UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 W ■!' 
 
 
 '*'W«<1» 

 
 j^iatoda piadtortttn Coronae. 
 
 THE HISTORY 
 
 OF THE 
 
 PLEAS OF THE CEOA¥N 
 
 BY 
 
 Bit Mati\)m §ak, lint. 
 
 SOME TIME LORD CHIEF JUSTICE OF THE COURT OF KING's BEXCH. 
 
 riRST PUBLISHED FROM HIS LORDSHIP'S ORIGINAL MANUSCRIPT, AND THE SEVERAL REFER- 
 ENCES TO THE RECORDS EXAMINED BY THE ORIGINALS, WITH NOTES BY 
 
 S O L L O M E M L Y N 
 
 OF LINCOLN'S INN, ESQ. 
 
 WITH A TABLE OF THE PRINCIPAL MATTERS. 
 
 Jirst :^merican (Kbition. 
 
 WITH NOTES AND REFERENCES TO LATER CASES 
 BY 
 
 W. A. STOKES AND E. INGERSOLL 
 
 OF THE PHILADELPHIA BAR. 
 
 ^ IN TWO VOLUMES 
 
 VOL. I. 
 
 |]i)ilab'Clpl)ia: 
 ROBERT H. SMALL 25 MINOR STREET. 
 
 1847.
 
 Y.1 
 
 r 
 
 Entered according to act of Congress in the year 1847, by 
 
 ROBERT H. SMALL, 
 
 In the office of the Clerk of the District Court of the Eastern District of 
 
 Pennsylvania.
 
 
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 (1. 
 
 
 TO 
 
 HENEY J. WILLIAMS 
 
 THIS EDITION OP 
 
 ft 
 
 HALE'S HISTORY OF THE PLEAS OF THE CROWN 
 
 IS 
 
 RESPECTFULLY INSCRIBED. 
 
 28Cf)S0
 
 EXTRACT FROM THE JOURNAL OF THE HOUSE OF COMMONS. 
 
 LUN^ 29° DIE NOVEMB. 1680. 
 
 Ordered, That the executors of Sir Matthew Hale, late Lord 
 Chief Justice of the court of King's Bench be desired to print the 
 MSS. relating to the crown law and that a committee be appointed 
 to take care in the printing thereof; and it is referred to 
 
 Sir Will. Jones, Mr. Sacheverel, 
 
 Serj. Maynard, Mr. Geo. Pelham, 
 
 Sir Fra. Winnington, Mr. Paul Foley.
 
 R. EMLYN'S PREFACE 
 
 (to the original edition.) 
 
 The following treatise being the genuine offspring of that 
 truly learned and worthy judge Sir Matthew Hak,{a) stands 
 in need of no other recommendation, than what that great 
 and good name will always carry along with it. 
 
 Whoever is in the least acquainted with the extensive 
 learning, the solid judgment, the indefatigable labours, and 
 above all the unshaken integrity of the author, cannot but 
 highly esteem whatever comes from so valuable an hand. 
 
 Being brought up to the profession of the law, he soon 
 grew eminent in it, discharging his duty therein with great 
 courage and faithfulness; and tho he lived in critical times, 
 when disputes ran so high between king and parliament^ as 
 at last broke out into a civil war, yet he engaged in no 
 party, but carried himself with such moderation and even- 
 ness of temper, as made him loved and courted by all. 
 
 It was this great and universal esteem he was then in, 
 that made Cromwel so desirous to have him for one of his 
 judges; which offer he would willingly have declined. 
 Being prest by Cromwel to give his reason, he at last 
 plainly told him, that he was not satisfied with the lawful- 
 ness of his authority, and therefore scrupled the accepting 
 
 (a) He was born at Alderley, in Gloucestershire, Nov. 1, 1609. 
 Was entered at Magdalen- Hall, in Oxford, in the 17th year of his age. 
 Admitted oi" Lincoln' s-Inn, Nov. 8, 1629, 
 » Made a judge of the court of Common Pleas, 1653. 
 
 Lord Chief Baron of the Court of Exchequer, Nov. 7, 1660. 
 And at last Lord Chief Justice of the court of King's Bench, May 18, 
 1671. 
 
 Which place he resigned Feb. 20, 1675-6. 
 
 And died the Christmas following, Dec. 25, 1676.
 
 vi MR. EMLYN'S 
 
 any commission under it; to which Cromwel rephed, that 
 since he had got the possession of the government, he was 
 resolved to keep it, and would not be argued out of it ; that 
 however it was his desire to rule according to the laws of 
 the land, for which purpose he had pitched upon him as 
 a person proper to hQ employed in the administration of 
 justice; yet if they would not permit him to govern by red 
 gowns, he was resolved to govern by red coats. 
 
 Upon t*his consideration, as also of the necessity there at 
 all times is, that justice and property should be preserved, 
 he was prevailed with to accept of a judge's place in the 
 court of common-pleas, wherein he behaved with great 
 impartiality, constantly avoiding the being concerned in 
 any state-affairs ; and tho for the first two or three circuits 
 he sat indifferently on the plea-side, or the crown-side, yet 
 afterwards he absolutely refused to sit on the crown-side, 
 thinking it the safer course in so dubious a case. 
 
 But notwitstanding his dislike to CromweVs government, 
 yet this did not drive him, as it did some others, into the 
 extremes of the contrary party; for upon the restoration, of 
 which he was no inconsiderable promoter, he was not for 
 making a surrender of all, and receiving the king without 
 any restrictions; on the contrary, he thought this an oppor- 
 tunity not to be lost for limiting the prerogative, and cutting 
 off some useless branches, that served only as instruments 
 of oppression; for which purpose he moved, as bishop Bur- 
 net relates,(Z>) "That a committee might be appointed to 
 look into the propositions that had been made, and the con- 
 cessions that had been offered by the late king, and from 
 thence to digest such propositions, as they should think fit 
 to be sent over to the king." 
 
 This motion was seconded, and tho through general 
 Monk's means it failed of success, yet it shewed our author's 
 tender regard for the liberties of the subject, and that he was 
 far from being of a mind with those, who looked on every 
 branch of the prerogative ^■s,jure divino and indefeasible. 
 
 But notwithstanding this attempt, which shewed he was 
 not cut out for such compliances as usually render a man 
 acceptable to a court, yet such was his unblemished charac- . 
 ter, that it was thought an honour to his majesty's govern- 
 ment to advance him first to the station of Lord Chief 
 
 {h) Burnet's Hist, of own. Times, Vol. I. p. 88.
 
 PREFACE. vii 
 
 Baron, and afterwards to that of Lord Chief Justice of the 
 king's bench; nor indeed could so great a trust be lodged 
 in better hands. 
 
 When he was first promoted, the Lord Chancellor Cla- 
 rendon, upon delivering to him his commission, told him, 
 among other things, " That if the king could have found out 
 an honester or fitter man for that employment, he had not 
 advanced him to it, and that he had therefore preferred him, 
 because he knew none that deserved so well. "(c) 
 
 He behaved in each of these places with such uncorrupt 
 integrity, such impartial justice, such diligence, candor, and 
 affability, as justly drew the chief practice after him, whith- 
 ersoever he went; he constantly shunned not only the being 
 corrupt, but every thing w^hich had any appearance, or 
 might afford the least suspicion of it ; he was sincerely bent 
 on discovering the truth and merits of a cause, and w^ould 
 therefore bear with the meanest counsel, supply the defects 
 of the pleader, and never take it amiss, when summino- up 
 the evidence to be reminded of any circumstance he had 
 omitted ; for being in a high degree possessed of that qualifi- 
 cation so peculiarly necessary to a judge, I mean patience 
 (without which the most excellent talents may become insicr- 
 nificant) no considerations of his own convenience could 
 prevail with him to hurry over a cause, or dispatch it with- 
 out a thorough examination ; for wdiich reason he made it a 
 rule, especially upon the circuits, to be short and sparing at 
 meals, that he might not either by a full stomach unfit him- 
 self for the due discharge of his office, or by a profuse w-aste 
 of time, be obliged to put off", or precipitate the business that 
 came before him.[l] 
 
 (c) Burnet's life oi: Hale, Edit. 1682. p. 53. 
 
 [1] Lord Hale wrote the following rules for his judicial guidance: 
 
 Things necessary to be continually had in remembrance. 
 
 I. That in the administration of justice I am entrusted for God, the kinn^ 
 and country ; and therefore, 
 
 IT. That it be done, 1st, uprightly; 2dly, deliberately; 3dly, resolutely. 
 
 III. That I rest not upon my own understanding or strength, but implore 
 and rest upon the direction and strength of God. 
 
 n . That in the execution of justice I carefully lay aside my own passions, 
 and do not give way to them, however provoked. 
 
 V. That I be wholly intent upon the business I am about, remitting all 
 Other cares and thoughts as unseasonable, and interruptions.
 
 viii MR. EMLYN'S 
 
 He was a great lamenter of the divisions and animosities 
 which raged so fiercely at that time among us, especially 
 about the smaller matters of external ceremonies, which he 
 feared might in the end subvert the fundamentals of all reli- 
 gion: and tho he thought the principles of the non-conform- 
 ists too narrow and strait-laced, yet he could by no means 
 approve the penal laws which were then made against them ; 
 he knew many of them to be sober, peaceable men, who 
 were well affected to the government, and had shewn as 
 much dislike as any to the late usurpation, and therefore he 
 thought they deserved a better treatment ; besides, he looked 
 on it as an infringement on the rights of conscience, which 
 ought always to be held sacred and inviolable, and therefore 
 used to say, that the only way to heal our breaches was 
 a new act of uniformity; for which purpose he concurred 
 with Lord Keeper Bridgman and Bishop Wilkins, in setting 
 on foot a scheme for the comprehension of the more mode- 
 rate dissenters, and an indulgence towards others, and drew 
 the same up into the form of a bill, altho by a vote of the 
 house of commons it was prevented from being laid before 
 the parliament. 
 
 VI. That I suffer not myself to be prepossessed with any judgment at all, 
 till the whole business, and both parties be heard. 
 
 VII. That I never engage myself in the beginning of a cause, but reserve 
 myself unprejudiced till the whole be heard. 
 
 VIII. That in business capital, though my nature prompt me to pity, yet 
 to consider that there is also a pity due to the country. 
 
 IX. That I be not too rigid in matters purely conscientious, where all the 
 harm is diversity of judgment. 
 
 X. That I be not biassed with compassion to the poor or favor to the rich, 
 in point of justice. 
 
 XI. That popular or court applause, or distaste, have no influence upon 
 any thing I do in point of distribution of justice. 
 
 XII. Not to be solicitous what men will say or think, so long as I keep 
 myself exactly according to the rules of justice. 
 
 XIII. If in criminals it be a measuring cast, to incline to mercy and 
 acquittal. 
 
 XIV. In criminals that consist merely in words when no more harm 
 ensues, moderation is no injustice. 
 
 XV. In criminals of blood, if the fact be evident, severity is justice. 
 
 XVI. To abhor all private solicitations, of what kind soever, and by 
 whomsoever, in matters depending. 
 
 XVII. To charge my servants; 1st, not to interpose in any business 
 whatsoever; 2d, not to take more than their known fees; 3d, not to give 
 any undue precedence to causes ; 4th, not to recommend counsel. 
 
 XVIII. To be short and sparing at meals, that I may be fitter for 
 business.
 
 PREFACE. ix 
 
 Tho by this means he was hindered from obtaining a re- 
 peal of those laws, yet could he never be brought to give any 
 countenance to the execution of them, I have heard it cre- 
 dibly related, that once when he was upon the circuit, there 
 happened to be a grand jury, who thought to make a merit 
 of presenting a worthy peaceable non-conformist, that lived 
 in their neighbourhood ; upon this occasion our judge could 
 not avoid reprimanding them for their ill-placed zeal, which 
 vented itself this way, while no notice was taken of the 
 prophaneness, drunkenness and other immoralities, which 
 abounded daily amongst them ; in short, he told them, that 
 if they were resolved to persist, he would remove the affair 
 to Westminster- Hail, and if he could not then prevail to have 
 a stop put to it, he would resign his place ; for he had told 
 the king, when he first accepted it, that if any thing 'w^as 
 pressed upon him, which was against his judgment, he 
 would quit his post. 
 
 He always retained a serious impression of religion, and 
 in particular was a punctual observer of any vow or engage- 
 ment he had laid himself under. Having in his younger 
 days on a particular occasion made a vow never to drink an 
 health again, he could never be prevailed on upon any con- 
 sideration to dispense with it, altho drinking healths was 
 then grown to be the fashionable loyalty of the times. 
 
 And thus in every character of life he was a pattern well 
 worthy of imitation : in short, he was a public blessing to the 
 age he lived in, and not to that only, but by his bright and 
 amiable example to succeeding generations; for as a pattern 
 of virtue and goodness will always be a silent, tho sharp 
 reproof to those who deviate from it, so to noble and generous 
 minds it will not fail of being a mighty spur and incentive 
 to the imitation of it, and by that means leave a real and 
 lasting, tho secret, influence, behind it. 
 
 As he justly merited the esteem of all, so in particular he 
 has well deserved of the profession of the law, to which he 
 was so shining an ornament; he contributed more by his 
 example to the removal of the vulf^r prejudices against 
 them, than any argument whatever could do. 
 
 The great Archbishop Usher had entertained >some preju- 
 dices of th-at kind, but by conversation with our author and 
 the learned Selde?i, he was convinced of his mistake; our 
 author declaring, " That by his acquaintance with them, he 
 believed there was as many honest men among the lawyers
 
 X MR. EMLYN'S 
 
 proportion ably, as among any profession of men in E7ig' 
 landy 
 
 Never was the old monkish maxim, Bonus Jurista malus 
 Christa, more thoroughly confuted, than by his example. 
 He demonstrated by a living argument, how practicable it 
 was to be both an able lawyer and a good christian; indeed 
 he saw nothing in the one that was any way incompatible 
 with the other, nor did he think, that an unaffected piety sat 
 with an ill grace on any, be his station never so high, or his 
 learning never so great ; for tho he diligently applied him- 
 self to the business of his profession, yet would he never 
 suffer it so to engross his time as to leave no room for mat- 
 ters of a more serious concernment, as may appear from the 
 many tracts he has wrote on moral and religious subjects. 
 
 Fir this reason, when he found the decays of nature gain- 
 ing ground upon him, he could no longer be prevailed with 
 to suspend the resolution he had taken to resign his place; 
 that after the example of that great emperor Charles V. he 
 might have an interstice between the business of life and 
 the hour of death.((i) 
 
 No wonder then that one so great, so good, should be 
 loved and esteemed while living, should be revered and 
 admired when dead; no wonder the king should be loth 
 to part with him, who had been such a credit to his govern- 
 ment; tho had he held his place some few years longer, 
 such a scene of affairs did then open, as in all likelihood 
 would have greatly distressed him how to behave, as well 
 as the court how to get rid of one, who could not have been 
 removed without great reproach, nor continued without great 
 obstruction to the violent measures that were then pursued. 
 
 But it is time to stop, for I mean not to write the history 
 of his life; this would require a volume of itself, and is long 
 ago performed by an able hand;(e) I shall therefore only 
 subjoin his character, as drawn by that learned prelate, and 
 other eminent co temporaries, by which it will appear, that 
 future times cannot outgo his own in the veneration and 
 esteem they bore him,# 
 
 The bishop expresses it in short thus : " That he was one 
 of the greatest patterns this age has afforded, whether in his 
 private deportment as a christian, or in his public employ- 
 
 (d) Inter vitcB negotia <^ mortis diem oportere spatium intercedere. 
 Strada de hello Belgico, Vol. I. sub anno 1555. 
 
 (e) Bp. Burnet.
 
 PREFACE. xi 
 
 merits, either at the bar or on the bench ;"(y) having given 
 it more at large(^) in the words of a noble person, whom 
 he styles one of the greatest men of the profession of the 
 law:(/i) "he would never be brought to discourse of pubHc 
 matters in private conversation; but in questions of law, 
 w^ien any young lawyer put a case to him, he was very 
 communicative, especially while he was at the bar: but 
 when he came to the bench, he grew more reserved, and 
 would never suffer his opinion in any case to be known, till 
 he was obliged to declare it judicially; and he concealed his 
 opinion in great cases so carefully, that the rest of the judges 
 in the same court could never perceive it: his reason was, 
 because every judge ought to give sentence according to his own 
 persuasio7i and conscience, and not to he swayed hy any respect 
 or deference to another man's opinion : and by this means it 
 happened sometimes, that when all the barons of the Ex- 
 chequer had delivered their opinions, and agreed in their 
 reasons and arguments, yet he coming to speak last, and 
 differing in judgment from them, hath expressed himself 
 with so much weight and solidity, that the barons have 
 immediately retracted their votes, and concurred with him. 
 He hath sat as a judge in all the courts of law, and in, two 
 of them as chief; but still wherever he sat, all business of 
 consequence followed him, and no man was content to sit 
 down by the judgment of any court, till the case was brought 
 before him, to see whether he were of the same mind; and 
 his opinion being once known, men did readily acquiesce 
 in it; and it was very rarely seen, that any man attempted 
 to bring it about again ; and he thM did so, did it upon great 
 disadvantages, and was always looked upon as a very con- 
 tentious person; so that what Cicero says of Brutus, did 
 very often happen to him, Etiam quos contra statuit, cequos 
 placatosque dimisit. 
 
 " Nor did men reverence his judgment and opinion in 
 courts of law only; but his authority was as great in courts 
 of equity, and the same respect and submission was paid 
 him there too; and this appeared not only in his own court 
 of equity in the Exchequer chamber, but in the Chancery 
 too, for thither he was often called to advise and assist the 
 lord chancellor, or lord keeper for the time being; and if the 
 
 (/) P- 218. {g) p, 172. 
 
 (/») Supposed to be the then earl of Nottingham.
 
 xii MR. EMLYN'S 
 
 cause were of difficult examination, or intricated and en- 
 tangled with variety of settlements, no msm ever shewed a 
 more clear and discerning judgment; if it were of great 
 value, and great persons interested in it, no man shewed 
 greater courage and integrity in laying aside all respect of 
 persons. When he came to deliver his opinion, he always 
 put his discourse into such a method, that one part of it 
 gave light to the other ; and where the proceedings of Chan- 
 cery might prove inconvenient to the subject, he never 
 spared to observe and reprove them : And from his observa- 
 tions and discourses, the Chancery hath taken occasion to 
 establish many of those rules by which it governs itself at 
 this day. 
 
 " He did look upon equity as a part of the common law, 
 and one of the grounds of it ; and therefore, as near as he 
 could, he did always reduce it to certain rules and princi- 
 ples, that men might study it as a science, and not think 
 the administration of it had any thing arbitrary in it. Thus 
 eminent was this man in every station, and into what course 
 soever he was called, he quickly made it appear, that he 
 deserved the chief seat there. 
 
 " As great a lawyer as he was, he would never suffer the 
 strictness of law to prevail against conscience ; as great a 
 chancellor as he was, he would make use of all the niceties 
 and subtilties in law, when it tended to support right and 
 equity. But nothing was more admirable in him, than his 
 patience : he did not affect the reputation of quickness and 
 dispatch, by a hasty and ,^captious hearing of the counsel : 
 he would bear with the meanest, and gave every man his full 
 scope, thinking it much better to lose time than patience : 
 in summing up of an evidence to a jury, he would always 
 require the bar to interrupt him if he did mistake, and to 
 put him in mind of it, if he did forget the least circum- 
 stance : some judges have been disturbed at this as a rude- 
 ness, which he always looked upon as a service and respect 
 done to him. 
 
