi piracy to be to work corruption of blood 35ij In arfon how iiuliclir.cnt to be 567 j4. intending to burn the houle of B. thereby burns the houfe of C. how to be indicted 569 In rape, how indittmcnt muft be laid G28, 632. ii. 184» If one be indicted at a lerty quid felonice rapuit, if removed into B. R.hc fliall not anfwer to it as a felony, but trefpafs li. 172 In cafe oi tfcape, if party hath not been indicted at time oi efcape^ how indictment againll ^^ao/c- to be, and how in the eaie of a refcue where party relcued before he was iiulicled 599 But if party hath been indicted and taken by cap. before ekape or refcue, how then it mull be ib How indiclment mult be laid in cafe of felouy/o? brench of prijon^ \'i party hath not been indicted before ^>f^f/i of pr if on, and how other wife 599, 607, 610 City of London indicted for an ej- cape, as a mifdemcanor, which was notconelulive, but traverf- able ii. 154, 155 Indiclment o^ forgery after afoi- mcr convi^ion, and judgment mwvi recite the record thereof 686 If one be indicled, for that rations tenuree of certain lands he is bound to xG'^'Axx 7\. bridge, it muft be alledged, v\ here thofe lands lie ii. ISI Indictment of allault in quendam ignotum, good ib Indictment againft A. that he is communis latro, champartor, isfc. ma/c 512. ii. 181, 182 But communis barre^ator, >iif pads domini regis pert ui bator^ Cd' litium fcminator, bene; fo of indictment, that he is nodivagus ii. 182 Indiclment o^bmrretry, concluding contra formam fat. or diver- forum fatutorutn, good, tho no direct Itatute agaiull it ii. 191 V f \ VVhetlier A TABLE OF THE PRINCIPAL MATTERS Whether in harretry vill need be alled^ed ii. Page 180 How iiididment muil be fora/rt'/;/j^ a maintainer of the fofe^ s jtiv'.f- d'tiiio7i 332 Central rules touching indi^lments. Hufband and wife indicted of fe- lony, fuch indielnient isjoint or feveral, as the fad liappens, and on (uch indictment, haron may be acquitted, andyifwc convid- ed, ^\\A e cnyvverfo 46, 516 Whether indidment be a part or dillinct thing from the trial 298 to 301 Variance between day in indicl- menl of felony or treaton, and in evidence, innnaterial ; yet if va- riance be great in point of time v/or«r/ is more explicit ii. 163 Name of county mult be in margin of record^ or repeated in body of caption ii. 166 Court, where prefentment made, to be expreft ib Itmuft appear where fefiions held, and that place, where held is within extent of commiliion; and therefore, if DorJ'et in the margin amd caption be ad gene- ralem ffffiouem pads tent, apiid S. and (ays not in comitatu prted. it is nought ib So if weft-riding in comit^ Eboruin be in the margin, and caption be aptid S. in com, prad' it (hall be quaflied, becaufe not (aid apud S. in weft-nding in com. prted. ' ib How many juflices to be named, but reft may be (upplicd by the words (^ fociis ftds, Zifc.) ib How title of their authority to be let forth, as jvfiic. ad gaolam, ^Jic. ib If there be a feflion by three com- miftions, a%0\' grid- delivery, (ffc. if it be returned at a (^edion holden before them, and record be made up, as on all three com- milhons, if they have jurildidion to take indidnier.t but by one, it is good, tho not enabled to take it by the other ib Where return nuift mention any, and which of the juftices to be of the y? Where one a^ relates to another, as where former makes offenle, latter adds a penalty, how in- dictment to conclude ii. 173 If one otfender, and J'ci-eral capi- tal ofi'enfes be committed by iiiin, tliey may bejoined in one indict- ment ib Ifyc^'f•^^J/oflenders commit one of- fenfe, tho in law they are feveral ollcnfc'S; )(jtthey luay bejoined ib 6q A TABLE OF THE PRINCIPAL MATTERS So If offenfes be of /f vera! defjrees, but dependent or.e on another, as in the cafe of principal in firft degree, and principal in fecond degree, and acccliary /^(/orc or after ii- F^s.^ '''^ "VS'here joint indictments for fe-vt:- ral otfenfes of lame nature di- Itinctly committed by feveml offenders have been held ill, or not ij- n4. Where dii-ers perfons are inferted in one indictment, the word/e-- paraliter makes them feveral ib The grammatical order of the feve- ral parts of an indictment ji. n-t, 175 Jfdaybe inferted, and not year, nought, and ftiall not be fup- plied by intendment of (uh. f^ateriio)^ unlefs fo expreft ; but if fo, fuilicient to afcertain vear by day of fcilions ii- HI Sellions held 20 May^ offenfe fup- pofed on 10 0/ May lafi fajl^ it fliall relate to day^ and not monthy and fo for the words next eJifuin^ II. 17S One indided, that he infejio Sanai Petri, (ifc. ill, becaufe two feafts of that name ib Indictment, quod prima die Maii, &'(.-. in quendam B. infult. fecit, CrJ" ipfum verhfravit, and fays not adtunc ^ ibidem verbera-oii, good ; "vi tff armisy day and flare named in beginning refer to all enfuing afts ; but coiira in ielony, there muft be adtunc l^ ibidem to the firoke, or the rob- bery, iSc. and day and place of ailault infufficient ib If faid that defendant on 1 and 2 ot yfay made an ailault, and le- lonieufly took, i^r. ill, becaufe incertain, to which day felonious taking relates ib Ulual to repeat adtunc ir' ibidem to the feveral parts of fact charged ii. 178, 180 Regularly i>illy or hamlet and <-o«;;/^ muft be expref: ii. 180 Where time muft be repeated, re- gularly, place muft be fo too ii. Paoe 180 Suff. in the margin, indictment fuppofing fa<5t to be done apud S. in com. prad. fufficient ; but contra, if another county be mentioned in the addition of any party, ^c. it> Indictment not aided by verdict ; none of the ftatutes of jeofails extends to them ii. 183, 193 What is defect of certainty in a count, is much more fo in in- dictment ii. 183 Indictment of felony muft alledge fact to be done felon ice, of trea- fon proditorie, of petit treafon, felonice is' proditorie 59. ii 1 84?, 187 Felony or treafon at common law was laid to be done x;/ dff aimisy but now unneceffary by ftatute 187 So are the words gJadiis^ baculis i^ cuUeUis ib Regularly every indidment ought to conclude contra pactm, but need not conclude conli a coi onaf* i^ dignitatem ejus ii. 188 Concluding contra pacem, and faith not dotnini rtgis, is infutiicient ib Why indictments conclude contra pacem^ iffc. 130 For oftenfe fuppofed to be com- mitted in time of former kingy and concludes contra pacem regis nunc, nought ii. 188, iS^ One indided in time of one ki^g contra formam domini regis nunc^ may be arraigned for that ofFenfq in the time of his fuccelior ii. 189 Indictment not difcontinuedby dc- mife of the king ib If the offenfe be fuppofed to be be- gun in the time of one king, and continued in the time ofhis fuc- celior, it mult conclude contra pacem of both kings ib If an oftenic be alledged in the time otone king, and indiftment ta- ken in the reign of the fucceed- ing king, and concludes contra facan nuper rcgisy <:2' regis nunc, good J CONTAINED IN THE TWO PARTS. good ; regis nunc furplufage ii. Piigr; 189 Where indictments fliall conclude conirn formam Jiatiiti, or Jlatuto- riim, or not, and where only iurpliiCage 46S, 561, 667. ii. 189 to 194. Ifanoffenfe be at common law, and aifo prohibited by llatiite with a corporal, or other penalty, party may be indicted at com- mon law ; and ifit conclude not contra for mam Jlat. it itands only as indictment at common law, and he can receive only the penalty the common law inflicts li. 191, 192 Great ftrictnefles required in in- didments, the reproach of the law, ^c. ii. 193 Rare to take any exceptions to in- didments before convidtion, fave on indictments removed into B. R. by certioraii, which £. R. may in difcretion hear or not J)ear, but remand priibner and indictment ii. 237 If exceptions to an indictment ap- pear material, court can qualh that, and direct a new bill to be lent to grand jury, wherein faults may be amended, and pri- foner arraigned Je novo ib One attaint by outlawry (hall not be indicted till outlawry reverfed ii. 252 For luhat cttufei indiilments abated. Vide ^Ibafemnit* Where be ft to arraign prijcner on inJi^ment, or coroner's inquejl, or bot/iy and for other matters. Vide ^trraignmenf. IF here ojfendtr indifiable. Vide Coiuitp. Wlint ex'idence maintains indiUment. Vide cfbiDnice. What the quality of indiflors. Vide .Tlirp, For indifl'ntnts in Icets and torns. Vide %iit, s?l)triflf, Hiifant* Wherein tlie civil and common lavt agree, or differ with refpeft to tlic full age of a man /or making contiaSlsy beiu? a procui alor or executor^ or conjcntiug to marriage Page 17, 2« As to crimes, into what periods ciii 18, 19,20 Both civiJ and common law leave the queltion, whether party ca- pax doli, or not, ad arbitrium judicis on the circumliances, and with what caution 18 By common law, as tooffenfes not capital, in lome cales infant is pri\'leged by his non-age ; and herein privilege is all one, whe- ther above fourteen or under, if he be under twenty-one years; but with fome and what differen- ces 20 Infant convidt of riot, l^c. fiiall be fined and imprifoned, and not be privileged barely becaule under twenty-one; but court «•* officio on his trial ought to ex- amine, whether he is doHeapax^ and had difcretion to do the a^ wherewith he is charged ib But if otfenfe charged be a mere non-feafance, (unlets of fuch a thing as he is bound by tenure, or the like to do, as to repair a bridge, t5c.) there in foine cafes he fhall be privileged by his non-age, if under twenty- one, tho above fourteen; be- caule I'aches in fuch cafe ihall not be imputed to him ib If infant in ajife vouch a record, and fail at the day, he fliall not be iiiipriloned ; and yet W^tfim. 2. that gives imprilonment in fuch cafe, is general ib If ^. kills B. and C. and D. are prefent, and attach not offender, they fliall be fined and imprifon- ed ; but if C within twenty-one, he fliall not 21. ii. 75 Where corporal punifliment is but collateral, and not direct inten- tion of proceeding againft infant for his mildemeanor^ there in many A TABLE Of THE PRINCIPAL MATTERS fnanv cafes infant under twenty- one ihall be I'pared, iho poHibly punifhment by ftatute Faiie '21. 'ii. 75 II infant of eighteen be convict of dijj'fifin with Ibice, he lliall not be iniprifoned, and y^t feme co- vert Ihall ib Jf infant be convict in acllon of trefpafs --ji ijf armisy the entry ihall be «/'/«"/ //^ fine^ Jed pardo- ■naiur^ qui-A infaus ; if a capiatur be entered, it is error, for it appears judicially, to court, that he was Avithin age, when he appears by guardian, nor fliall he be in '"'fencorJid pro falj'o elamtre ib General ftatutes, that give cor- poral punilhnient, extend not to infants ib But where a fa6l is made felony or treafon, it extends as well to in- fants, if abovq fourteen, as others _ 21, 22 Civil law uncertain in defining dftdi tubertnti proxima ; but laws of E/tolandj antiently deter- tnined it to be twelve years for both fexes ; under that age none could regularly be guilty of a capital oli'enfe, and above that age he might, or not, accord- ing to circuailiances, that might - hiduce court or jury to judge him doli cafax, "vel incapax 22, 23, 24-, 515 Infant of twelve coir.pellible to take oath of alligeance 23 Againft infant under twelve pro- ■ceis of outlawry on indictment was not awardable; and if a- warded, error; but if above tliat age, luch procefs was a- wardable 23, 24 if inl'ant under twenty-one Ihall coiifefs indictment, court ought not to record it, but put him to plead not guilty^ oral leaft in- quire by inqucfl of ofiice of truth of fad 21, 27, 491, 492 How tke law now is with refpect to infants and their punilhments 2J to 2y Infant above fourteen and under twenty-one is equally fubjecl to corporal punilhments, as well as others of full age, for it is p^idjumptio jurisy that after lour-. teen they are dali capaces Pfzoe 25 A lad of fixteen convict offuccef- five wilful burning three dwell- ing- houfes, (iff. had judgment to die, and was executed ib Fourteen years common ftandard, at which both males and females are fubjecl to capital puniih- ments for ofi'enfes committed by them at any time after that age 25, 26, 28 Infant under fourteen, and above twelve, is not prima facie pre- fumed doHcapaXy and tlierefore regulaily for a capital oflenfe committed under fourteen is not to be convided, but may be found }iot guilty, or jury may find fpecially, and how ; in which cafe court ought to dif- charge him, becaufe no felony 26 to 29 Yet if it appear to the court that he was dolt capax, when offenfe committed, he may be convict- ed and fuffer death, tho he hath not attained amium pubcr- tatisy viz. fourteen 26, 431-, 569, 570 Infant [ten years old] that had kil- led his companion, and hid himfclf, hanged ; malitia /up- plet atatem 26 A girl of thirteen burnt for petit treafon ib If infant be above leven, and un- der twelve, and commit a felo^ ny, he is prima facie to be judged not guiltv, and found fo, becaufe fuppofcd not of difcre- lion to judge between good and evil; yet m that cafe, if it ap- pear by pregnant evidence that he had luch dilcretion, judg- ment of death may be given againii him 26, 21 Infant of nine killed infant of like age, he confelt felony, and on CONTAINED IN THE TWO PARTS. txaminntlon found he hid the blood and body ; lield he ought to be hanged P^^e 27 Circiimftances to be inquired of by jury ib If convid, court cannot ex officio dilcharge infant ib If infant be infra atatem infantia^ 'viz. fcvcn years, he cannot be guilty of felony, whatever cir cuniltances proving difcretion tnay appear, for ex pytrfumf^tionc juris he cannot have dilcretion and no averment fliall be re- ceived againrt it 27, 28 As to jnatters of crime, females have fame privilege of non-age, as males 28 If infant be firft arraigned and ac- quitted on indi(5tment of mur- der by grand inqucft, he may plead that acquittal on arraign- ment on coroner's inqvielt, and that will difcharge him 28, 29 Infant under fourteen prefumed unable to commit a rape, but prclent and aHifting therein may be a prjnci])al 630 A^ making off'enfe felony binds not one under fourteen 706' 3^nformation.8^* II H. 7. gave power to proceed in all penal ftatutes by inforniation before jullices oinjjife and peace, treafon, murder, and felony ex- cepted ii, 1 5 I * III ufe being made of it, repealed ib Tho informations are often prac- tiled in tlie crown-oflice in cafes criminal, and by many penal tft?; the prolecution is by the n^s themfelves to be by bill, plaint, information, or indic^- nienf, yet profecution in capital cales is Hill to be by indict- ment ; except in cafes excepted, which fee ii. 156 to 152* Ijj all criminal caufes the moft re- guTar and fafe way, and moft 4:onlbnant io magna cLartayhhy prcTentmcnt or indi^ment, death before fpecial comnuf- fioners afligned ad judicandum Jccundum -coluntatem regis, in re- IpeCl of the oath made by him to the king and broken, where- by he had bound himlelf to that forfeiture, that judgment ■was affirmed in parliament, but with what caution to prevent fuch arbitrary courie of proceed- ing lor the future Page 262, '263 One indicled of ur/ov pleaded Jiot guilty, and a fpecial verdift was found, and fpecial matter ad- judged, no felony ; yet on fame indictment prifoner adjudged to the piUorv ; Jed qvare ii. 172 One indicted of felony before juf- tices of oyer and terminer, ijfc. is convicl;, if record of convic- tion and prifoner be removed into B. R. B. R. may give judgment thereon, but what to be done pr^vioufly thereto ii. 401, 404- No other I'emedy before ! 1 H. 6. (if I E.G. for judgment to be given on perfons reprieved be- fore judgment 401 Where prilooer hath not always from his arraignment remained in cuftody of court, where he lirlt had judgment, but is brought in by cap. by HierifF, he Ihall not be cftopped from faying //e is another perjun, and ilTue may be taken thereon, and fhall be tried before execution awarded; and if he Hand ftiuicy it iliail be enquired ex offic'toy whether of malice ii. 402, 407 But contra, if in cuftody of fame court from, his firlt arraignment, or if he had been bailed, and came in and rendered ib Where party outlawed or abjured comes by procefs into B. R. he fliall be demanded what he can fay why execution fhould not be awarded on record removed ; and ii' iie confefs himfclf, fame perjon CONTAINED IN THE TWO PARTS. ferfotty execution (liall be award- ed ii. Pagt 4()'J, i!K37 By 14- ^. 6. juliices o( niji pnus on tranlciipt of record have power to give judgment and award execution ; but then pri- loner mult he (ent by habeas corpus to lberi(}" of county, where Ttiji prius is, or elfe Ihall be bailed to appear lliere ii. 40.3, 40t But they may return pojiea into B. R. and there judgment may be given, as at common law ii. 404 In what cafes execution fliall not be awarded without demanding what prifoner has to fay againll it ii. 401, 407, 408 Form of award of execution in B. R. li. 409, 411 Vide Gorruption anD H^tHitiu tmn of liJlooO, (^rtcutioii aiiD EXqiritbc, J'^orffitiuT, (S'yxoU OiU).itTp, ixina'i? 23mct), iiDpcr gurifoi'tion. Where temporal judge may incl- denlly take notice, whether a tenet be herefy, or not 400, 407 403 Interpretation of a flatute belongs to common law 408 Juftices of C. B. cannot hold plea on indiftment or appeal in capi- tal caules 498 Where proceedings of judges in capitals without lirict extent of their commillion, or where their cominilhon liappens to be deter- mined, are great niilprihoiis 49 s, 499 wAltho felony be limited to Ipecial jurildiClion, yet milprillon of it may be tried by a common jury and before general commiliioners ot oyer and tertniner bb'i A juftiee of peace of county where lact done, cannot ui foreign county do any cci of jarifJiCtion, Voi-.'il. as imprifon, but what he may do Pa^ebnX. ii. 50, .'>1 Vide a!5m;nlfp. airrrfl, Com^ milfion, t,:'urc, ci^aol^Dtlibcrp, l.omuiOf, 'iwiiMt of atliie, iulZicc of ;2)taie, Um^'i iSiiicl), a}urDir aiiD Jtpaa^ ;Eriau2l)ter, 3urp» Grand Jury, Special provifion made for quality of indictors in Lancajhire 286 ii. 52* So in cafes of murders, ^f. com- mitted in /('/v^-'s palace ii. 5.1* Of grand inqueil?'. before jultices in EMre ib. On fummons of a fefhon of the peace, form of precept for re- turn of grand jury; a fcirc fa- cias alfu ilfues to all coroners, conftabJes, ^c. to be there at that day 154* According to others, a -jenire fa- cias ilfues to funiraon grand jury. J'''iJe the form ib On commilhuns of oyer and termi- ner, or gaol-Jelivery^ foiin of like venire it> On this precept fiicriff returns twenty-four or more out of w hole county, tiz. a compe- tent number out of every hun- dred, out of which grand in- quell of felfions of peace, ojitr and terminer^ or gaol-dclivny are taken and fworn ad irqui- rcnritnii, (dc. not as antiently in Eyre, which was a kind oi grand inqueit out of every hun- dred ib In lome counties which confift of gildable and fuch franchife, where antiently leveral juflices o\' gaol-deli-oery lat, as in Suffolk^ there are two grand juries, one for the gildabk, anotlier for the franchife ib Indictors to be prohi U legales homines, iind muft be fo returned; G !j and A TABLE OF THE PRINCIPAL MATTERS and this holds, as well in coro- ner's inquelts, as other indict- ments or prefentments ii. Page J 55*, 167 If any of them be outlawed, thoin a perlonal action, it is plead- able in avoidance of indictment 303. ii. 155* \\ ho not f:robi ^ legalts homines ; where one is not If^ali^ homo^ tho twelve befide without ex- ception, indictment may be quathed by plea ii. 155*, 167 They mult be k'wgH liege people ii. 155* And muft be returned by (heriif or bailiti's of franchifes, without nomination of any, fave by Iworn bailitfs ib All indictments taken contrary, void lb \\'hat freehold indiftors ought to have ib By Itatute how juftices o{ gaol-deli- very^ or peace, (one oi' quorum) in open lelfions may reform pan- nel of grand jury ii. :j6, 155*, 156* Grand jury fworn firR day com- monly ferves whole feliions of peace, G7V. yet court may grant another grand incjueft to be re- turned and Iworu, and in what that may be ii. 156* If on record it appear that grand inqueli was returned after firft day of feflions, uulefs adjourn- ment be entered on record, it is erroneous ib By Itatute grand inqueft may be impaniielled to inquire of con- cealment of another grand in- queli, and tho it mentions only a grand inrjuell to be returned by juliices of peace, yet it ex- tends to B. R. and poffibly to feflions oi'cyer and ttvminer, and gaol-delivny \ tho that can rare- Jy come in queftion, becaule lelfions of peace ordinarily ac- company thole commillions ii. 156, 157, 160 This proper way of punifliing grand inqueft, if they refufe to prefent fuch things as are with- in their charge ii. Page 157 Grand inqueli before juftices of gaol-delvvery^ kSc. ought only to hear evidence for the king^ and in cafe of probable evidence ought to find the bill, and why, (Jed qiuere) ib Where they may return the bill ignoramus ib If it appear that A. was killed by B. and a bill of murder be pre- fented, regularly they ought to find the bill for murder, and not for manflaughter, i^c. and why 491, 492. ii. 158 If a bill be againft one for murder, and grand inqueft on evidence before them, or their own know- ledge be fatisfied, that it is but per infortunium or Je defendendo^ and accordingly return bill fpe- cially, court may remand them to confider better of it, or hear evidence? at the bar, and accord- ingly direct grand inqueft ii. 15S A judge blamed for fining grand inqueft for fuch a return ib If a bill be for murder, and it doth conjiare de perj'ond occidtntis^ whether they can find bill for manflaughter, and ignoramus for the murder, and whether court be bound to receive fuch a re- turn ii. 158 to 162 Whether they can be fined for fuch a return ib If evidence to grand inqueft be given at the bar on indichnent in B. R. and grand inqueft will not find a bill according to di- rection of that court, in what inftance they are fineable ib If juliices oi oyer and terminer^ or gaol delivery^ having heard evi- dence at bar, grand inqueft vviii not find according to their di- rections, juftices may bind them over to appear in B. R. and on information againlt them, tiiey may be fined, (Jed quare) ii. 100 Fines {ei on them by juftices of peace, oyer and terminer^ and CONTAINED IN THE TWO PARTS. gaol-delivery for concealments or non-prefcntmcnts in any other manner than that pre(cribecl by 3 //. 7. not warrantably by law ii. Fa^e 160 Progrels of fines fcl on juries, fiili on grand inqucits, t!)cn On pd- tit juries lor not finding accord- ing to direction of court, and then on jurors, in civil caules for not finding in point of fact according to court's diredioa ii. 1 60, 3 1 I Objedlions againftfettingfuch fines ii. 160, 161 Grand jury fworn to keep it>jg'i council undilcovcred; difclofing whereof was formerly felony, which is now only fineable ii. 161 If thirteen or more be of grand in- quelt, a prefentinent by lefs than twelve ought not to be; but if there be twelve ad'enting, tho fome of the rell of their number difi'ent, itis a good prefentment ib But on trial by petit jury, it can be by no more or lefs than twelve, and all aflenting to the verdict ib If prefentment be delivered into a court of fellions and received, no averment lies, that it was not aflented to by twelve ii. J 62 Cuft/roy in cafe of prefentment by a leet, for party dillrained may {o aver ib Why indi6tors prefumed to be in- different ib A good exception, that one pro- cured himlelf to be returned on grand inqueli ib Ii bill be for murder, and they re- turn it iil/a vera quoml maii- flaughter, and ignoramu:. quoad murder, what words it is ufual to llrike out in prefence of grand jury, and lo to receive bill ib What fafelt way with refpect to this and like cafes ib Indorlement makes not indictment, but bill atlirmed ib Diiference between prefentment by grand jury of county and a liberty ii. 167, 168 liididment o^ alien s to be by grand inquoit of /i/j^Z/y// ii. Hupe'llX III iv/iat Cuuniy foty indidablir Vide (tLoUur;'. Vide jiijiuiuint, ^rfrtTitmcnt. Petit Jury. By 27 £//z. precedent oi' commif- /ion to give judgment ivithout trial by jury prima? imprclTionis 336 In dubiii rather to incline to ac- quittal than conviction ; caution againii the wit and invention of acculers, and odiouruels of the accufed 87, 300, 50b), 636' Not to be tranfported with hci- noufnefs of the offenfe 636 Ulually at fame felfions the feveral indictments againftfame per/ons tried by lame jury b\b Jurors triers of credit of witneifes, as well as truth of fact 63.^. ii. 235, 276, 277, 313 After not guilty received and re- corded, Iheriir returns pannel of jury ii. 293 Oath of jury ib The form of charge given by clerk, tojury ; containing the effect of their inquiry ii. 291« Tho there be twenty prifoners at the bar for feveral felonies, and the outh is general to try be- tween king and prilbner at the bar, yet jury to inquire of no more than what particularly- charged with ; and tho twenty- have pleaded and ftiind at the bar, when jury is fworn, yiit court may Itay at any number, and jury Itand charged with no more ib '\^'hen they go from the bar, and have brought in tiieir verdict, then if lame jury pals on flie re- maining priloners, yet they are to be called over again, and re- minded of their challenges, and jury fworn at novo on their trial It) GgS Br A TABLE OF THE PRINCIPAL MATTERS By antient Jaw, if jury fworn had been once particularly charged with a priloner, it was com- monly held they mnft give up their verdict, and they could not be dilicharged beibre W. Page 29 i Yet contrary courfe hatlMong ob- tained ii. oy5 "V\ here court may difcharge jury fworn, and tliargcd to try one wow compos 35 If after jury fworn and departed from bar, one wilfully goes cut ot 'I on n, the eleven cannot gi\ c any verdict without the twelfth ; but twelfth Ihall be tined lor his contempt; and that jury may be difcharged, and new jury fworn, and new evidence given, and verdict taken of new jury ii. 295, 296, 309 If a jury be charged with feveral s- prifoncrs, and court finds jury partial to one, court may dil- t^hargejury of that priloner, and put him on his trial by another jury ii. 296 Twelve fworn to try the iflue; af^ ter departure A. one of them leaves his companions; by con- lent of all parties B. another of the panncl is fworn in ^'s place, j1. returns, and being examined, iv/ty he departed^ anfwered to drink^ and denied, on oath, that he had fpoken with defendant ; V. hereon B. was dilcharged, and verdicl taken of ^. and the other eleven, and A. fined for contempt ib If thirteen be fworn by mifrsikc, fwearing of lail is void, and tlie other twelve Ihall ierve ib Ko verdift can be taken of lei's than twelve, and it is error ; and fo in a prefentment ; but if twelve be recorded Iworn, no averment lies that one was wn- fvvorn ib Court at co;-imon law may on juli caufe remove a juror after fworn lb When jurors depart from the bar, a bailiff ought to be fworn to keep them together, and not to fuller any to fpeak with them ii. Page 296 A fter their departure they may heaf one of the witnelles again in open court, and may delire to propound a quejlion to the court for their fatisfadlion; and it Ihall be granted, fo it be in open court; but ifotherwife, this ap- pearing by examination in court, and indorfed onpcjiea will avoid the verdi6t ii. 2'96, 307 If they agree not before departure of juftices oi' gaol-dclii'e})', they muft be conveyed along in carts, and judge may take and record their verdift in a foreign county ; qutcrc, whether in luch cales, the feilion may be adjourned be- fore verdid taken ib If there be eleven agreed, and but one difTenting, who fays he will rather die in prilon than con- fent, yet verdid fliall not be taken by eleven, nor refufer fined or imprifoned ib For moll part in Eyrs petit jury were all of fame hundred where oflenfe done ; but now jury that tries, as well as inquires is ge- nerally of refl of county ii. 301 Any of the jury eating or druiking before they have given up their verdict, fineable ii. 297, 306 But antiently, if at charges of ei- ther party, verdid fetafide, but not fo now ib If at charges ofprifoner, afterwards found guilty, verdi6t (lands ib But if they acquit him, judge be- fore whom verdid given, may record fpecial matter, and there- on verdict (hall be let afide, and a new trial granted ib A juryman, who hath a piece of evidence in his pocket, and af- ter jury fworn and gone toge- ther, Ihews it to them, is fine- able ; but verdid not avoided, tho cafe appears on examination ii. 306, 307 But I CONTAINED IN THE TWO PARTS. But if, after jury f;vorn, eitlier and on examination this appear- party deliver a piece of evidence ed, tho jury Iwore tliey opened to jury, and verdict is given for not bundle delivered Ijy folicitor, him, it fiiall avoid it; but then yet verdict for piaintiiF for this it mult appear by examination, caufe avoided (matter being iu- which niu(t be indorfed on poflra doried on the record), and a m-w or verdicl, (o as it appear of re- Ttw/'/f awarded ii. P agt: 30i cord, and not barely by fl^^/ax'// It might have been a mildenieurjor made after; but if verdidt be for jury to have looked into bun- given againlj: him that delivered die delivered by folicitor ib the evidence, it is good If party after jury (worn Ipeak with ii. Pa^e 1)07 a juryman of foreign butinefs, If a piece of evidence under feal thisavoidsnotvcrdidl after given be read in court, jury ought re- for him ib gulariy to have it with them ; But if he, or any in his behalf hy but ro«/rrt, if not under feal ib to a juryman alter his departure Ifafter jury fworn, a piece of evi- from the bar, and before verdict dcnce not under