 " His whole life was nothing else but a continual course 
 of labour and industry, and when he could borrow any time 
 from the public service, it was wholly employed either in 
 philosophical or divine meditations: and even that was a 
 public service too, as it hath proved; for they have occa- 
 sioned his writing of such treatises as are become the choicest 
 entertainment ojf wise and good men, and the world hath
 
 PREFACE. xiii 
 
 reason to wish that more of them were printed. He that 
 considers the active part of his Ufa, and with what unwea- 
 ried diligence and appUcation of mind he dispatched all 
 mens business which came under his care, will wonder how 
 he could find any time for contemplation : he that considers 
 again the various studies he past thro, and the many collec- 
 tions and observations he hath made, may as justly wonder 
 how he could find any time for action : but no man can won- 
 der at the exemplary piety and innocence of such a life so 
 spent as this was, wherein as he was careful to avoid every 
 idle word, so it was manifest he never spent an idle day. 
 They who came far short of this great man, will be apt 
 enough to think that this is a panegyric, which indeed is a 
 history, and but a little part of that history which was with 
 great truth to be related of him. Men who despair of attain- 
 ing such perfection, are not willing to believe that any man. 
 else did ever arrive at such a height. 
 
 " He was the greatest lawyer of the age, and might have 
 had what practice he pleased ; but tho he did most conscien- 
 tiously affect the labours of his profession, yet at the same 
 time he despised the gain of it ; and of those profits which 
 he would allow himself to receive, he always set apart a 
 tenth penny for the poor, which he ever dispensed with that 
 secresy, that they who were relieved, seldom or never knew 
 their benefactor. He took more pains to avoid the honours 
 and preferments of the gown, than others do to compass 
 them. His modesty was beyond all example; for where 
 some men who never attained to half his knowledge, have 
 been puffed up with a high conceit of themselves, and have 
 affected all occasions of raising their own esteem- by depre- 
 ciating other men, he on the contrary was the most obliging 
 man that ever practised. If a young gentleman happened to 
 be retained to argue a point in law, where he was on the 
 contrary side, he would very often mend the objections when 
 he came to repeat them, and always commend the gentle- 
 man, if there were room for it ; and one good word of his was 
 of more advantage to a young man, than all the favour of 
 the court could be. [2] 
 
 [2] Williams, in his life of Hale, gives the following account of his intro- 
 duction to a student of law, taken from a manuscript formerly in the posses- 
 sion of Bennet Langton, the friend of Dr. Johnson, and found in the hand- 
 writing of Mr. Langton's great grandfather, who studied law with Lord Hale : 
 
 " Dec. 13, 1672. — I was sent to by Mr. Barker, to come to him to my 
 Lord Chief Justice Hale's lodgings, at Sergeant's Inn. I was informed by
 
 xiv MR. EMLYN'S 
 
 Upon the promotion of lord chief i\is,iice Rainsford, who 
 sncceeded him in that office, the then lord chancellor exprest 
 himself thus :{i) " The vacancy of the seat of the chief jus- 
 
 (i) Burnet, p. 213, 217. 
 
 Mr. Godolphin, about a month ago, that my Lord Chief Justice had decljared, 
 at supper, at Mr. Justice Twisden's, that if he could meet with a sober young 
 man, that would entirely addict himself to his lordship's directions, he would 
 take delight to communicate to him, and discourse with him at meals, and 
 at leisure times ; and, in three year's time, make him perfect in the practice 
 of the law. I discoursed several times with Mr. Godolphin, of the great advan- 
 tage that a student would make by his lordship's learned communications, and 
 what influence it would have on a practiser, as well as honour, to be regarded 
 as my lord's friend ; and persuaded him to use his interest, and the offers of 
 his friends, to procure his lordship's favour. But his inclinations leading 
 him to travel, and his design afterwards, to rely upon his interest at court, 
 he had no thoughts to pursue it, but offered to engage friends on my behalf, 
 which I refused, and told him, I would make use of no other person than my 
 worthy friend, Mr. Barker, whose acquaintance with my lord, I knew, was 
 very particular. After I had often reflected upon the nobleness of my lord's 
 proposition, and the happiness of that person that should be preferred by so 
 learned and pious a man, to whose opinion every court paid such a venera- 
 tion that he was regarded as the oracle of the law, I made my application to 
 Mr. Barker to intercede with my lord in my behalf, who assented to it with 
 much readiness, as he always had been very obliging to me since I had the 
 honour to be known to him. He made a visit to my lord, and told him that 
 he heard of the declaration my lord made at Mr. Justice Twisden's. My 
 lord said it was true, and he had entertained the same resolution a long 
 time; but, not having met with any body to his purpose^ he had discarded 
 those thoughts, which Mr. B. did beg of his lordship to resume, in behalf of 
 a person that he would recommend to him, and would be surety for his 
 industry, and diligent observation of his lordship's directions. My lord then 
 inquired who it was, and he mentioned me. Then he asked how long I had 
 been at the law, of what country I was, and what estate I had ; which he 
 told him, and that I was my father's eldest son. To which he replied, that 
 he might talk no farther of it, for there was no likelihood that I would attend 
 to the study of the law as I ought. But Mr. B. gave him assurances that I 
 would ; that his lordship might rely upon his word ; and that I had not taken 
 this resolution without deliberation ; that I had often been at Westminster 
 Hall, where I had heard his lordship speak, and had a very great veneration 
 for his lordship, and did earnestly desire this favour; that my father had 
 lately purchased the seat of the family, which was sold by the elder house, 
 and by that means had run himself into five or six thousand pounds debt. 
 
 " ' Well then,' said my lord, ' pray bring him to me.' 
 
 " Dec. 13. — I went to my lord and Mr. B. (for till that time my lord was 
 either busy or out of town) about four in the afternoon. My lord prayed us 
 to sit, and after some silence, Mr. B. acquainted my lord, that I was the per- 
 son on whose behalf he had spoken to his lordship. My lord then said, that 
 he understood I had a fortune, and, therefore, would not so strictly engage 
 myself in the crabbed study of the law, as was necessary for one that must
 
 PREFACE. XV 
 
 tice of this court, and that by a way and means so unusual, 
 as the resignation of him, that lately held it, and this too 
 proceeding from so deplorable a cause as the infirmity of 
 that body, which began to forsake the ablest mind that ever 
 
 make his dependence on it. I told his lordship, that if he pleased to admit 
 me to that favor I heard he designed to such a person he had inquired after, 
 that I should be very studious. My lord replied quick, that Mr. B. had given 
 him assurances of it ; that Mr. B. was his worthy friend, with whom he had 
 been acquainted a long time, and that, for his sake, he should be ready to do 
 me any kindness; for which I humbly gave his lordship thanks, as did, like- 
 wise, Mr. B. My lord asked me, how I had passed my time, and what 
 standing I was of. I told him that I was almost six years of the Temple ; 
 that I had travelled into France about two years ago, since when I had dis- 
 continued my studies of the law, applying myself to the reading French 
 books, and some histories. My lord discoursed of the necessity of a firm, 
 uninterrupted prosecution of that study which any man designed, in the 
 midst of which Mr, Justice Twisden came in, so that his lordship bid us come 
 to him again in two hours after. 
 
 " About eight the same evening, we found his lordship alone. After we 
 sat down, my lord bid me tell him, what I read in Oxford, what here, and 
 what in France. I told him I read Smith's Logic, Burgersdicius' Natural 
 Philosophy, Metaphysics, and Moral Philosophy ; that in the afternoons I 
 used to read the classic authors ; that, at my first coming to the inns of 
 court, I read Lyttleton, and Doctor and Student, Perkins, my Lord Coke's 
 Institutes, and some cases in his Reports; that after I went into France, I 
 applied myself to the learning of the language, and reading some French 
 memoirs, as the Life of Mazarin, Memoirs of the D. of Guise, the Hii^- 
 tory of the Academic Francoise, and others; that since I came away, I con- 
 tinued to read some French books, as the History of the Turkish government 
 
 by , the account of the last Dutch war, the State of Holland, &c. ; 
 
 that [read a great deal in Heylin's Geography, some of Sir Walter Rawleigh, 
 my Lord Bacon of the Advancement of Learning, Tully's Offices, Rush- 
 worth's Collections. 
 
 " My lord said, that the study of the law was to one of two ends ; first, to 
 fit a man with so much knowledge as will enable him to understand his own 
 estate, and live in some repute among his neighbours in the country ; or 
 secondly, to design the practice of it as an employment to be advantaged by 
 it ; and asked which of them was my purpose. I acquainted his lordship, 
 that when I first came to the temple I did not design to prosecute the study 
 of the law, so as to make advantage by it ; but now, by the advice of my 
 father and my uncle, and Dr. Peirse, in whose college I had my education, 
 and received many instances of his great kindness to me, I had formed reso- 
 lutions to practise it, and, therefore, made my suit to his lordship, for his 
 directions. 
 
 '* ' Well,' said my Lord, * since I see your intentions, I will give what 
 assistance I can.' 
 
 " My lord said, that there were two ways of applying one's-self to the 
 study of the law ; one was to attain the great learning and knowledge of it, 
 which was to be had in all the old books, but that did require great time, and
 
 xvi MR. EMLYN'S 
 
 presided here, hath filled the kingdom with lamentations, 
 and given the king many and pensive thoughts how to sup- 
 ply that vacancy again." And then addressing himself to 
 his successor: "The very labours of the place, and that 
 
 would be at least seven years before a man would be fit to make any benefit 
 by it ; the other was, by fitting one's-self for the practice of the court, by 
 reading the new reports, and the present constitution of the law ; and, to this 
 latter my lord advised me, having already passed so much time, a great 
 many of the cases seldom coming in practice, and several of them anti- 
 quated. 
 
 " In order tp which study, his lordship did direct -that I should be very 
 exact in Lyttleton, and after, read carefully my lord Coke's Lyttleton, and 
 then his Reports. After which Plowden, Dyer, Croke and Moore. That I 
 should keep constantly to the exercises of the house, and, in term, to West- 
 minster Hall, to the King's Bench, because the young lawyers began their 
 practice there ; that I should associate with studious persons, rather above, 
 than below my standing ; and, after next term, get me a common place 
 book, and that I must spoil one book, binding Rolle's Abr. with white paper 
 between the leaves, and according to those titles insert what I did not find 
 there before, according to the preface to that book, which my lord said came 
 from his hands, and that he did obtain of Sir Francis RoUe to suffer it to be 
 printed, to be a platform to the young students. My lord said that he would, 
 at any time that I should come to him, shew me the method he used, and 
 direct me, and that if he were busy he would (ell me so. 
 
 "He said that he studied sixteen hours a day, for the first two years that 
 he came to the inns of court, but almost brought himself to his grave, though 
 he were of a very strong constitution, and afterwards reduced himself to 
 eight hours; but that he would not advise anybody to so much ; that he 
 thought six hours a day, with attention and constancy, was sufficient ; that 
 a man must use his body as he would use his horse, and his stomach — not 
 tire him at once, but rise with an appetite. That his father did order in his 
 will that he should follow the law; that he came from the university with 
 some aversion for lawyers, and thought them a barbarous sort of people, 
 unfit for any thing but their own trade; but having occasion to speak about 
 business with Serjeant Glanvil, he found him of such prudence and candour, 
 that from that time he altered his apprehensions, and betook himself to the 
 study of the law, and oft told Serjeant Glanvil that he was the cause of his 
 application to the law. 
 
 " That constantly, after meals, every one in his turn, proposed a case, 
 in which every one argued. 
 
 " That he took up a resolution, which he punctually observed ever since, 
 that he would never more see a play, having spent all his money at Oxford, 
 and having experienced that it was so great an alienation of his mind from 
 his studies, by the recurring of the speeches and actions into his thoughts, a^ 
 well as the loss of his time when he saw them; that he had often had dis- 
 putes with Mr. Selden, who was his great friend, and used to say he found so 
 great refreshment by it; but my lord told him, he had so much knowledge 
 of the inconvenience of them, that he would not see one for a hundred 
 pounds. But he said he was not one of Mr. Prynne's judgment (which I
 
 PREFACE. xvii 
 
 weight and fatigue of business, wliicli attends it, are no 
 small discouragements; for what shoulders may not justly 
 fear that burden, which made* him stoop, that went before 
 you? Yet I confess you have a greater discouragement 
 than the mere burden of your place, and that is the unimi- 
 table example of your predecessor. Onerosum est succedere 
 bono principi vfdi^ the saying of him in the panegyric, and 
 you will find it so too, that are to succeed such a chief jus- 
 tice, of so indefatigable an industry, so invincible a patience, 
 so exemplary an integrity, and so magnanimous a contempt 
 of worldly things, without which no man can be truly great; 
 
 minded him of,) for he did not think it unlawful, but very fit for gentlemen 
 sometimes, but not for students. 
 
 " My lord said, at the beginning of his discourse, that my friends might 
 expect that I should marry, to take off the present debt from the estate, 
 which else would increase, and then there could be no thoughts of a very 
 earnest prosecution of study ; to which Mr. B. said, that my father, when 
 he made this purchase that put him into debt, did resolve to sell other land, 
 and by that might either discharge, or lessen it. 
 
 " My lord said that his rule of health was, to be temperate, and keep him- 
 self warm. He never made breakfasts, but used, in the morning, to drink a 
 glass of some sort of ale. That he went to bed at nine, and rose between 
 six and seven, allowing himself a good refreshment for sleep. That the law 
 will admit of no rival, nothing to go even with it ; but that sometimes one 
 may, for diversion, read in the Latin historians of England, Hoveden, and 
 Matthew Paris, &:c. ; but after it is conquered, it. will admit of other studies. 
 
 " 1 asked whether his lordship read the same law in the afternoon, as he 
 did in the morning. He said no : he read the old books in the morning, and 
 the new in the afternoon, because of fitting himself for conversation. I asked 
 if he kept constantly to one court, which he said he did. 
 
 " He said, a little law, a good tongue, and a good memory, would fit a 
 man for the chancery ; and he said it was a golden practice, for the lawyers 
 there got more money than in all the other courts of Westminster Hall. I 
 told his lordship what my lord chancellor lately said, that he would reduce 
 the practice of the court to another method, and not suffer above one counsel, 
 or two at the most, in one cause. 
 
 " My lord said, that lOOOZ. a year was a great deal for any common law- 
 yer to get ; and Mr. B. said that Mr. Winnington did make 2000Z. per year 
 by it. My lord answered, that Mr. W. made great advantage by his city 
 practice, but did not believe he made so much of it. I told his lordship of 
 what Mr. W. had said before the counsel on Wednesday, on the behalf of 
 stage coaches, which were then attempted to be overthrown. 
 
 " At our coming away, my lord did reiterate his willingness to direct and 
 assist me ; and I did beg of his lordship, that he would permit me to consult 
 his lordship in the reason of any thing that I was ignorant of; and that his 
 lordship would be pleased to examine me in what I should read, that he 
 might find in what measure I did apply myself to the execution of his com- 
 mands." 
 
 VOL. I. — B
 
 xviii MR. EMLYN'S 
 
 and to all this a man that was so absolute a master of the 
 science of the law, and even of the most.abstruse and hidden 
 parts of it, that one may truly say of his knowledge of the 
 law, what St. Austin said of St. Hierom's knowledge in di- 
 vinity. Quod Hieromjmus nescivit, nullus mortalium unquam 
 scivit. And therefore the king would not suffer himself to 
 part with so great a man, till he had placed upon him all the 
 marks of bounty and esteem, which his retired and weak 
 condition was capable of." 
 
 To this the new chief justice, speaking of his predecessor, 
 answered in the following words. 
 
 *' A person in whom his eminent virtues and 
 
 deep learning have long managed a contest for the superior- 
 ity, which is not decided to this day, nor will it ever be 
 determined, I suppose, which shall get the upper hand: A 
 person that has sat in this court many years, of whose actions 
 there I have been an eye and ear witness; that by the 
 greatness of his learning always charmed his auditors to 
 reverence and attention : A person of whom I think I may 
 boldly say, that as former times cannot show any superior 
 to him, so I am confident succeeding and future time will 
 never shew any equal. These considerations, heightened 
 by w'hat I have heard from your lordship concerning him, 
 made me anxious and doubtful, and put me to a stand how 
 I should succeed so able, so good, and so great a man. It 
 doth very much trouble me, that I, who, in comparison of 
 him, am but like a candle lighted in the sun-shine, or like a 
 glow-worm at mid-day, should succeed so great a person, 
 that is and will be so eminently famous to all posterity; and 
 I must ever wear this motto in my breast to comfort me, and 
 in my actions to excuse me, 
 
 " Sequitur, quamvis non passibits cBquis^ 
 
 Mr. Baxter, with whom our author was very intimate 
 towards the latter part of his life, describes him in these 
 words :(^) *'Sir Matthe?v Hale, that unwearied student, that 
 prudent man, that solid philosopher, that famous lawyer, 
 that pillar and basis of justice, who would not have done an 
 unjust act for any worldly price or motive, the ornament of 
 his majesty's government" and honour of England, the 
 highest faculty of the soul of Westminster-Hall, and pattern 
 to all the reverend and honourable judges; that godly serious 
 
 {h) Baxter's Notes on Lord Hale's Life, p. 43.
 
 PREFACE. xLx 
 
 practical christian, the lover of goodness and all good men, 
 a lamenter of the clergies selfishness and unfaithfulness 
 and discord and of the sad divisions following hereupon ; 
 an earnest desirer of their reformation, concord and the 
 church's peace, and of a reformed act of uniformity, as 
 the best and necessary means thereto; that great con- 
 temner of the riches, pomp and vanity of the world; that 
 pattern of honest plainness and humility, who while he fled 
 from the honour that pursued him, was yet lord chief justice 
 of the king's bench, after being long lord chief baron of the 
 Exchequer; living and dying, entring on, using, and volun- 
 tarily surrendering his place of judicature with the most 
 universal love, honour and praise, that ever did Efiglish sub- 
 ject in this age, or any that just history doth acquaint us 
 with," <^c. 6fC. SfC. 
 
 Thus far for the author. 
 
 As to the work itself, if any of our author's performances 
 might challenge the precedence of the rest, this seems to 
 have the justest claim to it, as being a favourite work, which 
 he often reviewed, and was at vast pains and charge in fur- 
 nishing himself with proper materials for it. 
 
 His compassionate concern for the lives and liberties of 
 mankind on the one hand, and for preserving the public 
 peace and tranquility on the other, had possessed him with 
 an opinion of the high importance, that the pleas of the 
 crown, especially those relating to capital offenses, should 
 be reduced to certain rules, and those rules clearly and 
 plainly understood, that so there might be as little room left 
 as possible either for erring in, or perverting of judgment. 
 
 It was this led him to make the crown law his principal 
 study, to which he applied himself with great assiduity ; for 
 as bishop Burnet speaking of this treatise informs us,(/) " It 
 was by much search and long observation he composed that 
 great work concerning it." The same author acquaints us,{m) 
 that he had begun his collections relating hereto in the 
 reign of King Charles I. "But after the king was murdered 
 he laid them by; and that they might not fall into ill hands, 
 he hid them behind the wainscotting of his study, for he 
 said, there rvas no rtiore occasion to use them, till the king 
 should he again restored to his right; and so upon his ma- 
 j6sty'« restoration he took them out, and went on in his 
 desigit to perfect that great work." 
 
 {I) p. 90. (m) p. 39.
 
 XX MR. EMLYN'S 
 
 Hence it appears liighly probable, that he intended this 
 work for the pubhc, altho the business of his station did not 
 afford him leisure to publish it during his life; however, 
 about four years after his death, the house of Commons took 
 singular notice of it, and thought it a work of such conse- 
 quence, as to pass a vote,(;^) desiring his executors to print 
 it; and appointed a committee to take care thereof: but that 
 parliament being soon after dissolved, (o) this design dropt. 
 
 Some years since there was published a treatise, intitled, 
 Pleas of the Crown by »Sir Matthew Hale ; but this was only 
 a plan of this work, containing little more than the heads or 
 divisions thereof, concerning which the editor in his preface 
 expresses himself thus, " He [our author] hath written a 
 large work upon this subject, intitled, A?i History of the 
 Pleas of the Crown, wherein he shews what the law an- 
 ciently was in these matters, what alterations have from 
 time to time been made in it, and what it is at this day. He 
 wrote it on purpose to he pri?ited, finished it, had it all tran- 
 scribed for the press in his life-time, and had revised part of 
 it after it was transcribed." 
 
 It is therefore to be hoped, the publication hereof will not 
 be thought any way to interfere with the direction of his 
 will. That none of his MSS. should be printed after his death, 
 except such as he should give order for during his life, his 
 intention for printing it being so apparent, as may well 
 amount to an order for so doing. 
 
 Besides, as bishop Burnet observes,(j9) this prohibitory 
 clause in the will seems in some measure to be revoked by 
 his codicil, wherein he orders, that if amj book of his writing 
 should be printed, then what should be given as a consideration 
 for the copy should be divided, &c. a kind of implication, that 
 he had left the printing thereof to the discretion of his ex- 
 ecutors. 
 
 The above-mentioned writer further observes,(^) that his 
 unwillingness to have any of his works printed after his 
 death, preceded from an apprehension, lest they should 
 undergo any expurgations or interpolations in the licensing 
 them; for this, he said, might in matters of law prove to be of 
 such mischievous consequence, that he was resolved none of his 
 writings should be at the mercy of the licensers. 
 
 (n) iVo». 29, 1680. (o) Jan. 18, 1680. 
 
 (p) p. 185. ($) p. 186,
 
 PREFACE. xxi 
 
 But as there is no such thing required by the laws now 
 in being, that reason is at an end, and the reader may be 
 assured, that the edition here offered to the public is printed 
 faithfully from the author's original manuscript. 
 
 This manuscript consists of one thick folio volume, all in 
 our author's own hand-writing, from whence it was tran- 
 scribed in his life-time, and the transcript has since been 
 bound up in seven small volumes in folio. 
 
 It had been by him revised as far as Chap. 27. in the first 
 part, viz. about the middle of the third volume, as appears 
 from many interlineations and additions in his own hand ; 
 the corrections in the remaining part are in another (very 
 modern) hand, and in some places not very agreeable to the 
 scope of the argument. 
 
 This transcript, therefore, so far as revised and corrected 
 by our author (and no farther), may be deemed the original 
 finished and perfected ; but since even in this part there are 
 in some places leaves taken out, and others inserted in their 
 room in a different hand, unauthenticated by our author, 
 and sometimes quite disturbing the coherence and connexion 
 of the discourse, it was not thought warrantable to consider 
 such interpolations as a part of this treatise; for as it cannot 
 be doubted but great regard will be always paid to the per- 
 formance of so esteemed an author, it is a piece of justice 
 due both to the author and the public, that nothing should 
 be herein inserted, but what is undeniably his, and carries 
 evident marks of being by him intended as part of this 
 work. 
 
 The title hereof was named by our author himself Histo- 
 ria Placitorwn Cornce; for he intended, as appears from the 
 Proemium, to have taken in the whole body of the crown- 
 law, as well in relation to matters civil, as matters criminal; 
 for which purpose he once designed to have added two more 
 books upon this subject, the one concerning offenses not 
 capital, the other touching franchises and liberties ; but to 
 the great detriment of the public, neither of these appears 
 ever to have been composed by him; so that, as it now 
 stands, it treats only of offenses capital, which is indeed the 
 most important branch of the crown-law, being what most 
 nearly affects the life and liberty of the subject; besides, in 
 treating hereof, he has unavoidably explained many inci- 
 dental matters equally applicable to offenses not capital. 
 
 The Jirst part of 'this work relates to the nature of the
 
 xxii MR. EMLYN'S 
 
 offenses, viz. the several kinds of treason, lieresy and felony, 
 the second of these, heresy, being an offense of a spiritual 
 nature, of which it was not our author's purpose to treat, 
 w'as at first wholly omitted by him; but afterwards con- 
 sidering, as I suppose, that by its being circumscribed by 
 act of parliament, viz. 1 Uliz. it became an offense of tem- 
 poral cognizance, he thought proper to insert a chapter 
 upon that head. 
 
 The second part relates to the manner of proceeding 
 against offenders; wherein are considered the jurisdiction of 
 the several courts; the manner of apprehending, committing, 
 bailing, and arraigning offenders; their several pleas, bring- 
 ing them to trial, judgment, and execution. 
 
 Having thus given some general account of the author 
 and the work, it will be proper, in the next place, to acquaint 
 the reader with the part I have had in this addition, which 
 has been to supervise the printing thereof, that it be agree- 
 able to our author's manuscript, which being written in a 
 very obscure hand, might, by one wholly unacquainted 
 w^ith the law, have been frequently mistaken. 
 
 To make this work the more authentic, the several refer- 
 ences herein made to the records have been compared with 
 the originals at the respective offices in the Tower and West- 
 minster. 
 
 I have also carefully examined the several quotations from 
 the year-books, reports, &c. many of which being quoted 
 without folio or page, or else mis-quoted, have with no small 
 trouble been supplied and rectified ; for our author, not hav- 
 ing always had leisure to consult the books themselves, has 
 frequently copied from the mis-printed quotations in the 
 margin of lord CoMs third volume of his Institutes. 
 
 As it cannot be expected, but in the writing so large a 
 manuscript, some words must, currente calamo, have been 
 omitted or wrong written, I have in some few places taken 
 the liberty to add or alter a word or two to preserve the 
 sense; but have been particularly careful to distinguish 
 such addition or alteration within crotchets, that -I might 
 not impose my judgment on the reader, but leave him to 
 judge for himself, whether the drift of our author's reason- 
 ing do not require it. 
 
 I have likewise subjoined a few notes, containing some 
 observations from the records; as also remarking, where the 
 law hath been since explained by later resolutions, or altered
 
 PREFACE. xxiii 
 
 by subsequent acts of parliament; but as these acts are some- 
 times very long, consisting of many clauses, the reader is 
 desired to use the same caution here, which is recom- 
 mended by our author(r) with regard to those recited in 
 the work itself, viz. " that he rely not barely upon the ab- 
 stracts thereof here given, but peruse the statutes them- 
 selves in the books at large." 
 
 I am sensible many slips and omissions must needs have 
 happened in the supervising so large a work of so critical a 
 nature, but hope that will plead my excuse, at least to those, 
 who consider the wide difference between perusing it in a 
 fair print and in a difficult manuscript. 
 
 (r) Part I. p. 261. 
 March 30, 1736.
 
 (Q* For Table of Cases (cited in the notes,) and Table of Abbre- 
 viations, see the beginning of Vol. II,
 
 A TABLE 
 
 SEVERAL CHAPTERS CONTAINED IN THE FIRST PART. 
 
 PAGE. 
 
 Chapter I. Concerning capital punishments 1 
 
 Chapter II. Concerning the several incapacities of persons, 
 and their exemptions from penalties by reason thereof 14 
 
 Chapter III. Touching the defect of infancy and non-age 16 
 
 Chapter IV. Concerning the defect of ideocy, madness, and 
 lunacy, in reference to criminal punishments 29 
 
 Chapter V. Concerning casualty and misfortune, how far it 
 excuseth in criminals 38 
 
 Chapter VI. Concerning ignorance, and how far it prevails to 
 excuse in capital crimes 42 
 
 Chapter VII. Touching incapacities or excuses by reason of 
 civil subjection * 43 
 
 Chapter VIII. Concerning the civil incapacities by compulsion 
 and fear 49 
 
 Chapter IX. Concerning the privilege by reason of necessity 52 
 
 Chapter X. Concerning the offense of high treason, the person 
 against whom committed, and the reason of the greatness of 
 the offense; and touching alligeance 58 
 
 Chapter XI. Concerning treason at the common law, and their 
 uncertainty 76 
 
 Chapter XII. Touching the statute of 25 E. 3. and the high 
 treasons therein declared 87
 
 xxvi A TABLE OF THE SEVERAL CHAPTERS 
 
 PAGE. 
 
 Chapter XHI. Touching high treason in compassing the death 
 of the icing, queen, or prince 91 
 
 Chapter XIV. Concerning levying of war against the king 130 
 
 Chapter XV. Concerning treason in adhering to the king's 
 enemies within the knd or without 159 
 
 Chapter XVL Concerning treason in counterfeiting the great 
 seal, or privy seal 170 
 
 Chapter XVH. Concerning high treason in counterfeiting the 
 king's coin, and in the first place touching the history of the 
 coin and coinage of England 188 
 
 Chapter XVHI. Concerning the adulteration or impairing of 
 coin, and the antient means used to remedy it 205 
 
 Chapter XIX. Concerning the counterfeiting of the king's coin, 
 what it is, what the penalty thereof antiently, and what at 
 this day 210 
 
 Chapter XX. Concerning treason in bringing in false money 225 
 
 Chapter XXI. Concerning high treason in killing the chan- 
 cellor, &c. 230 
 
 Chapter XXII. Concerning principals and accessaries in treason 233 
 
 Chapter XXIII. Concerning forfeitures by treason 239 
 
 Chapter XXIV. Concerning declaring of treasons by parlia- 
 ment, and those treasons that were enacted or declared by 
 parliament between the 25 E. 3. and the 1 Mar. 258 
 
 Chapter XXV. Concerning treasons declared and enacted from 
 1 Mar. till this day, viz. 13 Car. 2. 307 
 
 Chapter XXVI. Concerning the judgments in high treason, 
 and the particulars relating thereunto, and to attainders 342 
 
 Chapter XXVII. Touching corruption of blood, and restitution 
 thereof, loss of dower, forfeiture of goods, and execution 354 
 
 Chapter XXVIII. Touching the crime of misprision of treason 
 and felony, &c. . 371 
 
 Chapter XXIX. Concerning petit treason 377 
 
 Chapter XXX. Concerning heresy and apostacy, and the pun- 
 ishment thereof 383 
 
 Chapter XXXI. Concerning homicide and first of self killing, 
 or felo de se 411 
 
 Chapter XXXII. Of deodands 419 
 
 Chapter XXXIII. Of homicide, and its several kinds, and first 
 of those considerations, that are applicable as well to murder 
 as to manslaughter . 424
 
 CONTAINED IN THE FIRST PART. xxvii 
 
 PAGE. 
 
 Chapter XXXIV. Concerning commanding, counselling, or 
 abetting of murder or. manslaughter 435 
 
 Chapter XXXV. Concerning the death of a person unknown, 
 and the proceedings thereupon 447 
 
 Chapter XXXVI. Touching murder, what it is, and the kinds 
 thereof 449 
 
 Chapter XXXVII. Concerning murder by malice implied pre- 
 sumptive, or malice in law 455 
 
 Chapter XXXVIII. Of manslaughter, and particularly of man- 
 slaughter exempt from clergy by the statute of 1 Jac. cap. 8. 466 
 
 Chapter XXXIX. Touching involuntary homicide, and first of 
 chance-medley, or killing per infortunium 471 
 
 Chapter XL. Of manslaughter ex necessitate, and first se de- 
 fendendo H 473 
 
 Chapter LXI. Concerning the forfeiture of him that kills in 
 his own defense, or per infortunium 492 
 
 Chapter XLII. Concerning the taking away of the life of man 
 by the course of law, or in execution of justice 496 
 
 Chapter XLIII. Of larciny and its kinds 503 
 
 Chapter XLIV. Concerning the divershies of grand larcinies 
 among themselves in relation to clergy 517 
 
 Chapter XLV. Concerning petit larciny , 530 
 
 Chapter XLVI. Of robbery 532 
 
 Chapter XLVII. Concerning restitution of goods stolen, and 
 the confiscation of goods omitted in the indictment or the 
 appeal 538 
 
 Chapter XLVIII. Of burglary, the kinds and punishments 547 
 
 Chapter XLIX. Of arson, or wilful burning of houses 566 
 
 Chapter L. Concerning felonies by the common law, relating 
 to the bringing of felons to justice, and the impediments 
 thereof, as escape, breach of prison, and rescue; and first 
 touching arrests 575 
 
 Chapter LI. Of felony by voluntary escapes, and touching 
 felony by escapes of felons 590 
 
 Chapter LI I. Of negligent escapes 600 
 
 Chapter LIII. Concerning rescues of prisoners in custody for 
 felony 606 
 
 Chapter LIV. Concerning escapes and breach of prison by the 
 party himself, that is imprisoned for felony 607 
 
 Chapter LV. Of principals and accessaries in felony, and first 
 of accessaries before the fact 612
 
 xxviii A TABLE OF THE SEVERAL CHAPTERS, &c. 
 
 PAGE. 
 
 Chapter LVL Of acqessaries after the fact 618 
 
 Chapter LVIL Concerning the order of proceeding against 
 accessaries 623 
 
 Chapter LVHI. Concerning felonies by act of parliament, and 
 first concerning rape 626 
 
 Chapter LIX. Concerning the felony de uxore abdncta sive 
 rapta cum bonis viri, super statutum Westm. 2. cap. 34. 637 
 
 Chapter LX. Of felony by purveyors taking victuals without 
 warrant - / 639 
 
 Chapter LXL Concerning the new felonies enacted in the 
 times of E. 2. E. 3. and R. 2. 620 
 
 Chapter LXH, Concerning the new felonies enacted in the 
 time of H. 4. H. 5, H. 6. E. 4. 644 
 
 Chap'sUr LXHL Concerning the new felonies enacted in the 
 times of R. 3. H. 7. H. 8. E. 6. and Q. Mary 656 
 
 Chapter LXIV. Concerning felonies newly enacted in the time 
 of Q. Elizabeth, K. James, and K. Charles L 681 
 
 Felonies enacted in the time of K. Charles H. K. James H. . 
 K. WilUam HL Q. Anne, K. George I. and K. George H. 697 
 
 Chapter LXV. Certain general observations concerning felo- 
 nies by act of parliament 703 
 
 Felonies enacted since the last edition of this book in the year 
 1778 725
 
 THE PROEMIUM. 
 
 THE METHOD OF THE WORK INTENDED. 
 
 Having an intention to make a full collection of the Pleas 
 of the Crown, I shall divide those Pleas into two general 
 Tracts. 
 
 The first, concerning pleas of the crown in matters 
 criminal. 
 
 The second, concerning pleas of the crown in matters 
 civil; namely, concerning franchises and liberties. 
 
 The former will be the subject of the first and second 
 books, the latter of the third book. 
 
 First, therefore, I shall begin with the several kinds of 
 crimes, that make up the subject matter of my first and 
 second book. 
 
 Crimes that are punishable by the laws of England, are 
 for their matter of two kinds, 
 
 1. Ecclesiastical. 
 
 2. Temporal. 
 
 The former of these, namely, such crimes as I call Eccle- 
 siastical, are of ecclesiastical cognizance; and though all 
 external jurisdiction^ as well ecclesiastical as temporal, is 
 derived from the Crown of Engla7id, and all criminal pro- 
 ceedings in the ecclesiastical courts, are in some kind Pla- 
 cita Cor once suits for the king, and such as he may pardon 
 or discharge, as being his own suits, yet these I shall not 
 meddle with at this time. 
 
 The second sort, viz. Temporal crimes, which are offenses 
 against the laws of this realm, whether the common law or 
 acts of parliament, are divided into two general ranks or 
 distributions in respect of the punishments that are by law 
 appointed for them, or in respect of their nature or degree:
 
 XXX THE PROEMIUM TO 
 
 and thus they may be divided into capital offenses, or 
 offenses only criminal; or rather, and more properly, into 
 ■ ■ Felotiies and 
 
 Misdemeanors, " 
 
 because there is no capital offense but hath in it the crime 
 of felony : and yet there be some felonies, that are not in 
 their nature capital, whereof hereafter. 
 
 Crimen capitale, or felony, in this acceptation is of two 
 kinds, namely, 
 
 That which is complicated, and hath a greater offense 
 joined with it, namely Treason, and 
 
 That which is simple Felony. 
 
 Touching the former of these, namely Treason, it is that 
 capital offense, which is committed against some special 
 civil obligation, of subjection and faith more than is found 
 in other capital offenses, and therefore it hath the denomina- 
 tion oiproditio, and the offense is laid to be done prodilorie. 
 
 This offense of Treason is of two kinds, namely, 
 
 That which is against the highest civil obligation, namely, 
 against the king, his crown and dignity, which is called 
 High-treason. 
 
 Or against some other, to whom a civil obligation of faith 
 is made or implied, which is called Petit-treason. 
 
 The offenses of high-treason are of two kinds, .?;zV. 
 
 Such as were treasons by the common law, or, 
 
 Such as were made so by special acts of parliament. 
 
 The offenses of simple felony are likewise of the same 
 distribution, namely. 
 
 Such as were felonies at common law, and, 
 
 Such as are by act of parliament put into the degree, or 
 under the punishment of felony. 
 
 And the same distribution is to be made touching misde- 
 meanors, namely they are. 
 
 Such as are so by the common law, or 
 
 Such as are specially rpade punishable as misdemeanors 
 by acts of parliament. 
 
 This is the general order and distribution of the first and 
 second book of this tractate, namely, concerning the matters 
 of the Pleas of the Crown in criminals; or those crimes, 
 which come under the cognizance of the laws of this king- 
 dom, wherein the prosecution is pro rege, or in his name or 
 right, as the common vindex of public injuries or crimes. 
 
 The particular enumeration of these several offenses is
 
 HISTORIA PLACITORUM CORONA. xxxi 
 
 much of the business of those charges, that are given to the 
 grand jury by the justices in their several sessions; and they 
 were for the most part heretofore contained in certain arti- 
 cles or heads of inquiry delivered out in writing to the 
 several inquests, and were often stiled Capitula Placitonim 
 Coronce; such were those of i^. 1. mentioned by Hovede?i, 
 p. 744, 783. which were delivered to the inquisitors in 
 every wappentach or hundred, and to the justices itinerant 
 to make inquiry upon, and by them to the grand inquests; 
 and such were those Articuli itineris declared by Bracton, 
 Lib. III. de corona, cap. 1. and printed in the old Magna 
 Charta for the justices in eyre to make inquiry upon, which 
 I shall not here repeat at large, but shall take them up as 
 I shall have occasion to use them. 
 
 The order which I shall observe in these Pleas of the 
 Crown will be this : 
 
 I. In the first book I will consider of capital offenses, 
 Treason and Felonies; which book will be divided into 
 two parts : 
 
 1. The enumeration of the hinds of treasons and felonies 
 as well by common law, as by acts of parliament. 
 
 2. The whole method of proceedings in or upon them. 
 
 II. The second book will treat of matters criminal, that are 
 not capital; and 
 
 III. The third book will be touching franchises and liher- 
 ties.{*) 
 
 (*) That which is here offered to the public, is only the first of these books, 
 consisting of two parts ; the other two books having, as I have been credibly 
 informed, never been composed by our author.
 
 HISTOlilA PLACITORUM COW^M. 
 
 PART I. 
 
 CHAPTER I. 
 
 CONCERNING CAPITAL PUNISHMENTS. 
 
 Being to treat concerning capital offences, it will not be amiss to pre- 
 mise something touching capital punishments. 
 