feal be by court given, t/te cafe ii J ear for plain- delivered to jury, it avoids not //^, this fliall avoid verdicl, if the verdicl ib given lor h'm, for it is new evi- So if delivered by a mere flranger, dence ib if verdict given againft him, on If ^. be challenged off, and twelve whofe behalf delivered ib more fworn, yet A. goes with If after jury gone from bar, they them, and is prefent at their fend tor a witnefs, who repeats confultation, xi A. gives no new his evidence to them, this ap- evidence, nor intermeddles, ver- pearing by examination, and dicl good, but A. fliall be fined being indorfed on pofiea avoids ii. 509 the verdict ; but witnefs may be Ifone ofthe indidors be returned heard again in open court, and on petit jurv, and do not chal- courtor parties re-examine him lenge himfelf, he Ihall be fined ib ii. 29(J, 307 Ifa jury fay ihey are agreed, and If depofitions are read in open it being alked, who fh a II fay lor court to the jury, and as they them, they fay their foreman^ are going from the bar, folici- but on further inquiry they are tor for the -t/«^, without confent not agreed, every one of them of parties, or order of court de- fliall be fined apart ib livers copies of them to the jury. If a juryman be called and refufe if they find againft him, on to appear, or ifhaving appeared whofe part thefe were delivered, withdraw himfelf before fworn, verdict is good ; but if for him, fineable ib and this appears by examination So if challenged, and while it is indorfed on po fie a, verdict fliall trying he withdraw, and clial- be qualhed, and a new x'f«/;vor lenge be over-rLiled, and he be award for new jury returned not prefent to be fworn ib ii. 308 If eleven were agreed, and the After evidence given, wheredivers twelfth refufed, formerly fuch written evidences are read on juryman hath been fined, and both fides, and clerk is making inqueft taken by the other e- up his bundle of evidences un- leven ib der feal to deliver to jury, ioli- But both thefe courfes now dif- citor for plaintiff delivers a bun- allowed ib die of depofitions to jury, loine If jury convict againft rcafon and whereof were read, lome not, e\idenee, or without evidence, C>' g 3 and A TABLE OF THE PRINCIPAL MATTERS and agaiiift direclion of court, court may reprieve convid be- fore judg'meiU, and certify kin^ forhis pardon ii. P<^Jgi 30y, 310 Court may refpite judgment on ac- quittal,"' if againrt full evidence ii. 310 In fuch cafe king may have an at- taint it> By fialulejufiiciarorfleward, be- fore whom any one is acquit of felony againfl pregnant evidence in // aies, or the Marches there- of may bind over the jurors, Several inftances of jurors finding againft evidence, being fined, but not warrc.ntcd by law ii. 160,'310 to 314. Where fined for their confederacy and practice ii- 311 Where in caic of inqueft of office jurors not finding according to evidence, have been fined ib Whether B. R. can fine jurors for verditt again ll evidence ib Jurors to be freemen, regularly freeholders ii- 264 LtgaUi ; without any juft excep- tion , 'b De lucinefo; but this not firidly required, for they of one fide of the county are by law ^e vi- cineto to try an offenfe of the o- ther fide of the county ib By anticnt law, if jurors by mif- take or partiality give their ver- dia in court, yet they may rec- tify it before recorded, or go to- gether again and reconfider it ii. 299, 300, 310 If recorded, they cannot retrad, or alter it »• 300 In felony or treafon no privy ver- dict can be given_ ib Itor jury p^cctjs. Vide STrifll* Vjde CijalltuLe, eairDia* 3uffice Of aimre anD iP. fi priu^. Jultices of affife are to fend their records determined into the E;>:- chequer at Michaelmas ii. 31 By ftat ate no man of law (hall be juftice of aflife, where born, or he doth inhabit, but it is ufual- ly difpenfed with by a non ob- ft ante ii. Page 32 Whether, by 27 £. \. de finibus^ they may deliver gaol without any other commiffion, and give judgment of felons ii. 39, 403 Safe to have a fpecial commiffion for that purpoie ii. 39, 40, 403 In cafe of counterfeiting coin on 3 H. b. they exprelly muft hat'e a fpecial commiflion ii. 40 Jf ind'clnient in the country had been removed into B. R. and prifoner there had pleaded not guilty, after 27 E. 1. and be- lore6 H. 8. the tranfcript of re- cord might have been tranfralt- ted to have been tried at niji prius, and lo in appeal ii- 39, 403 Naming them jufliices of niji prius in 27 E. 1. is nothing, but the defcription of their perfons, to whom commiffions of gaol-de- Hvery fliall be directed ii. 40 Juftices oi niJi prius could not at common law give judgment in appeal or indictment ient them out of ^. R. by niJi prius to be tried, no more than in other or- dinary civil caufes, becaule they have but trani'cript of record, and their commiffion is only ad triauilum exitum il. 403 la appeals, juftices of niJi prius may inquire of abettors, and give judgment, and if plaintiff non- fuit, arraign prifoner at king's fuit ii- 41 May allow clergy to a convict of manflaughter on appeal ib May by ftatute proceed to trial and execution on indidment remov- ed by certiorar'iy and fent down to be tried by them ib By 14 //. 6. have power in all fe- lonies and treafons to give judg- ment, and to award execution 350. ii. 403 This fiatute gives them no power to inquire of abettors in appeal, nor CONTAINED IN THE TWO PARTS. nor to arraign on a nonfuit before them at ii»g's luit Page 350. iJ. 4-03 Jufticcs of ntji frtujy nicnt objlante 14- H. C. may, in caie ofindict- mcnt or appeal lent tiiciii out of B. R. return po/Ifa into B. R. and therejudgincnt may be given as at common law ii. ^O-i They have no jurifdiclion in trea- I'on, except as a felony [which treafon includes], and as a breach of the peace; they may take examination of traitors, andimprifon them, and take in- formation ofwitneires, and bind them over, and tranlmit thelc examinations and informations to next gaol-delivery, iSc. 330, 372, 580. ii. 41- They cannot regularly arraign, try, and give judgment in trealon, unlcis in tuch cafes, as are by fpecial ad committed to their cognizance, becaule their com- niilhon extends not to it 350, 372. ii. 41. P/r Rolh, C. J. they may take indidtment of trea^.on, tho they cannot try it 372 3y fome a^j may take indictments of particular treafons, but mult certify them into B. R. or gaol- delivrry ii. 4"t May ilTue their warrants within precincts of their commilfion for taking pcrfons charged of crimes within cognizance of felhons, and bind them over to appear there, tho not indicted, not- withltanding lord Coie's opinion to the contrary 579 Where jullice of foreign county may grant his warrant, and com- mit offender; and where offen- der taken in a foreign county muft be carried before a jullice of proper or foreign county, or which of them. Vide ^trrfil. If J. be in commiiHon of peace in proper county, and happen to be in a foreign county, and coin- nlaint is made to him of a fe- lony done in proper county, as he cannot ill'ue a warrant to take party, lo neither can he impril'on in foreign county, becauie an fl^ of jurlfdiftion; but hti may take oath of party robbed in purfuance of 27 Eliz. or may take examination or informa- tion, or recognizance in foreign county (fid qu^ie of the lalt), but cannot compel them by im- prifonment Pngt 581. ii. 50, 51 One is a jullice in two adjacent counties, tho by feveral corn- millions, whilll he lives in ono county, may fend his warrant to arrefl in the other 580 Convenient, tho not always ne- ceflary, to take information on oath ;' if party fufpcctcd, then to fet down caufe oi fufpicion 5S2 When necelfary or not to bind party to profecute before war- rant iffued io Previous to commitment three things required. 1. Examina- tion of party accufed, but with* out oath. 2. Furtl)er exami- nation of accufers and witnefl'es on oath. 3- Binding over pro- Iccutor or witnefles to next af- fifes, yr. 585. ii. Ill Examinations ought to be in wri- ting without oath, and returned or certified to next gaol-delive- ry, ^c. and being fworn by juftice or clerk to be truly taken, may be given in evidence 585. ii. 52 If juflice at return of svarrant can- not take examination ; he may ore tenns order oflicer to detairi prifoner till next day, and this detainerjiillifiable without fnew- ing particular caufe, or any warrant infciptis ib Time of detainer muft be reafon- able 586. ii. 46, 121 Information of profecutor or wit- neires to be in writing on oath, and returned or certified at next G g -i felUons, A TABLE OF THE PRINCIPAL MATTERS feflions, ^c. and being fvvorn byjurtice or clerk, ^c. to be truly taken, may be given in evidence againit prifoner, if wit- nelTes dead, or unable to travel Pa^e 305, 306, 586. ii. 52, 120 Whether juliices of peace of a fo- reign county mav tranfmit fuch informations before juflices, of gaol-Jeliiery of j)ro])er county 305, 306 If juflice commit or bail prifoner, he is to take fuiety of profecutor to profecute, and of Avitnefl'es to {■ppear and give evidence, and on refufal may commit them to gaol 5S5, 586, ii. 121 Efcapes within their jurifdidion 600 They (7iifnt ob/lante claufe in their conimilhon) are not comprized under name of juftices of oyer ■cmdtaminer 686,687. ii. 23,44 Where neceffary to enter their ad- journments ii. 24- M'hcre tliey may or not proceed fame feflions againft party indid- cd before them ii. 28, 29, 48 They were by ftatute to fend their indidtraenls not determined to juftices of gaol-t/elhery, whe- ther felonies or trefpalfes, if par- ty in gaol or bailed, but now iinnecefl"ary ii. 32, 48 Where they may deliver prifoners by proclamation or not ii. 34,46 Have power by flatute to reform ore tenus either pannel of grand or petit jury ii. 36, 155*, 156*, 265 They cannot make out procefs, when indictment delivered over \.o]\x^\(-^'i o^ gaol' deli'v try ii. 37 fonlervators of the peace how an- tiently aliigned ii. 42 Firit eltabhihinent of juftices of peace by 1 £. 3. ii. 42, 99 Hearing and deter mining given them by 18 £.3. ii. 42, 48, 109 Commilfion of peace founded in thefe and other acls ii. 42 Confifted antiently ofthr^e, now only two ajignavunui ib Of the firftand the powers it gives ii. Tage 42 So of the fecond ii. 42, 43, 44 Diftribution of powers given them ii. 43 In returns or making up of records before juftices of peace touching indidtments or convictions, how they muft be ftiled ii. 43, 44 Juftices of peace have power by ftatute to hc-ar and determine murders or manflaughters, but teldoui do, or any crime ouft of clergy, and why ii. 45, 45 Juftices of peace may take indict- ment ofy^ defendendo il. 45 May take inquifition touching fclo de fe, if not inquired before co- roners, it need not be fuptr 'vij'um corporis^ but is traveriabie 414, 419. ii. 46 May by ftatute proceed on indict- ment taken before former juf- tices of peace in the county, but cannot proceed on indittment taken before commiflioners of oyer and terminer^ or gaol-deli- •very ii- 46 But by ftatute indictment taken be- fore fheriff in his Tmn^ to be de- livered to them at next feflions, and they may proceed thereon ib Commiflion of oyer and terminer in the county determines fecond ojfigna'vimns of commiflion of peace ad audiendum ^ ter?ninan- dum^ quod qua re H. 47 General commiflion of peace in county detenninies not power of former juftice by charter, nor of juftice in a city or corpora- tion parcel of county ib Where no words of exclufion, juf- tice of peace of county have a concurrentjurifdiclion with thofe by charter, and fo if they be juftices by commiflion in town or city 'b King^ notwithftandingcharter, may grant commiflion of peace fpe- cially in that city or county, and they will have concurrent jurifdidion with juftices by charter 't) But CONTAINED IN THE TWO PARTS. But if franchlfe be granted itu quljil jujiiciayii comitatus Je non intromittant, tliofublcquent com- Hii/lion be gr:iiitcd in county at liirge, they have no jurildiction in this corporation or town; but quare,, whether indictment or fellion in the f'ranchile be void, or only contempt in juf- tices ii. Faoe 47, 48 Si.'ffions private and public ii. 43 Butincrs of private, att-huufes^ poor, iifc. ib Public fubdivided into general quarter-lellions and general le(- iions ii. 49 Both to be fummoned by precept in king's name ib In either of thefe feflions they may proceed in matters within their commiflion, as to take indict- mcfnts, try felons, tffc. ib By particular a^s fome things li- mited to the quarter-felfions ib When quarter-lellions to be held ii. 49, 50 Are varloufly held in feveral coun- ties, and yet good ii. 50 In MiJJ/eJex regularly but two feflions, yet they may hold qviar- ter-leflions ib JuUiccs to execute their authority as juflices of peace within coun- ty, where julticcs ib If juliice live or be out of his coun- ty, he cannot by warrant fetch one out of it into comity w here he is ib Whether a juftice, who is fuch, both in Loit(lo7i and MiddLfex^ may not commit one in Mid- dlej'ex brought out of London and e converjh ii. 51 Felony taken in foreign county, juftice there may commit, exa- mine, give oath to informers, and bind them over to give evidence, or commit them tor receflity ofprefervingthe peace; but qutere^ whether fuch exa- ^nination and informations be evidence on arraignment of fe- lon in proper county 305, 30o, 586. h. bl Tho by cuftom of London juftices of gaol-Jtlivtry lit at Newgate^ which is in London^ both for Middlefrx and London, yet jul- tices of peace for MiddUfex (it only in that county, and juttices of peace for London there ii. Fage^X One is brought by A. before jufuce on fufpicion of felony, if A. can materially teftify, juftice may bind him over to prolecutc, and if he refufe, may commit him ii. 52 They have jurifdiclion of felonies ariling within the x^erge ib In their felhons may by commoa law proceed to outlawry on in- diClments found .efore them, and in popular actions by liatute ib But cannot ifl'ue a cnfias utlrga- tiun, but muft return record of outlawry in B. R. and thence this procefs fliall ilTue ib Where juftices may proceed on indiflments taken in Turns or Leets or not ii. 10, 71 Juftice cannot difcharge one brought before him for fufpi- cion of felony, if felony was committed, but muft bail or commit ii. 93 One fiifpefted on probable caufe prefumed fuch till contrary ap- pear ib Some miftakes of lord Coke, as that a juftice of peace cannot ijfue a luairant before indiclme.nt, ifTr. refuted ii. 107 to III By 34 £. 3. their power further in- larged as to their taking perfons fufpecled of felonies ii. 109 They are confervators of the peace and more ib Juftice may by his warrant arrelt one fulpecled of felony, tho ori- ginal fufpicion not in himfelt', but in party praying the war- rant ii. 109, 110 Fit in all cafes of warrants for ar- refting for felony, much more for fufpicion thereof, to exa- mine on oatli party requiring it touching whole niaUer, where- oa A TABLE OF THE PRINCIPAL MATTERS on warrant demanded ii. Page 110, 111 Warrant to be under hand and feal 577. ii. Ill Regularly ought to contain caufe ib If general, to aufzver fitch jnatten as JJiall be cbjeSled^ in dilcretion of R, R. to bail or difcharge party 578. ii. 1 1 1 It may excufe an officer in falle imprironinent, if true caufe or niifdemeanor within connufance ofjuftice ib Antiently fuch warrants in treafon or felony held good; in warrants of the peace and good behaviour caufe muli: be Ihevvn and why ii. Ill Jullice may make his warrant to take one (ufpefled by name, but not all perfons fulpected ; contra of a rule in B. R. for that purpofe 580, 586, 587. ii. 105, 112 JuftJce may make a warrant, as well ill cafe of felony as the peace, to bring party before himfelf only, or generally be- fore any other jufiices, and then officer nftay bring him before any other julbce of the county, and it is not in election of party to go before whom he pleafes 582. ii. 112 Jn feme cafes may make his war- rant to bring him to the feflions, tho it is better to bring him be- fore himfelf, or feme juUice, that party may be bailed ii. 1 12 Warrant may be to bring party to the juftice to find fureties for iiis appearance at the feffions, '^c. and in mean time to keep the peace, or may be fi recu/averit to bring him to common gaol ioidem moraturus quoufque gratis hoc fectrit^ and yet conftable rnay bring him before the juf- tice, and if he refufe there to give fureties, he may by virtue of firft warrant bring him to gaol, and commit without any further warrant or mittimus ib Warrant may be in king''% name with tefte of the juftice, but more ufually in name of juftice ii. Page 113 Whether juftices out of iefllons can illlie a warrant to take perfons offending againft a penal law^ tho within their cognizance, and fo to bind them over to i^i- iions, or in default commit them, and this before indict- ment ib On complaint and oath of goods ftolen, and that pariy fufpedls goods are in fuch a houfe, and thews the caufe of his lufpicion, juftice may grant a warrant to fearch in thofe fufpeded places mentioned therein, and to at- tach goods and p .rty, in whoJe cuftody they are found, and bri:ig them before him, or fome other juftice to (hew how he came by them, ^c. this warrantable ni- ent obftante opinion o^ Lord Coke ii. 11.3, 150 But convenient to exprefs that fearches be made in the day- time, and that party fufpeding be prefent to give officer infor- mation of his goods ii. 113, 1 14-, 150 Entry to be per oflia aperta ; but if doors be fliut, and be refufed to be opened on demand, officer may break open doors ii. U-i, 116, 117 Lawful claufe in fuch warrant to attach party, in whole cuftody the goods are found ib If the goods Itolen be not in the houfe, officer is excufed that breaks open the door to iearch for them on juftices warrant; but party that made fuggeftion puniffiable, for in eventu it is puniffiable in him ii» 151 On return of this warrant exe- cuted, if it appear they were not ftolen, they are to be re« turned to the polfelfor ; but if it a])pear they were, they are not to be delivered to the pro- piiclor. but to remain with fhe- CONTAINED IN THE TWO PARTS. riff" or conftable, that party may proceed by convicting ollcndcr to have reftitution ii. Pa^e ib\ U goods not ftolcn, party to be charged ib It" Itolen, but not by him, but another that lold or delivered them to him, and priluner ap- pear to be ignorant that they were llolen, he may be dil- charged as an ottender, and bound over to give evidence as a wilnel's againlt him that fold them ii. 151, 152 If he knew they were ftolen, tit to bind him over to anlwer the fe- lony ii. 152 Thefe warrants arc judicial afis, and mull be granted on exami- nation of the fad ii. 150 To whom to be dire6ted, and what the purport thereof ib General warrant to fearch all places, whereof party and of- ficer have lulpiuion, tho ulual, not fafe ii. 11 4-, 150 Warrant ought to mention name ot party to be attached, and mult not be left with blanks to be filled up by party, fuch war- rant void ')'?7. ii. 114 If there be a riot or breach of the peace in prefence of a juiHce, he may arrell the rioters, or command any officer, or others cte tenusy without warrant to ar- refl them, and they by virtue thereof may ^xxqW Jia^rante cri~ mine in abfence of the juftice ib Jf a riot be committed, and rioters difperfed by coming of the jul- tice, and they be fufpeded pro- bably to meet again, or threat- vn It, tho conftables may tx officio fuppreCs the riot, and raifc fojje of vill to do it; yet a juf- tice may deliver a fpecial war- rant to arrelt the rioters, if they re-alFemble, tho there be no par- ticular perlons named in war- rant ; he may even autliorizo (Jump by word ii. lit, 115 Julllce rnuft cither difcharge or commit, or bail one arrclicd for felony brought to iuin ii. Fa^e 12(J If one be brought before a jufiice cxprelly cliarged with felony by oath, juftice cannot difcharge Jiiiii, but mull bail or coiuniit li. 121 If charged with fufpicion only, yet if no felony proved to be committed, or if tact be no fe- lony, juiHce may difcharge him as to felony ; tho if a trefpals, he may bind him over for it ib If one be killed by another, tha per infortunium, ax fe defendeudo^ (which is not properly felony), or in alfault on an oilicer, (which is no felony at all) jullice ought not to difcharge him, there- fore he mull be committed, or at lealt bailed ib They cannot proceed on an indid- ment taken before luperior judges tho other wife the caufe might be within their cognizance ii. 133 They, as to their iienire facias^ agree with jultices of oyer and terminer, and may indict, ar- raign and try fame day in cafes of felony ii. 26'1, 262 By ftatute proceedings before thera not dilcontinued by new com- miflion ii. 401, 405 Vide 4trreff , 13ail, Commitmint, &c. giiffification* Where warcten of the Fleet may juftify imprilonment by virtue of an order oi Chancery ii. 122 In trealon or felony there can be no jullification, asy^- dcfendendo^ (ffc. ii. 253 But on not guiliy prifoner Ihall have advantage of all luch de- fenfes, and where matter ap- pears not to be felony, he on ?iot guilty pleaded, may be acquittc4 A TABLE OF THE PRINCIPAL MATTERS acquitted ii. Page 2b9y 259, ti03, sot W/:sre^ and hoto arreji on fiij'picion may be jujiifitd^ or not. Vide :irreff. JiVhers one may juftify breakiKg open doorj^ or not. Vide ^trrtll, it<,Ue ano ILrp, Suffice or ^(&ci\ Jil'here one may jttjlify beating a fef- pajfer, come to take his goods, or endeavoui irg to enter on his poj- J'eJJIony or not. Vide i^^OmiClDt* PRESUMED that he neither will, nor can do any wrong, and therefore, if he command an unlawful a^ to be done, the inftrument is not thereby in- demnihcd, but punifhable 43, 44' Tho he is not under the coercivcy yet in many cales his commands are under the diretii-ve power of the law, which makes the a^ itfelf invalid, if unlawful 44, 127 In time of peace, if two men com- bat together at barriers, i^c. and one kill the other, it is ho- micide; but if by the king'% command, it is faid to be no felony 44 Bv defcent of crown king invefled with the right of fovereignty 61, 101 Supremacy of the king in matters ecclcfialiical a moft unquelHon- able right 75 Weight, allay and extrinfic value of coin inter jura majejiatis 191 192,204 Claufe in 28 H. 8. enabling him to difpofe of lands by will was T)€ce(Tary, for othervvife he could not have done it by will 278 But without thi<: afl he had power to difpofe of lands belonging to the crown or duchy by letters patents under tbefe refpecdve feais 278 Where there are three powers, as ofjullices o[ oyer and terminer^ gaol-delivery, and the peace, and record is made up by all thefe powers, the beft (hall be taken ibr the king ii. Page Si Office of coroners being by elec- tion is not determined by Ung's deniife ii. 55 King cannot arreft in perfon, or imprifon or command another fo to do, but by writ, Cs'c. ii. 131 A'/wj's title being of record muil be avoided by record ii. 205 If king lit in perfon in B. R. he cannot pronounce judgment in treafon, for, as he cannot be a witnefs, fo he cannot be a judge in propria caufd ib Where kitig'?, teftimony allowed, or not, and how kittg to exhibit his teftimony ii. 282 Who king, queen, prince, ^c. within 25 i. 3. de proditionibus Vide STuafOll, Vide itiiigeance, forfeiture, C5rant, &c. Mardial immediate officer to exe- cute judgment of death 464, 502. ii. 5 And for that purpofe is mentioned in judgments of treafon ii. 41 1 There may be a mandate to th« therifttoallift ii. 5 Chief Juftice or any other judge of B. R. may ilTue a warrant into any county, for taking or bringing before him a felon, or one lufpected of felony into any county in England or IValts 578. ii. 5, 6", 198 They are confervators of the peace through all England, more than juftices oi oyer and terminer 578. ii. 5 To-avoid trouble of bringing up of- fenders, before whom their war- rants are made returnable, and to whom directed 578. ii. 6 How their warrants ought to run in calts of lurety of the peace, CONTAINED IN THE TWO PARTS. (ifc. ngainft one in anothf^r county, than where they are Faoe 578. li. 5, 6 Tipfhivcs the marUial's deputies; each judge hath one 580. ii. 6 A judge of B. R, may order an arrelt ore tenus^ without exprei- mmi{- fioners of oyer and termi'nry B. R. may proceed upon them ; butjuftices of peace cannot ib One attaint, and record removed, it may award execution il> It is fovereign coroner of Evglnvd, and may take appeals of death, i^c. by 'bill ii. 5 Chief juliice chief coroner Tirtute offiai ii. 53 Felonies within /f/«?'s palace, ni- eiit oljftante, S3 H. 8. triable in B. R. contra where felony cre- ated de novo with fpecial form of proceedings ib By cuilom may ore tenus command a tipllaff to apprehend for mif- dcmeanors ii. 6 Chief Juflice not the Jufticiaiius An oil a ib The immenfe authority of the an- tient Jtijiiciarius Augliee lOG. ii. 6 Chief Juftice created by writ ii. 6 B. R. had antiently, in cafes of felonies and trealons done on the narrow feas, out of bodies counties, a concurrent juril- diclion with the admiralty ii. 12, 13 B. R. comprifed in a^s giving power to jultices of oyer and terminer ii. 22 On trial of felons in B. R. ii' prifoner challenge twenty pe- remptorily, fo that thole re- maining of the pannel be njt fufiicient ; tales to be granted by precept returnable, as the Cjie Ihali require ii. :>€ CUris A TABLE OF THE PRINCIPAL MATTERS Chris of the cro-jjn, aJJIfe at: J pence to certify hither names of all perfons outla-zced, attaint and ccnvi^I ii. Pa^e 36, 37 One llain in open rebellion, Chief Jultiee on view of body may make a record thereof, and fend it into B. R. and thereon party fliall forfeit his goods, but not lands ii. 53 Clerk of crown, coroner for £. R, to view body of priloner dying in king's bench ii. 58 Have not only power toilTue writs en indictments and appeals be- fore them; but alio may by or- der command ftierift" of county, ■where they fit, or their marfliai to take felons or dilturbers of peace, and bring them before the court ii. 105 Cullom of the court part of the law ot land ib Where on information on oath ot breach of the peace, and a de- lign by perfons, whofe names could not be known, to commit a riot, B. R. hath made an or- der to the flierifl to bring before them fuch as ftiould be probably lufpected to be parties therein 586, 587. ii. 105 Where B. R. ynay give judgment on record of con-viStion removed be- fore thettiy &c. Vide 3iU5S^ mfnt» Vide Certiorari Court, Crccu^ tion ano EeprnrUc, cSaoi^Delis btrp, if^abfa^ Corpus, Z^xU tice of 4^rfife, 3iiilice of 10i&Qi, ilDutlaU-rp, ^va ano a^ermiiuT, ^roaT^, &c. 31ariinp» DIVIDED into fimple and vio- lent, finiple larciny fub-di- vided into grand and petit 503 Grand and petit larciny dclcribed 530 Same in nature, but different in degree of punifliment ib Definition of larciny 504- How the indiftment rauft be Page 50* What are the ingredients in this crime ib What Ihall be faid a taking 505» 500' ui. lends his horfe to B. who rides away with him no felony 505 If a man leeing a horle in pailure of owner, having a mindtofteal him, obtains a replevin, and thereby hath the horfe delivered, this a felonious taking 507 ji. fleals horfe oiB. and afterwards delivers it to C. who is no par- ty to firfi Healing, and C. rides away with it animo fur audi ^ lar- ciny ib But if ^. felonioufly take the horfe of B. and after C. fleal him from A' C. is a ielon to both, and C. may be appealed or in- dicted as of a felonious taking from B. for by the theft B. loft not properly, nor in law pof- ielTion of his horfe ib Where a carrier thallbefaid lobe guilty of a felonious taking of goods delivered to him or not 504, 505 Carrying the goods to the place of delivery, and taking them af- terwards, a new taking 505^ Before 21 H. 8. if a fervant had carried away goods delivered to him by his malter animofurandi^ it had not been felony 667 By this ail made felony, if of va- lue of Ibrly fliillings; offender intitled to clergy, [but where oulled by 12 Anva^ ib An Ajjprentice or fervant under eighteen exempt from felony enacted ^e«oT'o by 21 H- 8. [how far altered by 12 Anuee~[. ib Yet it leaves him in fame condi- tion, as to any felony at com- mon law, as if he was not ex- cepted 668 And therefore, if my butler or Ihepherd under eighteen, or if my apprentice take away my goods felonioufly, without my adlual delivery, (ho under va- lu-. CONTAINED IN THE TWO PARTS. Ine of 40j. he is indiflable of felony at common law Fat^t 50(i, 607, G68 If a man deliver a bond to his (er- vant, or goods to fell, and he lells them and receives the mo- ney, and carries it away animo furandiy not felony dd'A W hcther delivery of niafter's goods by one fervant to another, in niafter's ablence, may be laid to be by the malter; delivery of the goods by mailer's wile within the afl ib A icrvant receives his niafter's rents, and anlmo furandi carries them away, not felony ib A. delivers the key of his chamber to B. who unlocks the chamber, and takes ^.'s goods animo Ju- ranJiy felony ib One that hath a bare charge of goods, tho not poliellion, may be guilty of lelony at common- law; as a butler that hath charge of plate, a Ihepherd of flieep, the like of hnn that hath a bare Jpecial ufe, as the guetl, that hath plate let belbre him 506, G67, 66'S If /}, by falfe tokens receives money of i^. and carries it away, no felony 50J Mailer delivers filver to fervant to change into gold, or leather to make Ihoes, and he runs away with it felony 668 Finding a purle in the highway, and denying or lecreting it, not felony ' 506 Taking treafure-lrove, wrecks, wails and llrays [before feilure] no felony, but party mull believe them to be lucli ib Where a man's goods are in fuch a place, where ordinarily they are, or may lawfully be placed, and a perlon takes them animo furandi^ felony ib If a (heep of A. ftray from his flock into the Hock of B. and B. drives it along with his Hock, or by miltake Ihears it, no felony; but otherwife, if he knows it to be another's, and marks it with his mark, this evidence o( fe- lony Pagt 507 A fervant finds his mafter's purle in his corn-mow, and takes part, if he knew his niafter laid it there, felony ib \{ A. fteals goods in the county of£. and carries them info county of C. he may be inditted lor lar- ciny in county of C. but can only be indicted of robbery in county of i). 