 Laws, that are introdnced by custom, or instituted by the legislative 
 authority for the good of civil societies, would be of little effect, unless 
 they had also their sanctions, imposing penalties upon the offenders 
 of those laws. 
 
 These penalties are various according to the several natures of the 
 offences, or the detriment that comes thereby to civil societies ; some 
 are only pecuniary; some corporal, but not capital, such as imprison- 
 ment, stigmatizing, banishment, servitude, and the like; others are 
 capital, ultimum siippUcium, or death; and that death sometimes 
 accompanied with greater, sometimes with less degrees of severity. 
 
 So that, although offences against the good of human society be many 
 of ihem prohibited by the laws of God and nature, yet the punishments 
 of all such offences are not determined by the law of natiu-e to this 
 or that particular kind, but are for the most part, if not altogether, left 
 to the positive laws and constitutions of several kingdoms and states. 
 
 And therefore, although most certainly the penalties instituted by 
 God himself among his ancient people upon the breach of their laws 
 were with the highest wisdom fitted to that state, and all 
 lavv^s and instituted punishments should come up as near to [ 2 ] 
 that pattern, as may be ; yet as to the degrees and kinds of 
 punishments of offences in foro civiii vel judicinrio they are not 
 obliging to all other kingdoms or states, but all states, as well chris- 
 tian as heathen, have varied from them. 
 
 And therefore it will not be amiss to instance in the various kinds 
 of punishments inflicted by the several laws of several countries, es- 
 pecially in those two offences of homicide and theft, which are the 
 most common and obvious offences in all countries. 
 
 By th.eancientest divine law, that we read, the punishment of homi- 
 
 VOL. I. — 1
 
 2 HISTORIA PLACITORUM CORONA. 
 
 cide was with death. Gen. ix. G. "Whosoever sheds man's blood, 
 by man shall his blood be slied."(^/) 
 
 And the judicial law given by Moses was pnrsnantto it, with some 
 temperaments and explanations. Exod. xxi. 12, 1,3, 14. "He, tliat 
 smiteth a man, so that he die, shall surely be put to death. And if 
 a man lie not in wait, but God deliver him into his hand ; then 1 will 
 appoint thee a place, whither he shall flee. But if a man come pre- 
 sumptuously upon his neighbour to slay him with guile; thou shalt 
 take him awa.y from mine altar, that he may die." And v. 18, 19. "And 
 if men strive together, and one smite another with a stone, or with 
 his fist, and he die not, but keepeth his bed ; if he rise again, and walk 
 abroad upon his staff, then shall he that smote him, be quit; only he 
 shall pay (pr the loss of his time, and for his cure." 
 
 And what this delivery by God of a man into his neighbour's hand 
 is, is best expounded Deut. xix. 4, 5, 6, 11, 12. "Whoso killeth his 
 neighbour ignorantly, whom he hated not in time past, as where a 
 man cleaveth wood, and the ax flieth from the helve, and killeth a 
 man, he shall fly to the city of refuge, (6) lest the avenger(c) 
 [ 3 ] of blood pursue, and slay him while his heart is hot; where- 
 as he was not worthy of death, in that he hated him not in 
 time past: But if any man hate his neighbour, and lie in wait for 
 him, and rise up against him, and smite him mortally, that he die, 
 and he fleeth to one of those cities, the elders of his city shall send 
 and fetch him thence, and deliver him into the hand of the avenger 
 of blood, that he may die."(rf) 
 
 Again ; Exod. xxii. 2. " If a thief be found breaking-up, and be 
 smitten, that lie die, there shall no blood be shed for him ; if the sun 
 
 {a) Tliis law being given to Noah, from whom all men are derived, is not peculiar to 
 the Israelites ; but, as our author observes below, is binding on all mankind. 
 
 {i) Concerning these cities of refuge, see Exod. xxi. 13. Numb. xxxv. Deut. iv. 41 Sf 
 ssg. Josh. XX. xxi. Selden : de jure natvruli, &;c. Lib. IV. cap. 2. 
 
 (c) Who this avenger of blood was, is no where expressly said, it is generally supposed 
 that he was the next heir to the person slain. See Selden: de jur. nat. Lib. IV. cap. 1. 
 6f de successionibvs in bona defuncti : but tiie truth is, the Hebrew words Gael ha dam, 
 here rendered the avenper of blood, should be rendered ihenext of blood, for Gael properly 
 signifies one of the same kindred; it is so rendered Ruth ii. 20. and iii. 9, 12. and is 
 usually expressed in the Septuagint by ay^Hwcvv, which denotes one near of kin. 
 
 (d) If tiiere was no avenger of blood, or if he would not or could not kill the slayer, the 
 slayer was capitally punished by a judicial sentence ; and no ransom or recompense was 
 admitted. Numb. xxxv. 31. Selden: de jur. not. Lib. IV. cap. 1. in fine; even though the 
 person slain should before his death desire that the slayer should be forgiven. Maimonides 
 More Ncvochim, Pars III. c. 41. for all voluntary homicide was inexpiable, as appears 
 from Numb. xv. 27. 31. and the ease of David in the matter of Uriah, Ps. li. 16. There 
 was one case indeed of capital homicide, wherein a ransom was allowed, viz. If an ox 
 were wont to push with his horn, and it had been testified to his owner, and he had not kept 
 liim in, so that he had killed a man or a woman, the owner was to be put to death, he 
 being looked on as the author of the murder, who would not prevent it, when lie had 
 warning, and might have done it; however, this being a case of gross negligence, rather 
 than wilful malice, he was permitlcd to redeem his life by paying the ransom, which 
 was laid upon him. Exod. xxi. 21), 30. the price of a servant was thirty shekels of 
 silver. Ibid. v. 32, and that of a freeman was generally double, viz. sixty shekels. 
 Maimon. More Neiwchim, Pars III. cap. 40. 
 
 This was also felony liy the eomtrion law of E norland, for by such sufferance the owner 
 scorned to have a will to kill. Stamf. P. C. 17. Filz. Cor. 311. Vide post c. 33 note.
 
 HISTORIA PLACITORUM CORON.E. 3 
 
 be risen upon him (here shall be blood shed for him ; for he should 
 make full reslitulion ; if he have notliing, then he shall be sold for his 
 theft." 
 
 Upon these judicial laws, these things are observable ; 1. That by 
 these laws the killing of a man by malice forethought, or upon a sud- 
 den falhng out, were both iwider the same punishment of death. (e) 
 2. That the killing of a man by misfortune was not liable to the 
 punishment of death, by the sentence of the judge; but yet [ 4 ] 
 tile avenger of blood might kill him. before he got to the city 
 of refuge. (/) 3. The killing of a thief in the night was not liable to 
 punishment of death ; but if it were in the day-time, it was pun- 
 isliable with death. 4. Though there is no express law touching 
 killing a man in his own defence, (,§•) yet it seems the custom of the 
 Jeios, and the interpretation of the Jewish doctors, excused that fact 
 from the punishment of death. (A) 5. Tliat the usual manner of the exe- 
 cution of the sentence of death was stoning, and sometimes strangu- 
 lation. (/) 
 
 Now I will consider some of the laws of other nations in reference 
 to homicide; wherein though there is a great analogy in many things 
 between the laws of tlie Jews, and the laws of other countries; so that 
 a man may reasonably collect, that these judicial laws of the Jews 
 were taken up by other nations, as the grand exemplar of their judi- 
 cial laws ; yet in some things they departed from them in tlie particular 
 constitutions and customs of other countries. 
 
 Among the leges JUticcC collected by Mr Petit, Lib. VII, tit. 1. 
 these were many of the laws concerning homicide. 
 
 (e) The law was general, "That whoever smiteth a man, so that he die, shall surely 
 be pat to death." Exod. xxi. 12. There were indeed some e.vceptions from this general 
 law, but setting aside the case of a house-breaker in the night, they all related to casual 
 invohintary homicides; there is not one exception of a voluntary designed killing, 
 whether sudden or premeditated, whatever interpretations might be afterwards made by 
 the Jeioish Rabins, who made the commandments of God of none eftect through their 
 traditions, (Matt. xv. 6.) so that there is nothing in the Jewish law to countenance the 
 distinction made by the laws of England between murder and manslaughter; a distinc- 
 tion, which serves to show, that though the laws of England be mucli severer than the 
 other in tlie case oi theft, yet tiiey are much milder in the case of homicide. 
 
 (/) Unless he fled to the altar, which was also looked on as a place of refuo-e, it hcm(r 
 probable from Es.od. xxi. 13, 14. that the altar was the place of refuge before the cities 
 of refuge were appointed. (See Bracton of the English Law of Asylum.) See Selden: dc 
 jur. not. Lib. IV. cap. 2. If he did escape to the city of refuge, he was obliged to remain 
 there till the death of the high priest, tor the avenger of blood might kill him wherever 
 he found him out of the borders of the city. Numb. xxxv. 25—32. Selden: uln supra ^ 
 de Synedriis, Lib. II. cap. 7. But after the death of the high-priest, he was at liberty to 
 go where he would ; for the reason hereof see Maimonides More JSevochim, Pars 111. cap. 
 40, and Ainsworlh on Numbers xxxv. 25. 
 
 (g) This was a case so plainly justifiable by the law of nature, that it needed no positive 
 law; however, the permission to kill a thief, who should be found breaking up in the 
 night, seems to be an express allowance of killing in one's own defence; for the reason 
 ot that law is manifestly founded on the principle of self preservation. Nam adversus 
 periculum naturalis ratio permiltit se defeiidere. Digest. Lib. 9. Tit. 2. I. 4. 
 
 (h) When done in defence of life or cliastity; because, when lost, they are irreparable, 
 sec Selden: de jur. riatur. Lib. IV. cap. 3. Maimon. More Nevichim, Pars III. cap. 40. 
 
 (i) Soinetiines the execution was by burning; as in the ca-e of a priest's daughter, who 
 had played the whore. Levit. xxi. 9. Sometimes by decollation, which was the usual 
 way for murder. Selden: de Synedriis, Lib. II. cap. 13. De jur. natur. Lib. IV. cap. 1.
 
 5' HISTORIA PLACITORUM CORONiE. 
 
 Senatus Areopagiticiis jus dicifo de cgede, ant vulnere, non casn, sed 
 voluntate inflicto; de incendio item, & malo veneno hommis necandi 
 causa dato. 
 
 Thesmothetae in homicidas animadvertiinto. 
 
 Si quis hominem sciens morti duit, capital esto. 
 
 Qui alium casu fortuito necassit, in annum deportator, donee 
 aliquem e cognatis occisi placarit; revertitor vero peractis sacris & 
 lustrationibus. 
 
 Si quis imprudens in certaminibus alium necassit, aut insidiantem 
 aut ignotum in prselio, aut in uxore, vel matre, vel sorore, vel filia, 
 vel concubina, vel ea, quam infuis liberis, habet deprehensum, csedis 
 ergo ne exulato. 
 
 Si quis alium injuste vim inferentem incontinent! necassit, jure 
 csesus esto. 
 
 Si quis homicidam foro, urbis ferritorio, publicis certaminibus & 
 sacris Amphictyonicis abstinentem occiderit, aut mortis causam pre- 
 buerit, perinde ac si Atheniensem civem necassit, capital esto, & 
 Ephetas jus dicunto. So that by this law a man conscious to himself 
 of homicide might, before he was apprehended, undertake a volun- 
 tary exile, and during such an exile was privileged from the penalty 
 of homicide. (^) 
 
 Homicidas morte multanto in patria occisi terra, et abducunto, ut 
 lege cautum est; in eos ne sasviunto, neve pecuniam(/) exigunto. 
 
 Before judgment the kindred of the party slain that prosecuted the 
 manslayer might compound the otfence, and release the offender, but 
 after judgment once given, neither the judge nor prosecutor could 
 remit it.(m) 
 
 Caedis ne postulator nnquam is qui homicidam exulantem &redeun- 
 tem quo non licet, in jus ad magistratum rapuerit aut detulerit. 
 
 And eodeni libro tit. 5. si nox furtum faxit, si ini ali- 
 
 r 6 "1 quis occisit,JHre csesus esto, according to the Mosaical law, 
 
 and from tlience transcribed into the Jlttic laws, and from 
 
 thence by the Decemviri into the Roman laws of the twelve tables 
 
 in lotidem. ve7'bis. 
 
 Among the Romans the laws concerning homicide differed in 
 some things both from the Jeivs and Greeks, as appears Dii^est. Lib. 
 XL VIII. tit. 8. Jid legem Corueliam de sicariis ^^ venejiciis. 
 
 Qui hominem occiderit punitor non habita differentia cujus condi- 
 tionis hominem(/?) interemit. 
 
 Qui hominis occidendi furtive faciendi causa cum telo ambulave- 
 
 (t) This was the case of Theoclymenus in Homer Odijss. o. v. 224, 270. 4- "• UT- 
 
 (l) The Greek word aTravAv here rendered pecuniam, properly signifies a ransom. 
 Horn. Iliad, a., v. 13, 20, 23, !)5, for by the ancient law of Greece the punishment of honii- 
 cide was redeemable by the payment of a sum of money to tiie relations of the slain, 
 which recompense was termed uTctva or ttciviI. Homer. Iliad. 1. v. 628. ir. v. 498. 
 
 (m) That this was the meaning of the foregoing law, see Petit in lecres Atticas, Lib, 
 VII. tit. I. p. 500. !^ee also the Oration of Demosthenes against Aristocrates, wherein 
 most of the Athenian laws relating to homicide arc explained. 
 
 (n) I. 1. §. 2.
 
 HISTORIA PLACITORUM CORONiE. 6 
 
 rif(o) qui hominem non occidit sed viilneravit ut occidat, iit homi- 
 cida datiiiiandiis, nam si gladium striiixerit & cum eo percusserit, 
 indubitate occidendi animo admissit, sed si clavi aut cuccuma in 
 rixa, qiiamvis ferro, percusserit, tainen non occidendi aninio lenienda 
 psena ejus, qui in rixa casu magis, quam voluntate, homicidium 
 adniisit.(/)) 
 
 But if it were merely by misfortune, it was not punished. (5?) 
 
 Qui stuprum sibi vel suis per vim inferentem occidit, dimiitendus 
 est,(>) sed is, qui uxorem in adulterio deprehensam occidit, humi- 
 liore loco positus in exilium perpetuum dandus, in aliqua dignitate 
 positus ad tempus relegandus.(.s) 
 
 Furem nocturnum qui occiclerit, impune feret, si parcere ei sine 
 periculo suo non potuit;(/) wliich law, though like to that of the 
 Jews and Greeks, the Roman lawyers have construed, (?/) 
 that it is lawful to kill furem nocturnum recedentem & [| 7 1 
 fugientetn cum rebus, licet se non defendat telo, sed non 
 diurnum, nisi se defendat telo. 
 
 The punishment of homicide, unless it were merely casual, among 
 the Romans was deportatio in insulas & omnium bonorum adenip- 
 tio, sed solent hodie capite puiiiri, nisi houestiore loco positi fuerint, 
 ut pcenam legis sustineant; humiliores enim solent bestiis subjici;(a7) 
 altiores vero deportantur in insulas,(^) 
 
 Some temperaments they added in other cases of homicide, as 
 banishment for five years, (z) deportation, &c. but regularly the 
 punishment of homicide, unless in case of simple misfortune, (a) or 
 defence of life, (6) was death, viz. bestiis siibjicianfur. 
 
 Among the Saxons{c) the punishment of homicide was not always, 
 
 (0) /. 1. pr. ^ Cod. eod. tit. Lib. IX. tit. 16. I. 7. {p) I. 1. §. 3. 
 
 (9) I. 1. §. 3. c. g. If a man, wlio was cutting a tree, should without calling out throw 
 down a great hranch of it upon one who was passing by, and kill him, he was to be 
 acquitted, that is to say, he was not to be proceeded against criminally by the lex Cor- 
 nelia de sicariis; for so is the expression in l. 7, adhnjus legis coercilionem non pertinet; 
 but still he was liable by the lex Aquilia to make a pecuniary satisfaction for the dam- 
 age. Jnstit. Lib. IV. tit.3. §. 5. And tliough that law mentions only the case of killing 
 a slave, yet there lay an utilis actio in the case of killing a freeman. See Noodt ad Leg, 
 Aquil. cup. 2. 
 
 (r) L 1. §. 4. (s) I. 1. §. 5. (t) I. 9. 
 
 (m) This was not a mere construction of the Roman lawyers, but is expressly provided 
 by the law of the twelve tables, as appears from Digest. Lib. IX. tit. 6. ad leg. Aquil. I. 4. 
 §. I. Cic. pro Mtlone, cap. 3. A. Gell. Lib. 18. cap. Macrob. saturnal. Lib. 1. cap. 4. The 
 reason of this distinction between a night-thief and a day-thief, see in Grot, de jur. lei. 
 ac. pac. Lib. II. cap. 1. §. 12. 
 
 (a) Dig. Lib. XLVIII. tit. 19. de panis. I. 28. § 15. 
 
 (y) Dig. ad leg. Cornel, de sicariis 1. 16. (z) I. 4. § 1. 
 
 (a) Cod. eod. tit. I. 1. 
 
 {b) Cod. eod. tit. I. 2. Sf 3. 
 
 (c) It seems to have buen the general practice of most of the northern nations to com- 
 mute the punishment of the most heinous crimes for a pecuniary mulct. Lindenbroo-ii 
 Codex Leg. Antiq. Lib. IV. cap. 3G. Tacitus speaking of the ancient Germans, .says^it 
 was customary among them to punish homicide with a certain number of sheep and 
 oxen, out of which the relations of him that was slain received satisfaction. Tac. de 
 ^nor. Germ. cap. 21. From hence probably our Saxon ancestors brought the custom into 
 Britairt.
 
 7 HISTORIA PLACITORUM CORONiE. 
 
 nor for the most part capital; for it might be redeemed by a recom- 
 pense which went under the name of IVeru and ff'ere- 
 r 8 ] gi/(/,{d) which was a rate set down upon the head of per- 
 sons of several ranks; and if any of tlieni were killed, tlie 
 offender was to make good that rate, or fVeregild or capitis sestima- 
 iio, to the kindred of the party slain; or, as some think, part to the 
 king, part to the lord of the fee and part to the relations of the party 
 slain ; which if he conid not do, lie was to suffer death. (e) Vide 
 Spelrn. in Gloss, ad verba IVe^'a Sf- Weregild. 
 
 This custom continued long, even to the time o{ Hen. I. here in 
 Englatid, as appears by his laws in libro rubro, sect. ll.(/) but 
 shortly after grew obsolete, as being too much contradictory to the 
 divine law.(^) Vide Covarr. Tonio 2 Lib. 11. cap. 9. sect. 2. 
 
 {d) This Weregild or capitis cBstimatio, according' to the laws of Ethelbei-t, was 
 usually 100s. Lag. Ethelhert, I. 21. though in some particular cases it was more, I. 5. 6. 
 22. If tlie slayer escaped, the relations were to pay half the ordinary Weregild, I. 2.3. 
 
 By the laws of Ina the Weregild was different according to the rank and degree of 
 the person killed, of a man worth 200s. was 30s. of a man worth 600s. was 80s. of a 
 man worth 1200s. was 120s. Leg. Ina. I. 70. This rule admitted of some exceptions, I, 
 34. /. 74. 
 
 By tlie laws of Alfred, the bare attempt on the king's life was punished with death, 
 unless the offender redeemed it by the payment of the king's weregild: the same law 
 was in case a slave attempted the life of his lord, unless he redeemed it by paying his 
 lord's weregild. Leg. Alfred. I. 4. the weregilds were, of the same value, as under Lia. 
 Leg. Alfred. I. 9. /. 26. 
 