507, 508 Where continuance of the alporta- tion is a new capf on 507 A. takes the horle of B. and be- fore he gets out of the clofe is apprelu nded, larciny 50tf If a guelt takes fheets off the bed felonioully, and carry them out of his chamber into the h ill, felony ib A. came into the dwelling-houlu of B. u'here nobody was, and broke open a cheft, and took out goods to the value of 5/. and laid them on the floor, and was taken before he could re- move them, he being indicted on ;iy Eliz. was oultcd of clergy ib If A. hath his keys tied to the firings of his purfe, B. a cut- purle, takes A.'% purfe with mo- ney in it out of his pocket, but the keys, which were tied to the firings of his purle, hang in his pocket, A. takes B. with iiis purle in his hand, but the firings hang to his pocket by the ke) s, no felony ; for licet cepity non afportanjit ib Where tliere is a pretenfe of title, regularly no felony; but yet it may be a trick to colour a fe- lony 509 What circumftanccs are evidence of a felonious intent 50S, 50^ If ^. takes away goods of i). o- pcnly (other wile than by rob- bery) this evidence only of a trelpafs ib A. leaves his liarrow in the field, E. having land in the fume u- feth A TABLE OF THE PRINCIPAL MATTERS feth the harrow, and returns it to the place where it was, no felony, but trelpalA Pa^S,e 50^ If ^. and J5. being neighbours, and A. having a horfe on the common, and B. having cattle there that he cannot readily find, takes up the horfe of A. and rides about to find his cattle, and having done turns oft the horle again in the common, no felony, but at moll a treipafs ib So if my lervant without my pri- vity take my horfe, and ride a few miles and return, no felony ; but coium^ if in his journey he fell it ib Of what things larciny may be committed or not 509, 510 Ct ct-eatures of a bafe nature^ as dcg%, htan, (^c. or their ivlielpi - there can be no felony ; but of hawks reclaimed it may be 512 Larciny may be committed of young liaioks in the nell, but not of their eggs 1 taker of e^^gs, how punilhed 51 1 Larciny cannot be committed of wild fwans, or their young ; but cvntroy if they be made tame, or if they be marked, or pinioned; but if marked and yet flying fwans that range abroad out of precin^bof the owner, no felony to kill them ib On indictment for ftealing goods of B. who is proved to be a feme covert, party may be acquitted, fo if it appear that the fuppofed owner had neither interelt nor poireffion in the goods, but he ought to be indicted de novo for goods of hulband or true owner 513 Where a man may commit felony of the goods, wherein he hath a pioperly ib Jointenants or tenants in common of a horfe, one cannot be a felon to the otlur ib ^. takes away the trees of £. and cuts them into boards, B. may take them away, and not felony ; and fo of cloth uiade into a doublet ib If ^. take away the hay and corn of J?, and mingle it with his own liock, or take the cloth of B. and embroider it, B. may take the whole heap or garment, and embroidery alfo, and be not guilty even of trefpafs Poge 513 Yet if ^^. bail goods to i?. and/teal them from him to charge him with an action, felony ib Wife cannot commit felony of her hufband's goods; and therefore, if file take and deliver them to B, who knowingly carries them away, no felony in ^. 513, 514- If hulhand deliver goods to B. and wife take them felonioufly from B. felony 514' Taking away another man's wife againfl her will cum bonis vir:\ felony by ftatute ib Servants in the houfe imbezzeling their raafter's goods after his deceafe by 33 H- 6". if they ap- pear not on proclamation, at- taint of felony 515 To Iteal firoud of a per fun buried^ felony ib Larciny from the perfon clam Cs* fecrete by 8 £//z. except under value of I2d. principals oufied of clergy, accelfaries not 531 Horfe-ftealers ouiied of clergy by 1 £. 6. Cf/ 2 £3" 3 £. 6. but ac- celfaries not 529 ^etit larcmp, felony 53o No acceffaries either before or after ib If A. fteal \2d. at one time, and B. I2d. at another, fo that the at^s were fevcral, tho the goods of the fame perfon ; petit lar- ciny in each ib If A. be indicted of larciny of goods to the value of 5s. petit jury may find it of value of 12^/. or under ib If A' fteal from B. to value o^ 6d. and then to value of 8^/. it is grand larciny, if put together in one indittment 531 If goods be ftolen at fevcral times trom feveral perlons, and each apart under value, leveral petit iarciuies, CONTAINED IN THE TWO PARTS. larcinies, tho in one indictment Ha^e 531 fciit contra, if (uch goods of levcral perfons were in one bundle, or on one tabic, or in one lliop, grand larciny ib If a man Ileal a horfe not abo\ c value ori2(/. or break, a lioule in the day time, and Itcal goods only oi' that value, the owner ^c. not put in fear, this but petit larciny, notwithltanding 5 CiJ" 6 £. 6, for that liatiite on- ly oulh clergy, where otl'enle capital, as grand larciny ib Taking from per/on ■init/iout putting in ftar or 'violence is not robbery, but larciny S.'J t Where words of menace are n(ud after the taking, only larciny ib For larciny from the houfe or fpe- cial burglaries. Vide I5ur=: Vide (iLlfrgp, Countp, :fdon)' b2> *'tatutc, Jnoiamcnt, &:c. "Natural Law. If one be violently alTaultcd, and cannot olhervvile favc liis own Jile, law of nature permits him in hii own dcl'ence to kill all'ail- ant f^'X^ ^ ^ Nature prompts all men in what- luever condition to prefervo themfelves, wiiich cannot be witliout fociety 4:i2 Law of nature makes a man his own protedor cum eiebito modc' r amine inculpata tulela 5 1 Poftivt La'iv. Pcnaltie";, as to their degrees and applications, are Juris pnfiiivi isf ttoH uaturalis 13 Lex talionis, except in murder, is purely juris pojitivi^ and the Jcioi made a commutation of it 14. Laivs o/" England. More determinate, than foreign laws, and leave as little as may be ad arhitrium judicis 13 This law allows not the judge to change the punilhments it in- flids 19 Always affedls certainty 22 Hath no dependance on the civil law lo Is excellently adapted to the con- veniences of Erg'ijh govern- ment, and full of excellent rea- fons 4-89 Common law in and after E. 3. re- ceived a greater perfection, not by ciiange thereof, for that could not be but by ilatutc ; but men grew to gr^-ater learning and ex- perience, and rectified niillakes of former ages and judgments '24-, 25 The king and his laws are vindices injur iarurn -ISl Vox.. II, The antient Jivlne Law, the Mom Jaic, yitticy and Roman Laius touching Homicide By the antientefl divine law homi- cide was capital 2 Delivery of a man into his neigh- hour's hand, explained ib W^io were intitled, or not, by the Mofaic law to the privileges nf places and cities of refuge ib Killing a thief found breaking up in the nighty not capital; \)\i\. contra in the day 488 The judicial laws made no dil"- ference in punifliment o'i homicide on mal:ce for er hough t, and on a Juddin falling out y both capital; but they extended not tii;it ri- gour to cafual homicidey but yet were fo ftricl, as to futfcr avenger of blood to kill fuch nianflayer before he got to city of refuge 477 There is not amongft thcfe laws any one which is exprefs touch- ing homicide je defmdendoy but H h cuAom A TABLE OF THE FRiNClRAL MATTERS cuftom of the Jitos, and inter- pretation ot" their dodors ex- empted a fa(5l fo circumlhinced from capital punifhment Page 4 If a woman quick with child took, or another gave her a potion to caufe abortion^ or one Itruck her, whereby foetus was killed, by the Jut/iciiil latvs it was capital 433 Many of the Jtfic laws touching homicide collected by Feiit ci- ted ; between which and the /«- diciallaws there is a great ana- logy 4 to 7 Wherein the Roman laws differ from, and agree with them 6, 7, 4S8 The ^ttlc, JeiviJIi, Roman and anticKt Englijh Laius touching Theft. By Jeivifi law theft not capital, tho accompanied with burglary, fave that plagium was capital, and that by the civil conltitu- tion of that ftate, punifliment of theft was in fome cafes enhanfed even to death 9 Of the law of reflitution in cafe of theft 9, 503 Wherein the Attic and Jeivifli laws agree and differ with regard to theft _ 9 The Roman laivs concerning pu- niQiment of //;^/ 11, 503 The antient laws of England iowch- ing the fame 11, 12, 503 Kotwithftanding opinion oi fchool- men, 8:c. polity of moll coun- tries hath made it capital 12, 13 Among the Jevjs lawful in cafe of hunger to pull the ears of land- ing corn and eat, and for one, thatpalFed thro.a vineyard, (sfc. to gather and eat, without carry- ing away 55 PimifJiments infiiSled oy the La'zos of fe'Verai Countries. What the rule to be obfcrved In ordaining punilhments 1 How divided Pas:f 1 The penalties indituted by God, amongft the jfurs, on breach of their laws, are the beft pattern for inftitution of punifliments, tho they conclude not other ftates 2 InAances of various kinds of pu- niOimCnts inflicted by laws of feveral countries, elpecially in homicide and t/teft 2 to 1 5 The degrees and orders of the Ro- man punifliments 1 1 The end and defign of punifli- ments It By JeivifJi law thief had no ex- emption from punifliment by reafon oi neceffity 55 haiv of Nations. Allows a fovereign prince to be- gin hoflilities with another de- ligning a war againft him ; but contra between fubjeCts of fame prince, there one cannot kill another by way of prevention 52 Where the king nay deal with a merchant ftranger^ who commits trealbn, either as an alien ene- my by the la-jj of nations, or as a traitor by the law of England 94- Vide 31!igfance, :21mbaCraDor, %arquc or Eeprifal, ^ar. Civil La'iv. Civil laws wife and well compofed laws, of great ufe to be known, tho not to be made the rules of our EngUJJi laws; no ftrcfs to be laid on them, either for dif- covery, or expoiition of Engliji laws, farther than by cufloms of England or ftatutes they are here admitted 16 Where civil law lays a penalty on tutor for offenfe done by infant incapax doli 19 Inftances oi artificial acceffions by adjun^tiorif commixtion and fpe- cif cation CONTAINED IN THE TWO PARTS. cification in the common law [tlie lame as are ia the ciuit /a a-] Page 5 1 .'i Wijere party according to civil lazu may be examined, as a fup- plemental proof ii. 285 How the civil law diftingutJJicth the age of man for federal purpofes^ and wherein the civil and common law agree and differ. Vide j^Hjs imt. By the antient yewijlt\a.v/ he, that was but a day above thirleeu years, was adjudged in virilifiatu, but not if under that age 18 Canon Law. Canons or decretals of popes^ or of proz'ittcial councils ^ or imperial conftitufions never bound in Eng- land^ farther than by Uatutes or common ulage they were re- ceived 399. ii. 325, 329, 330 By canon laws nuns exempt from temporal jurifdiclion ii. 328 Vide <£lcrsp, HeligioH, Rliodian Law. If common provifion for fliip's company fail, mailer may under certain temperaments break open private ciiclts of mariners or paflengers, and diltribute private provifion for prcferva- tion of ftiip's company 55 It is a received cuiiom, if a fliip wants necelTaries, and inhabi- tants of continent will not fur- nifh them for money, they may by tfage of the fea and nations take provifions by force* ma- king inhabitants reafonable fa- tisfaction ib But contra, where this done by EtigUjh mariners on EngUJh Ihore, where there is one common ma- giftrate, becaule capable cf other remedy IQ For maritime and martial lavjs. Vide 4iOmirattp, ^oniX\xt\z Efcapc prefentable there, but com- mon fine or amercement cannot be let tliere, but it may be re- moved ia B. R. and there a- mercement may be fet Fai^e 603 Felony newly created not inquir- able there, iinlefs lj)ecially li- mited to them, but contra of fe- lonies at common law 6'3'2. ii. 71 Cannot hold pleas of the crowa ii. 69, 71 Hath in elTed fame jurifdictioa with the Turn ii. 71 They cannot try felonies prcfented there, but muft fend fuch pre- lentmenls before j nil ices o( gaol- delivery, or they muft be re- moved into H. R. that procefs may be made on them to out- lawry ib Vide ^'oeriJ* ilocal* Vide Count)), '^iXOiiU mmt, ii^naU ' 5fl.onDon» By charter mayor (o be in corn- million o^ oyer and terminer, but not on indidment grounded on b H. 6. againft avoiding records 562 He is alfo of the qtiorum in com- milTions oi[ gaol-delivery by char- ter ii. o2 Whether juftice both in London and Mlddltfix may not commit one in Midd'cfex brought out of London, and e converfo ii. 51 Cuftom o^ London enables juftices of gacl-delivoy to lit at AVcu- g^ite, wiiich is in London, both lor Middlffcx and London; but juftices of peace of" the faid counties fit in their refpeclive counties only ib Mayor by charter coroner ii. 53 Hfa 2 3lu atic. A TABLE OF THE PRINCIPAL MATTERS 3Liinatic» Vide jocot, &c. ^aDman* Vide JfDcot, &c. Spainoiibrf* Vide Irraienmcnt* jpainf ri3f» Vide Bait* Spalum prohibitum* BEING only under a penalty will not inhanfe elleft of crime be_\oiul lU nature, as if one unqualified to keep a gun ftioots at a bird, and calually kills a man, it is only chance- medley fa^e 'tTS, '1-76 ^an0laiigi)tfr. Vide cpurDer aiiD Jcpan.6lau2l)ter» Cparmcr, Whether lawful to imprefs them 678, 679 Vide aiDmiraltp, ;fcIoup by statute, HlpDian jCato under title laiDjff, ^parket^obert* vide ^tQitu^ tion* barque, or EeprifaU A fpecies of war 1<52 Particular, granted to fome par- ticular men on certain occalions to right themfelves. (TzJi: 4 H. 5.) ib General, tho it hath the effea of war, is not a regular war, and wherein it differs ib partial ^ato. Vide Conffable auD i^arfljaL spatter anD ^trbant. Command of maflcr excufelh not fervdnt in trealon or felony Page 4-1-, 516 Poffeflion of fervant is poflellion of mafter 668 Menial fcrvatit, how defcribed by Braaon i«. 75 For homicide in fervant JefendenJo the majier^ and i cotiverfo. Vide v^omiClOC* 5pa,rim5» Malit'ia fupplct iStatem 26 IjynorarUia eorum, qut^ quis/clre te- fietur, nofi excufat 42 Exprejfum facit cejfai e taciturn 235, 614 Quod fiubitas^ nefeceris^ elpecially in cafes of life 300, 509 Stabit frafumptioy donee probttur in contr avium 516 A manjliall not take advantage of his oivn wrong to gain the favour- able interpretation of law 482 J{or can he apportion his own wrong and breach of duty 597 De minimis non curat lex 603. ii. 154 Fiaio juris intenta ad unum 630 Nullum iempus occurrit regi 632 \Unicuique licet'] renunciarejuri pro fe iutrodu^o ii- 224 T^utiusfemper efi err at e in acquie tan- do, quam in puniendo^ ex parte mifeyicordics, qudm ex parte jtf- titia ii. 290 Rutins erralur ex parte mitiori ii. 305 Fruftra legis auxilium qu Vide 31rrcff, Commitment, Juiiice of ^tdkCi. For mittimus and tranfciipt of re^ cord. Vide Crrtiorari, 4^lcas^^ S^urorr anD ^anjEflauglitfr. If one ex intent ione do an unlawful a^l tending to bodily hurt of another, as by ftriking hiin, tho not with intent to kill him, but his death happens within year and day, or if he ftrikes at one, and milling him kills another, whom he did not intend, it is felony and homicide, and not cajunlty, or per infortunium ; fo it is, if he do an unlawful aCt, tho not intending bodily harm oi any i^jan, as if he throw a ftone at another's horlc, and it hits a man and kills him S9, 440 472 Want of due diligence and in- fpedion may make that man- Uaughter, w hich otherwile would be only chance-medley 475, 476 Homicide jultiliable by llatute Je maletntloiibus in parcis not to H h 3 bo A TABLE OF THE PRINCIPAL MATTERS be committed on any former malice, what required to jurtify luch homicide ^ Page 4-9]. In time of peace, if two combat together at barriers, or for trial ot Ikill, if one kill the other, it is homicide; but contra if by king'?, command 4-4-, 473 53 h. S. as to trial in a foreign county of murder, now in force, tlio not as to ueafon 283, 374r Murder and homicide defined 425, 449, 450, 466 Murdrum^ what it antiently im- ported 447, 448 Stroke without death, nor death Avithout Itroke, or other violence, makes not the homicide 4'26 To what nUents murder or man- slaughter relates to the ftroke, or other caufc of death, and to One gives a wound to another fick of a dileafe, which by courfe of nature might end his life with- in half a year, it haftens his end by irritating the difeale, murder or manflaughter P^g^ 428 If a man by working on the fancy of another, or by harfh ufage put another into fuch a paffion of grief or fear, that party dies fuddenly, or contrafts a mortal difeafe, tho murder before Gody yet not fo in foro humano 429 Phyfician or furgeon gives a potion with a good intent, it kills pa- tient, no homicide ; neither if he be no licenfed furgeon or phyfician 429, 430 One gives a pregnant woman a potion to deftroy the child, it kills her, murder 429 ^vhat purpofcs it relates to the Owner of a beaft ufed to hurtpeo death only 426, 427, 428 Ifa mortal itroke [before 2 G. 2.] had been given on the high fea^ and party had come to England and died, neither admiral nor common law hadjurifdidion 426 By 2 Cs" 3 £. 6. the juftices or co- roner of the county where party dies, fhall inquire and proceed, as if ftroke had been in fame county 427 By fame a^ indidment and trial of accelfaries (hall be in county, where accefTary ib Ko murder till party dies ib If one gives another a ilroke, not fo mortal, but that with good care he might be cured, if he dies of the wound within year and day, homicide oi murder according to the cafe 428 But if it be not mortal, but with ill application party dies, if it appear clearly, ihat the medi- cine and not wound was caufe pie not knowing it, difpunifh- able 430 Knowing it, and not keeping him up from doing hurt, how pu- nilhable 430,431 Tho owner have no notice, if it be a beaft fera natura^ as a lion, ^c. if he gets loole and doth harm, owner liable to da- mages, for he muft at his peril keep him up from doing hurt 430 If owner, knowing that his ox is ufed to hurt people, ufe due di- ligence to keep him up, yet ox breaks loofe, and kills a man, no felony 431 If through negligence beaft goes abroad after warning of his con- dition, manflaughter ib If owner purpolely let him loole to do mi!chief, or with a delign only to fright people and make fport, and it kills a man, mur- der ib of his death not homicide ib Laying poifon to kill rats, a man If not in itlfclf mortal, if either for want of applications or neglect thereof, it turns to a gangrene^ or fever, which proves imme- diate caufe of his death, murder, or manfliiiughter ; wound cauja caujati ib cafually is poifoned, no felony ib But if to kill B. and C. by miltake takes it and is poifoned, mur- der ; fo in all cafes where ma- lice intended to one egreditu*- perjonam 436, 441, 442, 467 Iho CONTAINED IN THE TWO PARTS. Tho party take poifon by the pcr- /uaiion, but in ablcnce of an- other, pcrfuadcr is principal in themurdcr/'^7^f436',4H,442,l-6'7 A. gives poifon to B. intending to poifon him, B. ignorantly gives it to another, who dies of it, murder in A. but B. not guilty A. gives purging comfits to B. to make fport only, he dies of it, manflaughter ib Various initanccs of killing, as by expofing fick perfons or infants, ^c. 431,432 A man infcfled with the plague goes abroad with intent to in- fe6t another, who is thereby in- fedled and die<, whether mur- der 432 If a woman quick with child takes or another gives her a potion to caufe abortion, or one lirikcs her, whereby child within her is killed, it is a great mifprifion, but no telony • fo it is if fuch child were born alive and bap- tized, and after die of the flroke given to the mother, not homi- cide \^frelent ; if abfent, accellary 435, 440 A. indicted of murder, and B. as ac- cellary before by procurement, A. is found guilty only of manflaugh- ter, B. lliall be difcharged 437 All prelent and aflifting to murder, principals ib If /}. is indicted, as having given mortal ftrokc, and B- and C. as prefeni and alfifting, and on evi- dence it appears that B. gave the Aroke, and A. and C. were only aiding and allifting, it maintains indidment 437, 438 If -^. lies in wait to kill B. and C fervant oi A. being prefent takes part with his malter, and fer- vant or mailer kills B. murder in A. only, homicide in C. 437 A. having malice againll D. ina- fter of .^. by mifiake alFaults and kills B. the fervant, or B. comes in aid of his mafter, and A. kills him, murder in A. ib On indictment of murder, tho par- ty acquit thereof, and convicl of manflaughter, he Ihall receive judgment as if he had been in- dicted of manflaughter, for of- fenle in fubliance the fame 499, 450, 46ti \{ A. and B. and C. and divers others be engaged in an affray together, and D. the conflable conies to appeafe it, and A, knowing him to be fuch kills him, and B. and C. not know- ing it comes in, and finding A. and D. llruggling, allift and abet A. in killing the confiable, mur- der in A, but manflaughter in B. and C. but others of them, that did not know him, or abet, are not guilty 446 An abettor of murder and homi- cide mull be prelent and alhil- ing ib H h 4 One A TABLE OF THE PRINCIPAL MATTERS Ore procuring or abetting and iibfenl, only accellary in mur- der Pa^e 439 If prefent, and not aiding and abetting to the felony, neither principal nor accellarv, but looking on without ufing means to take felon, a inifprilion 4-39, 44S, 449, 593. ii. 75, 76 Divers of fame party come to make an affrav, (sfc. and come into one houle, ail are faid to be pre- fent, the in another room 459 So are they faid to be, if they come into one park, tho at a didance from each other 465 One ready to aid, tho but a looker on, is a princip:d 439, 441 Divers come with one atfent male Jai>e, as to rub, kill, beat, or do any trefpals, and in doing it one kills a man, all principals 440, 441, 463 If ^. come in company with £. to beat C. and £. beat him till he die, y/. is a prnicipal 472 yj. and £. combat, C. comes to part them, ^. kills C. murder in ^. nnd per a/cutis, in both ; but if falling out on a fudden, then only mandaughter in him that kdled him 441,442 ^. with above thirty entered with force on a manor-houfe, and oul'ted B. and hib family ; twenty others on part of B. three days after in the night came with •weapons in order to re-enter, and one of them call fire into a thatclit houle adjoining to the houle ; whereoJ' one in the houfe Ibot otF a gun, and hilled one of the party of B. man- flaughter 440, 441 A man leifeth goods of an alifn tncTnyy and carries them to his houfe; a flranger under pre- tence of being deputy-admiral, with a great multitude came with force to the houfe, and at the gate made aliaidt upon thole within, a woman ilfuing out, without any weapon, was kill- ' ec by a fervant, who cuine to lake the goods, by throwing a ftone at another in the gate ; ptr afcuns; if the woman came in defenfe ofmafter of the houle, it was murder in vice-admiral and his company ; per outers no malice agaiiill the woman, and murder lliall not be extended farther tlian intended; per tout!, manflaughter P^gf ^\\, 442 Divers come to commit a riotous, unlawful a^^ if in purfuit there- of one commit murder or man- daughter, all of that party that committed the diforder are guil- ty 442, 443, 463 But in that cafe it muil be intend- ed, when one of fame party commits murder, ^c. on one ot the other party, or on thole, that come to appeafe, or part them, or by law to difperfe them ' 443 A. and B. tight upon premedita- tion, A. takes C. for his lecond, B. takes D. J. kills B. murder in C. formerly held to be murder in D. alfo; but it feems other- wife 443, 452, 453 If one have no particular malice againlt any individual man, but comes with a general refolutiou againft all perlons, if «^? be un- lawful, and death enfue, it is murder ; as if it be to commit a riot, or enter into a park 444, 445, 466 /}. and divers others come toge- ther to commit a riot, and in their march A. meets with D. with whom he had a former quarrel, or by realon of fome collateral provocation given by D. to ^. A. kills him without any abetting by his company, they not principals in the mur- der or manflaughter 443, 444- Where many came to commit a dilfeif-n, and one killed, all the company arraigned as principals, and condemned ; but it leem/eth to be only manflaughter 444 If many come together on an un- lawful deligUj and one of the compiiny CONTAINED IN THE TWO PARTS. company kills one ofthc advcrfe party without ab Jn appeal ot murder, whether jury naa^ 4cc^uit, or nn^ft find party guilty of manflaughter Page'iVi^ 450 What malice conftitutcs murder 451 Malice in fa6l defined jb Ihe diftindion of malice in law into its ditJerenl kinds 451, 455 From what circumitances eviden- ces of malice in fact mult urifc 45i It muft be compaffing fome bodily harm ib A long tuit in law not fuf!icient evidence of malice in lact, but liow it may be heightened into malice prepente 45:«J A. and B. are at malice, and re- conciled, and after on a new oc- cafion fallout, and one kills the other, not murder; contra^ it reconciliation counterfeit ib If malice between A. and B. and they meet and fight, A. gives firft blow, yet it B. kill him (othetwife than in his ov/n de- tenfe) it is murder jb If malice between them, and A. alTauIt B. and after flies to the wall, and there in his own de- fenfe kill B. by fome it is mur- der; ftd qutE>c ib A quarrel between A. and B, A. challenges 5. 5. declines it, but at length to vindicate his repu- tation meets and fights, and kills A. murder 452, 453 A. challenges B. B. declines it, but fignifies that he will defend hinifelf, if B. going about his occafions is aifaulted by A. and killed, murder in A. but if B. had killed A. it had been fe de~ feniitndo^ it he could not efcape, otherwife manflaughter ; but if only a difguile, murder 453 \{ A. and B. tall out on a fudden, and prefently agree to fight, and each fetcheth a weapon, and goes into the field, and one kills the other, only manflaughter ; if they had time to deliberate, murder ib The child of A. beats child of 5. who luiiS home to his father, and A TABLE OF THE PRINCIPAL MATTERS and he runs three quarters ofa mile, beats the other child, and kills him, nianflaiighter Page 453 Keeper of a park rinding a boy liealiiig wood bound him to his horle'stail, and beat him, horle ran away, killed the child, mur- der 454' From moderate correflion of a fervant death calually enfues, homicide per infortunium ib But if maUer delign immoderate correction, or ftrike with a le- thal weapon, and kills lervant, murder; whatcircumllancescon- fidcrable in this cafe 454, 474 One hath liberty of infangthief\ fteward gives judgment of death againft a priloner againft law, not murder, quia fadum judici- alith-^ licet igiioranter 454 Killing without provocation, mur- der 455 Wilfully poifoning implies malice ib Killing one come to demand debt, or ferve procefs, murder ib ^. diftorts his mouth, and laughs at £. ivho thereon kills him, murder ib ^. pafling the flreet, B. takes the wall, and thereupon J. kills iiim, murder; but if B. had jultled A. it had been only manilaughtcr: fo if J. riding on the road, B. whips his horle out of the track, and then A. lighting kills B. manflaughtcr 455, 456 Words no provocation to kill a man, nor will they lellen a crime from murder to man- flaughtcr, except words of me- nace of bodily harm 456 If ^. give iiidec:cnt language to B. and B. thereou ftrikes A. but not mortally, and then A. ftrikes B. again, and then B. kills A. by many only man- ilaughtcr ib A. fitting in an ale-houfe, a wo- man calls him a i^on of a vjliore^ A. at a diftance throws a broom- Italiather, and kills her; qu*eie^ whether murder or manflaugh- ter Page 456 The nature of the weapon, where- with party is killed, coniidered 457 A. and B. fit difference, A. bids B. take a pin out of hisfleeve to take occaiion to ftrike B. B, dolh accordingly, A. ftrikes B. whereof he dies, murder ib A chiding between hulband and wife, thereon he ftrikes her with a peftle, and kills her, murder ib A bailiff comes to execute a pro- cefs, but hath not a lawful war- rant, iffuch bailiff be killed, on- ly manflaughtcr ib If any minifter of juftice be killed doing his office, it is murder, tho in the night, or on a Sun- day 457. ii. 85 But if the procefs be executed out of jurifdiftion of the court, only manflaughtcr; fo it is, if court had no jurifdiclion of procefs 458 Murder to kill an officer, tho he ftiew not his w^arrant or mace, where it is not demanded 458, 462 Tho bailiff ufe no words of arreft nor flievvs his warrant, murder to kill him doing bis duty ib But if officer doth what is not war- rantable, as break open window to arreft, there, if flain, man- flaughter only 458, 474 If he enter by an outward door, he may break open inner door, killing him in fuch cafe, mur- der 458, 459 Where officers may juftify breaking open doors to arreft, and cou- fequently murder to kill thera fo doing 459. n. 94 Where conftable afls out of his vill without a fpecial warrant, killing him only manflaughter ; but killing a private man in ex- ecution ofa particular precept from a jiiltice of peace directed to him by name to fupprels a riot in the vill of B. or to arreft one for lome mifdeiaeanor, and wilhii; CONTAINED IN THE TWO PARTS. within the jurifdiflion of the jiilhce, luurdcr; luch private man nnift fliew his warrant, or fignify tiic contents -/''^^'^ '^^^ ]f juliices warrant cxprcls not t[ie caule (ufiiciently enough, )cl it he had jurildiction, kilhng oth- cer in execution ot' it, murder 460 Where two conliables and their alHftants are engaged one againil another, and party of one con- Itable kills one of the otiier par- ty, but nianUaughter ib Sheriff having a writ of poflcflion againll houfe of ^4. j1. gains conrtable of vill to oppofe Ihe- rilT, and in conflict conllable is killed, not fo much as manflaugh- ter; but if any of Iheriff's otli- cers are killed, murder ib KllJIing bailiff, conltable or watch- man doing his duty; murder 457, 4C0, 463. ii. 90, 98 W^hat fulhcient notice that a man is a bailiff, conftable or watch- man, to make it murder 460 to 464. ii. 90 What a necefTary notification of a man's being a private bailitf 461 Rioters affembled in a houfe, fome iffue out and kill a conftable's alhltant within view, murder in thofe in the houfe, who abetted the afiault 463, 4(i4 Killing thofe, that come volunta- rily to a conftable's affiftance, as well as thofe that are called, murder ib Killing aflifling during neceflary retreat of conltable, murder ib On hue and try, tho without jui- tice's warrant, or conftable a purfuant is killed by a malefactor, murder ; all malefactors in the fame field principals; one taken before party hurt, not guilty^ unlels afler taken he had ani- mated malefaclor to kill the party 465. ii. 100 A prefs-mafer impreffed E. and with aflulance of C, laid hold on him, D. hnding fault with C.'s rudencfs a cfuarrel arole, D, killed C. but uiaiillaughtcr ib A. comes to rob B, and cither witiiout, or on rehilance, A. kills him, murder ta^e 465, 474 So if men come to Ileal deer in a park, or rob a warren, and parker or warrener relilts, aJid is killed, murder ib Ifpriloner die by durefs of gaoler, murder 466 What the form of pardon of mur- der, what of manllaughler : Where a fpeeial non obftantt oi 13 A*. 2 necelfaiy 466, 407 How one indicted of murder hav- ing a pardon of felony, ox ft- lontca interfedio mult plead 467 1 Jac. oijlabbin^^ llio temporary, by n Car. 1. continued till foil. e other ad fhould be made to con- tinue, or dilcontinue it 468 Ufual to prefer two indictments, one of murder, another on this ad, and to try that of murder firft, convidt on either, oulied of clergy >^ How indictment on this ad mull be to oufl clergy ; need not con- clude contra Jvrmam Jiat. good ■with, or without it ib Throwing a hammer and killing a man, not a Itabbing or thruliing within this a^t 469, 4:o Stabbing, or thrufling with a fword or pike-llaff within it; whether a fhot with a piftol, or blow with a fword or italf be within it, quare ^"^^ A cudgel in the deceafed's hands, a weapon drawn w ithm it, "jix, fuch as might do hurt ib One within words of the ad, not w^ithin the realon ib If a malon in building voluntarily- let fall a Itone, and kill another, without due warning, at leafl manflaughter 47'2, 475 Two playing at cudgels, or vvreft- ling by conlent, or playing at foils, one calualiy kills the other, manflaughter 472, 47 3 If A. cut the hedges of B. and B. beat hiiii, whereof he dies; nianflaugiiter 473 Several A TABLE OF THE PRINCIPAL MATTERS Several come to enter J.'s houfe as trefpalVers, jI. kills one ofthem, manllaughter ^^i^ '^''■i' It" one throw s a Uone over an houfe amongit people to do hurt, the intention makes it murder or manllaughter 475 Shooting at deer in another's park Jans licence, the arrow glancetii and kills, nianihuighter ib Throwing a Ttone with intent to kill another's poultry, and it kills a by-ltander, manllaugh- ter ib ^. drives his cart carelefly, and it runs over a child in the Itreet, and yet drives on, and kills the child, murder; but if he faw it not, manflaughter 476 One riding in the ftreet whips his horfe, and runs over a child and kills him, manllaughter ib But if he rid fo in a prefs of peo- ple to do hurt, and horfe had killed another, murder ib inhere be malice between yj. and B. and thoy meet and fight up- on it, tho J. gives firlt blow, and B. retreats as far as he can with fafety, yet if B. kill him, murder 479 j^. allaults B. B. thereon ftrikes J. without flight, and kills him, manflaughter ib If .V. upon malice prepenfe Itrikes B. and then flies to the wall, and there in his own defenfe kills B. under what circumftan- ces murder, ox ft difendendo 4S0 Jt a prifoner refiits not, but flies, \ci officer for fear of a relcue Itrikes him, whereof he dies, murder 481 B;.iiiff killing a man flying to avoid arrefl in a civil atiiou, murder ib If A. afl"aults B. firfl, and B. re- allaults A- and fo fiercely, that A. cannot retreat to the wall without danger; nay, tho he fall on the ground upon i^.'s af- lault, and then kills B. it is not Je defcndtndo, but muiderorho- giipide according to the cule 4^2 NeceflTity of flying fliall not be ta- ken as a flight, in favour of aflailant Pa^e 482 ^. allaults B. B. by his own cou- rage and addrefs precludes flight of A. then A. kills him, man- flaughter 483 Killing on a fuddcn falling out, manllaughter ib A. allaults the mafler, and fervant in defenfe of him kills A. if ma- iler not driven to extremity man- flaughter in fervant 484 Like law of a mafler killing in de- fenfe of his fervant; hulband of the wife, the child of the parent, and e converjo lb If hufljand or father kill one that attempts to ravifli the wife or daughter, if it might have been otherwife prevented, manflaugh- ter 485 Killing one, who pretending title takes goods as a trefpaflfer, man- flaughter 485, 486 Killing a trefpafler in defenfe of a man's houle, manflaughter 485, 487 Killing adulterer in the att with the wife, manflaughter ib J. is fufpected by B. of felony, tho no felony committed, nei- ther is A. indided, nor proba- ble caule of fufpicion, if on of- fer to arrefl him by B. he re- lifls or flies, whereby B. can- not take him without killing, and B. kills him, at leafl man- flaughter ; but if a felony com- mitted, and there be caule to fufpeCl A. tho innocent, if B. kill A. in this purluit, whether it cxcufe hiin from manflaugh • ter 490 If a man have a park within a lb- refl, where he may hunt, and fbrefler kills purloin-man, or his fervant hunting in his pur- loin, murder or manflaughter according to the cafe 491 What authority homicide in execu^ tion of jujiice requires in the judge that gives, and officer ti;iat ex* CONTAINED IN THE TWO PARTS. executes judgment Page 497, 498, 499 Giving judgment of death without jurildidion, if executed, mur- der 497 Jul^'ce of peace gives judgment in treafbn, whether murder or n>if- prilion only 497, 498 Where proceeding of judges in ca- pitals without Uriel extent of their commilHoii, or where their proceeding aft<;r their cotnniil- lion is determined, is not mur- der, but a great mi(prihon 49S, 499 Executing martini hiw in time uf peace, murder 499, 500 Where the judge hnlh jurildi(:;tion of the caule, oflicer executing fentcnce not guihy, tho the judge err; but otherwife, if he hath no jurifdidtion 501 If a Itranger of his own head exe- cute criminal, murder ib If a private man kills one fufpedted on his flight, and refufing to fubmit, if innocent, at leall manllaughter, becaufe innocent man not bound to take notice of private man, as authorized to arreft him ii. 82, 83 If one arrefting on fufpicion break open doors, if party a felon, jufti- fiable; contra, if innocent ii. 82 If before or after arrell, B. an in- nocent man fufpected, draws his Iword and alFaiilts ^. the party fulpeCting, and ^. prefles upon him to take or detain him, and in conflict B. kills ^4. it is mur- der, or it' A. kills 5. it isjulti- flable ii. 83 If one arrefled on fufpicion kills party arreting, (alwa\s fup- pofing party arrefted innocent,) only manflaughtcr ii. 84 Bailifl" about to take a prifoner, bel'ore arreft prifoner draws his fword, and kills him, nnirder ii. 83 If there be a felony done, A. ful- peds B. on probable grounds, and acquaints conftable witli it, and delircs his aid to take lum, if conllable on fuch arreft or attempt thereof be killed, it i% murder ii. B^,i^^ 92 If there be a warrant againft one for trefpals, or breach of the peacf, and lie flies, and will not yield to the arrdt, or being ta- ken makes his efcape, andoflicer kills him, nuirdcr ii. 117 Vide jirriff, I'hrg". ir.omitiD& If prifoner profecuted on 28 //. 8. j'or trial of trea/on, '6ic. on the highfea Hand mute, he fliall have ptine fort ^ dure ii. 17, 31«, 319 Whether ptine fort ^ dure be par- doned by general words of all contempts ii. 2;v2 In cafe of demurrer no fuch judg- ment can be given ii. 257, 313 Where defendant fails in pLaling not guilty, or putting hunlelf on his country, it is in law a (land- ing mute ii. 253 Antiently, if felon peremptorily challenged above thirty-five, he was put to peine fort (jf dure ii. 2CS If before 22 H. 8. felon had plead- ed //o/ »K/7/y, and put himielfori the country, and challenged pe- remptorily under three juries, whereby jury remained, and a tales was granted, and he then flood nuite, yet jury part on him on hisplea «5^ ^K/'/Ay ii. 269, 316 If prifoner hath pleaded to the country, and when tried lays nothing, no penance Iball be iiiflifted, but jury fliall be ta- ken ii. 299 If felon challenge above twenty, challenge only over ruled, and jurors fworn ii. 270, 31t> If he hath received his judgment already, or be convict, and brought to the bar, and be de- niancled what he can lay why judgment fiiould not be given againft A TABLE OF TH£ PRINCIPAL MATTERS againft him, or why execution IhoulJ not be awarded, if he {ay nothing, it ih;ill not be in- quired whether he can fpeak. or not, but he (hall have prefent judgment, or execution ii. Pa^e 314, 315 But if a long time hath palfed be- tween his conviction and judg- ment and this lecond calling to the bar, it is prudent to inquire by witnelles, whether he can Ipealc ii. 315 If one abjure, or be outlawed of fe- lony and return, and be brought to the bar to (lievv caufe, why execution (liould not be done, if he Itand mute, an inque/l of olhce IS to be taken, and if it be found that he hath loft his fpeech by vifitation of God lince Ins abjuration, they (hall inquire of the identity of the perfon be- fore judgment or execution (hall be awarded; fo if iie were brought in on a cap. utlcgat. or fiab, corpus lb If one indicled or appealed of fe- lony pleads not guilty, and puts hinife'lfon the country, and jury remains on challenges till ano- ther day, and then appear, and prilbner (lands mute, yet this not (landing mute, (or inqueft fliall be taken on illue already joined ii. 315, 31d In that cafe court having any doubt, hath ufed to inquire by inqueft, fometimes by inquiry ex officio by inquelt impannelled to try the illue, whether he ftands mute of malice, or ex "vi- fitatione Dei ii. 315, 316, 321 When one faid to ftand mute ii. 316, 317 If felon ftand mute, court ex offi- cio ought to impannel a jury as inqueft of othce to try, whether it be of malice, or not; and if they (ind it to be of malice, he fhall have judgment o{ peine fort %d ilure, if otherwife, they are to inquire of all the points ma- tcxiui fur his defciii'e ii. iil7 On indiflment oftreafonjudgment of treafon (hall be given againft party ftanding mute li. Pa^e 317 In treafon, tho one ftanding mute (hall be convifted, yet there are fome antient inftances to the contrary, as on indiftment for counter(eiting coin, but now the law is otherwife 223, 328 One arraigned for petit treafon, challenging above thirty-live (hall have judgment oi peine fcrt Cs" dure^ and how judgment en- tered 382. ii. 268, 399, 400 In appeal, if appellee ftand mute, judgment of penance (hall be given ii. 317, 321, 322 One arraigned before lord fteward on 33 H. 8. and ftanding mute, fliall have judgment, as if con- vicled ii. 318 Peer arraigned on indictment of felony before his peers refuting to plead, (hall have this judg- ment ib A woman fliall have fame judg- ment if (he ftand mute ib One indided of petit larciny re- fuftng to plead (hall have the fame ii. 320 If a woman be indifled for (imple larciny of goods under lOi. tho (he fliall only be burnt in the hand for it, yet if (he refufe to plead, judgment oi peine fort (ff dure (hall be given againft her ib If a new felony be made by Jiat» tho it be filent as to (landing mute, this judgment incident to it ib In rape, made felony by IFeftm. 2. if party (land mute, he (hall have judgment of penance ib If this judgment be given, yet if ofTenfe within clergy, clergy al- lowed lb Prifoner to have trina admonitio and a relpite to bethink hirafelf ib Judge to hear witnefTes on oath to give a probable teftimony of his guilt ii. 321, 322 If the offenfe be within clergy du- ty of judge to alitiw il, tho not prayed, CONTAINED IN THE TWO PARTS. • prayed, and that as well after judgraent pronounced, as before ii. Page 3'JI, 323 Judgment of penance was by com- mon law ii- 321 One indiclcd of felony before juf- tices of oyer and terminer^ tsfc. is convi^, if record of convic- ti(jn be removed into B. R. and the priloner alio, he Ihall be de- manded what he can lay, why execution Ihould not be awarded on record removed ; if he lay nothing, it (hall be inquired by inquell of office, whether lame perfon ii. 101, i02, V)! How judgment of peine/ort ts" i/me entered, where priloner doth not dircdly anfwer ii. '3V9 How entered where he ftands wholly mute ii. 400 ilieccCTitp. NECESSITY of preferving the peace by taking notorious malefadors excufeth lome ads from being felony, which other- wile were felony 53 The dangerous dodrine of the ca- ftiijii on this fubjed refuted 54, 55 By the laws oi England, if one be- ing under a necellity for want of viduals or clothes, Ihall on that account clandeltinely, &' animo furanili ftcal another man's goods it is capital 54 This rule, in cafu extrema necejji- tatis omnia funt communia, holds in forae particular cafes, where by tacit content of nations, or fome particular countries or lo- cieties, it hath obtained 5 5 Ifking's enemies come into a coun- ty with a power too lirong (or county to reliii, and will plun- der the country, unlels a coin- polition be made with them, fuch a ranfoming themlelves is fo far from being trcalon, that it hath been allowed as la\vful, and in what refpeds 57 Joining with rebels pro timore tifnr- lii and departing from them as loon as parties can, no levying war P^K' '^^ ^uicqvid neceffitas cogit^ defendit^ refuted 565 Dilierence between times of war and public mlurrcci ion or rebel- lion, and times of peace, fur in times of war and public rebel- lion, when one is under io great a power, that he cannot reliit or avoid it, law in lome cales allows an impunity for parlies compelled, or drawn by fear of death to do fome ads in them- lelves capital, wl,i(h admit no excufe in time oi peace 4J But if whole circumltances of cale be fuch, that he can conveni- ently relift or avoid the power of the rebels, he is notexeuled; if on pretenie of fear or doubt of compullion, he alfift them jl If a man be menaced with death, unlels he will commit an ac^ of trealon, ific. fear of death dolh not excufe him, and why ib If one be defperately allaulted, and in peril of death, and cannot o- thcrwile efcape, unlefs to (atisfy his alfailant's fury he will kill an innocent man then prelent, fear and adlual force will not ac- quit him of murder, if he do the fad ib A bare fear, tbo upon ajullcaufe, and tho it be fear of life, gives not a man power to take away life of another, but what kind of danger it mull be 52 Where "Vts majoi quam rejilli potejl excufeth in criminal, tho not in civil adions 139 Confcience binds not one fo keep an oath extorted by menace of death bjl One of neceffJty kills a filoi or J'ufpefled perfon fiying or re/:/:tn» btfore, or after arre/}, w/tae homi* cide fuJiifiitbUy or e.Mufed, Vide A TABLE OF THE PRINCIPAL MATTERS iilonsftalance* Vide 3:nfant, Prohibitory claufe in 8 R. 2. that no man 0/ laivJJuill be jujiice in hii oivn county^ ufually dilpenf- ed with by a 7ion objiante ii. Pagt 32 iBotice. Vide 3;gnorancc» iiJul tiel KfcorD. Vide i^Irajer* jfiDaff}* Vide 2tUigeance XDbcrt -airt* Vide ^rrafoiu ilDutfatorp* AT what age awardable againfl an infant for felony on in- dictment 23. ii. 208 Pollibly procefs of outlawry may go againli receiver of a traitor at fame time as againft princi- pal, and tho principal appear, procefs may go on againlt the other; contra in felony 238 A traitor rendering himlelf on out- lawry within a year Ihall be re- ceived to traverfe indidment 293 What aHs take away from perfon outlawed for trealon advantage of reverfal of outlawry, becaule party out of the realm^ but extend not to other offenfes 354 Where juftices of oyer and terminer may ifliie procefs of outlawry ii. 31 On inquifition before coroner re- tnrned before jultices of gaol- iieltvcry, they cannot make pro- cefs of outlawry ii. 37 They cannot make out cap. or exi- gent ii. 199 yf. and B. indidtedbeforejufticesof peace, indictment delivered over to jultices of gaol-delivery, j^. appears and is acquit, B. appears not, record mult be removed in- to B. R. and thence procefs of <*utlavvry iffued ii. 37, iS Juftices of peace by common law in their iellions may proceed to outlawry on indidments found before them, and in popular ac- tions by Itatutes ii. Pa»e b'2 21 'Jac gave procefs of outlawry in popular actions ii. 113 But they cannot illue capias utlega- tum, but mufl; return record of outlawry into B. R. and thence it Ihall ilfue ib Whether coroner can make out procefs of outlawry againft de- fendant in appeal ii. 67, 199 Where procels of outlawry lies againft a /iftT, or not ii. 177, 199, 200 In fome cafes on indiftment it lies not againft a commoner ii. 194' Whether outlawry an attainder 521. ii. 205, 206, 350, 352 Tho attainder, yet fmall excep- tions are allowed to procels or return, and fo by writ of error ealily reverfible, and party put to plead to indictment ii. 193 One outlawed prays refpite to pur- chafe a writ of error, B. R. u- fually prefixeth a day for that purpofe, and in mean time re- mits him to marlhal, and re- fpites his execution ; but prifo- ner mufl alledge error in law or fa6t to fatisfattion of court; if court dilfatistied, they may a- ward execution prefently ii. 408 One attaint by outlawry of trea- lon, >isfc. (hall not be appealed or indided till outlawry rever- fed ii. 252 If two coroners in a county, or more, one may execute the writ, as in cafe of an exigent ; but re- turn rauft be in name of corona- toes 417. ii. 56, 193 By 5 E. 3. juftices of oyer and ter- miner may ilfue procefs againft felons in a foreign county 57(5 In whofe name, and under whole tejie fuch procefs ihall ilfue ; clerk of affile has a fpecial leal for them 576. ii. 199 Tho indidments be not difconti- liucd by dcmife ofJeing, in lome cafes CONTAINED IN THE TWO PARTS. 'caics procefs arc ii. Page 189, III indictments of trelpafs, 'venht: facias firll proccls, and wJicn non e/l uivintus is returned, cap. and txigent ii. iy+ In all indictments of felony or trca- loii procefs by cap. and dxis^cnt lies, and at touinion law tlicre was LiLit one cap. and on nnn t Ii inventus and exigent., and lo to the outlawry 576. ii» \\)\ In what cafes 25 £. 'i. requires two capias'^ and how iecond ca- pias returnable li. ls'+ It extends not to treafon; exigent in treafon nuill ilfuc on return of non e/i invent uf on liril cap. ib So in indictment of murder or ap- peal of robbery, but in i>. k. there fliall be two cap. in indict- ment or appeal of robbery ib At this day procefs on indictment of" any felony is only one cap. and then exigent ii. li)3 25 E. 3. an imprntlicabie law if) But by 8 H. G. in indictments or appeals of treafon, or any felo- ny or trefpafs againft one of another county, after one cap. a (econd cap. with proclamations, and how returnable, fliall be granted to Iherilf of that county, wherein he is luppofod to bo converfant, before exigent fliall iilue 576. ii. 195 But if party were converfant in county, where indicted, at time of felony or treafon committed, procefs to be at common law ib A pro-vi/o in 8 H. 6. not to extend to B. R. or C/ie^er ii. 1D5 By 10 H. 6. lame procefs [as by 8 H. 6.] directed on indictment of felony or treafon removed in- to B. ii. by certiorari, or into anv other courts ib Indictments of ftjlony or treafon originally taken in B. k. are not within thefe a^/s, but by 6 H. 6. before exigent awarded court fhall ifTue a cap. to flierilf' of county, where indictment taken, and another to Iherilf, Vol. II. A\ here party is named, having fix weeks tunc at Icalt belure the return li. I^a^e Ijj 6. H. (j. made perpetual by » H. G. 57o' Thefe ai'is of little eiiecl; for it p.irly was converfant in county, where fact comnutted, (as ho Cannot be olherwile) then he may be named ol that place in iiuiictment, and procefs is to go as at common law before tliefc ads ; ai>d this is now the ufual courfe ii. 196 If J. S. be indicted in county of B. iur a felony there commit- ted, and inditlineut runs J. S, nuprr cie A. in com. B. alias ditl, J. S. nuper de D. in com. S. there ftiall no procefs go to flieritFof 6'. becaufe that addition is only in \.\\yi alias didits, and therefore procefs fliall only ifTue in county • oi B. and fame law in appeal iU If it runs, J. S. de A. in com. B, till per dc C. //; com. D. cap, fliall ifTue only in com. B. but if it runs, J. S. nuper de A. m com. B. nuper de C. in com. D. a cap. tliall only go into the county of JS. where he is indift- ed, but on return thereof, (if it be before commillioncrs) a cap. with proclamations iiiail ifTue fo flierif^of £). and if in .g. R. oa an indictment found there, one cap. to one flierilf, and another to the other fherilT, according to G, % ijS \Q H.G. ' jb If one be indicted by name of J. S. nuper de A. in com. Celtrize, the fecond cap. with proclamation fhall be awarded to the prince^ or hisluHitenant, and tiie like to bifliop of Durham, or chancel- lor of L<3«c/J/?fr ii. li)6, 197 Expolition on '1 H. 5. enaLiiiig the chancellor on complaint of auv felony or riot to ilTue a cap. and writ of proclamation ii. lb)7 Tho this be marked as an obiblete Itatute, no ad repeals it, fhvo implication of 16 C. 1. whicti it leems not to do ib li Yet A TABLE OF THE PRINCIPAL MATTERS Yet never put inure ii. Page 19S ^- ^. either on indidment taken bclore them, or removed thither t>y certiorari^ may iflue cap. and exigent into any county in Eng. iancJ on a ncn eji inventus return- ed by therifF of county, where party indicled, and a tejlatiim that he is in Ibme other county ib In appeal by writ agninft pruici- pal and accefFary, which is ge- nera! till declaration, plaintiff muft at his peril diilinguifh the procels, for if he take his exi- gent agailift all, he reuft count againfi all his principals ii. 200 But in appeal by bill or indictment, cap. is againlt them all, but when it conies to the exigent^ it lliall iflue only againft principal, and procefs be continued by cap. in- linite againft acceflfary till prin- cipal be outlawed, and then ex- igent Ihall iflTuc againll acceflary ib If acceffary appear on cap. he fliali rot be let to hail, and have idem dies by bail till procefs be deter- mined againlt principal ib If two be indicted as principals in felony, and another as accefl^ary to them both, exigent againlt acceflary (hall ilay till both be at- tainted by outlawry or plea ib If one of the principals be acquit- ted, whether acceflary fliall be difcharged 624. ii. 200, 201 Whether there be any, and what diverfity in this cafe between in- didment and appeal ii. 201 If defendant render himfelf to fherifi before ^a/7i/o exa^us^ and appear in court at return of the exigent^ and plead, and is bail- ed, and then makes default, in- queft Ihall not be taken by de- fault in felony, cither in indiot- xiunt or appeal, tho it may in other cafes, but a new cap. ihall ifliie, and after that an exige/it, and a cap. againft the bail ii. 201, 202 Where exigi/ae. with an allocato comitatu fliall iflue, and where exigi J ac. de novo ib Demand of party to be at fiv^ county -courts fuccelTively held one after another, without any court intervenii^g ii. Page 201 If where there are but two county- courts before return, if after le- coiid exadus defendant render himfelf, and find mainpri%e.^ and at return make default, there fliall iflue no exigi fac. with an allocato com. but a new exigent, and a cap. againft the bail ii. 201, 202 How an exigi fac. with allocato hufiing proceeded on ii. 202 If defendant appear on cap. and plead to ifl^ue, and is then let to bail, and then makes default, a cap. ad audiendam jura tarn fliall ifl^ue, and if not taken thereon, exigi fac. de novo ; but if brought in, he fliall be tried on his plea ii. 202, 22* But if he render himfelf on exigent ^ and plead not guilty, and be let to bail till trial, and then make default, whereon exigent is a- warded, and he is brought in thereon, he fliall plead, and be arraigned de novo., for by exigent awarded firfliflTue isdifcontinued ii. 224. If on cap. or exigent flieriff retura a cepi corpus, and at the day hath not the body, he fliall be pu- niflied, but no new exigent a- warded, becaufe in cuftody of record ii. 202 But if party returned outlawed, procefs cap. utlegatum ib If party outlawed be in a houfe, and doors refufed to be open- ed, conflable, or any other per- fon in purfuit of one outlawed for felony, may break open doors and take him ii. 203 What certainties return of out- lawry mull have ii. 203, 204. Where a certiorari iflTued to coro- ners to certify the truth in order to amend return of outlawry ii. 03 Goods forfeited from tejle q'i exi- gent ii. 20'i, 206 In CONTAINED IN THE TWO PAV;TS. In appeal, if exigent be well a- warded, tho writ of appeal a- batc'd, forfeiture of goods by exiornt Hands in force P^^e 20 1 Tlio outlawry be revcrfed for er- ror ill law or fad, exij^cnt boiiig well awarded, forfeiture ofiioods Hands ii. 204,' 20.^ Special writ of error lies on award of exigent for party or his exe- cutors to reverie award of^ exi- gent ii. 20.5 Inlhmces of errors in fa6l ii. 2(»3, 20r7, 20S Avoiding outlawry avoids not exi- ^enti if well awarded ii. 205 Jf party render himfelf after exi- gent awarded, and plead to in- dictment, and is found «o/^K;7/y, forfeiture by exigent Hands ib Neceffary for party outlawed in felony to bring his writ of error Ipecially, tam in adjudicatione brevis de exigi facias^ quam in promulgatione vtlegaria ib Error in exigent caufe to reverfe outlawry, and error in appeal or indictment, on which cxigint is awarded, is caufe to reverfe both outlawry and exigent ib Without judgment of reverfal in a writ of error forleiture by exigent awarded ftands, tho indictment qu illied, or appeal abated ib Outlawry gives forfeiture of lands in treafon to the king, and in felony to lord ii. 206 But bare judgment of outlawry without return of record is no at- tainder, nor gives any elcheat il) It mult be returned by flieriff with writ of exigi facias^ and return indorfed ib If there be a quinto exaBus, and thereon utlegntui efl per judicium coronatoritm, but no return there- of made, there lies a certiorari to the coroners, or fherifl'and co- roners, to certify lame in B. R. and for what purpole ib Till return by fherilf party out- lawed not difabled to bring an ad ion il> Barely on return of outlawry on i tcrtioiari without exigent iudoil- ed and returned together with eetttjrari, no writ of elcheat lie« for the lord ii. Page 206 If certiorari be directed to (heriff and coroners, and exigent be extant m court, and they return this outlawry, poflibly it may t)e a lulfieient warrant to enter it of record as a return on the exigent ib \Jn\i:.\ No errror in fa6t, i^ defendant bd imprifoned^ provided he be brought to the bar, and de- manded, if he will appear and refufe ii. 20S Of avoiding outlawry of felony becaufe beyond fea ; the diftinc- tions, where one goes beyond fea voluntarily, or in king's fervice, and where he goes before exigent awarded, or alter ib How errors in thefe cafe.s are af- figned ; how attorney general to plead to the errors, (Jc. ib Error brought on outlawry in fe- lony, record of outlawry cutn omnibus ea tangentibus is re- moved into B. R. ii. 209 Party muft render himfelf in cuf- tody, and fo muft come in per- lon to the bar, and when de- n)anded what he can fay, he is to pray allowance of writ of error ib Writ being allowed, record is to be removed ; what parts record confilts of ib Then party to aflign errors in per- fon, and a day is given to kin\(?