 By the league between Alfred and Guthrun, I. 2. the value of a common person was 
 200s. the same by the league between Edward and Guthrun in fine. 
 
 By the laws of Athelstan, whoever should attempt his lord's life, was to be put to 
 death, and there is no nienlion made of any ransom. Leg. Athelstan, I. 4. but at the end 
 of his laws, and of the Judicia Civitatis Lundoni<B, there is a particular account of the 
 weregilds of all orders and degrees, from the king to the peasant, for which see Wilkin''s 
 Leg. Angln-Sax. p. 64. p. 71. Turner'' s Anglo-Saxons, 
 
 By the laws of Ethelred, I. 5. the iveregild of a common person was increased to 25 
 pounds. By /. 8. Gul. Conq. apud Wilkins''s, p 221. it was twenty pounds. 
 
 By the laws of Cnute, whoever siiould lie in wait for the life of the king, or of his lord, 
 was to suffer death, and forfeit all he had. Leges Cnuti, I. 54. Whoever committed a 
 public notorious murder, was likewise to suffer death, without redemption: for in I. 61. 
 Ccedes publicu Sf domini proditio are reckoned amongst the scfZe/Yi inexpiubilia ; but it 
 should seem that common homicide was redeemable; for in /. 6. it is said, Homicides 
 inclincnt, vel cmendent, vel scienter in pcccatis morianiiir. 
 
 (f) The wertgild was usually divided into three parts: the first, which was called 
 Frith Bole, was |)aid to the king for the loss of his suli)jcct; the lord had another for the 
 loss of his man, which was called Man-bote, and the kin of the slain for their loss had 
 the third part, which was called Mag-bote. See Spelrn. life of Alfred, Book II. § 11, In 
 the case of killing the king, besides the weregild, which was to be paid to the king's 
 relations, there was also another payment called cynebot or cijnegild, to be made to the 
 public for the lf)ss of their king. 
 
 (/) And § 12. see Wilkin''s leges Anglo Sax. p. 244. But it appears from the same 
 laws, /. 71. ibid. p. 267. liiat a malicious murder, by poison or the like, was factum mor- 
 tifcrnm nulla niodo redimendum. Tlie genuineness of these laws is justly questioned, 
 for that ihey not only are in the nature of commentaries rather than laws; but also in 
 I. 5. Gr/gori/''s decretals are cited, which were not compiled till fifteen years after the 
 death of Henri/ I , however, they are allowed to be very ancient, and to contain the 
 usages of the Anglo-Saxons. See llickesii Dissert. Epist. p. 96. 
 
 (g) It cannot but seem strange to us at this time of day, that the wilful murder of 
 any one, much more of the king, should be punished only with a pecuniary mulct; to 
 solve this difficullv, Mr. Kapin siijjposes that this commutation was allowed only in the 
 case of simple homicide; or at most what is now known by the name of manslaughter,
 
 HISTORIA PLACITORUM CORONJ^. 8 
 
 But althongh the custom of fVere^ild is ^hrogdited here in Eng- 
 land, and by the laws of this kingdom the punishment of 
 homicide is regularly death,(^) as shall hereafter be sliovvn; [ 9 ] 
 yet since there are in England two kinds of proceedings in 
 punishing of homicide, the one at the suit of the heir or wife by 
 appeal, [1] the other at the suit of the king by indictment, the capi- 
 
 but not in the case of a premeditated murder : See Rapin's Histnire (P AngJeterre, Vol. I. 
 p. 500. This notion is in itself reasonable, and seems to be favoured by /. 4. of Athel- 
 stan, and I. 54. of Cnute, which makes it capital barely insidinri regi tel domino, much 
 more to take away the life of the king or his lord; but on llie otlier hand it seems some- 
 what liard to suppose, that among so many laws against homicide, they should all be 
 levelled against casual or sudden killing only, and scarce any against wilful murder. 
 
 (h) The offender is to be hanged by the neck till he be dead ; and i:i case he was con- 
 victed on an appeal, the ancient usage was, that all the relations of the slain should drag 
 him with a long rope to the place of execution. 3 Co. Inst. 131. Flowd. 306, b. 11 Hen. 
 4. 12. a. 
 
 [I] Many cases of appeal are to be found in the old books, but by the 59 Geo. 3, c. 46, 
 it is enacted, that it shall thenceforth not be lawful for any person to sue an appeal for 
 treason, murder, felony, or other offence; any law or usage to tiie contrary, notwithstand- 
 ing. 4 Step. Coram. 385. 
 
 In 1818, 58 Geo. 3, the case of Ash ford v. Thornton, 1 B. & Al. 405, was argued and 
 determined in the King's Bench. I'he writ of Appeal, and the return thereto, were 
 annexed to the sheriff's return of tlie writ of Habeas Corpus, and will be found printed 
 on p. 406. The coufit in appeal will also be found on p. 407. Some curious proceedings 
 are recorded; thus, "The appellee being brought into court and placed at the bar, and 
 tiie appellant being also in court, the count was read over to him, and he was called upon 
 to plead. He pleaded as follows: 'Not guilty; and I am ready to defend the same by 
 my body.' And thereupon taking his slave off, he threw it upon the floor of the Court." 
 The pleadings are fully stated in the Report, in which all the facts and circumstances 
 are narrated and set forth, until the parties reach a general demurrer. This demurrer 
 was argued by the most distinguisiied special pleaders of the time. Chitty supported the 
 demurrer, in an elaborate and exhausting argument; and Tyndal, (then Special Pleader 
 under the Bar, afterwards Lord Chief Justice of the Common Pleas,) opposed him in an 
 argument equally elaborate and learned. Lord Ellenhorovgh, C. J., delivering the opi- 
 nion of the Court, said, "The general law of the land is in favour of tlie wager of battel, 
 and it is our duty to pronounce the law as it is, and not as we may wish it to be. What- 
 ever prejudices, therefore, may justly exist against this mode of trial, still, as it is the law 
 of the land, the court must pronounce judgment for it." 
 
 Sir Samuel Shepherd, the Attorney General, immediately introduced a Bill in Parlia- 
 ment, to abolish appeals of murder and wager of battel, which may be found in the 25 
 Vol. Statutes at Large, 59 Geo. 3. c. 46. 22d June, 1819. 
 
 It may be mentioned in connexion with this case of Thorntori's Appeal, that it was the 
 first occasion on which tlie late Chief Justice, Sir Nicholas Tyndal, of the Court of Com- 
 mon Pleas, greatly distinguished himself His very learned argument gave rise to the 
 Act mentioned above for abolishing that barbarous and absurd mode of trial. Land. Law 
 Review for Aug. 1846,^. 436. MS. Sum., Tit. Appeal of Death.* 
 
 * This reference is to a MS. interleaved copy of Holers Summary, from the library of 
 the late Sir William Alexander, Chief Baron of the Exchequer, furnished to the editors 
 by IIenrv J. Williams, Esq., of Philadelphia. Mr. East, in the Introduction to the first 
 edition of his I'lens of the Crown, mentions his reference to this work among other 
 authorities of like character — "Lord Hale's Summary, interleaved with MS. corrections 
 and additions. This MS. compilation, though began before, (probably by Mr. Slow, a 
 gentleirtan of the bar,) was put into its present form by Mr. Justice Yates, who.«e son is 
 now in possession of it. Copies of it were communicated to different judges, w)io have 
 contributed, from time to time, the fruits of their own experience. My own copy was 
 taken from one in the possei»sion of the late Mr. Justice. Buller. The work was bound 
 up in three volumes, according to which I have cited it by the description 1, 2 & 3 MS, 
 Sum." 1 East P. C. Introduction, p. 15, London ed. 1603.
 
 9. HISTORIA PLACITORUM CORONiE. 
 
 tal punishment of the offender may be discharged by all parties inte- 
 rested, namely by the appellant by release, and by the king by his 
 pardon. 
 
 .And thus far touching the punishment of homicide. 
 
 Now I shall consider somewhat also of the punishment of theft^ 
 and the various laws and usages concerning the same in several 
 kingdoms and states, and at different times in the same state or 
 kingdom. 
 
 By the Jewish law, Exod. xxii. 1, 4. "If a man steal an ox or a 
 sheep, and sell or kill it, he shall restore five oxen for an ox, and 
 four sheep for a sheep: If the theft be found in his hands alive, whe- 
 ther ox, ass, or sheep, he shall restore double;" and the like for other 
 goods ;(«■) so that there was no capital punishment in case of theft, 
 though it were accompanied with burglary, as breaking a house, 
 but men-stealers were punished with death ;(A') but it seems by the 
 civil constitutions of that state the punishment thereof was sometimes 
 enhanced, at least in some circumstances, sometimes to a seven-fold 
 restitution, Prov. vi. 31, and also to death, 2 Sam. xii. 5.(/) 
 
 Now as to the Attic laws : Samuel Petit de LegibiisJitticis, Lib. 
 VII. tit. 5. gives us an account of their laws concerning theft, in 
 some things differing, in some things agreeing with the Jewish 
 r 10 [] ]ci\vs,fu7'em cujusci/nque modi furti supplicio capitis pu- 
 nito. This was Dracoes law ; but it was thought too severe, 
 and therefore Solon corrected it;(m) Si furtum factum sit, & quod 
 furto perierat receperit dominus, duplione luito furtum qui fecit & 
 quorum ope consiiloque fecit ; decuplione vindicator, ni dominus rem 
 furtivam receperit, in nervo quoque habetor dies ipsos quinque toti- 
 demque noctes, si heliastse pronunciarint ; pronuncianto autem, cutu 
 de poena illius agitur. 
 
 Si lucri furtum cujus ssstimatio sit supra 50 drachmas faxit, ad un- 
 decim viros rapitor ; si nox furtum faxit, si im ahquis occisit, jure 
 caesus esto: — Manifestum hujusmodi furtum qui faxit, etiamsi vades 
 dederit, non noxae factae sarcitione, sed morte luito. Si quis item ex 
 aliqno gymnasio yestis aut lecythi aut alicujus vel minimas rei, aut 
 supellectiiis e gymnasio, aut ex balineo, aut e portubus,quod excedat 
 10 drachmarum aestimationem, furtum faxit, morte luito. 
 
 Manifesti saccularii(;i) morte luunto. 
 " Vecticularii(o) manifesti morte luunto. 
 
 (t) Exod. xxii. 7, 9. The reason why the restitution of an ox was more than of a 
 sheep is supposed by Maimonides more NiDochiin Far. III. cap. 41, to be because sheep 
 are more easily guarded against thieves than oxen, who feed at a greater distance one 
 from another. 
 
 (A) Exod. xxi. IG. 
 
 (/) This passage from the bonk of Samuel does by no means prove what it is brought 
 for, viz. tliat thutl was punishable with death by the Jewish law; for tiie ease there put 
 of taking away a poor man's lamb, was attended with violence and other aggravating 
 circumstances, which provoked king David to say, The mun that hath done this shall 
 surelij die; and some render the words, Does deserve to die; but at most it only proves 
 tlie vehemence oi' David's anger at the man, and not what was the law of the Israelites, 
 
 (m) Sec A. Geliium, Lib. XI. cup. 18. 4' I'lutarch, in Vila Solonis. 
 
 (n) B^xavT/cTc^i&'r, A cut-purse. 
 
 C) Tc/;^a'gy;^;a)ir, A house-breaker.
 
 HISTORIA PLACITORUM CORON:^. 10 
 
 Plagiarii(/?) manifesti morte luunto. 
 
 In hortQS irrumpere ficosque deligere capital esto \{q) So that the 
 quantity of the thing stolen, the place, the season, the manner and 
 other circumstances heightened theft into a capital punishment, that 
 otherwise by Solon's laws was only pecuniary and imprison- 
 ment. (r) 
 
 Now as to the Roman laws: For a theft that was not 
 furfum man ifestum, {here is given actio in duplum; but if ['11 ~\ 
 it \verefu?'tuni manifestum, actioin quadj'uptmn ;[s) fur- 
 lum antem rnanifesfum est, cum fur deprehenditur infurto.{t) 
 
 But now as to punishments among the Romans, there were these 
 degrees or orders: I. Capital punishments, {viz. ultimum suppli- 
 ciuni){ii)vfh'\c\\ were, 1. Damnatioadfurcam. 2. Plvi crematio. 
 3. Capitis amputatio. 4. Damnatio ad /eras. 11. Others, that 
 were in the next degree, were, 1. Coercilio ad metalla. 2. Depor- 
 tatio ad itisu/as. III. Others again of a lower allay were, 1. Reie- 
 gatio ad tempiis vel in perpetuum. 2. Datio in publicum opus, 
 3. Fustigatio.{x) 
 
 I find not among the Romans any greater punishment of theft, 
 than four-fold restitution(3/) unless in these cases: 
 
 1. Si quis ex metallo principis vel ex moneta sacra furatus est, 
 poena metalli & exilii punitor.(z) 
 
 (/)) 'AviTgJtTccf/s-c^siisc, Sive Plagiarius, is est, qui sine vi,dolomalosciens abducit homines 
 liberos & ingenuos, venditque pro servis, aul suppremit: vel is est, qui alienos servos 
 abducit sine vi, & plerumque sinfe furto, &, fugam persuadet, aut fugltivos celut. Petit, 
 Comment, ad Lib. VII. tit. 5, defurtis, 
 
 (9) But this was a temporary law, made in a time of dearth, when it was thought 
 necessary to prohibit the exportation of figs. However, prosecutions of offenders against 
 this law soon grew odious; from hence all malicious informers were called Sycophants. 
 Vide. AthencBi Deipnosophist. Lib. III. S^ Scholiast, ia Aristophanis Flutum ad »^31. 
 4-874. 
 
 (r) Among the Lacedamoniavs all manner of theft was permitted, as a practice which 
 tended to instruct their youth in the stratagems of war. A. Gel. Lib. XI. cap, 18. It 
 was also unpunished among the ancient Egyptians. A. Gel. ubi supra. But we learn 
 from Diodor. Sic. Lib. I. that it was allowed only on certain conditions, for it was pro- 
 vided by a law, that whoever was minded to follow the trade of thieving, should first 
 enter his name with the captain of the gang, and should bring in all his booty to him, 
 that so the right owner might know where to apply for the recovery of his goods, which 
 were restored to him on paying the quarter of the value, 
 
 (s) Inst. Lib. IV. tit. 6. §. 5. Diges. Lib. XLVII. tit. 2. defurtis, I. 46. §. 2. Herein 
 the Roman law greatly resembled the Jewish, with this difference that by the Jewish]a.\v 
 the punishment of fourfold was to be instead of restitution; whereas by the Roman law 
 the tiling stolen was recoverable over and above the j^o^na quadrupli. Dig. eod. tit. I, 
 54. §. 3. 
 
 (t) Dig. eod. tit. I. 2. I. 3. pr. By tjiis was meant not only if he was taken in the fact, 
 but^also if he was apprehended with the goods upon him before he had carried tliem to 
 the place, where they were to remain that night, and answers to the expression in our 
 law, of being taken in the mainoiivre. 
 
 (u) Dig. Lib. XLVIII. at. 19. de poenis. I. 21. 
 
 (x; Dig. eod. tit. I. 28. pr. §. 1. Z. 1 1. §. 3. 
 
 (y) So far were the Romans from inflicting capital punishments for theft, (hat on the 
 contrary it was expressly forbidden by Justinian, that any person should be put to death, 
 or sutr.T the loss of member for theft. Novel CXXXIV. cap. tilt. 
 
 (z) Dig. Lib.XLVlU. tit. 13. ad leg. Jul. peculatusj. 6. §. 2. Lib. XLVIII. tit. ld.de 
 pcenis I. 38. 
 
 VOL. I. — 2
 
 11 HISTORIA PLACITORUM CORONyE. 
 
 2. Grassatores qui cum ferro aggredi & spoliare instituunt, capite 
 piiijinutor.(^/) 
 
 3, Famosi latrones ad bestias vel furcas damnantor. Digest, de 
 pcenis.{b) 
 
 If we come to the laws and customs of our own kingdom, we shall 
 find the punishment of theft in several ages to vary according as the 
 offence grew and prevailed more or less.(c) 
 
 Among the laws of king, /^Me/.v/«;i, mentioned by Bramp- 
 [ 12 ]] /on, /7. 849, 852, S54. Non parcatiir ulicni lalroni supra 
 12 unnos «5' supra \2d. quin occidatur.{d) Edmund his 
 successor,* prsecepit ne, infra 15 annos, vel pro latrncinio infra 
 12 d. occidatur, nisifugerit, vel se defcnderit : Malmsbury tells us, 
 that in the time of William I. theft was punished with castration, 
 and loss of eyes;(e) but iu the time, of Henry I. the ancient law, 
 which continues to this day, was t</ 5/(7^/5 in furlo vel latrocinio 
 deprekensus fuerit suspenderetur.{f)[2'\ 
 
 (a) Dig. eod. lit. I. 28. §. 10. (b) Dig. eod. tit. I. 28. §. 15. 
 
 (c) By the laws of Ethclbert, if one man stole any thing from anotlier, he was to restore 
 three fold, besides a fine to the king, l. 9. If he stole any thing from the king, he was to 
 restore nine-fold, Z. 4. - • 
 
 By tlie laws of Ina a thief was punished with death, unless he redeemed his life capitis 
 esthnatione I. 12. which was COs. I. 7. but if a villain, who had been often accused,-should 
 be taken in a theft, he was to have a hand or foot cut off, I. 18. 
 
 By the laws o? Alfred whoever stole a mare with tiie foal, or a cow with the calf, was 
 to pay 40s. besides the price of the mare or' cow, I. 16. Whoever stole any thing out of 
 a church, was to pay the value, and a fine according to the value; and also was to have 
 that hand cut off, which committed the fact, I. 6. If any person committed a tlieft die 
 Dominico, or any other great festival, he was to pay double I, 5. 
 
 {d) By the first law o'i Athelstan it was but Qd, Wilkins leges Anglo-Sax. p. 56. but 
 afterwards by the laws of tiie same king, enacted at London, and thence called judicia 
 civilatis Lundonicc, no one was to be put to death for a theft under 12(/. Ibid. p. 65. But 
 in case the tliief fled, or made resistance, then he might be put to death, .tiiough it were 
 under that value. Ibid. p. 70. By the law of Caute theft was punished with death. Ibid, 
 f. 134. Z. 4. and p. 143. /. Gl. 
 
 (*) Tiiis is a mistake, for no such law is found among the laws of that king, but it is 
 among the later laws o'iV\ng Atlielstnn^Yide Judicia Civ, Land. Wilk. leg. Anglo. Sax. p. 10. 
 
 (e) By tiie laws of William I. it was expressly prohibited, that any should be hanged or 
 pot to death for any offence, but that his eyes should be pulled out, liis testicles, hands 
 or feet cut oiF, according to the degree of his crime, I. Ql.apud Wilkins Leg. Anglo-Sax. 
 p. 229. p. 218. 
 
 (/) In former times, though the punishment of theft was capital, yet the criminal 
 was permiUed to redeem his life by a pecuniary ransom ; but in the Dth year of Hen. I. 
 it was enacted, that whoever was convicted of theft (or any other felony, 3 Co. Insl.it. 53.) 
 should be hanged, and the liberty of redemption was entirely taken away. Wilk. leg. 
 Anglo-Sax. p. 3U4. This law still remains at this day ; but considering the alteration in 
 the value of money, the severity of it is much greater now than then, for \2d. would then 
 purchase as much as 40s. will now ; and yet a theft above the value of 12t/. is still liable 
 to the same punishment; upon whicli Sir Hen. SpeUnan justly observes, that while all 
 things else liave rose in their vulue and grown dearer, the life of man is become much 
 cheaper. SpeUn in vtrbo lariciinu?n ; irom hence that learned author takes occasion to 
 wish, that the ancient tenderness of life were again restored Justum certe est, ut collapsa 
 legis tequitas reslauretur, & ut divinte imaginis vehiculum, cpiod superiores pridem jEtates 
 ob gravissima crimina ncfjuaquam tollerent, levioribus hodie ex delictis non perdcrelur. 
 