> attorney to reply to him, and in mean time a jcire fac. to lord 1 J 2 mediate A TABi'E: OF THE PRINCIPAL MATTERS mediate ^ immediate is to ifl"ae, returnable at lifteen da}S ad au- dicudum e'Tores ii. ^^cge 209 If any lords appear, they may plead to the errors; it" iheriff re- turns //^c-rc ;j «o land, tlien court proceeds to examine errors ib Outlawry being rcverlcd, defen- dant to aniwer indiclinent; where indiclment to be tried ib For futjdtuie by outlazvry and to ivliat time it Jhall relate. Vide yorfcif arc* // hat judgment in outlawry of fe- lony or treafon^ and ivhat a- luard of execution to be made. Vide j:uD2rnfnt* Vide Oiiol^Oiliotrp, 3;iifiice of ^face, SDihx mo ^trmmir* ^pcr auD STirminrr* Juflices mull be by commiflion, and. not writ, otherwife their proceedings void 498. ii. 23 May ilfiie warrants in the counties within their conimiUion for fak- ingfelons orfurety of peace with- in thfeir limits 579 ^■<£re, whether they may not ifl'ue their warrants to take any in- dided offelony within their pre- cincls, tho they be abroad in a foreign county, by 5 E. 3. ib DitUn(^tion between ordinary and delegate, juflices of o^-fr and fer. miner ii. 22 To whom commiffion directed, and how it runs ii. ^2, 23 Commilhoners belbre their fcflions ilfue a precept in writing to ftieriff to return a jury of lame ibrm, as comniifhoners q( gaol- deliveiv do, but precept by juf- ticcs oi gaul-dcli'uery may be ore tenus ii. 23, 34- The fubllance of the precept ii. 26, 27 Others may be added, or their power contratted by aJJ'ociation^ or fi non omnes, and lo in com- mililons o( gaol-delivery ii. 23 One fitting without adjournment deteimiHes their commiflion, but tho appointed pro fide -vies only, tliey may continue their iellion from day to day by ad- journment; the like lor all other commiliions P^ge -i^S, 4y9. ii. 21. Not always necelTary to enter ad^ journment on record, (iho in many cafes fit), and if not en- tered, lelfion relates totirllday, and records are entered as o'L that day ii. 24 Where neceffary to enter their ad- journment ii. 24, 2o'l How many ways thefe commiliions are determined ii. 24, 25 Superfedeas fulpends their power, procedendo revives it ii. 25 How many kinds of notice of a new commilhon determines the former 499. ii. 25 Where a general conmiiffion is de- termined pro tanto by a fpecial commiflion ii. 21, 25 Where a fpecial by a general, or not ib If there be a general commiflion, and a fpecial one for a fran- chife, ^c. infra com. both dated fame day, both fland ii. 26 General commiffion extends tdm infra libertates, quam extra ib Regularly they cannot proceed on any indictment taken before o- thers than themfelves, and there- fore they cannot proceed on co- roner's inquclt or indictment of felony before juflices of peace ii. 21, 27 This rule extends only to general commiffions i;. 27 Not to inquilitions taken before o- tlier commiflioners of oyer and terminer ib A general power is given by fla- tute to jultices ofoytrand termi- ner to proceed on indictments taken by former j uflices ii. 27, 405 How precept to return a jury ought to be, and how the iheritfought to return it ii. 26, 2", 260, 261 Whether they may proceed fame lellions againfl a party indicted before them ii. 2S, 29, 261 DifVer- COXTAIXED IN THE TWO PARTS, DlfTorcnrc, where party inprifon, or at large ii. Page '2y Dilfcrence between trealons and felonies, and other crimes ib Whether, if cognizance of an ot- f'en(e be limited to any court of record^ it may be heard and de- termined by them ib They cannot alligii a coroner ii. .'i 1 Where by ftatute, (hey may ill'uc procefs of outlawry into any county, and a capias utUgatum li. 31, IS)9 They are to fend tlieir records de- termined i»lo the Exc/iequtr^ but to take out their eltretc? firit ii. 31 How their precepts and procefl'es are to be hgned and Tea led ib How they antiently n.ade their warrants for execution of capital ofl'enders ib They cannot deliver prifoners by proclamat on ii. S-t May originallv take indictments of felony of prifoners in gaol ib Jufiices of oyer and terminer^ gaot- iieti-veryy and the peace may make up their record by all three of their powers, nnd belt lliall be taken lor the king ii. 31-, 166 Tiiey may take indiflments of trea- fon, if parties in gaol, and may try and give judgment ii. 35 W hether they, if an ad^ limit an oftenfe to be heard before juf- tices of peace, have a jurifdic- tion ii, 3(> "Where an a/i fpeaks only of julti- ces in the comity, they may hear and determine it ib On trial of felons before them, if priloner challenge twenty, fo that there be not fufficient re- • Tnainiiig of tlie panned, tales to be granted by precept return-- able, as cale requires; contra^ on trial before jultites oi' gaol. Jt livery ib They may fit out of a franchife, ftnd determine mifdemeanors W.thin the lajiie ii. 33, 39 New coram iflioners may award execution on one repiieved ii. /••tf^'f 403 But not fit (o give judgment, or award execution on one re- prieved by another judge with- out knowing realon of reprieve !i. 406 All precepts that ilTue at feliiotis of oytr and /er miner, as venire fac. ''jfc. ought P.riirtly to be by precept, and under leals of the jultices, but precepts byjultices of gaol-delix^r and terminer, OV gaol-delivery to any city or town not a county, a ge- neral commiflion for the county after notice or felFion, by virtue thereof determined the fpecial commilfion ; but this remedied by 2 iii/ 3 P. £3" M. ii. 2 1 , 25, 26 Special commillions oi oyer and ter^ 7>iiner may be for fome Ipecial ofTenfes ii. 21, 27 To /ic»r and not determine ; where lawful, or not ii. 21 Of a commi/fion to determine and not inquire , ib But fometimes, where indictment taken before jufijces oi oyer and terminer in proper county, (pe-. cial commilhon may illue to de- termine it HI another county ; but it muft be tried by jury of proper county ii. 21, 22, 27 Vide iLommiUion, Court, Vi>aol^ HAT the extent of[it for trial of felonies within the fame ii, 8, 9 U 3 for w A TABLE OF THE PRINCIPAL MATTERS Far trial of Juch felonies. Vide Court* iDarDon* Capital punifliments may be dif- charged by all parties interefted ; by appellant by releaie, by kivg by his pardon Poge 9 Tho a pardon reftores not the blood, yet as to ilUies born af- ter, it is a reltitution 358 At common law a pardon of all felonies (petit treajon being not excepted) extended to petit trea- fon, and fo now doth a pardor^ ol murkier 37S "Where 'AX felonies are pardoned by ad^ but murder is excepted whe- ther a muyder^ which is petit //■cfl/oH be excepted 378. ii. 340, 342 In cafe of a mortal wound given, if tnefne between ftroke and death there comes a general par- don, whereby all nufdemeanors are pardoned, this pardons the felony confcquentially, and why 42 » "By 13 1?. 2. pardon o{ murder \\\w'^ either be by exprefs word of murder^ or elfe it muft be a par- don of/e/ow/Va interfe^'to^ with a fpecial ao« o^a«/e of 13 R, 2. 466, 467. ii. 45 Pardon o{ ma-njlaughter may be ge- neral by the •woTd^felotiia or/>- lonica interfeStio only 467 If one indicted of murder obtains a pardon o^ felony^ or felon ic a i'iterfedioy and is afterwards ar- raigned on that indidlment, he mull plead quoad mui drum, ^c. . ttot guilty, and as to the felony and interfeftion his pardon ib Antiently pardon of allfeloniej dif- charged fome treafons 4Lia .Approver vanquithing appellee in battle (hall have hi<; pardon fan- qucim eX merito jufiti^ ii. 233 "^ iiether peine fort ^ dure be par- doned by general words ol all contemi'ts ii. 252 A'///^'s pardon renders an infamous man a competent witnels, for it takes away pcenam itj culpam in foro humano ; but his credit is to be left to the jury, yet not a lawful juryman ii. Page 218 Pardon ot' all felonies extends not to piracy ii. 370 How plea of pardon {hall con- clude, and how judgment (hall be entered ii. 391, 392 In margin- of roll in fuch cafe is commonly entered liters paten- tes allocautur fne die, ^c. ii» 391, 392 parent anD Cl)ilo* Command of parent excufeth not child in treafon or felony 44,516 For homicide in parent defendendo the child ^ aK*;/ e converfo. Vide Jl^^omiciDe, q^iirotr, auD %au«" 0iaugl)ter» Park or warren mi\ft be either .by charter or prefcription 491 Where homicide juftifiable, or not, by ftatute de malefaHoribus in parcis. Vide JT^omiciDe, Spur* mx, anD ^an^laugliter* parliament* War fucceeds beft, when concert- ed with the parliament 159 Caution ufed in 28 H. 8. for par- don of the attempt to repeal 25 H. 8. unnecellary, for parlia- ment not rellrauied by a prece- dent ad 280 Vide 3;inpracl3mfnt, arreafon* ^pace^^DfficerfiT* Are under more fpecial prote6lir>rk thun pnvute men 431 law CONTAINED IN THE TWO PARTS. Law makes every one an officer to I,a\v take? notice of his authority take a felon Hying or retifting Page 48 y Conflable bound to execute liis warrant, and to purfue on //;/(? and cry; if he d(jth not, he is in- dictable for a contempt 4';)0 If peace»oflicers or aliiltants kill rioters rcdhing them, they are dilpunifliable, either by coni- mon law or llatute 494- to 497 Where conllable may command otiiers to allilt him ; and if they refute, they are fincable 495, 588 In courts of cyer and terminer^ (s'c. flieriff and his fubllitutes are the ordinary minillers in execution of criminals /ulr eo nomine^ and therefore killing him in execution olbis ortice, murder ii. Pa^e 98 He may arreft night-walkers, and coiunut them till morning, and alfo felons and perlons (u(- pect«,'d of felony ib fr/ier e killing them in execution of their office^ itiurder^ &c. \'idc i/,omiaDf, iBiirDiT, anO ipaiu 0lau<2l)fcr» Vide 4trreft per totum, (Jfcapp, %\\z ano CLrp. JuSict of ^ttxis. 501 Ofiictr not fuppofed conufant of A peer in Ireland tried here hy a the law, or to advife with coun- Middlefex]\\xy for a treafon there fcl on all occafions 578 1.t5 Every one within vill to take no- In mifprifion of treafon or felony, tice of conftable in the day; contra in the night without a fpecial notification 461 Stocks the prifon of the conftable 596 Authority cf conjiahlc^ tithirgman^ headboroughy and hurjholder, much the fame ii. 96 Conjlable of a liundrcd a diftinft of- ficer, introduced by fiat, of IVinton^ yet a confer vator of the peace ib The feveral kinds oi •ivatchr'ten ib Watch appointed hy flatute of IVin- tony from what time to be kept ; to be fet by the conltable ; neg- lect thereof punilhable; of the duty of fuch watchmen ii. 96, 97 What the ufe of the watch kept by conltable ex officio ; regularly conftable ought to be in com- pany with them in their walk and watch ii. 97 "What the power o{ watch appoint- ed by jujiices of peace ib Safer way to appoint them by or- der of feflions, or B. R. ib Watchman hath a double protec- tion : as aflillant to conftable, when prelent, or in the watch, and as a watcluuan fet by order ©flaw ii. 97, i»S or being accelTary thereto, a peer tried by his peers, tho in- dicted by common grand inqueli: .'J 7 4, 704 How lord high /leioard elected and commiirionated for trial of petrs, and of his oilice and duty 330 Of the court before lord high J}e-j:~ ard (or trial of peers ii. 7 That fubjedl amply treated of by lord Coke ib Indiclmentofa peer goody^/ij ad- dition ii. 177 In trial of peers no challenge al- lowed; for they are not onlv triers of lact, but in fome rel- pccl judges ii. 275 Peer arraigned on indictment ot felony belbru his peers, refufing to plead thall ha\e judgment of peine fort CfJ" dure ii. 3li* Where procefs of outlawry, or cai'. pro fine y lies againft a peer, <^>i not ii. 177, 199, 200 W hat warraTit iflued by lord high Jlcivard for execution of a peer 501. ii. 409 What parts of execution for trca- ibn may be abated by king\ warrant under great or priw feal, tj/c. 370. ii. 4-12 1 i 4 For A TABLE OF THE PRINCIPAL MATTERS For iJie clagy of peers. Vide ClfF? ^eine fort f Dure* Vide ^utp* $j£tit Jlarcinp* Vide ^arcmp* ^frjur)»* If perjury be committed, that is within 5 Eliz,. but indictment concludes not contra formiini Jitit. }et it is good at conuuon law, hut not to bring paity ■vvitliin the corporal punilbment of the o.a ii. Fa^e 191, 192 |Dftif arrrafon. To what particulars "25 £. 3. re- duces petit treaion 377, 578 One having comnntted this of- Icnfe may be indicted of mur- der 378 Servant kills mafter on a fudden falling out, not petit treafun, but manilaughter ib If wife or fervant procure a Gran- ger to kill the huiband or maf- ter, procurer only acceflary to murder, and being only accel- fary, where the principal is on- ly murder, cannot be petit trea- fon ; but if wife and fervant conlpire death of huiband, and fervant cfTetl it in abfence of wife, it is petit treafpn in fer- vant, and flne is acceiVary before to it, and Qiail be burnt :>78, 379, 381, 382 If wite or fervant, and a Itrangt-r mnlpire to rob huiband or ma(- ter, and fervant or wife be pre- IciiL, and hold candle, winie huiband or inafter is killed, lirangeris guilty of murder, and wilt; and lervant of petit trca- fon as principal 379 Wite or lervant intending to kill a ftr;:nger, by rniftake kills hu(- baiid or mailer, petit trealou ib li vvilf or lerv,:nt conlpire wilh a ftrauLcr to kill hutband or iiiul- ter, if he or ftie I.e in fama houfe when fact done, tho not in fame room, he or ttie is prin- cipal in petit treaion; if abfent, he or fhe only accelfary before to murder Ptxj^i 379, 383 If wife or fervant command one to beat huiband or mailer, and he beat him, whereof he dies, if wife or lervant in fame houfe, petit treaion in wife or lervant as principal, but murder ia Ihanger 380 What v\ill make a man guilty or principal in nuirder will make him Inch in petit treafon ib Eadem lex for an inferior plergy- man in relatioa to his killing his fu erior ib Wiio Ihiill be faid a fervant or mat- ter within 23 ^. 3. with regard to thi^ oH'eule ib This ad ihall not be extended by equity ib Who is a wife within it, or not 381 Where it is petit treafon for a clergyman to kill his prelate of metropolitan ib Principals in petit treafor, as weU before as after " 382 One arraigned of petit treafon Aanding mute, or challenging above thirty- five peremptorily, ftiall have judgment oi peine fort ^ dure 382. ii. 399, 400 Whether exclufion of clergy from murder by 1 E. 6. oufts it alfo in petit treafon 340 to 343 Aute foils acquit^ or attaint of mur- der, a good bir to indictment of petit treaion, and e con'verjo II. 246, 252 Vide Clerg)?, 3IiiD!Ctmmt, i.uogs mmt, ^arooiu ^lipfician* Phyfician or furgeon, tho not H- cenled, gives a potion with a good intent, which kills the pa- tient, no homicide 429, 430 Phvlicians and furgeons are to be licenled according to 3 ca* 14 ii. 8. 429 la CONTAINED IN THE TWO PARTS. In what cafes ftatiite of 34 'y 35 H. 8. difpenletlj will) the pe- nalties ut tue iurtner ai^s How indictment to be to woik a corriipliOM of blood libb Common law takes no notice of it under name offelony ii. 18, :j70 ] E. (>■. 'JJ" 1 M. repciding all new felonie; tempore H. S. extend not to piracy ti6"l. Pardon ol' all felonies reacheth it not ii. lilO Vide 3tDmiralrv, Ctcriiv, 'S}\f Diamcnt. 1 Jac. now difcontinued 43'2 If one infected goes abroad with in- tent to infect another, who dies of it, whether it be murder ib If one indi(5tod of murder obtains a pardon of felony, or felonica intcifi^ioy and is afterwards ar- raigned on that indictment, he muft plead quoad mm drum nut guilty, and as to theyV/o/ry and interfeBion his pardon 467 If found guilty of murder, he fhall have judgment; if not, his plea fhair*"je allowed ii. 258 How plea of pardon concludes li. 391 Jf owner of goods ftolen fuppoled in indictment be a feme covert^ or appe;ir to have no intereft or pod'eliion in the goods-, the par- ly fnall be acquit; but may be indicted Jc novo for the goods of hull)and, or true proprietor 5 i 3 Jf ■•^. be indicted as principal, and B. as accefl'ary before or after, 4ind both be acquit, yet B. may be indicted as principal, and former acquittal a^ acceflary is no bar ^'^Z' ^'Ib. ii. '^44 But one indifted as principal and acquitted, lliall not be indicted again a^ accellaiy tefotc; and if he be, his former acquittal is \x good bar, for it is in lubjtance lame offenle ; but antient law- was otherwilc 626. li. 244 If he be indicted as principal or accellary before, and acquitted, he may yet be indicted as ac- ceflary ifter, they being ol"- fenfes of feveral nntures ib If there be an iiiquifition of mur- der or manflanghtcr, and an inaiclment for fame oflenle, and party is acquitted on indict- ment, 'tis necefiary to (luafh inquifitlon, or arraign party upon it, who in fuch cafe may plead aulerfoits acquit, or not guilty ii. 65 In all cafes c^^ homicide by neceffitv^ which are no felony, where tiie matter is fpecially prefeuted, as it may, party fliall be prelently dilcharged, without being put to plead; but then this acquittal by prelentment is no final dif- ciiarge, for he may be indicled and arraigned agaui afterwards, if matter of former indictment falfe; but contra, where indict- ment or coroner's inqueit is of murder or manllaughter, and thereon he is arraigned and tried, and this Ipecial matter proved in evidence, he Aiall be acquit thereon, and this ac- quittal is a perpetual bar a- gainfi any other indictment for lame death 491, 492. ii. 158, 246, 247, o03, 304 Same law in cafe of homicide fc deftndendo, or fer infurtunium^ only petit jury fliall find the Ipecial matter, and not acquit the party li. 158, 246, 247 Where offenfe made felony, or olherwilo per.cd by ftatute, if by provilo in fame, or by any iubfeqncnt aSl loiue caUia are A TABLE OF THE PRINCIPAL MATTERS exempted out of it, indiflment need not mention and qualify the oftenfe, fo as to exempt it out of tiie provifo, but party lliall have advantage of it on »t>/ guilty, and in fame manner iliall liave the benefit of lubfe- quent ac^ to excufe him by 21 Joe. ii. Page 170, 171 If year be mifiaken in indictment of felony or treafon, and there- fore offender be acquit, it is an erroneous acquittal, and yet ihall be a good plea oiauterfoits acquit ii. 179 If one indicled of murder cuju/dam ignotiy or attault in queriilam igno- tu/Uy be acquitted or convided, and afterwards indided for affault or murder of fuch a man by name, be may plead ibrmer conviction or acquittal, and aver it to be fame perfon ii. 181 By liatute auterfoits acquit ofprin- cipal or acceflary, or auterfoits attaint of principal on indict- ment is no bar to an appeal ; but auterfoits acquit on appeal remains a bar to indictment for fame offenfe ii. 220, 250 Auterfoits acquit of robbery, rape, Ca'f . on indictment a good bar to appeal of robbery, Cs'c. ii. 250 In favour of appeal, if one be in- didted of murder, and plead to it, and be convict, and wife enter appeal for fame death a- gainft prifoner, pending appeal judgment fhall be refpited ; but It wife be nonfuit judgment lliall be entered on the convic- tion ii. 220 Jf one be both indic~ted and ap- ^ pealed before fame juitices of lame murder, or ottier felony, and plead, party ftiall be ar- raigned on appeal firit, and not on indidnieiit; and if appel- lant be nonfuit on his appeal ; pnloner fhall be arraigned on appeal, and procefs iLall ceafe on indictment ; and if prilbner plead, or be acquitted, or plead i. 248 Ji" error only in procefs in appeal, or indicliuent, and yet priloncr appear and plead not guihy^ and be acquit, this acquittal pleadable ii. P«^'f 24^ One attaint on infufiicient indict- ment fhall not be arraigned ori new indiftment for lame of- fenfe, unlefs former judgment firft reverif •!> Where a wrong perfon bring- .■a appeal, auterfoits acquit is no plea, neither is it a bar to the kingy but he mny be indicled tiieut oh/'iciiite that acquittal ; and if right heir bring a new- appeal, and be nonfuil, he may be arraigned on that appeal at king's fuit ii. 249 If defendant be acquit on appeal of murder, or robbery by ver- dict, regularly a good bar to indictment ib Acquittal by battle on an appeal no bar to indictment for lame often fe ib Indictment and conviction of fe- lony without judgment of death, or prayer ot clergy, no bar of a new indictment, nor is auter^ foits acquit by verdiCt, unlefs judgment given ii. 248, 251 Auterjoits conviil and clergy had a good bar to indictment or appeal for fame crime ii. 220, 250> 251 And fo it is if he pray his clergy, and court adviie upon it, tho clergy not aflually allowed ii. 251, 390 Auterfoits attaint de mejine felony^ tho on infufiicient indictment, was at common law a bar to ap- peals, as well as indictments of fame ofienfe, and lb remains, except in appeaU of death ii, 251 If A. be indifled of piracy, and hath judgment of peine fort (if dure, and by a general pardon piracies are excepted, butjudg- lueni of peine fort ti/ dure is par- doned by general words of ail contempts, quare^ whether, if he may be ariaigned for lame piracy, but he may be arraigned of CONTAINED IN THE TWO PARTS. of any other piracy committed before that award ii. Page 'Ib'l If A. be attaint of treafon, i^c. hv outlawry, he Ihall not be in- dicted or appealed of lame fe- lony till outlawry rcverled ib One indicted at common law of felony, and having judgment of death, yet may uient objlante his attainder, be arraigned for treafon committed belore the fe- lony; but ijuare as to trealon committed after it ib Where one is appealed of rob- bcric'; committed un divers per- fons and they bring leveral ap- peals, and he is attaint at fuil of one, yet he Ihall he [)ut to aulvver to appeals of the others ib If there be an indicbnent and at- tainder at the profecutiun ot one, auare^ whether after he may not be arraigned on an in- dictment at proleculion of an- other to have reititution on the ftatute 5t5. ii. 252 One commits feveral felonies, and is attaint of one, and king par- dons that attainder andthefelo- rv for which he was attaint, if alter indicfed or appealed for fame felony, he may plead his attainder, and no good repli- cation to lay, he was pardoned after ii. 'Ib'i But yet maybe indicted or appeal- ed for the other felonies ; and if he plead his former attainder, it may be replied that he was par- doned after, whereby he is re- ftored to be a perfon able to anfwcr thofe otTenles ib Ifone attaint commit a felony after, and be pardoned the firit felony and att.iinder, he Ihall be put to anfwer the new felony ib If one commit leveral felonies, and be convict of one, but no judgment of death, nor clergy given him, he may be indicted for all tlie former felonies ib If one had been convid of any one felony, and prayed his cler- gy, and read, and had been delivered to the ordinary, for- merly he Ihould never have been arraigned for any of the Ibrmer feloiues ii. Pav.i: '^J5 For any felony done after convic- tion, and clergy allowed, he may be indicied; out not if he iiand attaint and unpardoned ib Now by ftatute clergy dil'chargelh all otTenfes precedent witbiii . clergy, but not fuch other oftenfes as are oulled of it ii. 'ii* Accelfary on arraignment may plead acquittal of principal ib Gaoler arraigned for voluntary el- cape of a prifoner for felony may plead acquittal of felon ot principal felony, and fo ruay refcuer .irraigiied on indictment for refcue ot a felon 61 1, 612, li. 254. Felon acquitted of firft felony IhaU not be arraigned of breach ot prilbn, or if indicted of it be- fore acquittal, and then is ac- quitted of principal felony, he may plead it in bar to indict- ment for breach of prifon 611, 612. ii. 224-, 254, 255 He who pleads autcrfo'us acquit^ convid or attaint muft plead it fpecially letting forth record ii. 2bb He muft either fliew record fub pcde Jigilli, or have record re- moved into court, where it is pleaded, by certiorari, or if it be record of fame court, rault vouch term, year and roll, for record is part of his plea ib He nuift make averments, as cafe iliall require, that he is fame perlon, and it fame otienfe ib No ilfue Ihall be taken on plea of mil tiel iccorj, becaule pleaded in court, but Iking's attorney may have oytr of record ib The averments arc illuable ib If iifue taken on them, they fliall be tried by jury, that is returned to try priioner, by 22 H. 3. ib He that pleads thefe pleas, mull plead over not guilty to the telo- jiy, for if the pleas be adjudged againil A TABLE OF THE PRINCIPAL MATTERS againft him, yet he fliall be tried on not guilty ii. Pa^e 255, '2'5G Where one may plead to jurif- didion of court without anlwer- ing to the felony ii. 256 If one by plea con fefs the fad, he need not anfwer to the felony, but he may in that cafe, if he will, plead over to the felony ib If one be indifted or appealed of felony, and he will demur to the appeal or indiflraent, and it be adjudged againli him, i)e lliall be hanged, for it is a con^ fellion of the indidment; he «iay lake all exceptions to in- dictment or appeal, as might have been hiken on demurrer, either before his plea, or in ar- reft of judgment ii. 257 In cafe of demurrer no judgment of peine fort fjf tlurc can be given ib Plea to the felony confifts of not guilty^ (whereto clerk joins ilTue cul.prift.) and the putting him- felf on his country ib if either of thcfe fail, it is in law landing mute, either in treafon or felony ii- 258 In treafon or felony there can be no juftification, ■d's.fe defendendo^ ^c. ib But on not guilty he fliall have the advantage of all fuch defenfes ib If durefs and compullion from others, fee. will excufe him, jury on the general ifl'ue ought to hnd accordingly ii. 258, 259 "Where matter appears not to be felony, prilbner on not guilty fleaded may be acquitted ii. 303, 30t Where party is convict ivithin be- ing burnt in the hand, plea of auterfoiti acquit, and had his cler- gy, as good a plea as before 18 Eliz, ii. 390 If prifoner plead a pardon, how it conclud^;s, and what judgment entered ii. 391, 392 What conclufion of plea of auter- Joiti acquit J or cj?ivi^i.j or at- taint de mefme felony \ moft COni* monly prifoner pleads over not guilty 11. Page 238, 2+8, 255, 256, 392 How fuch plea is confeffed by hinge's, attorney, or coroner ib If one plead in bar to the indid- ment, yet if indictment infuf- ficient, vi\\^\X\^\ eat fine die, fliali be applied to infufficiency of indidment, or plea in bar ii. 393, 394. Reafonable to have the eat fine die Ipecial in that cafe, and how ii. 393 If entry of judgment of acquittal be quod cat indl quietus, prifoner cannot be arraigned again, tho indidment infufficient ii. 394^ 395 One indided of murder or man- flaughter, on not guilty the fpe- cial matter is found, or jury ac- quits him, judgment is qiibd eat inde quietus, it is a perpetual bar ; fo, if found guilty /e defendendo, judgment IS quad expe^et gratiam regis ii. 395 For pleas in abatement. Vide 4t* battmeiit* Vide 3|ut)smcnt5* 1 Jac. Bigamn, or [rather] T^Qa Ip2iimV felony within clergy 692 Cal'es excepted out of the ail ib Dilference, where iirft wife mar- ried beyond jea, and lecond here^ and e converfo 692, 693 A feme takes baron in Holland, and during his life marries another thery, then true hulband dies, Ihe (fecond living) marries a third here, dehors the aii 693 But ifi living firft, flie had mar- ried third in England, felony within it ib Where notice of party's being alive necefl'ary, or not ib What beyond Jeas, and what U'?///- in khigs dominions^ quoad this aci ib Having CONTAINED INT THE TWO PARTS. Having two wives, one of which is divorced a menfd isf thori not within it; if divorced caw/tfy^- •vitia^ whether within it I'age Where divorce a vinculo matrimo- nii^ either party without provi- (b in «£? may freely marry ib If wife be divorced nom the huf- band cauju aJulnrH i/el faviti^^ "vinculum matrimonii not dj|- folved ; but contra, if divorced caufd uonfanguinitatis "vel prmci* i^rifff. Vide CEIfrgp, fi\m\> bp ^muti, i^ilifiioru i^rincipal anD aifffltari^* Who fiiall be faid principals in fe- lony in the firft and fecond de- gree 233, 437, 615 Acceflaries before and after de- fcribed 233, 613, 615, 6^S In treafon no accelTaries but all principals, fo procurer before^ or a knowing receiver after i but whether a knowing receiver of a counterfeiter of the great, or privy fcal, or the coin be a prin- cipal m treafon 234, 237. 613 Whether A TABLE OF TH£ PRINCIPAL MATTERS Whether receipt of a felon after attainder in lame county makes an accdfary luithout notice Page 323, 622 Confcnting to a felon}' makes a man principal or acceffary, bare concealing, only milprilion 37 t If fervant or wife be of confede- racy to kill the liulband or maf- ter, and be in fame houle where he is killed, tho not in fame room, they are principals, and guilty of petit treafon, for it IS a preleiice; and lo in other cafes 379, 439 There are principals and acceliaries both bejoie and after in petit treulou 381 If one take poifon by perfuafion, but in abfence of another, and die of it, perluader is principal in murder 431 Counfelling, commanding, or di- recting killing a man, it he that counlels, ^c. be ablent, makes him accellary before to the mur- der 435 In cafe ofpoifoning, he thatcoun- fels another to give poifon, if he doth it, he, who counlels it, if abfent, but acceffary before 435, 615 He, Avholays, or gives poifon, tho abfent when taken, is a princi- pal ih If -^. command B. to beat C. and he beat him to death, murder in B. and if A. be prefent, mur- der in him alfo ; if abfent, he is acceflary it> If A. counlels B. to poifon his wife, B. obtains poifon from A. and gives it his wife, who igno- rantly gives it to a child, this is murder in B. but A. who was abfent, is not accellary to the murder, bccaufe the command (hall be conftrued ftriclly 436 If ^. counfel B. to beat C. with a fmall wand, if B. beat him to death with a great club, A. is not accellary ib Ify^. counfel jS. to kill C. and bc- Ibre the faCt done countermands it, if B. does it afterwards, itt is murder in B. but A. not ac- cellary Page 430, 452 In manllaughter there can be no accclfaries before^ nor in homi- cide y^ defen'dendo 437, 450 \i A. be indicted of murder, and B. as accellary before by pro- curement, and y^. be found guilty only of manllaughter, B. Ihall be dilcharged ib All prefent and aflilling to mur- der, principals ib In burglary or robbery, thofe who Avatch at lane's end, GJc. tho not adually prefent, burglars, or robbers 439, 534, 537, 555, 563 Otherwife on 39 EUx.. that ad binds up exclulion of clergy to Healing in the houfe 537 Perfons ready to aid, tho but lookers on, principals ib Divers come with one affent to do mlfchief, as to kill, rob, beat, &"(.