 [2] This is no longer the Law of England. Mr. Welsby in his notes to 4th Blac. 
 Comia. Appendix A. gives the following statement of oft'ences, (now 1844,) punishable 
 with death. 
 
 High Treason, at Common Law. 
 
 Murder, 9 Geo. IV. c. 31. s. 3.
 
 HISTORIA PLACITORUM CORONA. 12 
 
 And although many of the scboohxien and canonists are of opinion 
 that death ought not to be inflicted for theft(o-), yet the ne- 
 cessity of the peace and well ordering of the kingdom hath [ 13 ] 
 in all ages and hi almost all countries prevailed against that 
 opinion, and aimexed death as tlie punishment of theft, when the 
 offence hath grown very common and acoom|ianied with enormous 
 circumstances, though in some places more is left herein to the Arbi- 
 trinin Judicis to give the same or a more gentle sentence according 
 to the quality of the offence and ofiender, than is used in England^ 
 where the laws are more determinate, and leave as little as may be 
 to the Jirbilriiim Judicis. See the case disputed learnedly by Co- 
 varruvias Tomo 2. Lib. II. cap. 9. §. 7. 
 
 This I have therefore mentioned, that it may appear, that capital 
 punishments are variously appointed for several offences in all king- 
 doms and states : and there is a necessity it should be so ; for regu- 
 larly the true, or at least, the principal end of punishments is to deter 
 men from the breach of laws, so that they may not offend, and so not 
 suffer at all ; and the inflicting of punishments in most cases is more 
 for example and to prevent evils, than to pimish. When offences 
 grow enormous, freqnent and dangerous to a kingdom or state, de- 
 structive or highly pernicious to civil societies, and to the great inse- 
 curity and danger of the kingdom and its inhabitants, severe punish- 
 ments, even death itself, is necessary to be annexed to laws in many 
 
 {g) Scntus Sentent. 4. distinct 154 qutest. 3. Sylvester in Verba furtum 3. Not only 
 the sclioolmen and canonists were of this opinion, but by what has been above said, it 
 appears likewise to have been the sense botl^of the Jew/sA and Roman laws, and tliough, 
 as our author says, the principal end of punishment is to deter men from offending, yet it 
 will not follow from thence, tliat it is lawful to deter them at any rate, and by any means; 
 for even obedience to just laws may be enforced by unlawful methods. Cic. Epist. 15. 
 ad Brutum. Est prencs modus, sicut rerum reliquarum ; and again, Lib. I. de oJHciis. Est 
 enim ulciscendi S^- puniendi modus. Besides, experience might teach us, that capital 
 punishments do not always best answer that end. See Grot, de jur. bel. &c. Lib. II. cap. 
 20. §. 12. n. 3. 
 
 Administering or causing to be taken poison or other destructive thing with intent to 
 commit murder. 1 Vict.c. 85. s. 2. 
 
 Stabbing, cutting or wounding with intent to commit murder. Id. ibid. 
 
 Causing any bodily injury dangerous to life, with intent to commit murder. Id. ibid. 
 
 Buggery. 9 Geo. IV. c. 31. s. 15. 
 
 Robbery, accompanied with stabbing, cutting or wounding of the person robbed. 1 
 Vict. 0.81. s. 2. 
 
 Piracy, accompanied with an assault with intent to murder any person on board of, or 
 belonging to the ship, or with stabbing, cutting, or wounding of such person, or willi any 
 act whereby the life of such person may be endangered. Id. c. 88. s. 2. 
 
 Burglary, accompanied with an assault with intent to murder, or with stabbing, cutting, 
 wounding, beating or striking any person being in the dwelling hous^e. Id. c. 86. s. 2. 
 
 Maliciously setting fire to a dwelling-house, any person being therein. Id. c. 89. s. 2. 
 
 Maliciously setting fire to, casting away or destroying any ship or vessel with intent to 
 murder any person, or whereby the life of any person shall be endangered. Id. s. 4. 
 
 Exiiibiling any false light or signal witii intent to bring any ship into danger, or 
 maliciously doing any thing tending to the immediate loss or destruction of a ship in dis- 
 tress. Id. s. 5. 
 
 Principals in the second degree, and accessories before the fact 1o the felonies above 
 mentioned, except the offence of buggery, (see 9 Geo. IV. c. 31. s. 31.) are alike punish- 
 able with death. See 9 Geo. IV. c. 31. s. 3. 1 Vict. c. 85. s. 7: c. 86. s. 6; c. 87, s. 9: 
 c. 83, S.4; c. 8J. s. 11.
 
 13 HISTORIA PLACITORUM CORONA. 
 
 cases by the prudence of law-givers, though possibly beyond the sin- 
 gle demerit of the offence itself simply considered. 
 
 Penalties therefore regularly seem to be juris positivi, ^- nnn na- 
 /iira/is,as to their degrees and applications, and therefore in different 
 ages and states have been set higher or lower according to the exi- 
 gence of the state and wisdom of the law-giver. Only in the case of 
 murder there seems to be a justice of retaliation, if not ex 
 r 14 1 lege naturali, yet at least by a general divine law given to 
 all mankind. Gen. ix. 6. And although I do not deny but 
 the supreme king of the world may remit the severity of the punish- 
 ment, as he did to Cain, yea, and his substitutes, sovereign princes, 
 may also defer or remit that punishment, or make a commutation of 
 it upon great and weighty circumstances, yet such instances ought 
 to be very rare, and upon great occasions. 
 
 In other cases, the lex talionis in point of punishments seems to be 
 ■purely juris posilivi ; and although among the Jewish laws we find 
 it instituted, Exod. xxi. 24, 25. "Eye for eye, tooth for tooth, hand 
 for hand, foot for foot, burning for burning, wound for wound, stripe 
 for stripe ;" yet in as much as the party injured is living and capable 
 of another satisfaction of his damage, (which he is not in case of 
 murder,) I have heard men greatly read in the Jewish lawyers and 
 laws afiirm, that these taliones among the Jews were converted into 
 pecuniary rates and estimates to the party injured, so that in penal 
 proceedings the rate or estimate of the loss of an eye, tooth, hand or 
 foot was allowed to the person injured, viz. the price of an eye for 
 an eye, and the price of a hand fot a liand, Ǥ'C.(/i) 
 
 CHAPTER II. 
 
 CONCERNING THE SEVERAL INCAPACITIES OP PERSONS, AND THEIR 
 EXEMPTIONS FROM PENALTIES BY REASON THEREOF. 
 
 Man is naturally endowed with these two great faculties, under- 
 standing and liberty of will, and therefore is a subject properly capa- 
 ble of a law properly so called, and consequently obnoxious to guilt 
 and punishment for the violation of that law, which id respect of 
 these two great faculties he hath a capacity to obey : The consent of 
 
 the will is that, which renders human actions either com- 
 [ 15 ] mendable or culpable ; as where there is no law, there is no 
 
 transgression, so regularly where there is no will to commit 
 an offence, there can be no transgression, or just reason to incur the 
 penalty or sanction of that law instituted for the punishment of crimes 
 or offences. And because the liberty or choice of the will presup- 
 poseth an act of the understanding to know the thing or action chosen 
 by the will, it follows that, where there is a total defect of the under- 
 standing, there is no free act of the will in the choice of things or 
 
 Qi) Maimonides More Nevocliim, Pars. III. cap. 41.
 
 HISTORIA PLACITORUM CORONiE. 15 
 
 actions. Bat general notions or rnles are too extravagant and un- 
 determinate, and cannot be safely in their latitnde applied to all civil 
 actions; and therefore it hath been always the wisdom of states and 
 law-givers to prescribe limits and bounds to these general notions, 
 and to define what persons and actions are exempt from the severity 
 of the general punishments of penal laws in respect of their incapacity 
 or defect of wilj. 
 
 Those incapacities or defects, that the laws, especially the laws of 
 England, take notice of to this purpose, are of three kinds. 
 
 I. Natural. 
 
 II. Accidental. 
 
 III. Civil incapacities or defects. 
 Tfie natural is that of //?/rt?icy. 
 The accidental defects are, 
 
 1. Dementia. 
 
 2. Casualty, or Chance. 
 
 3. Ignorance. 
 The civil defects are, 
 
 1. Civil Subjection. 
 
 2. Compulsion. 
 
 3. Necessity. 
 
 4. Fear. 
 
 Ordinarily none of these do excuse those persons, that are under 
 them, from civil actions to have a pecuniary recompense for injuries 
 done, as trespasses, batteries, tvoundings; because such a re- 
 compense is not by way of penalty, but a satisfaction for [ 16 |] 
 damage done to the party: but in cases of crimes and misde- 
 meanors, where the proceeding against them is ad pce?ia?n, the law 
 in some cases, and under certain temperaments takes notice of these 
 defects, and in respect of them relaxeth or abatelh the severity of their 
 punishments. 
 
 CHAPTER III. 
 
 TOUCHING THE DEFECT OF INFANCY AND NONAGE. 
 
 The laws of England have no dependence upon the civil law, nor 
 are governed by it, but are binding by their own authority ; yet 
 must it be confessed, the civil laws are very wise and well coniposed 
 laws, and such as have been found out and settled by wise princes 
 and law-givers, and obtain much in many other kingdoms so far as 
 they are not altered, abrogated, or corrected by the special laws or 
 customs of those kingdoms, and therefore may be of great use to be 
 known, though they are not to be made the rules of our English 
 laws; and therefore though I shall in some places of this book, and 
 here particularly mention them, yet neither I, nor any else may lay 
 any weight or stress upon them, either for discovery or exposition
 
 16 HISTORIA PLACITORUM CORONA. 
 
 of the laws of England, farther than by the customs of England or 
 Acts of Parliament they are here admitted. 
 
 As to this business touching infancy, and how far they are capable 
 of the guilt or punishment for crimes, I will consider, 1. What the 
 civil laws tell us concerning the same. 2. What the common laws 
 of England have ordained touching it, and wherein these agree, 
 and wherein they differ touching this matter. 
 
 The civil law distinguishes the ages into several periods 
 £ 17 ] as to several purposes. 
 
 First, The complete full age as to matters of contract is 
 according to their law twenty-five years,(a) but according to the law 
 oi England iweniy -owe yeQ.xs.{b) - . 
 
 Seco)idly, Bnt yet before that age, viz. at seventeen years, a man 
 is said to be of full age, to be a procurator,(c) or an executor •,(^/) 
 and with that also our law agrees. 5 Co. Bejj. Pigol's case.(e). 
 
 . Thirdly. As to matrimonial contracts, the full age of consent in 
 males is fourteen years, and of females twelve ;(/) till that age they 
 are said to be impnberes,{g) and are not bound by matrimonial con- 
 tracts ; and with this also our law agrees. (A) 
 
 Fourthly. As to matter of crimes and criminal punishments, espe- 
 cially that of death, they distinguish the ages into these four ranks. 
 
 1. JEtas pubertatis plena. 
 
 2. ,/Etas pubertatis. 
 
 3. JEtas puberlati proxima. 
 
 4. Infantia. 
 
 1. Pubertas plena is eighteen years.(/) 
 
 2. Pubertas generally, in relation to crimes and punish- 
 
 [ 18 ] ments, is the age of fourteen years and not before;(/*?) and it 
 
 seems as to this purpose there is no difference between the 
 
 (ff.) Institut. Lib. I. tit. 2, 3. De Curatoribus. Dig. Lib. IV. tit. 4. de Minoribus, 
 I. 1. Sfc. 
 
 (b) Li'. §. 104. Co. Lit. §. 103. 
 
 (c) Institut. Lib. I. tit. 6. Quibtis ex causis jnanumittere non licet, §. 5. &l 7. Dig. Lib, 
 III. tit 1. De Postulando, I. i. §. 3. At this age it was tiie custom among the Romans to 
 lay aside the habits of children, and put on the garments of men. Val. Max. Lib. 
 V. cup. 4. § 4. Sueton. Avgust. cap. 8. 
 
 (d) See Swinb. of Wills, /jar. V. § 1. n. 6. 
 
 (e) It is quoted in Prince''s case, 5 Co. Rep. 29. b. Office of Executors, p. 307. 
 
 (/) lastit. Lib. 1. tit. 10. de nuptiis pr. Dig. Lib. XXIII. tit. 2. de ritu nuptia- 
 rum, I. 4. 
 
 is) Institut. Lib. I. tit. 22. Quibus modis lutein Jinitur. pr. Dig. Lib. XXVIII. tit. 6. 
 de viilg. Sf pupil, suhstitut. I. 2. Macroh, Saturn. Lib. VII. cap. 7. 
 
 {hj Co. Lit. §. 104. At the same age they were perinitted by the civil law to make a 
 Testament. Diiscst. Lib. XXVIII. lit. 1. Qui testamenla facere possunt, I. 5. Institut. 
 Lib. II. tit. 12. Qiiibus non est permissuni facere testamenlum, §. 1. Cud. Lib. VI. tit. 22. 
 Qui tesiainenta facere possint, vet nol. I. 4. Tlie common law seems not to have deter- 
 mined precisely at what age one may make a testament of a personal estate, it is generally 
 allowed that it may be made at the age of eiglitcen. Office of Executors, p. 305. Co. Lit. 
 8!). b. and some say under, for the common law will not protiibit the spiritual coui;t in 
 such cases. Sir. T/ios. Jones, Rep. 210. 1 Vern. 2,55. 2 Vern. 409. 
 
 (i) Disc. Lib. I. lit. 7. de adoption. I. 40. § 1. Instil, eod tit. § 4, Dig, Lib.XLIl.tit. 1. 
 de re judical. I. 57. Lib. XXXIV. tit. 1. De ulimenlis, I. 14. i,. 1. 
 
 (i) Dig. Lib. XXIX. tit. 5. de Senatusconsulto iSilaniano, ^-c. I. 1. §. 32.
 
 HISTORIA PLACITORUM CORONA. 18 
 
 male and female sex; at this age they are supposed to be doli capaces, 
 and therefore for crimes although capital, committed after this age 
 they shall suffer as persons of full age;(/) only by the constilutions 
 of some kingdoms, in favour of their age, the ordinary punishments 
 were not inflicted upon such young off'enders; as in Spain, not unless 
 he were of the age of seventeen years. Vide Covar. de Matrinio- 
 nio, cap. 5. §. 8.{m) In Relectione ad Clement, cap. Si Furio.'>its.{n) 
 By the ancient law among the Jews, he that was but a day above 
 thirteen years, was, as to criminals adjudged in virili statu, but not 
 if under that age.(t) 
 
 3. JEtas pubertati proxima, herein there is great difference 
 among \he Roman lawyers; and though they make a disparity here- 
 in between males and females, yet I think as to point of crimes the 
 measure is the same for both: Some assign this JEtas pubertati 
 proxima to ten years and a half; others to eleven yeajrs.(o) If they 
 be under the age which they call JEtas pubertati proxima, they are 
 presumed incapaces doli,{p) and therefore regularly not liable to a 
 capital punishment for a capital offence: but this holds not always 
 true; for according to the opinion of very learned civilians, before 
 ten years and a half they may be doli capaces, and therefore it must 
 be left ad arbitrium jndicis upon the circumstances of the case; yet 
 with this caution, Judex, qui ante illam getatem arbitrari debet pue- 
 rum esse proximum pubertati, maximis adducendus est conjecturis, 
 & cautissime id aget, ac tandem raro. Covarr. ubi supra. (q) 
 And with this agrees our law, as shall be showed. But if [ 19 1 
 the offender be in setate pubertati proxima, viz. according 
 to some ten years and a half, according to others eleven years old, 
 he is more easily presumed to be doli capax, and therefore may 
 suffer as another man, unless by great circumstances it appear, that 
 he is incapax doll. But this hath also its temperaments, 1. By ex- 
 press provision of the constitution in Codice de falsa Monetd-: "Im- 
 puberes, si conscii fuerint, nullum sustineant detrimentum, quia setas 
 eorum, quid videat ignorat ;" but a penalty is laid upon the tutor.(r) 
 
 2. Though setas pubertati proxima is regularly presumed Ca;r?«a: 
 doli, and so may be guilty of a capital offence. — Digest Be regulis 
 juris. (s) Pupillum, qui proximus est pubertati, capacem esse 
 fumiidi, yet as it is in arbitriojudicis to judge an infant within ten 
 
 il) Dig. Lib. IV. tif. 4. de mimribus, I. 37. ^. 1. Lib. XLVIII. tit. 5. ad leg. Jul. de 
 adult. I. 36. Cod. Lib. 2. tit. 35. Si adversus delictum. 1. 1. 
 
 (m) Tom. I. p. 157. 
 
 (n) Par. III. §. 5. Tom. I. p. 558. 
 
 (+) Seld. de Synedriis, Lib. II. cap. 13. §. 132. 
 
 (o) Tlie prevailing opinion is, that the males are pubertati proximi at fen and a half^ 
 and the females at nine and a half, because when tliey had passed the middle distance 
 between infancy and puberty, they might then be properly said to be mtatis pubertati 
 proxima. 
 
 (?) Dig. Lib. XLVII. tit. 12. de sepulchro violato, I. 3. §. 1. 
 
 (9) Tom, l.p. 157. (r) Lib. IX. tit. 24. I. 4. 
 
 (s) Lih.'L.tit.ll.l 111, Lift. XXIX. tit. 5. de Senatusconsulto Silaniano.l.U. Lib. 
 yihW. lit. 4. de doli mnli exccptinne, I. 4. §. 26. Instit. Lib. IV. tit. 1. de obligat. qua 
 ex delicto, §. 18. Dig. Lib. XLVIII. tit. 2. defuriis, I. 23.
 
 19 HISTORIA PLACITORUM CORONA. 
 
 years and a half capax doli, as before; so it is in arhilrio judicls 
 upon consideration of circumstance to judge one above ten years 
 and a half, nay of twelve, thirteen years, or but a day within four- 
 teen years, to be incapax doli^ and so privileged from punishment, 
 as appearing upon the circumstances of the fact not yet Qonstitulus 
 in Delate proximd pitbertati, or at least not doli capax; and with this 
 our law doth in a great measure agree. 
 
 3. That if he be above ten years and a half, and appears doIi ca- 
 pax, yet if under fourteen years, he is not to be punished poena oi^di- 
 narld, but it may have some relaxation ex arbilrio jiidicis.{t) But 
 although our law indulges a power to the judge to reprieve before 
 or after judgment an infant convict of a capital offence in order to 
 the King's pardon, yet it allows no arbitrary power to the judge to 
 change the piniishment that the law inflicts; and thus far for the 
 third age or period, JEtas piiberlali proxima. 
 
 4. The fourth age or period is infantia, which lasts till seven 
 years; within this age there can be no guilt of a capital offence; the 
 infant may be chastised by his parents or tutors, but cannot be capi- 
 tally punished, because he cannot be guilty;(7/) and if 
 
 [] 20 ] indicted for such an oftence as is in its nature capital, he 
 must be acquitted ; and therefore the severity of the gloss 
 upon the decretal De delictis puerorum, cap. \.{x) is justly rejected 
 in this case \[y) and with this agrees the law of England. 
 
 But now let us consider the laws of England more particularly 
 touching the privilege of infancy in relation to crimes and their 
 punishments, and that in relation to two kinds of crimes, 1. Such as 
 are not capital. 2. Such as are capital. 
 