-. and in execution thereof one commits murder, all princi- pals 440, 441 Divers aiming to rob a perfou charge him with felony, one robs him, robbery in all ; but without fuch intent, reft not guihy ib If,'/, comes in company with B. to beat C, and B. beat him fo that he dies, A. is principal ib Several rioters in a houfe, fome iffiie out and murder one within view, who came to conftable's affiftance, all within the houfe who abetted the all'ault, princi- pals 463 1 Jac. oufts none of clergy but him who Itabsy not even perfons prefent and allifting 468 W here principal agent (hall be ex- cufed from felony, and princi- pal in fecond degree be guilty 514 All that come in company to rob, principals, tho one only do it 533 M here one may be principal in robbery, tho neither actually prefent at the allault, nor rob- bery. CONTAINED IN THE TWO PARTS. bery, nor afTcntlng tliereto Pn^r 5:i4., 5:i7, 538, In afis making felony acceinirics before and ajtcr implied 013, 61+, 615, b'S'J, 6H, Tut Whether a<7 making ort'onfe felony in offenders, their coiinlcllors, procurers and abettors, and being lilent as to acceflaries lifter^ extends not to accellaries afttr 701. In treafbn, whether principal in firft degree flVall be tried be- fore thole in Jecond decree 613. ii. '223 In cafes criminal, not capital, no accelFaries b'io, 613, olo', C'i3 Accertarics atter to crimes not ca- pital by receiving ullenders can- not be in law under any penal- ties as accelFaries, unlcfs the rt^j- inducing the penalties extend to receivers, or comforters, as Ibme do 613 Maintainers in certain n^s denote maintainers of otlenfe, and not parlies ib Where an afl makes a felony, it incidently makes fuch acceilaries as would be accelFaries before or after to a felony at common law, but the fpecial penning fometimes varies the cafe 613, 614, 615, 632 But if the at? exprels accelFaries before and not afttr, there can be no accelTaries after 614 AccelFaries after an oflcnfe of a lower degree thitn accelFaries before 614, 615 Procurers^ counfttlors and abettors import accelFaries bifore 614 Receivers or comfortcts accelFaries after ib In ofFenfes unpremeditated no ac- celFaries bejoie, as per injortu' nium, (sfc. 615, 616 Words of bare permilTion make not an acceflary 6 1 6 AH prefent, when polfon infuled, principals ; but hiring another to do it, without being prefent, makes him only acccfFary ib Vol. II Buying materials of poifon make? parly only accelFary Pu^e G'.'j Where the execution varies from the coiiinKind in perfon fiain, or iniKitureof olFenle, commander i» not accefFary ; contra, where olieide is only varied in degree 617 j^. gets B. with child, and before the bird) cuuiifels B. to kill it, child is born, B, murders it, ^. accelFary ib Where the infirument, as a mad- man, or wild bealt cannot be a principal, party, tho ablent, is principal ilj y^. commands B. to kill C. and before ttjc fad repents and coun- termands it, yet B. kills him, y!. not acceflary ; contra, if he had not countermanded it 61 S ji^. knows B. hath coininittod a felony, but conceals il, not fe- lony, but milprilion ib ^. fees B. commit a felony, but confents not, nor takes care to apprehend him, not acceflary, but finable ib yf. knowingly fufTers a felon in his houfe to elcape before arreft, not accelFary; h\.\t contra, if cor- rupted by money 619 So if he Ihut fore-door, and de- ceive purfuers, this being an a^, and not bare omillion, he is accelFary ib ^. hath his goods fiolen bv B. if y;/. receives his goods without any contract to fiivour him, it is lawful; butolhcrwife theft-bote, but yet ^^. notaccelFary ib Where receipt of itolen goods [be- fore 3 i^ ^.ir. isi M. C9'r.] made an acceflary, or not 6iy, 620. ii. IhO Relieving a traitor or felon in pri- fon or bailed out, makes not an iiccelFary 6_'0, 621 Conveying inflrumcnts to a felorx to break prilbn, or bribing g;ij- ler tofufFer an efcape makes r.ti accelFary 621 K k V.'rlting A TABLE OF THE PRINCIPAL MATTERS Writing in favour of a felon for his deliverance, or inftrutling him to read to fave him by his clergy makes not parly an ac- cefl'ary P(ij;r6'2l If J. be committed for felony, and B. an attorney, advife the friends of -^'. to write to the witnefTes rot to appear againll him, who ^vrites accordingly, this makes neither B. nor the friends ac- celfary, but punilhable, and how ib A hulband receiving the wife may be an acceflary, but not wife for receiving the hulband ib If the wife alone, without his pri he will wave benefit of the law Face 623. ii. 200 But if he wave it, neceJary to re- fpite judgment till principal be convid and attaint, for if prin- cipal be after acquit, conviction of acceifary annulled ; but if ac- quit of the accelTary, acquittal good 624-. ii. 224- If he be indicted as acceifary to three, heftiall not be arraigned till all the principals be attaint or outlawed; "but if he be in- dicted as acceifary to one of them only, if that one be attaint, tho the others be not, he fliali be arraigned 624. ii. 200, 201 vity, receive a felon, (he only But the court may, if he be indift acceifary ib If they jointly receive a felon, it is only the ad of the hulband ib Acceifary cannot be, unlefs felony committed; y/. wounds 5. dan- gcroufly, C. receives ^4. then dies, C. not acceflary 622 One may be acceifary to an accei- fary by receiving him, knowing him to be an acceflary to felony ib No acceflary in receipt of a felon, without knowing that the party hath committed a felony ib Acceifary may be indidted with principal, or feverally 623. ii. 223 An acceflary it/ore or tiffer in an- other county, than were prin- cipal felony committed, difpu- nifliable at common law ib By 2 ^ 3 E. 6. acceifary indid- able in county where acceifary, and to be tried there; this «<^ gives no power to juftices of peace 623. ii. 44 Juftices before whom foreign ac- ceifary is, (liall write to thofe be- fore whom principal is attaint, for record of attainder, and how the writ h to be 623 Procefs of outlawry muft flay a- gainfl acceflary till priiiCipal attaint 623. ii. 200 A' c<-fl':ry ftiall not anfwer till prin- cipal Ik; tri.-d, biit otherwilCj if ed as acceifary to three, arraign him only as accefl"ary to the par- ty attaint, and if acquit of that, be may be arraigned de novo as acceflary to the other two 624. ii. 200, 201 Beft to refprte arraignment of ac- ceflary till all principals appear, or be "outlawed ib If principal and acceflary appear, and plead together, they may be tried by fame inqueft ; but principal muft be firfl; convid and attaint, and how jury to be charged 624. ii. 223 If principal plead in bar, or a- batement, acceflary not to an- fwer till plea determined ; if plea maintained, acceflTary dif- charged, if over ruled, principal ftiall plead over to felony, and may be acquitted ib If J. be attaint of murder on an . appeal, and then ^. is indided of murder as principal, and B. as acceifary, principal pleads former attainder, B. fliall not be put to anfvver as accefliary, be- caulc he is not attaint upon fame fiiit ; and fo it is, if attainder of Jj. were firlt on the appeal 625 If principal was acquit, or convid, and had his clergy, a pardon, ^c. acceflary fhoul'd not [before 1 J.viu] have been arraigned ; lontt a^ CONTAINED IN THE TWO PARTS. c«»/r-'3 One acqnit as principal cannot be indi(fted as accellary bt/ort, but actjuit as acccllary before or after may be arraigned as principal 025, fi2G. ii. '21-4. But one acquit as principal or ac- ceirary before may be indicted as accellary rt/7rr G2fj. ii. '2VV Accelfary to crimes within 28 H. y. of trial of tieafonsy Scc. upon the high fea, not punilhable tliere- by, but by the marine lazo. ii. 17, IS Principal in murder in fecond de- gree, may be arraigned and tried before principal in firft degree 4-.'n. ii. '223 Lately acceflary, if he appear, hath been arraigned and put to plead, but procels againlt inquelt and tr:al ccaleth, till principal come in, or be attaint by outlawry ii. 221. Accelfary may pray procefs againll principal, and therefore, i( ac- celfary acquitted before princi- pal tried, it is a good acquittal; and if convid, a good convic- tion ; but no judgment Ihall be given on conviction, till princi- pal tried ib \i A. be arrefted, or in prifon for felony, and B. refcue him, or the gaoler fulfer a voluntary e- fcape, tho they may be prelently indicted ; yet they Ihall not be arraigned till A. be convict, or iittaint by judgment, or outlaw- ed ; lor if A. be accjuitted on the indiclment, the rclcuer, or gaoler fliall bedilcharged 'Z'jI, 2.')S, 591, 59«. ii. 221. Hoiu far a luife may be accefjary to her hufoancVi treafan^ oi felony. Vide tloUtrturf. iDrifon. Vide 3rrflT. Brcndi Or ^nioii, Coinmitimur, C3raHT, (3aol, &ic. i^ribiUEc, Vide l^a&fa5 tcr^ ProccDfiiDo. \'ide Certiorari. ^rcctfjef. Regularly no procefs iflues in hng^s name to take a tl-lon, unlels on indictment, or matter of record in court /'«_j,'c 57';, 57d. ii. I!3 Of the writ dc fecuritate pacit 51, 5'2 In all cafes /t;«?-'i writs directed to Iheriff, which he executes pirfe^ or by his warrant to his bailiffs 577 Sheriffs or baili.Ts may require any one to aililt iu the execu- tion i!' If above two coroners in a county, and a writ is directed coronatori- bus^ tho one dies, whillt plural number remains, a return by the coroners is good; but if only one furvivor, he cannot execute and return it till another mad^j ii. 56. But if two coroners in a county, or more, one may execute the writ, as in cafe of an exigent^ but re- turn mufi be in name of corona- tores _ i^ Coroner on appeal in his county may iffuc procefs to take ap- pi^'lee !'• 63 Bui ifoaly a coroner of a franchife, whether he may make precept to Iheritf to attach him ib He cannot make precept to baililf of a franchife, becavue bailitf of a franchife cannot execute pro- cefs within it but by Iherilf's mandate io Procefs after indictment iJued from a lelhons of the peace is always in kinr's name ii. )li Kk2 Oi A TABLE OF THE PRINCIPAL MATTERS On Indi6lment or information pre- ferred on a penal law, capias not firft procefs, but vcnlr: fac. and difirmgas, and in cafes of infor- mation no procefs of outlawry at all till 21 Jac. ii. Page 113 Superjedeas on a prohibition ifTues from chancery in vacation, from B. R.in term ii. I f7 Of the writ rie odlo Cs" atid ; its ditl'erent names ii. 11-8 Why difufed ib Party to be bailed by twelve per- fons ib Tho indictments be not difconti- nued by deniife of the king ; in fome cafes procefs arc ii. 189, 209 In indiftments of trefpafs venire fac. hrlt procefs, and when non eji inventus is returned, cap. and exigent ii. 194. All procefs on an indidraent, and generally all procefs for the king are with a non omittas^ isfc. 577. ii. 224 By virtue thereof flieriff may en- ter into any liberty to execute the fame ii. 224 If party be in his own houfe, or in the houfe of another, and doors be Ihut, and Iheriff having given notice of his procefs de- mand admittance, and the doors be not opened, he may break open the doors, and enter to lake the offender ib For jury procefs. Vide STrisL For procefs in outla-xry. Vide For -warrants. \'\6.Q ^iVXtQ , '^WU tias Of ^fr^ce. Vide Ctrtioiaa, iilabeajs Cor^ ^ropcrtp» One hath a property ratione loci privilegii is impotentitr, in young beads and birds fera naiura in his park 51 1 A lodger hafh a fpecial property ill las chamber 554 Artificial acceflions by adjunflion^ commixtioUf and fpecification ' Page 51$ Vide 35urg!ar)>, 3tnDiamtnt, ?^arcinp, &c. i^urbeporjff* Vide ;jf elonp bp A QUEEN regent, who h married, holds her fovereign- ly as intirely as if flie were fole 106 Who fhall he faid a quein "within 3b E. 3 de proditionibus. Vide 2rrcafoiu 3Rape» FELONY at common law, then by ftatute made by mifde- meanor, and by 13 E. 1. telony again 627, 632 How antiently puniflied ; but it was in the woman's power to fave ravifher by marriage 627 Not inquirable in a Leet or Turn 627, 632. ii. 69 Rape defined 628 Carnal knowledge of a girl under ten, felony without clergy, by 18 E/iz. 630 If above ten, and under twelve (deiftj age of confent to mar- riage) tho the confent, it is a rape 631 Dtbet effe penetratio^ as well as emiffiQ 628 Leaft penetration ahfque emijjlone makes it a rape ib An aider a raviiher ib Keeping a woman as concubine before the rape, antiently a good exception, and now may be evidence of affent ib Huiband cannot commit it on his wife 629 But aiding another to commit it upon her, indictable as a rape, tho wife cannot have appeal of it againft her huiband ib Wile CONTAINED IN THE TWO PARTS. Wife in fuch a cafe may Ic a wit- nefs agiinft her hutbaiid Page 629 Infant under fourteen prefunied incapaxy tho lie may be princi- pal in aiding, l:^c. 630 Confent on menace of death ex- culeth not 63 1 Mulier vi offrcj/a concipere poteji lb Subfequcnl confent not extorted creates a bar of her appeal, but raviiher indii^able 632 In fuch c«fe who (hall have the ap- peal 631, 632 What forfeitures the raviiher and ravifiied alfenting incur by fta- tute 631 Tliere may be acccfTaries in/ore and ii/tif 632 Frelh difcovery and purfuit ne- celfary on part of ravilhed 632, 633 Year and day not allowed for bringing appeal, but it is in difcretiun of court 633 Principals oiiUed of clergy, but not aceeflTaries before ox after ib What neceflary concurring evi- dence to confirm that of the ra- viihed C33, 634, 635 Where an Infant ravilhed fliall be heard -vvitliout oath 631', 635 Accufation of a rape eafily made, hard to be proved, and harder to be delended by the accufed, tho never fo innocent, and ma- nv jnftances thereof 635, 636. ii. 290 3Kfalm» Realm of England comprehends the narrow leas, invading iing's fliips in the fame, levying voar en /oh realm within 25 E, 3. 154 Inland, tho part of dominions of this crown, yet no part of the realm of £«^/a;j Soliciting others to apojiacy moft penal i" "Witchcraft antiently punifhed by writ delarctico comburendo ib Herefy varioufly defined 383, 384- The definition of the papal cano- nifis makes the fmalleli devia- tion from them herefy ib Who the judge oihtre/y according to the common and imperial law 36+, 385 The folemnity that accompanied the degredation of one in or- ders 38t, 385, 389 Inquiftors thereunto deputed by the pope, or ordinary 3 Si, 385 Heretics diftinguiflied into feveral ranks 385 A liniple heretic defined ib Difniiffed on abjuring fpecially the {)articu!ar opinion, or ge- nerally ail heretical opinions ib The latter abjuration required of thofc, that were gra-vner fuf- peai 385, 386 Who CONTAINED IN THE TWO PARTS. \VI)0 fliall be faid htereticus coniu- max i'^^^ '■i'^^ Who J. relapfed lurttic ib if alter convictioii heretic abjured bij upinion, his life v\as laved; but il'he relaplcd alier abjura- tion, then delivered over to le- cular power J no lufpenfion of (entenee 3«G, 387 By civil and canon law convicting and lentencing heretic^ were left to the ccclclialHcal judge, without which civil jurifdictioa could not punilh 337 Several penalties confequential on fentence oi hetefy ib Whence burning all heretics in- diftiiK^tly, if pertinacious or re- lapfed, to(jk. its rife 388 Penallies by canon law go no fur- tlier than ecclehafticalcenlures, and what thele are ib Secular povver made the minifler in execution of heretics 389 princes were not fullered to Qiew any courtely to heretics ib When fentence given by the ordi- nary, he was delivered over to the lay olficcr, and then a man- date ilfued from chief magiftrate to execute oftender ib Refleftions on the mifcrable fer- vitude of chriftians under the papal hierarchy 389, 390 |-Iow the law and ufage obtained here touching heretics betore R. 2. 390 to 396 Fitxherbert miftaken in faying, tliat the writ de h^rttico comburendo ilfued only in cafe of a relapfe 394- Death rarely inflided on heretics before R'.2. ib ^io jure goods forfeit for herely before 2 //. 5. ib Of hertfy in the times of R. 2. H. \. h. 5. and fo to 25 H. 8. 395 to 402 The power of the diocclan touch- ing hcrefy by 2 ti, 4. and an ex- poiition thereon 395 to 400, 409, 410 Temporal judge might incidently iiavc taken notice, whethyr u tenet was hcrefy or not, and tho diocefun had lo certilieJ, tem- poral judge might have delivered party impriloned on haheai cor. fius, and falle iuipriloiiinent lay againll party detaining hiin J' age 400, 407, 403 Expofition on 2 ^. 7. againll lit- retics and Lollards 401 What the method of proceeding, and how the law touching he- relics and their punilluncnt Itocd from 25 H. 8. until//y? of Eliz. and from that time to the time the author \s rote 4-0 1 to 4 1 I 1 £/;s;. defines herofy 408, 409 Expolition on that a^ 404 to 41 1 It let firlt boundary to hcrefy 406 Signi/iia-vit of convicUon ought to have contained (even at com- mon law) the j)articular herely, without it no writ de haretico comburendo ought to have ilfued 407, 408 Whether conviflion of heretics was pradtiled in queen Eliza- beth's, time 405 9 Jac. two men convid o^ Arianijm before the diocelan burnt by writ de. Iiarctico comburendo lb \_TJiis wi it is taken a'luay by 29 (^ar. 2. herefy hoi-j pun'tjhable at this time, vide in notis] 410 Great privileges granted to the clergy by antient kings and liates ii. S'lli, 324- In fome kingdoms double fupreme power; re^num eccUJiaJlicum CfJ* Jeculare\ former only dependent on the pope, the latter lubordi- nate to the former, fo rci^num fub graviori regno ii. 324' The original of fancluary, and original and progrefs of prlvi- legiuin clericale ii. 323 to 330 The clergy claimed their privi- leges y«r^ divino ii. 323, 324 Sanctuary oufted by ftatute 605 Supremacy of kl>.^^ in matters ec- cleliartical, a moll unqueltion- able riglit of the crown 75 Of the papal encroachments there- on, and alio on liis lo\ ivignty in matters civil under pretence Kk 4 of A TABLE OF THE PRINCIPAL MATTERS of in or dine ad fpirilualia Page 16 Bringing in pope* s hulls again it com- mon law, and fometiniesantient- ly punifhed as treaibn 643 Felony by 13 R. 2. ib By 13 Eliz. the offenfe as luell in the hringers in of ihrfe buUs^ &C. as executors thereof^ treafon as well in ecclefiaitics as laymen ib By 35 Eliz. penalty q{ dijj'uading from churchy holding of conventi- cles 688, 689, 690 Hon-conformity iviihin three months after convi^ion^ party fl»all ab- jure the realm ib hui di partings or returning^ felony without clergy ib Submitting difcharged of the pe- nalty of this a<^ ib Relarfng lofeth benefit of the fub- miflion ib Penalty for retaining or relieving recufant after notice ib Expofition on this aH ib Circumftances neceffary to be al- ledged and proved ib By 35 Eliz. popifk recufant refufmg to abjuie, or after abjuration to depart felony without clergy 690 Kot to remove five miles from Lon- dcn i b By 1 Eliz. againll maintaining any Joreign ecclefiajiical authority icitlnn thefr. realms^ firfi: offenfe forfeiture of goods, ^c. ("econd incurs penalty of pramunire., third trealon 329, 330 Expofition on this a^ 330 Bv '"> I'-liz. maintaining the authoiity of the pope made a pramunire the firlt time ib ^o refu/ing to take the oath of fu- premaCf 331 Second offenfe in both cafes, trea- fon ib Expofthn on this ail 331, 332 iJy '23 Kliz. recovciUrg oi being re- conciled to the popifh religion.^ where made treafon ; how in- larged by 3 lac, 333, 337, 338 Fxpolition'ftn both thefe nils ib \Vh!it the religion eftabliihcd with- in 23 Elt%, ^^3 Aiders and maintai'^ers of of en Jen within 23 Eliz. and concealers of fuch offeiifes, how puniflied Page 333 By 27 Eliz. where a fubjeily not being a jefuit, educated in a fa.- reign feminary^ and not returning after proclamation^ or a popijk trieji coming into the realm (hall be guilty of treafon 336 Receiving of fuch popijlt priejl know- ingly, ieiouy fans clergy 336, 615, 688 Sending relief to a fetninary, a /»•<«•- munire 336 Concealeis of fuch priefts, how punilhed 337 Juftice of peace, to whom difco-- very made, not informing one of the privy council, Ca'f. fliall forfeit 200 marks ib 25 Eliz. a f ufpe tied jef nit or priefi^ refufing to anfiver direiily, to be imprifoned, till he Ihall make direct anfwef ib Vide ©ergp, ^ifprifion^ E^pricbe* vide (Execution anOi 3Refcuf. Refcue of one taken on general warrant to anfwer what fhallbe objected, no caufc being expreft, not felony 578, 609 He who refcues a felon, may be indicled, but fliall not be ar- raigned till principal be convict or attaint 598, 607. ii. 254- Refcuer is ^««/? acceiTary, if prin- cipal be convift and not attaint, but hath his clergy, or be ac- quitted, refcuer fhall not be put to anfwer the refcue, but be dif- charged ii. 254- If principal be found not guilty, or guilty of a crime not capital, refcuer ought to be difcharged, but he may be fined for the ref- cue 599. ii. 254. Iho CONTAINED IN THE TWO PARTS. Tho prifoner indited of fevcral felonies, yet the rel'cue nmkes but one ^(^g^ S^y A man arrefted on me/ni' procels in carrying to gaol is relcued, tliu return of the refcuc exculcth the Iheriff; contra of an execution CO I, 602 Jf a felon be attaint and carried to execution, and be reCcued from the Iherifl, fheriff is puiiQrable, becaufe he lliould have taken fufticient power with him 60'J Hinderancc of arreit of felon mil- demeanor, but no felony 606 Where arreft of a felon lawful, ref- cue of him, felony ib If in cultody of aprivate man, no- tice that he is arrelted for felony necelfary to make it felony; conha, if in cuftody of an oiHcer ib Return of refcue of a felon againft y^. by flierilf not fufticient to put him to anfwer to it without indiftment ib If priioner under cuftody be ref- cued or prilon broke by ftran- gers without his procurement, no felony in the prifoncr, but felony in the ftrangers as a ref- cue; but if by his procurement, felony in him as a breach of prifon ib Jf pnrty refcued be imprifoned for felony, and be refcued before indictment, what indiftment muft furmife; but if party be indifled and taken by a cap. and refcued, then there need only a recital that he was indict- ed prout, and taken andrelciied 607 Vide ©read] of prifon, (Bki^-tt, 2[rcafont Kfffitution^ The fevcral means of reftitution of good* to party, from whom Holen 538 On appeal of robbery, Cifc. and (:QnviCtio" thcreoii, goods con- tained in appeal were to be re* Itored to appellant -^^^^ 51/8, 5i!> If he omit any in his appeal, the/ are contiicate b'JS, 54-5 If party brings appeal of robbery, (:fc. and it appears appellee came to the goods by bailment, (^c. without felony, plaintiff forfeits his goods to the itn^ for his falfe appeal 5'^9 Whore one iteals goods of divers n.en fevcrally, and one of theia cotjvi^s olfcndcr on his appeal, before judgment reli may pur- fue their appeals ib Jfjudgment be given againft ^. on the appeal of i^. yet if appeal of C. were begun before the at- taijider, /4. fliall be arraigned on appeal of C becaufe he is to have reftitution of his good« thereby ; fecond trial at iuit of C. only in nature of an inquell of office to intitle him to relli- tution; whether the attainder be a bar to C. ]}> But if C. doth not commence hi« appeal before A. is attaint, A, lliall not be arraigned thereon; but if afterwards pardoned, he tliall be arraigned at fuit of C, hilt Contra^ if attainder were at i'ng\ fuit ijj Where appellant (hall have refti» tution 543 When he ftiall have reftitution 540, bit Of what things he fliall have refti- tution 54.| If ielun waive goods ftolen without any purfuit after him, they are not in law l^ontz •wa-viatiay nor forfeit; but contra^ if he waive them on purfuit ib This forfeiture not like a ftray, where tho lord may feize, yet owner may retake it within) ear and day; but here true owner cannot feize his own goods, tha on freHj fuit within year and day. which is an expedient in the law to compel owner topro- fccute his appeal ib Of A TABLE OF THE PRINCIPAL MATTERS Of what things owner fliall have reftitiition on 21 //. 8. he ftiould have had reititution of on con- viction in appeal at common law Page 5 H Before this a^1 no reflitulion op in- dictment 51-2 This ^(1 fpeaking of king's, (ubjects extends to aliens robbed ib li iervant be robbed of" ninfter's money, and uiaueror fervant by procurement give evidence, and convict lelon, maiter fliall have a writ of reftitiition ib Reliilution to be to party robbed, or owner ib if ^4. be robbed by B. and C. and £. only is convict of robbery by evidence of yj. he ftiall have re- ftitution ib If ^. be robbed of an ox by B. . who fells him to C. who keeps the money in his hands, and af- ter kills the ox and fells it, or if the money be feized in the hands of the. thief, j4. may have a writ of reftitation for the mo- ney ib So if money be ftolen, and thief taken, he (hall have reititution ib Teftator robbed, thief convict on procurement of executor, he 5hall have reftitution ib Jf gt)ods be ftolen, and by thief ]o!d in market-overt, thief be- ing convifted on evidence of party robbed, he fiiall have ref- titution on this afi of thing fold bV> to bM By 31 tl'Ti. notwithllanding fale of a horfe in market-overt, own- er may take him within fix months after the felony on proof of his property, which thews that after lix months he Ihall not have reftitution 543 Scrivener's (hop no market-overt [for plate] by cuttom of London ib By 31 Eliz. CSJ* 1 Jac. «o fale of fiolen goods in London, Wcit- 0iinlter, or Southward, or ivith- in tivo milej ii a otoker Jhall (hangc the pro^ei ty ib Shops in London a market-overt [with refpe6t to goods ufually (old therein] Page ^'tS, 54i Whether a fale in market-overt had baried reititution in appeal 544- A' commits a robbery, king's oifi- cer feizeth goods (lolen, and fells them in market-overt, party robbed convidteth A. on his appeal, he (hall have reititution if lie made frefh fuit ib If olTender be convict on evidence of party robbed, or owner, he fliall have rellitution, tho there were no frelh fuit, or any in- quiry by inqued touching the fame; hwt contra in appeal 545 Owner prefers indiflment againfl the thief, who dies, and is there- on outlawed, owner Ihall have reftitution ib Two perfons have their feveral goods ftolen, tho thief convict- ed on the profecution of one of them, the other muft profecute his indictment in order to have reftitution of his goods 545, ii. 252 Antiently if C. was attaint on in- dictment preferred by A. and re- prieved till another lelTions, and then B. preferred indictment of another robbery committed on him by C. C. might if he would have pleaded to the countrey, and on conviction B. (hould have had reftitution; but he might have pleaded autrefoits atiainty and have refuled to have anfwered, and then B. Ihould have had no reftitution ; but by 21 H. 8. court ought to inquire by inquelt of ofHce touching robbery of B. and be- ing afcertained thereby to grant reftitution 545, 546. ii. 252 Reititution by courfe of law, ei- ther by taking his goods, or aCtion 546 If A. iteal goods of £. and B- take his goods of A. again to favour him, or maintain him, how puniQiable; but if he take them agaiu without any fuch intent, no CONTAINED IN THE TWO PARTS. ro ofTcnfe, but juflifiable Page 546 But after felon convidcd, it can be no colour of crime to take his goods again, where he finds them, and why ib A. Iteals 50 /. in money of B. A. is convicted and hath his clergy on profecution of i^. B. brings trover for it, and held it well lies; but contra, if before profecution by indictment party robbed brings tiovery or if plaintiff in former cafe had not given evidence on con\iction 54-6, 547 A convict within clergy on being burnt in the hand, Ihall be re- flored to poffeliion of his lands ii. 389 For rejlitution of blood. Vide Coriu^tion »^nD KclJituticn of 131000* Eftum* In temporal matters a general caufe or return of herely or criminouf- nefs, inluthcient; Jignificavit of conviction of herely ought to contain particular hcrefy 407, 40S Jnfufficicnt caufe of refufai, or non admiflion of a clerk, to alledge that he is criminojus ^ non ido- neusy or that he '\%fchij'maticus in- veteratus 407 Literal numbers allowed in returns, tho not indictments ii. 170 Vide C-trucrari, i^^abrasr CLor;: |iu5, iit^uttalur^, ^rocff^, Kigtjt* Vide foxiiimu 3Riot. Where one may aHemble people to defend his houfe by lautlil means, which la- cannot do with regard to a journey 445, 4S7, 547 Where by common law and fla- tutes, Iheriri", jullices of pjace, fe'c. may raife a power to fup- prefs and take rioters; and where if lliey dilperle not on pro- clamation, and any of the riot- ers be killed, or maimed by juf- (ices, or thole alfembled by them to fupprefs the riot, it u jullifiable Fa^e 53, 293, 294, 495, 49S A prcfcntment of a riot by ajuf- tice, or two jullices of peace, as call,- Ihall require, is a convic- tion by leveral afls 155 Vide *irrkll, i-;;otnici5c, Juftice of l^iiuc, Q-;iimr atiD £0an? ;e!aiieiitir, ' ^mi ? mHnxji, ^rfafon. Thames is alia 'i/ia re^'ta, king\ high ftream 53$ l\obberp« Defined 53;j What ingredients in rol)bery ib Something mull be felonioufly ta- ken ib A mere affault to rob without ta- king [till late «^] only a niif- demcanor ib What a taking in law and fact 532, 533 If a thief compel true-man by lear to f.vear to fetch him money, ■which he doth, and thief re- ceives it, robbery ib Ii .4. afl'aults B. and demands his purfe, and B. delivers it, it is a taking, and lo W B. refuie, and j1. pray a loan or gift of money, which B. gives or lends, rob- bery 533 So if B. throws his purfe in a bufh, and A. takes it up, and carries it away, fo if B. flying from thief let fall his hat, and thief takes it, and carries it away, all client of fame fear ib It A TABLE OF THE PRINCIPAL MATTERS Jf a thief without weapon drawn bid party deliver his purfe, which he doth, robbery, the finding little in it he return it Page 533 ^,'s purfe being faftened to his gir- dle, JS. alfaults him to rob him, and in llruggling girdle breaks, and purle falls to the ground, no robbery; but if B. take up the purfe, or if B. had purfe \n his hand, and then girdle breaks, and driving lets purfe fall to the ground, and never takes it up again, robbery ib Taking in the prefence is taking from the perlon, but to confti- tute robbery it mult be with put- ting in fear ib Tak ng my cattle in my prefence, and putting me in fear, robbery ib Vhere one, neither in view, nor ai^enting, nor prefent at robbery or aiTault may be guilty of rob- bery 534, 537, 53S Where words of menace are ufed after taking and not before, lar- ciny, not robbery 534' Tho thing taken be under 12^. value, felony /<7KJ clergy 536 But in foreign county petit larciny, for it is not robbery there ib y^. rides out with others with dc- , lign to rob, he parts from his company, and purlues not his def:gn, they afterwards commit a robbery, ^. not guilty 537 If a robbery be cumuutted before fun-riling, or alter lun-fct, whilit it is fo far day-light that the face of a man is difcernible thereby, Hundred chargeable 557 J. intending to rob £. breaks a hole in his houfe, £• for fear throws out his money, which yi. takes and carries away, rob- bery 555 One indi6led for robbery in -via regioy or in al/dfiri, oi alt J via rei'ia. and conviCl, is oufled of clergy; contra^ ii m via regut f(dejtri ductnt\ K^c. ii. 3 i9 For robbing of houfts. Vide divt' fions in titulo l^urslarp* Vide Igue anD Crp, Jlarcinp* 3R02ucjff* Vide ;jf eloiip bp ^ta^ tute* ^acrilese* Vide Clergp. ^ale in ^arkft^obert* Vide B-tliitution* *!anctuarp* Vide JK-Eligion* ^cotIanD» Vide 3Rcalm, aTrca? ton* *)ral auo Signet* OF the great Jenl^ and what things are pafl'ed under it Page no, 171, 174-, 175 Pes JigilU^ or le targe explained, and the ufe of it 171 The ufe of the privy feal it> Of the frivy Ji^net ib Seals of B. R. C. B. and exciequer^ ducky and county palatine of Lan- caller, &c. by whom kept, in what manner, and by whom de- livered 171, 172 When king dies, great feal conti- nues till another made 17d, 177 Proclamation defgilloamijjof when either king or fubject loll his feal cafually 183, 184. King had power to difpofe of lands belonging to the crown ox ducky bv letters patents under thele refpeclive feals [but how re- ftrained at this time, vide 1 Ann. Stjf. 1. cap. 7.] 27 Ji Where counterfeiting old great feal is treafon 7 7 What may be laid a counterfeiting the great or privy feal 181 to 186 By 1 M. forging queen's fign ma," nual^ privy fignet or pivvy fealy trqafon 178, 184? Antiently counterfeiting any of the i/«;''s leals, treafon 179 to 18-t It CONTAINED IN THE TWO PARTS. It tnufl be an adual counterfeiting barely comparing, not treaion Page 181 Alfixing a true great feal to an- otfier patent, a great niifprilion, but not treaion 181 to 182 Fixing great feal by chancellor to a charter without warrant, no trcafon 18.{ Counterfeiting kin^*s judicial feal for writs only a great milde- nieanor, fo ot the leal of a lla- tute merchant ib What the judgment in counterfeit- ing great and privy leal, privy fignct and fign manual 187, 351, 352. ii. 398, 3^9 SirtJitiOJK In fome old books treafon expreft by that name, yet a charge of doing any thing feditioully a- mounts not to a charge of trea- ion 77 ^i DefmDfnDo» Vide li;omicioc» Whether goods of an offender, and in what c;ifes at common law might be Icized on the oH'enfe committed, or inventoried and appraiied only ; in what cafes «ind on what lecurity they were to be delivered to the bailiff of party indifted, or to the con- liable ox-villata to be anfwerable lor them, and in the laft cafe, what maintenance the party and his family lliould have had out of them 36 1 If no indiclmcnt, then he wlio feized, did it at his own peril, no felony being committed ib What regulations made therein by 5 y 2.J E. 3. 364-, 3G5 If party comes not in, his goods forfeit on awardof fAfftw/, which is awdided on the fecond tap. returned non eft inventus^ as well in treaion as felony, tho 25 E. 3. mentions only felony Page 365 Second cap. illties with a precept to leife olfenders good'<, out of which (heriJf is to allow him and his family fuflicient for tlieir fultenance «b Whether in cafe of fuch a feizure a (ale for valuable conlideralion before conviction and after fei- zure binds the kin^^ as in cafe of (eizure and delivery to 'uillata. ib 1 /?. 3. prohibits feizure of goods of a party irapriloned, tho in- difted, but not convicted 365 Whether this aB extends to trea- fon, tho not mentioned 3G6 \\'hether it extends to a party at large, whether indided or not; it repeals not 25 E. 3. touching^ fecond cap. with a feizure ot goods, as to other perlons that are at large and not indicted, nor procefs made on their in- dictment, if they fly not, no feizure can be made, whether they be indicted or not ib If a man be at large and fly for it by this a/?, his goods cannot be feized and removed, whether he be indicted or not ib If indided and at large goods cannot be removed, but only viewed, appraiied and inven- toried where they lie ib Tho they may not be removed, yet where party is at large, par- ty removing not within penalty of double value ib timit (/hjiante this «otiomp» Vide 25u2eer?» ^olDirr. How foldlers were antiently re- tained 672, 673 Who bound to ferve the king in his wars 673 Whether impreffing them juftih- able 678, 679 Etymology of Prf/^ 677 Vide fi\o\\)> hv ^Utwtt^ Con# ffablp anb SparfliaU ^tabbing* Vide Clcrgp, 3:iT# oiftment, C^uroer ano £pan* 0laug^tfr, j^tatutc^ in genrral, anr> tlydt Tho IVeJlm, 2. which gives im- prifonment, where party in af- Jife vouches a record and fails of it, is general, yet neither an infant, nor a feme co-vert in that cafe ihall be impriloned 20 General a^s, that give corporal puniftiment, are not to extend to infants, therefore infant con- vict in ravifhment of ward fliall not be imprifoned, tho ail be general ; but where a fa6t is made felony or treafon, it ex- tends as well to infants above iour- CONTAINED IN THE TWO PARTS. Ibvirteen, as to others Page 2 1 , 2J 5 Eli%. &/ 1 8 Eliz. which require a convidion and attainder ac- cording to the oilier and courje of iavj, theCc words include in- ditlmcnt as well as trial, )et the words all trials of trenfon Jliall be according to the courjc of the common laiv^ as in I lif '2 P» (sf M. include not indidment as well as trial 2'Jl, '2tJ8, 299 1 Mar. reducing all Ireafons to 'lb E. 3 repeals not only trealons enadted de novo, but alio decla- rative a^s 'I'll, 2(iO Some things cna6tcd to be Ireafons by new and temporary Jaws, which were trcalon by 'lb E. .'>. '161, 2o2 An a<^ for fixfety of h'ng'^ pcrfon, Cd'c. enacis an offenfe felon v, or a mifdemeanor (without a Ipe- cial clauie) carries a preiump- tion, that Ihrae was not trealon before, and is a judgment of parliament in point 2G2 Tho I. E. 6. t^ I. M. have taken away treafons of 1 1 R. 2. £5" 1 H. 4. yet they are fo far of force as to damn the falfe and extrajudicial opinions of Trt/I- lian, lisfc. 266 Where an nt? makes felony trea- fon by the repeal of that a^ it becomes felony again 291 When an offenfe is made trealon or felony by rtc7, and that a^f is repealed ; offenfes committed before fucli repeal, and the pro- ceedings tiiereon are dilcliarged by fuch repeal, without a fpe- cial clauie in at^J of repeal 291, :i09 Whether the two penalties pre- vious totreafon in cafe of words, viz for the firlt and fecond of- fenfe in 5 fe" 6 E. 6 be repeal- ed by any a^, quaie 296, 309, 310 The manner of proceeding (in cafe^ of trealon) on a fubJe- quent aP, may be dirt cted by a precedent rt;*/ 'I'iil. ii. 2itt Where the word king in an aH Ig perfonal, or includes hi^ fuc;- ceffors Page 101, 310, 318, 669^ 106, 707, 7UH Where fecond ofienfe is fubjected to a fevi rer punilhment, there inuft be a conviction of the for- mer, and judgment given there- upon 324, 6i;5, 086, 705 preamble of an /»// an eltoppel, [andprefumed to be true] 327 Tho 25 E. 3. Ca* 1 A'. 3. mention only felony, yet they extend to trealon, being rtt?/ lor advance- ment ot" jullice 365, 3Gf5 APi Ipeaking of fines or ranf'oms at king% plealure mean of h:s juffices 37.S Where commons affent to an a^ is not expreit in parliament roil _ 31)7 The words hear and drter mine in an ad import a trial by jury 4(>.'J Interpretation of an a^i (efpccial- ly where a temporal intereli is concerned) is of temporal cog- nizance 4U9 Conlirudion of many aSls touch- ing matters of eccieliaflical cog- nizance belongs to the tempo- ral judge ib Where ad fpeaking of king's fub- jcCts extends to aliens here 5H, 542 Where maintainers denote raain- taiiiers of olfenfe, not of parties 613 Procurers^ couii/ellors, abettors im- port accelfaries before, receivers or comforters after 6 ! 4 W here an aSi makes an offenfe fe- lony, it incidentally makes fuch accefl'aries, as would beacceffa- ries btf'oie or after at common law, but the fpecial penning fometinies varies the cafe 613, 614, 615, 632, 644, 704 Eyt judgment de i-y isf member cre- ate a felony, whereon cnfue corruption of blood, cfchete to the lord, and lofs of dower 627, 641, 703 Ad mentioning inferior officers extends not to fuperior 619 Where A TABLE OF THE PRINCIPAL MATTERS Where a^j making felony extend- ed be^ ond the letter Page 632, 654-. ii. 365 Where n/I is repealed and re-en- acted, or temporary, and expires, or is continued till end of next fcllions, and before that is con- tfiiued over, where it ftiall be faid contra I orma?n Jiatuti ox fia- tuiorum^ or of which ftatute 667, 706. ii. 173 Where one aft relates to another, as where former makes offenfe, latter adds a penalty, how in- dictment to conclude ii. 173 The feveral ways of providing that there fliall be no corruption of blood, &c. 703 But tho there be fuch a claufe, king ihall have forfeiture of lands during felon's life, and his goods, for there is no efchete to the lord, where inheritance is faved to the heir ib By fpccial claufe forfeiture of goods, as well as lands, may be provided agalnfl ib Saving corruption of blood vir^- tually makes heir inheritable, and laves dower TOl- Clergy not oufied without fpecial words ib In all a8s making treafon, felony or mifprifion of treafon, peers to be tried by peers ib An a^ makes ofFenfe felony in of- fenders, their counfellers, pro- curers and abetters, and is fi- lent as to acceflaries after ^ whe- ther thefe implied ib An aR making an offenfe by name, as rape, ^c. felony makes all prefent aiders and abetters principals, tho only one com- mits it; but as to clergy in fome cafes it differs ib If it makes the offender, his coun- JcUcr: and acetters felons, yet it makes not the counfellers and abetters principals, unlefs pre- fent ; if abfent, they arc ac- celfaries btfore^ unlefs exprefly made all principals, whereof cnly one, and what inflance ib Ad making a felony, and limit • ing it to be tried in a county, where party taken without ne- gative words, but cumulative, and party may be indidled, where offenfe committed 694, 695, 70.1 A fecond ad ena6l"ng offenfe fe- lony, that was lo enaded be- fore, with fome alterations is but cumulative 705 If one ad be grafted on another relative to it for the better ex» ecution of the former, if for- mer be repealed, latter thereby virtually repealed ib Ad making a new felony of an offenfe that confifts of a fa<5l partly in the realm, and partly out, and limiting it to be tried where {offenfe committed, ftiall be conftrued to be where that part of the oflenfe is committed that is within the realm 703 Ad making a new felony binds not infant under fourteen ib How ads enading capital offenfes are limited to continue 70S Ad making offenfe felony includes mifprifion, and party may be in- dided of the latter only 652, 708 Where a ptiifne affirmative ad re- peals not a former ad 705 B. R. comprifed within adi, that give power to j utlices of oyer and terminer ' ii. 22 But juftices of peace are not ii. 44. If a penalty be made recoverable in any of the i ing' s courU of re- cord, to what courts it extends ii. 29 Where the words no imager of laiu^ effoin, protedlion, &c. Jhall be at' lowed i'le. up the jurifdidion to courts that can allow a proted- ion, ^c. ii. 30 Where the penalty is recoverable by original writ, &c. it is re- ftrained to the fuperior courts ib Whether juiiices of gaol-delivery or oyer and terminer have a ju- rifdidioD, where ad limits of- fenfe CONTAINED IN THE TWO PARTS. fenfe to be heard before juftices of peace li. I'^'^e 3'^ Where flt? fpeaks of judicesin the county, juuic«'s c\' ^d'il-'teli'vtry, or o)e}- iind fttminer ma^ hear and determine it ib ui^/s nuikiiig new treafons to he taken llrictly '218 Where an fi^ for trial of trcafon is to be taken lirictly 157 Of offcnfes by tlatutes, whereof juftices of peace have not conii- fance ii. 41- Where by a provifion per dominum reofm tij* ejus concilium is meant an anticnt ftntiite ii. 99 Where niandatum domini re^'n iig- nilies proccls ii. 131 If a^ be pr(/nibitory, and by a fubftanLivc chiulc gives a reco- very by action of debt, ^^c. but is blent as to indidment, party may be indicted on the prohi- bitory claufe, and thereon hned, penalty not recoverable, but line not to exceed it. ii. 173 \{ aB be not prohibitory, but only if any Jhall do Jucli a things he Jkall fmfeit 5l. recoverable as aforefaid, offender not indicl- able ib All penal <7£?j inducing a forfeiture to the kino^ or making a felony or treafoii are general a^s ii. 172 Where fatal to recite and mifre- cite them or not ii. 172, 173 jiiFti oulling clergy conllrued Itrict- ly ii. 335, 37 I Whether the word murder includes Pi tit trenfon ii. 31-0, 3 i'2 Where an aB ouft*. accclfiiries be- fore of clergy, whether it necef- fiirily oufts principals not men- tioned li. 3-1'j, 3 1-7 Whether outla-jory is included in word attainder 521. ii. 350, 352 Allfelonies include not piracy ii. 370 One of the reafows for making 27 H. 8. for tiansferring ules into poneflion 2 1-7 In moft of the particular cl^s of Vol. II. attainder there is a fpeclal pro- vifion that parties attaint IhouiJ forfeit all their lank, whereof they, or others were felled to their ufe, and alfo a provilion to five from (brfciturc fuch lands, whcrcol parlies were feifed, to the ulc o( any other Bai^e 21-7, 24i Alls may diverfi fy the offen^e^ of accetliirv or principal according to the various penning 615 Vide ;jftiOilt> b\> ^fat.iti^:, 'iw- Dutmcnt, SUrtafoiu Tho lord may fcize it, owner may retake it within year and dav Difference betwixt civil fuits in compcvfntionem dnmni illali^ and criminal prolecutions in vin- diitam cri minis commt(Ji 38 For the court of lord klgh ffi-jard for trial of peers. Vide COUTt, For court before fe'-joard of houfe- hold. Vide C-OUrt, ^iib- cs.-ja. Vide ^Htncfff* ^iipfrfrDrat?. Vide Clertionri, GoiriiniiGion, Crror, ii^abtssf ^^iipremacp. vide flying, iJe' Iigiom iburftr. Vide :i3aiU *)ufpicion^ No man bound to fufpeft another; it is the acl of his own judgment 4yo TABLE OF THE PRINCIPAL MATTERS Where fufplcion 'vjill juftlfy the im- frifonment of the farty^ or juflify or excuje homici/le, or nctj Vide 3Irrifi, ii.omiciop, !^iirotr,auo ^toans* Vide JLarcinp* X^iU Vide ;forfeiture, 2^alf5* Vide Wm\* Xfniirc, Vide 5forfeiturf» SCljcft'botP. OWNER taking his goods again not to proiecute theft-bote Page 619 But taking them again no offenfe, unlefs to favour the thief 619 Judgment in theft-bote ii. 400 STjcft* Vide 5Larcmp, "SUohm* Vide Cljrat. Worn* Vide ^l}criff* 2roton ana j^otonfiiip* Vide STrabErfc* All inquifitions taken by flieriff by writ of melius inquirendum, traverfable 416 If dozcners in Eyre, or in B. R, prefent efcapc of a felon, where- by vill is to be amerced, be- caufe this but an amercement, prefentment not traverfable 603 Vide Coroner, fi\Q Df fe, JnQueff of-iiDffice, ^refcntmmt^ arreafon* Where /fj«§^'j life is concerned, not fafe cafily to admit an excufe by misfortune, tho a fa6t purely cafual cannot be treafon 41 Why the offenfe and punifliment fo great 59 Treafon may be committed againft pcrlbnof an ufurper 61 What the great brand of treafon Page 75 Of treafons at common law; great latitude in their conftruClion IP, 80, 81, 82 Accroaching royal poiijer an antient and ultial charge of treafon 80 Various arbitrary conftrudions of treafons in the reign of R. 2. 83 The ill effeft of an extrajudicial declaration of treafon by the judges of that time 84 21 R. 2. ^ 25 E. 3. compared and the differences remarked 85 Juft and expedient to lay an overt- ad in indictments of trealon ib The unhappy confequences ot breaking the great boundary, the 25 E. 3. 85, 86 21 R. 2 repealed by 1 H. 4>. 86 Objcdions againlt conjlrufli've trea- fons 86, 87, 293 The petition of the commons, whereon 25 E. 3 was made, and the king's anfwer thereto ; the a^ is made conformable to the latter 87 The feveral high treafons declared by 25 £.3. 91 Where a merchant Granger may be dealt with as an alien ene- my, and whereeither asan alien enemy, or as a traito^r 94 With what allay thefe general words of Lord Coke, an alien, enemy cannot he guilty of treafon^ are to be taken ib Spies fent over by a foreign prince in hoftility, within that rule ib For other matters touching aliens. Videitliin. Treafon in compaffing death of king ^ queen, or prince, &C. Contort of king or queen regent, may be guilty of compaffnig the death of the king within this aH 100 Who fliall be faid a king, queen, or their eldcfi fan, or not, within this aa 100, 101, 123, 124 Wherein compalfing death of queen or prince differs from cornpajjing mort dc roy 127 What CONTAINED IN THE TWO TARTS. Wliat fhall be faid a compafTing king's cleatli Page J 07, 10^ Calciila(ing hU nativity, not a cornpalling, tlio a ^^reat oiRMife 108, [Vj >-, 3:^5 Comparing kind's dcatli, tlio not cfibctcd trcalon lOS W'liat overt-adi ncct-irary to make fuch coinpallin^ trcalun 10.^, \0J Confining w&r/ th foy, anil (here- upon providing \vea])ons, or fending letters lor the execution thereof is an overt-aCt of coni- palling kivg\< death 109 If men conlpire to imprifon the ktna by force till he hath yield- ed to certain demands, and for that piirpofe gather men, or write letters, it is compaiTnig kind's death ib A conlpiring to depofe the khig is an overt-act of compaliing hi^ death 1 10 A foreign ambaffador for com- paliing kivg\ death Iball be exe- cuted here for treafon, but for other treafoiis Iball be remitted to his own country to be tried 117 Vyhere an ambaffador may be gmlty of treafon^ vide ambflffaflOr. Cornpalling bywords not an overt- act, as appears by many tem- porary ai^is agaitili it ; but words reduced to writing, GTc-. are an overt-aa 1 1 1 to 1 '20, .-J 1 0, 3 1 2, 322, 323 Words may expound an overt -act indifferent in itlelf 115, 116 Whether words menacing ki'ig's death be an overt-nct of com- palfing his death 115, 116, 117 Aliembling together to confult how to kill the k^ug is an overt- acl of compaliing his death 1 1 .9, 1 20, 121, 1 22 Whether con/piracy to levy zvar be an overt-a6t, unlefs levied 119, 133, 145, 148, 322 Writing letters to a foreign prince inciting an invahon is an overt- aa 120, 122 As an overt aa mull be laid, lo it mult be proved 121, 149 U an overt aa fufficiently laid in tlie indictment be proved, any other may be given in evidence in aggravation f^K' '■^- Buying a dagger for ihepurpofeis an overt-act of cumpalling-^/'w^*/ death ib Adembling together to levy war againit the king, either to de- pole or reftrain, or enforce him to any a/?, or to come to hi* prefeiice to remove his counfel- Jors or minillers, or to hght a- gainft his lieutenant or military coaimillionate ollicers, ^c. is an ovcrtad of lame kin'- rhio, it is nottreafon 131, 149, 152 If on a private defign, or private quarrel, it is no levying war againft the king 131, 133 to 13S, 140, 141, 149, 152, 260 Diflerence between beilum levatum ijf Lellum ptrcvffum 1 52^ A war levied againft the king is of two forts, exprefly and con- ftruClively, Firft, Againft his forces, ^c. Secondly, to throw down inclofures generally, to inhanfe fervants wages, alter religion, exjnilfe ftrangers, or remove counfellors, or againft any ftatute, ^c- this is a levy- ing war, becaufe end public 131, 132, 133, 134, 152, 153 Coni'piring to levy fuch a war treafon by feveral temporary aas 132 Glaufe in 25 E. 3. of confulting the parliament in new cafes leaves no latitude to multiply conftruaive treafons, very dan- gerous (o to do ib If a war levied, confpirators are traitors, as well as aclors 133 War levied to break prilons to de- liver one, or fomc particular perfdns out of lawful prifon, unlefs imprifoned for treafon, only a great riot; but if to break prifons generally, it is treafon 134 100 perfons viodo guerrlno affem- blcd to pulldown bawdy-houfes, and marched with a flag on a ftaff and weapons, and pulled down certain houfes, held to be a levying war within this atl by all the judges but one ; objed- ions to that judgment 134, 135 In earl of EJJ'tx'f cafe refolved, that when queen fent lord keep- er to him commanding him (6 difiuifs the armed people in his houfe and come to her, and he re- fuled to come, and continued the arms and armed perfons in his houfe, it was trealon Pa:^e 138 That when he went with a troop of captain* and others from his houle into the city, and there prayed aid of the citizens in de- fenfe of his life, and to go with him to the court to bring him into the queen's prefence witha ftrong hand, fo that he might be powerful enough to remove cer- tain of his enemies attendant on the queen, it was treafon, the fad in London rebellion ib Tliat the adherence of earl of Southampton to earl of Fffex in Loudon^ tho be knew not of any other purpofc than of a private quarrel, which Ejjtx had againft certain fervants of the queetiy was treafon in him, becaule a rebellion in the earl of EJfex ib That all they, that went with Ef~ fex from bis houfe to London^ whether |ing wnr it miift be cxprcft in iudictir.cnt Pngt \V\, 145, 1S2 jB.iie detaining /(-/w^'s forts orlliips, or coiifpiiing to take tlR-in not treafon; adiial taking tliL-ni, i)y force, a levying war vviliiiu '25 E. 3. 146, 290, 3'J3 Pctain ng iinv's towns, tj/r. after demanded by iin^'s comuiiirion- CT, and repelling an alfaiilt made by him, is a levying war within tiiis a^f liG, 32b, 3L'6 Dilference between aii iniiirreclion on account o( civil interell, and levying war 146 Holding one's houfe againft the ilieritr and pij^e comitatus with force, and alfembling perfons to oppofe the execution of a writ of polTellion, no treafon, but a great not ; the like of keeping pofleflion againil a rc-f- titution on inclittnient of forci- ble entry ib Adauhing k'nig'<. lieutenant in time of holtility or rebellion within the realm, in their march or quarters, as enemies, levying war ib If on fudden falling out, or injury (ione by the foldiers, tlie coun- trymen rife and drive them out, it may be a great riot, but not levying war, except fome trai- terous defign under cover of it ib Open reiifiance of juflices of o\er and termitur, only felony ib Touching laws of trealon in Ire- land by J 8 H. 6. and cejfing foldiers. Vide TrcIatlD. What ufually is the overt-a<5t of levying war 150 Whether the- bare aflcmbling an enormous multitude for doing luilawful acts without any wea- pons, tJc. be a lufilcieni overt- act of levying war within this rt//, efpecially if they commit fome of tliele ads 151 J^cHlra of Er.gland comprehends the narrow leas, invading Ihi^'i flups in the narrow feas, levy- ing war eii fvii realm \ where trial to be 154. for trial of trcafons in ScotlanJ^ provilion made by whut fiatutes Pii^e 155 What is faid of h eland in all par- ticulars applicable to the Iflrs of Man, Ji'J'cv, 8cc. 153, 15(J, 157 Vide jniano. Treafon committed in JVa'es be- fore 26 H. 8. was not inquira- ble, or triable before juflices of oyer and terminet, or in B. R. but before juflices alligned by the king in thofe counties of If'ales, where laCt committed 156 By 26 //. 8. counterfeiting, waHi- ing, clipping, or ininilhing coin, felonies, murders, t/c, and acceflaries of fame and other ofTenfes felonioufly done in lf'ales,oT any lordihip march- er may be inquired of and tried before the jultices of gaol-deli- very, Lfc. in next adjacent county 156, 157 26 //. 8. confirmed by 34- &* 35 H. 8. which fettles the grand felFions, To that as to thofe of- fenfes enumerated in 26 H. 8. jullices oi' gaol-dilivery in the adjacent counties, tjIz. Glou' crjier, (ifc. had thereby a con- current jurifdictioii with juftices of grand felfions 157 Whether 26 //. 8. extended to treafion for conipalling i'«^'s death, or levying war, or whe- ther fame remameil triable by juftices of grand iellions, but now 26 H. 8. Itands repealed by I ^ 2 P. (sf M. as to trials of treafon ib For what fpecial purpofesff>7/o»rt- ri lies into IfaUf, but not as lo trial of fact, but it Ihall be fent down by minimus by 7 [27] //. 8. 158 Ifales within England, and there- fore not witliin 35 H. S. lor trial of foreign treafons ib If treafon, (sfc. be done in Dur- ham, a certiorari lies to remove it into B, R. out of Dar/ianiy L i 3 an4 A TABLE OF THE PRINCIPAL MATTERS ' and to whom di reded ; but if party plead not guilty^ it fliall be lent down thither to be tried Page 158 Of treafons^ Zzc. in Tijidal and Hcxamjhire ib Adhering to the kir.g' s enemies. Who flail be faid an enemy; jury on trial Ihall inquire, whether the perfon to whom the party indided adhered was an enemy, or not, and wiiether there was a war between kmg of E>:giand and that other prince, where- unto party adheres 164 Ent:?ny extended farther than li>g or ftate at enmity, even to an alien coming into England in hollility ib Duke of Norfolk adhering to lord Ho .'/e', a iubjed oi k!7}g of Scots in amity with queen EHz. that made an adual invation upon England without the king's com- niifhon, adjudged a traitor 164 WJu) tliall be faid to be a perfon adhering, and what an adhe- ring 165, 166, 263 If there be war between E'iglanJ and France, thofe E-'gl'Jh that live in France before the war, and continue alter, they are not adherents, unlefs they alhft the French king m his wars, or re- fufe to return on privy Teal or proclamation, and this refufal, tho e^ idence of an adherence, not limply fo in itltlf \Gb W'hetlier fubjeds offoreign prince continuing under ii//i^'> protec- tion atler war proclaimed, and aflifting the foreign prince be- fore renouncing his fubjedion to the king, or an enemy ftaying here under king'^ lafe conduct, be an adherent; in time of truce an h.'igiijltrian goes into France^ and Hays there, and returns be- lore tiuf.-e expired, no adiie- rence; but contra, if he confe- derate with the enemy 165, loi Kings of England and France in amity, the king's fubjeds (olicit king of France to an invafion, it is treafon and an overt-ad of compaffing i/«_^'s death, but not of adherence ^^'*g^ 1^7 An Englifnnan during the war is taken by the French, and fwears fealty to the king of France, if voluntary, it is an adherence, but if for fear of life, and he return as foon as he can to his allige- ance, this not an adherence 167, 168 Delivering up the khtg\ caftles or farrifons treacheroufly, or by ribery, an adherence 168, 169 If delivered on cowardice or im- prudence, and not treacheroufly, tho party fubje6t to death by martial law, not treafon by com- mon law 169 If detaining kings caftles or forts, or the caftles of any other be barely fuch, and without aflauU, yet if in compliance or confede- racy with a foreign enemy, it is an overt-act of adhering to king'i enemies, and treafon within this a^l 325 By 35 H^. 8. foreign treafons how- tried; by the common law tri- able in any county, efpeciaily where oftenders lands lie 169, 170 Treafons on the fea triable by fpe- cial commiftion grounded on 28 H. 8. at common law it might be tried in any adjacent county ] Mar. reducing all treafons to the ftandard of '25 E. 3. not only repeals treafons newly en- acted, but rtt^j declarative, and all treafon- farther than the very declaration of '25 E. 3. extends ,222, 260, 263, 265, 269, 308 Killing chancellor, trrafurer, &C. in their place doing their office. This extends only to killing, not to confpiring; but if many con- fpire, CONTAINED IN THE TWO PARTS. fpirp, and only one do the a6t, tliey arc all traitors ; ^ H. 1 • makes the conlpiring felony Page 230 Expofition on this branch of the «^7 231, 2)2 Jufticc of peace, as fuch, not with- in it, except he be likewife jiif- tice of oyrr and terminer '2'M What Ihall be faid fcant en Jon place, fefant Ion office 232 Touching piincipals in trcafon, In treafon no accclTaries, all prin- cipals; but quare, whether re- ceiver of a counterfeiter of the feal or money be a traitor 233, 231-, 237 Gaoler volnntarily permitting trai- tor imprifoned to efcape, trea- fon 23 + Rcfcue of a perfon arreflcd for treafon fame offenfe 231', 2b"9 Breaking prifon to inlarge a traitor, trcafon ; but lie mull really be a traitor 234, 235, 326 Confpiracy to inlarge a traitor, neither treafon, niifprilion, nor felony, but a mifdetneanor 326 Offcnfes incident to the treafons declared by 25 E. 3. are vir- tually included within the fame, as receiving, Cs'c 235, 237, 238, 269 If an aSl make anew trealon, and cnatl that the odender, his coun- fellors, abetters and aiders there- unto (hall fufier as traitors, this makes not receivers or comfort- ers alter tlie fad traitors 23 5, 23d, 328, 37 o- But whether receiving a counter- feiter of coin within 25 E. ?,. where no fuch rellriction, be treafon 328 If on'enfe be made treafon in of- fender, his procurers, counlcl- lors, abettors, confenters (with- out the word thereunto) know- ing receivers not traitors, un- lels the words receivers or com- forters be exprell 23G The import of the words procurers, (ounjtllors^ ^abcltorsy conjsnters^ aiclersy receivers and com/'jrtrrs Faoe 236 Receivers, traitors by neceffary confiruction of a new a<7 of trea- fon ib W'here an tit^ general, probably receiver knowing it virtually a traitor 237 Certainly aiders, Cs'f. arc traitors ib He who refcueth one imprifoned for treafon, or fuffers him vo- luntarily to elcape, or receiver of a traitor, Hiall not be arraigned till principal offender be convict, and why 237, 238 Receiver of a traitor how to be in- ditted 238 If indi6ted of the receipt in the fameindi(5iment with the princi- pal, principal to be tried firft; and if found guilty, then jury to mquire of the receipt ; and if principal ;jo/ J K/7/y, tiien to ac- quit both ib Whether procefs of outlawry may go again ft receiver of a traitor at fame time as againll principal ib What will make a man accelTary after to felony will not make a man principal in treafon 239 How far charitable relief will do it 239, 324, 325 The words in 1 Mar. refer to trea- fons, not forfeitures; the for- feiture of traitors, as to old trea- fons, (lands in force 241, 257, 27 5, 283, 309 Of declaring treafons by parlia- ment, and thofe that were en- a6ted or declared between 25 £. 