 First, As to misdemeanors and offences that are not capital: in. 
 some cases an infant is privileged by his non-age, and herein the pri- 
 vilege is all one, whether he be above the age of fourteen years or 
 under, -if he be under one and twenty years; but yet with these dif- 
 ferences : 
 
 If an infant under the age of twenty-one years be indicted of any 
 misdemeanor, as a riot or battery, he shall not be privileged barely 
 by reason that he is under twenty-one years,[l] but if he be con- 
 victed thereof by due trial, he shall be fined and imprisoned ; and the 
 reason is, because upon his trial the court ex ojficio ought to consider 
 and examine the circumstances of the fact, whether he was doli 
 capax, and had discretion to do the act wherewith he is charged ; 
 and the same law is of a femme covert. 2. But if the oflence 
 charged by the indictment be a mere non-feasance, (unless it be of 
 such a thing as he is bound to by reason of tenure, or the like as to 
 repair a bridge, <5*c.)(c) there in some cases he shall be privileged by 
 
 (0 Dig- Lib. IV. t')t. 4. de minorilnis, I. 37. §. In delictis, 
 
 (u) iJifT. Lib. XLVII. tit. 2. de furtis, I. 23. Ld,. XLVIII. tit. 8. ad les;. Cornel, de 
 aicariis l. 12. {x) Decretal. Lib. \. til. 23. (y) 3b/n. l.p. 157. 
 
 (2) 2 Co. Inst. 70.3. 
 
 [1] See 4 Dl. Com. 23. 1 Huss. on Crimes 2. Co. Litt. 274. b.
 
 IIISTORIA PLACITORUM CORON^E. 20 
 
 his nonage, if under twenty one, though above fourteen years, 
 because Lnches in such a case shall no.t be imputed to him.(Q) 
 
 36 E. 3. Jlssis. 443. 4 //. T. 11. b. If an infant in Assise vouch a 
 record, and fail at the day, he shall not be imprisoned, (6) nor it seems 
 di feme covert. 13 Assis. l.(c) and yet the statute of IVestminst. 2. 
 cap. 25. that gives imprisonment in such a case, is general. 
 
 8 E. 2. Corone 395. l( A. kills B. and C. S,- D. are pre- 
 sent, and do not attach(r/) the offender, they shall be fined [ 21 ] 
 or imprisoned; yet if C. were within the age of twenty-one 
 years, he shall not be fined nor imprisoned. 
 
 3. Where the corporal punishment is but collateral, and not the 
 direct intention of the proceeding against the infant for his misde- 
 meanor, there, in many cases, the infant uiider the age of twenty- 
 one shall be spared, though possibly the punishment be enacted by 
 parliament. 14 Jiss. 17.(e) If an infant of the age of eighteen be 
 convict of a disseisin with force, yet he shall not be imprisoned. 
 Vide 26 Ass. 9. 43 E. 3. Imprisonment 16. 40 E. 3. 44. a.{f) and 
 yet a feme covert shall be imprisoned in such case. 16 Ass. 7. 
 
 If an infant be convict in an action of trespass vi <§• armis, the 
 entry must be nihil de fine, sed pardonatnr, quia infans ; for if a 
 cupiatur be entered against him, it is error, for it appears judicially 
 to the court, that he was within age when he appears by guardian. 
 P. 8. Jac. B. R. Holbrooke v. Dogley, Croke, n.'3.;{g) the like law 
 is that he shall not be in misericordia pro fa/so clamore.(h) 
 
 B. Coverture 68. General statutes that give corporal punishment 
 are not to extend to infants, and therefore Fl. Com. 364, a per 
 Walsh, if an infant be convict in ravishment of ward, he shall not be 
 imprisoned, though the statute of I\ferto7i cap. 6. be general in that 
 case:(/) but this nmst be understood where it is, as before said, a 
 punishment as it were collateral to the offence, as in the cases before- 
 mentioned : but where a fact is made felony or treason, 
 it extends as well to infants, if above fourteen years,(/t) as [ 22 ]] 
 to others, as shall be said. And this appears by several 
 acts of parliament, and particularly by I Jac. cap. 11. of felony for 
 marrying two wives, &c. where there is a special exception of mar- 
 riages within the age. of consent, which in females is twelve, in males 
 
 (a) B. Saver default, 50. Cro. Juc. 465, 466. PI. Com. 364. a. Co. Lit. 246. 6. 
 
 (6) 2 Co. liisti't. 414. (c) B. Coverture 35. Resceit 87. 
 
 {d) The words of the book are ne leve le main d^attach. (e) F. Imprisonment 8. 
 
 _ (/) " Et le cause est, pur ceo que la ley eiitend', que un enfant ne poit my conustr' 
 bien &, mal' ne le quel foil advant.iije pour luy, ou neiny ; ne nul foly serra adjudge ea 
 un enfant." Mes. 12. H. 4. 22. b. Hank, dit que enfant d'age de 18 ans poit estre dissei- 
 sor ove-force & estre emprison per cella. {g) Cro. Jac. 274. 
 
 (/') Co. Lit. 127. a. yet this was not a settled point, for 2. E. 3. 5. tiie court doubted 
 of it; and in 17 E. 3, 75. 6. and 41 Assis. 14. the plaintiffs, though infants, were amerced 
 pro falso clamore; but though tiiey were amerced, yet it appears from the same cases 
 that ihey were entitled on account of tlieir infancy to a pardon of course. See 1 R. A. 
 214. 
 
 (i) Anotlier like case is there put, if an infant be a receiver and account before audi- 
 tors, and be found in arrears, the auditors cannot commit him to prison notwithstanding 
 the general words of the statute of W. 2. cap. 11. 
 
 {k) Co. Lit. 247. 6. 
 VOL. I. — 3
 
 22 HISTORIA PLACITORUM C0R0NJ5:. 
 
 fourteen years; so that if the marriage were above the age of con- 
 sent, though within the age of twenty-one )^ears, it is not exempted 
 from the penalty. 
 
 So by the statnte of 21 H. S. cap. 7. concerning felony by servants 
 thai embezzle their Tnasler^s goods delivered to them, there is a spe- 
 cial proviso, that it shall not extend to servants under the age of 
 eighteen years, who certainly liad been within the penalty, if above 
 the age of discretion, viz. fonrteen years, though under eighteen 
 years, unless a special provision had been to exclude them.(/) 
 
 I come therefore to consider the privilege of infancy in cases of 
 capital offences and punishments according to the laws oi England, 
 wherein I shall examine, 1. How the ancient law stood. 2. How it 
 stands at this day in relation to infants. 
 
 I, As to the ancient law: 
 
 1. By what has been before said it appears that the Civil law was 
 very uncertain in defining what was tliat setas pubertati proxima, 
 and consequently such as might subject the offender to capital guilt 
 or punishment; some taking it to be ten years and a half, some 
 eleven years, others more, others less. The laws of Engtund there- 
 fore, that always aflect certainty, determined anciently the setas 
 pubertati proxima to be twelve years for both sexes; under that 
 age none could be regularly guilty of a capital offeuce, and above 
 that age and under fonrteen years, he might or might not be guilty 
 according to the circumstances of the fact that might induce the 
 court and jury to judge liim doli capux, vel incapax.{m) 
 
 This appears by the laws of king Jithelstan mentioned 
 r 23 1 in the first chapter, " Non parcatur alicui latroni super 12 
 annos & supra 12 d. quin occidotur.'-' And although his 
 successor Edmund{n) reduced it to fifteen years, unless he fled, yet 
 it will appear that the standard of twelve years obtained in after 
 ages.(o) 
 
 2. It appears that an infant of twelve years was compellable to 
 take the oath of allegiance in the leet, and under that age none were 
 to take the oalh, or to do suit to the leet. Bract. Lib. \\\.{p) cap. 
 
 (/) The like exception there is in tlie 12 Ann. cap. 7. where apprentices under the age 
 of fiflren years, who t-liall rob their masters, are excepted out of the act. 
 
 (?«) By the laws of Ina, I. 7. an infant of ten years of age might be guilty of being 
 accessary to a thcfl, and was punished accordingly with servitude. \Mlk. Leg. Anglo- 
 Sax, p. 1 6. ■ , 
 
 (7j) This is a mistake, for it was not Edmund but king Alhiislan himself, who think- 
 ing it a piliable case tluit a youth but twelve years old should be put to death, as was 
 permitted by the former l.iw, changed tlic time from twelve years to rifteen, and ordered 
 that none who was but fifteen years of age should be put to death, unless he resisted or 
 fled; if he surrendered himself, hu was only to be imprisoned until some of his rela- 
 tions or friends would become security for him jiixia pleufi7)i capitis (Estimationein, ut 
 semper uli unini malu ahslineal : if he could not get any such security, then lie was to 
 take an o:ith,to tiie same purpose in such manner as the liisliop sliould direct him, and 
 was to rcinain in servitutc pro capitis siii astiuialionc ; but if alter this he should be 
 again guilty then he was to be put to death without any regard to his age. Sec WHk. 
 Lrpes An:jlo-Siix. p.lO. 
 
 (o) In tl:c time of king Henry I. the old ^w of king Athehtan took place, viz. twelve 
 years of ago, and 8c/, valiiC. I.id.p.2o'J. 
 
 {p) Dc Corona. ; " . .
 
 HISTORIA PLACITORUM CORON.^. 23 
 
 l.{q) Britton, cap. 29, in Jine, Calvin's case, 7 Co. Ecp. 6. h. So 
 that at that age, and not before, he was taken notice of by the law 
 to be under the obligation of an oath, and consequently capable of 
 discretion. 
 
 3. The ordinary process against capital offenders was and is by 
 Capias and Exii^enl, aiid Vtlary thereui)on; but against an infant 
 under twelve, process of iitlary in cases of indictment was not 
 awardable, and if awarded, it was error: but if above that age, that 
 process was awardable; and Bract. Lib. Ill.(r) cap. 11, sect. 4 «5* 
 5. gives the reason, "Elinor vero, qui infra astatetn 12 annorum 
 fiicrit utlegari non debet, quia ante talem setatem non est sub lege 
 alitjua nee in decenna ;" and ibidem cap. 10 sext. 1, he mentions an 
 old law of k\\\2, EdLvard,{s) "Omnis, qui aitatis 12 annorum fuerit, 
 facere debet sacramentum in visd franciplegii, quod nee latro 
 
 vult esse, nee latroni consentire;" and .Stamf. Lib. I. cap. [] 24 ] 
 19, cites out of a book of Bracton, De Visit Franci plegii, 
 "Quod quilibetduodecini annorum potest felonise judicium sustinere," 
 which implies also that within that age, regularly at least, he could 
 not be a felon, 
 
 4. Again, T. 32. E. I. Hot. 32. " Eboracum, coram rege, Adam 
 filins Adae de Arnhale captus noctanter in domo Johannis Somere 
 coram rege ductus cognovit, quod furtive cepit, &c.- 9s. per preceptum 
 & missionem Richardi Short :" Richard Short had his clergy, '■' Et 
 prasdictus Adam commissus fuit custodiae mariscalli custodiend', quia 
 infra aetaten); postea habito respectu ad imprisonamentum, quod 
 praedictus Adam habuit, & etiam ad teneram a^tatem ejusdem Adas, 
 60 quod non est nisi ajtatis 12 annorum, qui talis setaiis judicium 
 ferre non potest, ideo de gratia regis deliberetur, &c," Upon this 
 record these things are observable, viz. 1. The court recorded his 
 confession; but regularly that ought not to be, for if an infant under 
 the age of twenty-one shall confess an indictment, the court in jus- 
 tice ought not to record the confession, but put him to plead not 
 guilty, or at least ought also to have inquired by an inquest of office 
 of tlie truth and circumstances of the fact, 2. That liere he was 
 twelve years old, and yet judgment s[)ared,- and the reason given,- 
 (^ui talis setaiis judicium ferre non potest. Yet 3. There is some- 
 what still of gratia regis interposed, as it seems, in respect he was 
 past the old standard of twelve years. 
 
 U. But now let us come to the Common law as it stood in after- 
 
 {q) This seems to be a mistake, for cap. 11. sert. 4. for the oath mentioned in cap. 1. 
 wiis to be taken by knights and others of the age of fifteen years and upwards. 
 
 (r) De Corona. 
 
 ((••J There is no such law extant among those of king Edward, biit the law here 
 quoted is a law of Cnute, Leg. Cnuti, I. 1!J. which is in tlicse words, Vuliimus ut quiU. 
 Let homo \2 annos iiatus jiisjurandum prceslet se nol'.e fiirem esse neque furi consenta- 
 nenm, which oath is to the same purpose witli tliat mentioned by Brnclon, Lib. iii. de 
 corona, Clip. 1. to l)e taken at the age of fifteen ; and though there be a difiVrcncc as to 
 the age, yet probably it is tlie same oath, for it is very easj' and natural to mistake xii 
 for XV. See the statute of Marlliridrre, cap. 10. i^- 25. and lord Coke's comment thereon, 
 2 Instil. ,141. where he takes notice that the old books are misprinted. See also 2 InstiU 
 72. Mirror, cap, 1, §. 3. Britlon, cup. 12.
 
 24 HISTORIA PLACITORUM CORONA. 
 
 times; for in process of time, especially in and after the reign of king 
 Edwitrd III. the Common law received a greater perfection, not by 
 the change of the Common law, as some have thought, for that could 
 not be but by act of parliament ; but men grew to greater. learning, 
 
 judgment and experience, and rectified the mistakes of for- 
 j^ 25 3 mer ages and judgments, and the law in relation to infants 
 
 and their punishments for capital offences was and to this 
 day is as foUoweth. 
 
 1. It is clear that an infant above fourteen and under twenty-one 
 ia equally subject to capital punishments, as well as others of full 
 age ; for it is prsesumplio jin^is, that after fourteen years they are 
 doli capaces, and can discern between good and evil ; and if the law 
 should not animadvert upon such offenders by reason of their nonage, 
 the kingdom would come to confusion. Experience makes us know 
 that every day murders, bloodsheds, burglaries, larcenies, burning of 
 houses, rapes, clipping and counterfeiting of money, are committed by 
 3'ouths above fourteen and under twenty-one; and if they should 
 have impunity by the privilege of such their minority, no man's life 
 or estate could be safe.(/) In my remembrance at Thetfurd a young 
 lad of sixteen years old was convict for successive wilful burning of 
 three dwelling houses, and in the last of them burning a child to 
 death, and yet had carried the matter so subtilly,that by a false accu- 
 sation of another person for burning the first house an innocent per- 
 spn was brought in danger, if it had not been strangely discovered: 
 he had judgment to die, and was accordingly executed. (?/) 
 
 Fourteen years of age therefore is the common standard, at which 
 age both males and females are by the law obnoxious to capital 
 punishments for offences committed by them at any time after that 
 age; and with this agrees Fltz. N. B. 202. b.{x) Co. Lilt. § 405.(^) 
 VideMw Dallon^s Justice of Peace, cup. 95. and 104.(z) 
 
 2. An infant under the age of fourteen years and above 
 r 26 ]] the age of twelve years is not prima facie presumed to be 
 
 doli capax, and therefore regularly for a capital offence 
 committed under fourteen years he is not to be convicted or have 
 judgment as a felon, but may be found not guilty. [2] 
 
 {t) Our aulhor'.s arg-umcnt concludes very strongly against tlicir escajjingf with unpu. 
 nity, hut loses much of its force when urged in behalf of capital punishments, for there 
 is no necessity that if they be not capitally punisliedtiiey must therefore go unpunished; 
 80 that whatever severity may be needful in cases of murders and aets'of violence, yet in 
 tlie common instances of larceny and stealing, some other punisiiment might be found, 
 which niiglit leave room for tlic reformation of young offenders. 
 
 ((/■) At Abingdon assizes, l'\li. 23, lG2i), before \\'hitlock justice, one John Dean, an 
 infant, between ciglit and nine years, was indicted, arraigned, and found guilty of burn- 
 ing two barns in the town of Windsor ; and it ajipcaring ujjon exaiiiinatiim that he )iad 
 malice, revenge, craft, and cunning, he had judgment to lje lianged, and was hanged 
 accordingly. MS. Report. 
 
 (x) N. Edit. p. 450. (y) ;j. 247. b. 
 
 {z) 'J'he first edition, but in the last edition, cap. 147 and 157. 
 
 [2] " By the ancient Saxon law, tiie age of twelve years was estabhshcd for the ago 
 of possible discretion when first the understanding might o|K'n; and from thence until 
 the offender was fourteen, it was wtas pubertuti proxima, in whith he miglit or might
 
 HISTORIA PLACITORUM CORON.^. 26 
 
 But {hou2;h prima facie and in common presumption this be true, 
 y€t if it appear to the court and jury that he was f/oii capax, and 
 could discern between good and evil at the time of the offence com- 
 mitted, he may be convicted and undergo judgment and execution 
 
 not be guilty of a crime, according- to his natural capacity or incapacity. Ttiis was the 
 dubious stage of discretion ; but under twelve it was held that he could not be guilty ia 
 will, neitlier after fourteen could be supposed to be innocent, of any capital crime which 
 he in fact committed. By the law as it now stands, and has stood at least since the time 
 of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much mea- 
 surcd by years and days, as by the strength of the delinquent's understanding and judg- 
 ment. For one lad of eleven )'ears old may have as much cunning as another of four- 
 teen, and in these cases our maxim is, ' malitia supple.l (Btatem.'' Under seven years of 
 age, indeed, an infiint cannot be guilty of felony, for then a felonious discretion is almost 
 an impossibility in nature; but at eight years old he may be guilty of felony. Also 
 under fourteen, though an infant, shall be prima facie adjudged to be doli incapnx; yet 
 if it appear to tlie court and jury that he was doli capax, and could discern between good 
 and evil, he may be convicted and sutler death." 4 Stephen's Comrn. 75, 76. 4 Black. 
 Cowm. 23. 2 Stephen's Comrn. 331, 332. Land. Ed, 
 
 The case cited by Blachslone from Foster, 70, is Yorke's case, and is deemed an im- 
 portant one by Sir William Russell, (I Russ. on Crimes, 4.) It was this. At Bury 
 Summer Assizes, 1748, Williarn Yorke, a boy of ten years of age, was convicted before 
 Lord Chief Justice lV?7/?s for the murder of a girl, of about five years of age, and 
 received sentence of death ; but the Chief Justice out of regard to the tender years of 
 the prisoner, respited execution till he should liave an opportunity of taking the opinion 
 of the rest of the judges whether it was proper to execute him or not upon the special 
 circumstances of the case; on which he reported to the judges at SergeanVs Inn in 
 Miciiaclmas Term following. The boy and girl were parish children, put under the care 
 of a parishioner at whose house they were lodged and maintained; on the day the mur- 
 der happened, tlic man of the house and his wife went out to their work early in the 
 morning, and left the children in bed together: when they returned from work, the 
 girl was missing, and the boy being asked what was become of her, answered that he 
 had helped her up and put on her clothes, and that she had gone he knew not whither. 
 Upon this, strict search was made in the ditches and pools of water near the house, from 
 an apprehension that the child might have fallen into the water. During this search, 
 the man under whose care the children were, observed that a heap of dung near the 
 liouse had been newly turned up, and upon removing the upper part of the heap, he found 
 the body of the child about a foot's depth under the surface, cut and mangled in a most 
 barbarous and horrid manner. Upon this discovery, the boyj who was the only person 
 capable of committing the fact, that was left at home with the child, was charged with 
 the fact, which he stiffly denied. When the coroner's jury met, the boy vvas again 
 charged, but persisted still to deny the fact. At length being closely interrogated, he 
 fell to crying, and said he would tell the whole truth. He then said that the child had 
 been used to foul lierself in bed; that she did so that morning, (which was not true, for 
 the bed was searched and found to be clean,) that thereupon he took her out of bed and 
 carried her to the dung heap, and with a large knife which he found about the house, 
 cut her in the manner the body appeared to be mangled, and buried her in the dung heap, 
 placing the dung and straw that was bloody under the body, and covering it up with 
 what was clean ; and having so done, he got water and washed himself as clean as he 
 could. The boy was the next morning carried before a neighbouring justice of the 
 peace, before whom he repealed his confession, with all the circumstances lie had related 
 to the coroner and his jury. 'I'he justice of the peace very prudently deferred proceeding 
 to a commitment until the boy should have an opportunity of recollecting himself. Ac- 
 cordingly he warned him of the danger he was in if he should be thougiit guilty of the 
 fact he stood charged with, and admonished him not to wrong himself, and then ordered 
 him into a room where none of the crowd that attended should have access to him. 
 \Vhen the boy had, been some hours in this room, where victuals and drink were pfo- 
 vided for him, he was brought a second time before the justice, and then he repeated his 
 former confession, upon which he was committed to jail. On the trial, evidence was 
 gi^n of the declarations before mentioned to have been made lx;fore the coroner and his 
 jii^, and before the justice of the peace; and of many declarations to the same purpose
 
 26 HISTORIA PLACITORUM CORONA. 
 
 of death, though he hath not attained annum pnberfatis, viz. four- 
 teen years; though according to the nature of the oflence aird cir- 
 cumstances of the case the judge may or may not in discretion 
 reprieve him before or after judgment, in order to the obtaining the 
 
 wliich the boy made to other people after he came to jail, and even down to -the day of 
 his trial: for he constantly told the same story in substance, commonly adding that the 
 devil put him upon committing the foot. Upon this evidence, with some other circum- 
 stances tending; to corroborate tlie confessions, he was convicted. 
 