3. y I M. 258, 259, 2oO Some things en:i6led to be treafon by new and temporary laws, which were treafon by 25 £. 3. 2ul,' 2u2, 322 An a^ for fafety of king's perfou enacts an oOenle to be felony only, or a luildcmeanor, (with- out the claufe, t/ie fame not be- ing trealon ivithin 25 E. 3.) carries a prefamption with it, that fune was not treafon be- L 1 4 fore, A TABLE OF THE PRINCIPAL MATTERS fore, and is a jadgnieiit of par- liament in point J'i'g-' '261, '262 Conimnns impeach ieveral oftrea- fon, lords onl^ give judgment, this not per modum itg-s dtclara- tivce 261. In tlie o3 of attainder againft the iarl ot Strr.ffoul^ piovilo, that it fl.oiild not be a precedent, iiecdicfs; it i}i\'\ woV fgredi per- j'onam^ and was no general de- clarative law to I'erve 25 E. 3. 269, 270 Proper provifo in cnatling new trealoits (o lave to the lords their liberties, as in cale of fe- lony 270 1 ! H.I . for fee to ing the attendants on the king in his wars, is per- petual 272, 273 What dtfis for trials of trcafon are in force, or repealed or deroga- ted from by any, and what other , ItatiUes 2ii2, 283, 284, 316 Trial of trcafcais couuiiitted in ri- vers, or ports within counties, leilored to the common law 282, 316 Expofition of 1 £. 6. 3 to" 4 £. 6. h ^ 6 E. 6. 287, 2S8 Writing of Icandalous words (men- tioned in 5 to' 6 E. 6. and there- by made trealon) not treafon ^vithin 23 E. 3. 296 So much of 5 £3" 6 £* 6. as enadls new trealon, repealed by 1 iTirtr. but the claufes in that rv^f? touch- ing trial of ioreign treafons, out- lawry ofperfons beyond the leas, Ibrfeiture oflands, lofs of dower Itand unrepealed, and lb, accord- ing to many, dolh Iheclaufe CQn- cerning two accufers ib In what cafes of treafon two ac- cufers are required by 5 Cs" 6 i?. 6. whether it extends to new treafon 297, 324 W hcther I -^ 2 P. ^^ M. took a- way the necefnty of two wit- nelles on the indictment 298, 299, 300 Touching the competency of luch witne'iles, vide fiilltHtfje^* Of treafons declared and enacted from 1 Mar. till 13 Car. 2. Fane 307, 308 1 Mar. repealed all treafons and mifprinons of treafons enacted iince 25 E. 3. 308, 310 I Mar. meddles not with thofe new laws rcgulatingproceeding5 and trials, but that done after hy \ ^' 2 P.^ M. 309 Trealon generally Ipoken intended of high treafon 316 Peremptory challenge in cafe of high treafon, rellored ; priloner may challenge thirty-five pe- remptorily .'3 17 To make a man principal in trea- lon by comfort or aid after of- fenfe committed, it rauft be knowingly 323 In new treafon aiding and comfort- ing thereof, treafon ib If a phyfician relieve a fick offen- der, tho knowing him to be a traitor, no trealon 332 Some words or writings may be conftrued to ilir up inlurreCtion, and yet be not within 25 £. 3. 334. What courts have jurifdidion ia treafon 350 What the confequents of a judg- ment in treafon 354 All treafons are mifprifion of trea- fon, and more, and he who is affenting to a treafon may be in- dicted of mifprifion of treafon, i( ki?!g pleafes 374 Mifprifion of treafon may yet be tried according to 33 H. 8. for trials of treafon in foreign coun- ties ib In mifprifion of treafon or felony, or accelfary thereto, a peer tried by peers, tho indictment by common grand inqueft ib If a perfon arraigned of high trea- fon iiand mute, he Qiall be con- victed 223, 382 Treafon is felony, tho more, and the kins, m^ty proceed againft a traitor for felony only 497 25 E, CONTAINED IN TFIE TWO PARTS. C'> E. 3. of treaj'ons called i\mjia- tute of fui-veyance ii. l^nje ;j30 Bdbrc 'lb E. 3. what Ircarons of greater note, what oi' lets nod! ii. 33 1 ^Statutes leliit'ing to treafon enaflcd finte the autJior lutote; in liolisj 339 to 34'J Whether hi any cnfe a non compos mentis can commit treajon. Vide For treafons in fnrjintainin^ pope's Jiiprfrnacy, hi rtconcilin^ nnd />e- ing reconciled lu the popijh rrli- ^ioiiy nnd in btini^i'ig in papers bitllsy and fir treafons committed by jcfuit:, occ. Vide xxtUaiOn. For treafon in counterfeitino the coin. Vide 4L0i'l, Jn countrrfeitiug the great and priiy Jeals^ pri'uy fgftet and fign ma- nual. Vide ^tai aaD ^i^iii /''?»■ petit treafon. Vide ^fflt IP hire alien may be guilty of treafon^ or not. Vide ^^UCll. Vide ^tli^tiance. Corruftion anD IStifitiifiaii cf ISlooD, ;5rorfeiturc, 2^0'ttmtnt, ^CuDg^ STrcafurerfrobc* Vide ^r.in^ cijifr, farcin p. ^rcf|iafe» Chnnce pxcafeth from felony, but not trclpals 472 Trelpnfj lies for taking away dogs, bears, fyc-. or their whelp.^ b\2 It lies ibi (.hurt h-wardc-ns lor tak- ing bona ^sf catalla pa) ochiauctruKi; liibliancc of declaration ib Jf A. take away the hay or corn of B. and mingle it with his own heap or (lock, or take the cloth of ^. and embroider it, B. may retake the whoU; heap or fiock, or garment and embroidery, and be not guil.ty even of tret- pa fj 513 Feme takes Baton's goods, and, delivers them to />. who knr)w- ingly carries them away, tref- P'ds Fa e oil- In trefpafs, where it is of their own pollellion, the executor, or- dinary, tii'f.need not fliew ihcir title 514^ 513 Vide Juttificatioji. STrial* By jury Ihc bcH method of trial 33 IVhere a non compos nientisy//,;// be tricd^ or nof^ and nvhcre court in dijceiion way diff:a>ge the jury of him^ vide ^DCOt. Where felony by (latute limited to a Ipecia! jurildiction, and man- ner of triiil, mifprilion of it triaiile by a comii!On jury and general commifhoners of ojV;- and terminer (,-53 On 8 //. 6. againft a'voiditig re- cords trial to be one half by the clerks of ihe court, and the o- ther half by others 651 Trial of rt//,«r for felony to be per medietatem lingua ii. 271 Whether indiament be a ddtincl thing from the trial 221, 29S to 301 Irlfi peer tried here by a common JUO' 155, 317, 69:^ I'ouching Jury procefs. It -venire fnc. or dif.ri-nga^ be er- roneous, and would make judg- ment fo, if hied, but being not fded is aided by IS i-T/Zz. court never compels clerk to file fuch writs after verdict, much lufs puniihes them for not doing it bj 1 If offcnfe committed in county, where B. R. fits, and indict- ment be taken there, B. R. may proceed de die in diem, and there need not fifteen days be- tween tejle and return of x:enire 11. 3, 360 And A TABLE OF THE PRINCIPAL MATTERS . And fo if indidment was taken before juftices of peace of fame, and removed into B. R. by cer- tioiari ; but contra^ if taken in another county than w here B. P.. fits ii. B^X*^ ■'» 360 Oi venire fac. ifiuing out of i?. R. how to bear tefit;^ (ifc. ii. 20 Juliices of oyer and terminer ilFue a general precept for the return of twenty-iour jurors to try the iJi'ue betw ecn iifig and priloners to be arraigned- ii. 2G, 27, 260, 261 After the prifoners are arraigned, and have pleaded to the coun- try, a precept ilTues in nature of a ■venire fac, when fuch pre- cept bears tejie^ and when re- turnable in whofe name, and under whole feals, it muft be ii. 261 If they make it returnable any day after the ilrft day of felhons, they mult make an adjournment, and record it ib Juliices of gaol-delivery after pri- foner hath pleaded may takepan- nel from fherift" without making any precept to him ib Whether procefs be by w^it or precept, as well the award, as writ or precept muft mention truly the i)ifr.e, and where it is only by award without writ or precept, as in cai'e of juftices of gi7ol-deiive^-y, the award ought "o mention the t'ifne ii. 262 il murder befuppoled at D. venire fac. mult be de iiicifirfo D. it at lirijhl de vicineto Biiftol, be- caufe a city ; yet Je vicineto ci- ■jitatis Brifiol, tho alfo a county, good ib Jt iiroke be laid at B. and death at C. hovv %'ifiie mufl be ib . >S'hcre ftroke in one cotinty, and death in another, uifne ihall be from place, where party al- ledged to die ib If murder be hnd in quddam pla- ted -vocat. King-ftreet in parcch. liatiHce Magant;c apud Weitm. whence I'ijne tc arije ib If murder belaid a/i«JB. inparoch, de C. whence vifuc (liall be ii. Page 262 Vill or hamlet may be within a parilh, and a parifli may con- tain many vills ii. 262, 263. Foreign pleas triable by a jury of fame county, where party in- dicted, except in treafon ii. 239 263 Tho venire fac. is only to return twelve, yet Iheriff ought to re- turn twenty-four, the general precept that ilTues before a M- lions of gaol-delivery^ oyer and termimr; and peace is to return twenty-four, but commonly for- ty-eight are returned ii. 263 Several inditted for one telony, juliices may ilTue one or feveral I'enire fac. or awards of that kind ii. 263, 268 If it be joint, and one challenge twenty peremptorily, or tor caufe, jurors challenged Ihall be drawn againft all, and fo in ap- peal ii, 263 Expedient to make out feveral ■venire fac. and if pannel be challenged off, yet forty tale: may be granted on each venire fac. lb If ■vmire fac. in appeal be once granted jointly, it cannot be *■ levered, neither can there be fe- veral tales., for if ■venire fac. be joint, tales mufl be joint, and fo in cafe of indictment ii. 263, 264. Before juftices of gnol-deliveryy where only que award, tho ut firft it be joint, and pannel ac- cordingly returned, and the t prifoners challenge peremptorily ieverally, whereby there are not enough left on the pannel to try them, and a /a/fi is awarded re- turnable the next day, yet court may (ever firft award, and alfo the tales ii. 264 Record being made up, the award is made on the roll, which the juftices of gaol-delivery may mo- CONTAINED IN THE TWO PARTS. del, ns they pleafe, at any time bel'ore tri;il ii. Page 2G4- On the writ or precept, or com- mand to the flierifl' he cannot rf'(urn a vumdavi balUvo^ as in foine calcs ol" appeal, writ, idc. being lor the king lb Thti ana/yjis oHhc writ of V(nrc- fac. ib They of one tide of the county are by law tU -vicineto to trv an otfcnle ul" the other liJe of the county ib jLiltice!> of gaol-e/fliz'iry and peace have power to reform the panned ii. 3(), 156*, '26^ Ufual for the judge on crown-fide to fend lor a jury tojudge at w-yT frius ii, 'J^■.'> If procefs be in B. R. and jury fill rot, or be challengi-d off, lo that there is not a full jury, there ought to ilfue a liifiringas jura- torts^ and a command to return a taUi ii. 2d5, 266 Put if whole jury be challenged oft", then there Ihall be a new venire fac. and if none appear, then a tiiliringm juratores fliall iilue, and no taif! ii. 2(55 Jf a fidl jury appear, and before they arc fworn, one of them dies, fo that there remains not a full jury, a tal,s Ihall be granted; and fo if a juryman dies after returned and Iwore ii. 266 If a talis ilTue, and they do not appear full, or be challenged oft', fo that thofe, that appear on principal pannel and tales make not up a full jury, an- other tales may be granted ib Jn felony a talcs may be granted of a greater number tiian the principal pnnnel in reCped of the challenges, lo that there may be forty talesy or more; but if feveral facceeding talcs be granted, the latter muft be lefs in number than that which was next before, unlcfs the ar- ray of the preceding talcs be ttiliy, they n;Ult inquire, whctlier be tied ; and if they found he did Hy, they muft inquire of his gooji and chattels, which is an in- quell of office and traveriable Pa^e 362, 493. ii. 301 Where one of full age fliall be fouiid guilty of burglary, and an infiint, who was principally concerned in it, not guilty 556 Barcn ihall be found guilty, where feme in his prefence, and by his coercion commits burglary, or larciny, but fhe fliall be acquit- ted 45, 516, 556 If indidlment comprifes burglary and felony, prifoner may be ac- quitted of burglary, and con- victed of felony within clergy, or he may be acquitted of tue felonv ; but qu^sre-, whether he can in that cafe be convicted of burglary 559, 560. ii. 302 Where burglary felony, and felo- ny on 5 br 6 £ 6. are joined in one indictment, prifoner may be acquitted of one, and con- vided of the other two 560 If he be found guilty of burglary, and not of ftealing, he may be convicted of burglary ; and if acquitted of burglary, he may be convifl of felony within 5 Cs' 6 E: 6. and if acquitted there- of, he may be convict of larciny 561 If A. kills B. upon alTault made on him in executing procels, or in his own deienfe, in the high- way, or in deienfe of his houie againft perfons come to rob him, on not guihy pleaded, he ought to be acquitted ii. 158, 303 In trcafon or felony, if any ej'chete or forfeiture of land be conceiv- ed in the cafe, petit jui^' ought to find true time of oHenfe com- mitted 361. ii.. 179, 291 In petit treafon prifoner may bo acquitted thereof, and be con- vict of murder or manflaughter ii. 184 Where there was once a writ [of exigent], and record fince loir, on circumllances the jury may find CONTAINED IN THE TWO PARTS. find the record, tlio not flicwn in eviiieiice ii. Pa%e '201 Wlicre two iiuliclments lor lame fad ; one of murder, the other on I yac. of Jiabbin^\ how ju- ry to rind 46a. ii. 239, 'J40 Ifdurefs and coriipulfion will ex- ciife tlic prifoner, jury on ge- neral illue ought to find accord- ingly ii. 25S, '259 \{ A. be indidlcd for a robbery or murder in wrong county, he ought to be ac({uilted, but vari- ance between indictment luid evidence in the vill immate- ri..l ii. 291 If verdict be given by miftake or partiiility, jury may rectify it before recorded, or by advice of court go together again, and rc- conlider it ii. 299, 300 If recorded, they cannot retract or alter it ii. 300 In felony or treafon no privy ver- dict can be given lb If one be inditted dr. morte cujuf- dam ignoti. jury Ihall be charg- ed to tell his name, if they can ib Where prifoner was acquitted of robbery, court antiently com- pelled jury to prefent who did it, but now contra ii. 300, 301 If coroner's inqueft fuptr •vij'um cor pot is prefent a fugam fecit ^ and party be arraigned, and plead to that indictment, jury not charged to inquire of the flight, and why ii. 301 Jury may lind a fpccial vcrdi(51, or may find prifoner guilty of part, and not guilty, of the reft, or iind him guilty of the facl, but vary in the manner ii. 301, 302 One indiclcd of robbery may be found guilty of felony, and not robbery ii. 302 So where indictment charges the larciny to be clam (:f ftcntc a perjond ib One indided on 1 Jac. of Jlcilbing contra furmam flat, may be ac- quitted on the afi^ and convict- ed of niiuillaughtcr ib One indided of grnnd larciny may be convided of petit larn- ny ii. /'<»^e ^02 One indided of murder may bci convicted of manllaughter il> Where coroner's inqueft found that it was per infoi tunium, and jury found him generally "'f guilty^ Iho fact appeared to be infortunium^ verdict of not giii'ty recorded ii. 3V3 If coroner's inqueft find not the Ipecial matter, but murder or manllaughter, and priloner it arraigned on it, and pleads fut gui-'ty, and on evidence it appears that the prifoner killed the man, but not felonioully, in this cafi; jury cannot find a general not gui'ty, but inuft find that the prifoner did it, and the manner liow, and this to be entered of record, as in cafe of a verdid ff c/ffftr/cnJo ii, 304-, 3()3 Many fpecial verdids have beea IbuncI, as on 1 yac- of ftabbin^r fo on the point, ivhct/ier murder or not; but it is difficult to find them fo that judgment be given for murder, and why ii. 305 Rarely on any fpecial veldict, where queliion murder or man- jlaughter^ judgment given for murder, but commonly man- daughter ib Felony laid as required by a^ oufting clergy, but evidence comes not up to it, where pri- foner fl^all be convided of lim- pie felony ii. 33o Uliere vtrdiSl avoided for mif de- meanors of jury^ Sec. the fptcia- matter being inlorjed on the poftea, vide petit juty fub titul^ Vide CgUiDClft* For eommijfionf of oyer and termi- ner for the verge, the extent thereof^ and manner of trials '•within the fame., vide ^Olirt. A TABLE OF THE PRINCIPAL MATTERS Slifnc. VideSTria!. 53ftv Vide ;fforffiturf, statutes III BCiuTal. IF a felon waive the goods ffo- len without any purCuit after him, thofe goods are not in law l>ofja iva-viata, nor forfeit to the kin^^ or lord ; but if he waive them on purfuit, then they are bona "tvaz'iatay and forfeit to the i/?j^ or lord Pa^a 541 This forfeiture is not like a ftray, where, tho the lord may (eize, yet owner may retake them, within year and day ; but here true owner cannot feize his own goods, tho on frelh fuit within year and day ib Kow a man (hall obtain reftitution of goods waived ib Before 26 H. 8. no treafon or felony committed in Wales was inquirable or triable before juf- tices of oyer or terminer^ or in B. R. in England.^ but before juftices afligned by the kivg in thofe counties of M'aUi, where fact committed 156' But by the fame ad, what oftenfes and acceffaries of tlie lame, fe- lonioufly done in JValcs, or any lordfliip marcher may be in- quired of, and tried before juf- tices of gaol-delivery and the peace, in next adjacent county 156, 157. ii. 38 This an confirmed by the great ftatute of Wales Si. ^ 35 H. 8. which fettles the grand feflions and juflices thereof 157 As to oft'enfes mentioned in 26 H. 8. juftices of gaol-delivery in the adjacent counties, and what counties thefe are, had thereby a concurrent jurifdiclion with the juflices of grand feflions ib But whether 26 H. 8. extended to treafon for compafling xirg's death, or levying war, or wUe- ther fame remained only triable by jufiiccs of grand feflions^ doubtful; but now 26 H. 6. flands repealed by 1 Cs' 2 P. (sf ill. as to trial of treafons Page 157, 282. ii. 38 In other criminal caufes not capi- tal, as in indictments of riots, they may be removed into B. R. by certiorari; and when if- fue is joined they may be tried in next Englijh county ib Whether a certiorari lies into Wales on indictment of treafon or felony 158 It feems it may iffae foF fpccial, and what purpofes, but not a» a trial of fact, but it thall be fent down by mittimus accord- ing to 6 H. 8. ib Wale: withing realm of England^ and therefore not within 35 H. 8. for trial of foreign treafons ib Jus gladii, both civil and military, and fo is power of making peace, inter jura fummi imperii ; none can levy war here without the king's, commiliion 130, 159 War fucceeds belt when concerted with the parliament 159 What fliall be laid enemies of the king, fubjects not properly hof' , tes, but rebels or traitors ib The feveral kinds of peace 1 59, 160 A truce defcribed 159 A league explained, and diflribu- ted into its feveral kinds 159, 160 TJbi bellum non ejl^ pax eft 160 War by the Spaniards on the Indi- ans under pretence of religion, injurious, tho there intervened no former articles of peace be- tween them ib War divided into bellum Jolemne & non folemne ib What circumftances a folemn war amongft the Romans had attend- ing it 160, 161 Thefe CONTAINED IN THE TWO PARTS. Tliffc folemn denunciations of war had place only in ofrcnfuc or invadve wars, and even then had many, and what exceptions Pa;ie lol Many of tliefe anlient folemnities antiquated 1G2 If^tf/rt^o there be a war between princes, they and tijeir fubjefts are hojles to each other ib Of the modern practice of arms 16'^, 163, 16+ The wars we have had with fo- reign kings divided into fpecial and general IC'J Special ufually called vtarque or reprifal^ fubdivided into par- ticular and general masque or repriial 16^ 163 Vide tRarqup or lf\pprihi!. General reprifal may grow into a formed war ; an inftanco tliere- of between us and the Dutch 164. A general war of two kinds ; hel- ium Jolemniter Jenuntiatum, or htllum non fohmniter denuntia- tum, both illuftrated 163, 16t A war may be between two king- doms without any proclamation or indidion thereof, or other matter of record to prove it 164. When the i/«^'s courts are open, it is time of peace in judgment of law 31-7 In time of war, if one enemy plunder or rob the houfe of an- other, it is only an act of hoftili- ty JCo Oftenfes of this kind, committed on fomc of fame party, or o- thers who are not in an holtilc ftate, are felonies ib Vide a^nafon. ^Harrant* For -warrants to arrefl ftlons^ vide 3irrell, Juaicc of ^faa\ For warrants to . fearch for Jlolen goods ^ vide Jiiftice Of ^iface. Vide Commitmriit. niarrrn. Vide ^ark. CUrra, or OIcrcgilD. Amongll the Fjaxons a commuta- tion of judgment of death in cafe of homicide ; but if party inlulvent, he was to fuffer death Fa^e 7, S How long this cuflom prevailed, and how it came to furceale ib CUitfljcraft. Before 1 Jac. it was not felony, becaufe it wanted a trial [how far 1 Jac. derogated from by 9 Geo. '2. vide n^^^. 4-il> Vide ^flOilP b>' »i>tatlltf, l\t? llglOlU CUitncfff, Whether 5 £3" 6 £.6'. requiring two witncffcs on trial and in- diclment of treafon extends in law to new trealbns made after thcrt^ 297, 324. ii. 287, 268 If a new treafon were made by a fubfequent a^ without any claufe directing indictment or trial in any other manner than is apj)ointed by this aci, there mult be two lawful accufers, both on the indictment and trial ib If there be by a fubfequent ad any derogatory claule from this Oil, then there need not be two witnelfcs ib Whether by any afl this be re- pealed or derogated from with refped to indictment or trial 297 to 301 As to eotinttrjriting co.-n^ (.r /•> much as luas trcajon for im^-air- -.r.g it, by 1 ty 2 P. £3" M. it is cxprefly provided, that no other evidence fliall be rcquifite, ei- ther on indictment, or trial, than was before I E. 6 22 f, 297, 29S. ii. 2S7 As A TABLE OF THE PRINCIPAL MATTERS As to clipping and wafhing, b ^ 18 Eliz: in exprels terms re- quire only a conviction and at- tainder, according to the order and courfe of the lavjy and 5 Cs" 6 £. 6. is fo far derogated from by thefe a^Js Pag c 'I'l 1 , 297, 298, ii. 287 As (o all other rreafons than count cr" Jtitingy clipping^ and ivnjhing coin, 1 & 2 P. & M. hath ta- ken away neceffity of two wit- ncffes on trial, but whether it hath taken away neceffity of two witnelTes on indittment 297 to 301, 324. ii. 286, 2S7 In milprilion of treafon two wit- nelVes necclf.iry, both on indict- ment and trial 300 What fliall be faid two lawful wit- nelies wilhm 5 tir 6 £. G. 301, to 307 [By 7 //''. 3. no per/on Jliall be /w- diBed, tried y or attainted of trea/or.^ hut on the oaths of tivo larjful "voitnejfes^ which -tzvo ivit- vejfes mufl be to fame treafo?!, tho not necejjary that they Jhould both be to fame overt-ad ; in rolis] 3U Lawfulnefs of witnelTes refpecls either the perfons or teftiinony of the witnelfes 301 Where feme a lawful wltnefs a- gainft barcn, or not 502. ii. 279 She is not bound to fwoar againft another in theft, if her hulband •was concerned, tho not directly againft him 301 A woman taken away and forcibly married, contra 3 H. 7. maybe fworn againft her hufband ; but olherwife, if (he afl'ent to the marriage by free cohabitation "301, 302, CGO, 661 Infant under fourteen not regu- larly admillible, but in what ca- fes under that age he may be admitted a witnefs 278,279 A party intercfted not a lawful witnefs 302,303. ii. 280,281, 282 A party to an ufurious contract were a lawful witnefs, or not 302. ii. 280 One having a promife of the gooQ5 or lands of a party attainted, no lawful witnefs to prove the trea- fon Pai^e 303 A perfon outlawed in trelpafs a witnefs, tho no lawful juryman ib A father or fon, or mafter or ler- vant, a lawful vvilnefs for his correlative 303. ii. 27G An adverfary in a fuit a good wit- nefs 303 A particeps crimiriis in fome cafes a lawful accufer within 3 &' 6 E. 6. ib An approver (hall be fworn to his appeal, but whether on the trial, if appellee puts himfelf on his country 303. ii. 234< Two charged with a crime, one fliall not be examined againft the other, except he coatefs himfelf guilty ib The party that is to be a witnefs againft his accomplices never indicted, becaufe he doth weak- en his teftimony, tho not take it away 303, 304., 305, A party to the treafon who hath confefled it, may be one of the two accufers in cafe of treafon, and is fufficient to fatisfy 5 &/ 6 E. 6 304- A promife of pardon to a party to the treafon if he will difcover the plot, no impediment to his teftimony ; but if the king pro- mife a pardon on condition that if he will witnefs againft any o- thcrs, he will pardon him, and th:U be acknowledged, whether it will make him uncapable 30 (■. ii. 280 Hard to take away life on the evi- dence of a party to the crime fmgly, unlets there be ftrong circumftances 305 A remainder man expectant on aa eftate-tail, not a good witnefs ; but a.difteifor may be a witnefs to a deed made to the tenant 306 One convid of confpiracy, perju- ry, or forgery, not a lawful witnefs; contra^ if he be par- doned J^ Trefpals CONTAINED IN THE TWO PARTS. Trefpafs ngainft J. B. and C. if no evidence bc^^iven again li one to pro' e l»im guilty, he may he examined on the part of the o- ther defendants ; and if two he indicted, and there be no evi- dence ag.iinlt one, v.hether he may not be a witnefs for the other; but olherwife it i*;, if there be a colourable evidence againli him P^.^e 30d, 307 Wiie may be an evidence againli: her hulband indicled for aiding another to commit a rape on her 6Jy Where an infant under twelve in capital cales maybe heard with- out oath 63 i, C35. ii. '28t Ditfercnce between admitting a witnefs to be heard, and be- bevingliiiu when heard 035 Second wife married, leaving the iormer, may be a u itnefs againlt the hulband, but not the firft wife 693 Jurors triers of credibility of vvit- nelTes, as well as truth of the fact 633. ii. 235, 276, 277 Many things dilable a juror, which difable not witneffes ii. 276 DillinCtiun between exception to the credit, and to the compe- tency ii. 276, 277 One outlawed a competent wit- nefs ii. 277 Who wilnefTes or not, and how in- competent witnelFes reltorcd ii. 277 to 285 He that alledgcth an exception of record, ought to fliew forth a copy of the record attefied, or vouch the roll in court ii. 278 If king pardon incompetent wit- nelfes, they are rendered com- petent, tho their credit (hall be left to the jury ib Whether an infidel be a com- petent witnels; a Jevj may be fuch ii. 279 A reward given to one for giving his teftimony, dila'.des him ii. 2S0 Confequential bc.icfit to the wit- nefs dilabk's nut his teliimonv, Vol. II. tho it may abate his credit tt4 Pn^r 2SU, 281 Three aclions feverally brought a- gainlt thrf<; peilbus i'jr pe:ju;y, on the lame point, on trial of the firft a'^tion, tlu other two are comjintent witnellcs being not immediately concerned, tho conle([uentIy the point being the fame ii. 28t> So where indicted of perjury ou three feveral indictments touch- ing fame matter, while the o- tlier two ftands unconvicted, they may be examined 3aij Where one not a witnefs, bccaufe his own fuit ii. 2SI, 2^'> A])pellant nonfnit on appeal may be a witnels for the /■/'y^ ii. 2Si VVMiere kind's teliiinony allowed or not if, WitnelTes are brought in by /ii[>- poena ilFued by juliices of peace, cyer and terminer^ gaol-(lelivc-I '« \\'here A TABLE OF THE PRINCIPAL MATTERS, &c. Where they that live, and have land in the hundred, are com- petent witnelFes, or not, in an adion againrt the hundred on tilC ftatute of IFinton ii. Page 280, 281 Vide (25biOf ncc* CUooU Vide 5f cfonp bp jbtatute» Words are eafily fubjefl to be tnif* taken or mifapplied, or mif- repeated, or milunderftood, by the hearer III, 112 I E. 6. puts the very fame ofTen- fes in words fpokeu in a lower rank of punifliment than the fame things written or printed Page 291, 2y6, 315 Writing fcandalous words men- tioned in 5 Cs" 6 E. 6* and there- by made treafon, not treafon nvithin 25 E. 3 296 Whether the two penalties previ- ous to treafon in cafe of words, viz. for the firft ahd fecond of- fenfc in 5 &" 6 £. 6. be repeal- ed by any a^ ib Words no provocations to kill a man, nor will they ieffen a crime from murder to man- flaughter, except words of me- nace of bodily harm 456, 457 Vide ilpurO£T, jSTrcafoo, ^cac ano ^aj>. Vide Compiu tatiout F I N I Si CORRIGENDA m the TABLE. in titulo 3tUcgianC0 for fidd'aas i egia^ read fidelitas legea. frcftft 3lmbaffaDor refer to Wvmioiu From ilmenomcnt to l^ecorD. in . /« t'tulo 3irrfff, after thefe words, For ivhat end conjia' He or any other during affray may break open doors, infert iut not after-~r—— unlefs, &:c. Under JBurglatp dele clergy allowed to one attaint, which is inferted under its proper head Clfrgp. For the form and analyjis of caption of indidment on return of certiorari, refer from CCftiOTari *o 3{nDictment» From certiorari refer to ^ica* Refer from Cober=: tlire to ^drincifal ano 3tCfcffarP» Under ^efuit dek reference to S^rfafoiu Printed by £. 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