 U|ion this report of {he Chief Justice, the judges, having taken time to consider of, it, 
 unanimously agreed, 1. Tliat the declarations stated in the report were evidence proper 
 to be left to the jury. 2. That supposing the boy to have been guilty of this fact, there 
 were so many circumstances stated in the report which were undoubtedly tokens of 
 what Lord Hale calls mischievous discretion, that he was certainly a proper subject for 
 capital punishment, and ought to sutTer ; for it would be of very dangerous consequence 
 to have it thought that children may commit such atrocious crimes with impunity. 
 That there are many crimes of the most heinous nature, such as (in the present case) 
 the murder of young children, poisoning parents or masters, burning houses, &e., which 
 children are very capable of committing, and, which they may in some circumstances be 
 under strong temptations to commit; and therefore, though the taking away the life of 
 a boy often years old might savour of cruelty, yet, as the example of that boy's punish- 
 ment mjght be a means of deterring other children from the like offences, and as the 
 sparing the boy, merely on account of his age, woidd probably have a quite*contrary 
 tendency; in justice to the public, the law ought to take its course, unless there re- 
 mained any doubt touching his guilt. In this general principle, all the judges concurred ; 
 but two or three of them, out ot great tenderness and caution, advised the Chief Justice 
 to send another reprieve lor the prisoner, suggesting tliat it might possibly appear, on 
 further inquiry, that the boy had taken this matter upon himself at the instigation of 
 some person or other who hoped by this artifice to screen the real offender from justice. 
 
 Accordingly the Chief Justice granted one or two more reprieves; and desired the jus- 
 tice of the peace who took the boy's examination, and also some other persons in whose 
 prudence he could confide, to make the strictest inquiry they could into the affair and' 
 report to him. At length he, receiving no farther light, determined to send no more 
 reprieves, and to leave the prisoner to tlie justice of the law at the expiration of the last : 
 but, before the expiration of that reprieve, execution vi^as respited till further order, by 
 warrant from one of the secretaries of state: and at the Summer Assizes, 1757, the pri- 
 soner had the benefit of His Majesty's pardon, upon condition of liis entering imme- 
 diately into the sea service. Yorkers Case. Fost. li. 70. 
 
 Two remarkable cases of commission of the crime of murder by boys under fourteen 
 years of age, have occurred in New Jersey. In^ April, 1818, Aaron, (a coloured boy,) 
 was tried tor the murder of a child, StejJien Condlij, little more than two years old, by 
 throwing him over the curb into a well. The whole material testimony in the case was 
 a confession made by the boy. The Chief Justice, {Kirkpatrick,) in the course of liis 
 opinion, holds the following language: " With respect to the liability of infants to punish- 
 ment, and to the giving of their confessions in evidence against them, much might be 
 said, and ought to be said with great caution. It is periijctly settled, that an infant 
 within the age of seven years cannot be punished for any capital offence, whatever cir-- 
 cumstances of mischievous intention may be proved against him, for by the presumption 
 of law, he cannot have discretion to discern between good and evil, and against this 
 ' jjrcsumption no averment can be admitted. It is perfectly settled also, that between the 
 age of seven and the ago of fourteen years, the infant shall be presumed to be incapable 
 ot' committing crime upon the same principle, the presumption being very strong at 
 seven, and decreasing with the progress of' his years; but then this prcsu)n[)tion, in this 
 case, may be encountered by proof; and if it shall appear by stronir and irretiistiljle evi- 
 dence that he had sufficient discernment to distinguish good from evil, to comprehend 
 the nature and consequences of his acts, he may be convicted and have judgment of 
 death." The Slate v. Aaron, I South. R. 231. 238. 247. Mr. Justice SoiiiharJ, in the 
 same case, holds,much the same language. "The distinctions which have been taken 
 in the books, as to age, when crimes may be eoinmitted. and the criminal punished, are 
 in no ineonsidiu'ablc degree arbitrary. The great subject of iixpiiry in all cases ou'rht 
 to be, the legal capacity of the prisoner; and this is found in some much earlier flRn
 
 IIISTORIA PLACITORUM CORONA. 26 
 
 kins's pardon. 12 .^.vv. 30. Coroiie 118 8^- 170. t.^lice de Waldho- 
 rnui^h of the age of tliirteen years was burnt by judgment for killing 
 her mistress; and it is there said, that by the ancient law none shall 
 be hanged within age which is intended the age of discretion, viz. 
 
 others. The real value of the distinetions, is, to fix the part}', upon whom this capacity 
 lies. There is, indeed, an age so tender, tiiat the nature and consequences of acts can- 
 not be comprehended, and every uncorrupted feeling of the heart, as well as every moral 
 and Icjfal principle forbids punishment. 13ut after we pass tliis age and progress towards 
 maturity, there have been periods settled, which ascertain the presumption of law, as to 
 the existence of tiiis capacity. If under fourteen, especially under twelve years, the law 
 presumes that it does not exist, and if the Slate seek to punish, it must conclusively estab- 
 lish it. If above the age of fourteen, the law presumes its existence, and if the accused 
 would seek to avoid punishment, he must overcome that presumption by suflicicnt evi- 
 dence. But wherever the capacity is established, either by this presumption of law or 
 the testimony of witnesses, punishment always follows the infraction of the law. If the 
 intelligence to apprehend the consequences of acts; to reason upon duty, to distinguish 
 between right and wrongj if the consciousness of guilt and innocence be clearly mani- 
 fested, then this capacity is shown ; in the language of the books, the accused is capax 
 (loli, and "as a rational and moral agent must abide the results of his own conduct." Id. 
 245, 246. The prisoner, in this case, was ten years and ten months old. From the 
 printed report it only appears that a new trial was granted; but the Editor has been 
 informed by one of the counsel for the defendant, that the prisoner was acquitted by the 
 jury on the second trial. 
 
 In 1828, J«mcs Guild, a coloured boy, of the age of twelve years and- five months, was 
 indicted for the murder of Catharine Be-jkes, and found guilty. On a motion for a new 
 trial made to the Court of Oyer and Terminer, the Supreme Court in an advisory opinion, 
 held themselves bound to advise the Court of Oyer and Terminer not to grant a new 
 trial, but to proceed to discharge their duty by pronouncing the sentence of the 
 law on the crime of murder. After an elaborate examination of the authorities, the 
 then Chief Justice (Ewing,) re-iteraied the ojjinions of Chief Justice Kirkpairick, 
 and Mr. Justice Southard, in The State v. Aaron, cited supra. "The age of the pri- 
 soner was earnestly pressed on our consideration by his counsel, who strenuously 
 insi-tcd he was too young to be exposed to punishment on such evidence, (his own con- 
 fession.) At the perpetration of the oiFcnce he was aged twelve years and somewhat 
 more than five months. The sound, sensible, and legal rule on this head is, in our 
 opinion, judiciously as well as lucidly stated by Justice Southard in the case oi' Aaron, 
 (supra.) In Leaclis edition of Hawkins, B. I. c 1, page 1, in note, it is said, "from the 
 supposed imbecility of mind, the protective humanity of the law, will not, without anxi- 
 ous circumspection, permit an infant to be convicted on his own confession. Yet if it 
 appear by strong and pregnant evidence and circumstances, that he was perfectly con- 
 sciiius of the nature and malignity of the crime, the verdict of a jury may find him g^uilty, 
 and judgment of death be given against him." The Slate v. Guild, 5 Halst, R. 189. 
 
 1 Gveenl. on Ev. § 217. 219. 221. 222. 223. 
 
 If a child more than seven and under fourteen years of age, is indicted for felony, it 
 will be left to the jury to say whether the offence was committed by the prisoner, and, if 
 so, whether at the time of the offence, the prisoner had a guilty knowledge that he or 
 6h& was doing wrong. The presumption of law is, that a child of that age has not such 
 guiliy knowledge, unless the contrary be proved by the evidence. Rex v. Owen, 4 Carr. 
 S( Pay. iJ.236, per Littledale, J. See Rex v. Gronmrid^e, 7 Carr. 4- Pay. R. 582, per 
 Gasclee, J. BcH on Presump. 22, citing a MS. Report of the S. C. 2 M. C. C. R. 122. 
 S. C. 1 Gree.nL on Ev. § 28. The People v. Davis, 1 Wheeler's Crim. Cas. 2.30. The 
 People V. Teller, 1 /</. 231 , & note. Com. v. Lani^an, 2 Boston Law Rep. 49, per Tha'cher, 
 J. Wharton's Am. Crim. Law, 17. 19. CaSe of Moses Chapman Elliot, 4 Boston Law 
 Rep. 32'J. Com. V. Freud), Thatcher's Crim. Cas. 103. Burn's Just. tit. Children, 29, 
 cd. by Chitti/ Sf Bere. Com. v. Ktairy, \ Ashmead R. 256, per Krn<r, fres. Ward v. 
 TheCom.3Lei;^h.R.li3. 
 
 In Massrichusctts it has been decided that an infant under the age of fourteen years, 
 may be indicted for an assault with intent to commit a rape. Commonwealth v. Green, 
 
 2 lick. 380. This case conflicts with Reg. v. Vhil'ip^, 8 Car. ^ P. 736, in which it was
 
 26 HISTORIA PLACITORUM CORONA. 
 
 fourteen years; but before Spigiirnel an infant within age(«) that 
 had killed his companion, and hid himself (.se miicha) was presently- 
 hanged; for it appeared hj h'\5 mucking he could discern between 
 good and evil, and malitia svpplet xtatem. 
 
 25 E. 3. 85. Corone 129. One within age was found guilty of 
 larceny, and by reason of his nonage judgment was respited, but 
 afterwards he was brought to the bar and had his judgment; though 
 this book be generally one ivilhin age, it must be intended within 
 the age of discretion, viz. fourteen years, for it was never made a 
 doubt, whether if above that age he might not have judgment. 
 
 3. But yet farther, if an infant be above seven years old, and under 
 twelve years, (which according to the ancient law was JEtas puber- 
 tati proxima,^u(!i commit a felony, in this case prima facie he is to 
 be judged not guilty, and to be found so, because he is supposed not 
 of discretion to judge between good and evil ;(6) yet even in that 
 case if it appear by strong and pregnant evidence and circum- 
 [ 27 ] stances, that he had discretion to judge between good and 
 evil, judgment of death may be given against him. 3H.1. 1. 
 b. <5' 12. b. An infant of the age of nine years killed an infant of the 
 like age; he confessed the felony, and upon examination it was 
 found he hid the blood and the body; the justices held he ought to 
 be hanged. (c) 
 
 But in cases of this nature, 1. It is necessary that very strong and 
 pregnant evidence ought to be to convict one of that age, and to 
 make it appear he understood what he did; for if the law require 
 such an evidence where the offender is above twelve, and under 
 fourteen, much more if he were under twelve at the time of the fact 
 committed. 2. The circumstances must be inquired of by the jury, 
 and the infant is not to be convicted, upon his confession. 3. It is 
 prudence in such a case even after conviction to respite judgment, or 
 at least execution ;((/) but yet I do not see how the judge can dis- 
 charge him if he be convict, but only reprieve him from judgment, 
 and leave him in custody till the king's pleasure be known. 
 
 And therefore the book of 35 H. 6. 11. <5' 12. per Moyle Sf Billing, 
 " That though a jury should find such an infant guilty, the court 
 ex officio must discharge him,^^ must be understood either ^^5/ only 
 of a reprieve before judgment, or secondly at least, that the jury find 
 
 (a) Ten years old, according to FilzherberCs Report Corone 118. 
 
 \b) B. Corone 13.'i. 
 
 (r) But liowcvcr they respited tlic execution tliat lie miglit get qi pardon. F. Corone bl, 
 B. Corone I'.iS. Dallon says that an infant ofcijrht years of age may commit homicide, 
 and siiali be iianged for it. See Dalluris Justice, cap. 147. 
 
 {(1) Dalt. Justice, p. 505. 
 
 held, (Palteson, J.) that a boy wiio at the time of the commission! of the offence of rape, 
 vias under fourteen years of age^ could not, in |)oint of law, be guilty of an assault with 
 intent to commit a rape; and if he was under tliat age no evidence is admissible to 
 fihow tli:it, in point of fact, he could commit the ollince of rape. See also to the same 
 clfirt, Iti(rina v. Jordan, 'J Car. ^^• I'. IIH. Jieiiinu v. Brbniloio, 9 Car. ^ P. 366. 
 Under the iStatute, 1 Xict, c. 85, s. 11, he might be convicted of an assault.
 
 HISTORIA PLACITORUM CORONA. 27 
 
 the fact, and that lie was either within the age of infancy, viz. seven 
 years old, or that he did the fact, but was under fourteen, and not of 
 discretion to judge between good and evil; in which case the court 
 ex officio ought to discharge him. because it is not felony. 
 
 4. And lastly, If an infant within age be infra setatem infantisCj 
 viz. seven years old, he cannot be guilty of felony,(c) what- 
 ever circumstances proving discretion may appear; for ea? [ 2S ] 
 prcsumptione juris he cannot have discretion, (/) and no 
 averment shall be received against that presumption: and aUhough 
 tlie laws of England, as well as the Civil and Canon law, assign a 
 difference between males and females as to their age of consent to 
 marriage, viz. fourteen to the male, twelve to the female; yet it 
 seems to me, that as to njatters of crimes, especially in relation to 
 capital punishments, the females have the same privilege of nonage 
 as ihe males; and therefore the regular JEtas piibertatis'm reference 
 to capital crimes and punishments of both is fourteen years, with 
 those various temperaments and exceptions above assigned. 
 
 And it is to be observed, that in all cases of infancy, insanity, <5'C. if a 
 person uncapable to commit a felony he indicted by the grand inquest, 
 and thereupon arraigned, the petit jury may either find him generally 
 not guilty, or they may find the matter specially, that he committed 
 the fact, but that he was non compos, or that he was under the age 
 of fourteen, [3] scilicet setatis 13 annoriim, and had not discretion to 
 discern between good and evil, S,' no7i per feloniam ; and thereupon 
 the court gives judgment of acquittal. 21. //. 7. 3I.(,§-) But if a man 
 be arraigned in such a case upon an indictment of murder or man- 
 slaughter by the coroner's inquest, there if the party committed the 
 fact, regularly the matter ought to be specially found, because if the 
 jury find the party not guilty, they must inquire how he came by his 
 death, viz. "Et juratores prsedicti quaesiti per curiam, quomodo is 
 ad mortem suam devenitdicunt super sacramentum suum, quod prae- 
 
 dictus A. B. die anno apud D. dum non fuit compos mentis, 
 
 or dum fuit infra setatem discretionis, scilicet 9 annorum, nee scivit 
 discernere inter bonum & malum, pra3dictum J. S. cum gladio, &c. 
 percussit & ipsum ad tunc & ibidem occidit, sed non ex malitia pre- 
 cogitata neque per feloniam, vel felleo animo; & sic idem J. S. ad 
 mortem suam devenit." But if he be first arraigned, and 
 acquitted upon the indictment by the grand inquest, and [ 29 ]] 
 found not guilty, he may plead tliat acquittal upon his 
 arraignment upon the coroner's inquest, and that will discharge him; 
 and tiie petit jury shall inquire farther liow the party came by his 
 death. 
 
 (c) And yet there is a precedent in the register, /o.'. 309. b. of a pardon granted loan 
 infant within the age of seven years, who was indicted ibr homicide; in lliis case the 
 jury found, that he did the fact beibrc he was seven years old. 
 
 (J) Plomd.l'i.a. 
 
 if) B. Corone 61. 
 
 [3] See Com, v. Lanigan, 2 (Boston) Law Rep, 49. 
 VOL. I. — 4
 
 29 HISTORIA PLACITORUM CORONJ^:. 
 
 CHAPTER IV. 
 
 CONCERNING THE DEFECT OF IDIOCY, MADNESS AND LUNACY, IN 
 REFERENCE TO CRIMINAL OFFENCES AND PUNISHMENTS. 
 
 And thus far touching that natural defect of infancy. Now con- 
 cerning another sort of defect or incapacity, namely idiocy, madness 
 and lunacy. For though by the law of England no man shall 
 avoid his own act by reason of these defects, (c/) though his heir or 
 executor may, yet as to capital offences tliese have in some cases tha 
 advantage of this defect or incapacity ;(/;) and this defect comes under 
 the general name oi Dementia, which is thus distinguisiied. 
 
 I. Idiocy, or fa/uily a nativitate vel dementia natii)Htlis;[l] such 
 a one is described by Fitzlierbert, who knows not to tell 20^, nor 
 knows who is his father or mother, nor knows his own age; but if 
 he knows letters, or can read by the instruction of another, then he 
 is no idiot. F. N. B. 233. h. These, though they may be evi- , 
 dences, yet they are too narrow, and conclude not always, for idiocy 
 or not is a question of fact triable by jury, and sometimes by 
 inspection. 
 
 II. Deynentia accidentalis vel advcntitia, which proceeds 
 r 30 3 f''om several causes; sometimes from the distemper of the 
 humours of the body, as deep melancholy or adust choler ; 
 sometimes from the violence of a disease, as a fever or palsy; some- 
 times from a concussion or hurt of the brain, or its membranes or 
 
 (a) For it is said to be a maxim in law, lliat no man of full age shall be permitted to 
 stultify himself. 4 Co. Rep. 123. b. Beverly's case, Co. Lit. 247. a. 1'he reason hereof 
 is, because a man cannot know or remember what acts he did when he was of jfon sane 
 memorij. 35 Assis. pi. 10. See contra F. N. B. p. 44i). Show. Ca. Furl. 153. 2. 
 Sa!k. 576.[2] 
 
 (6) Co. Lit. 247. b Plowd. 19. a. 
 
 [1] See Wheller\. Alderson, 3 Haorg. R. G02. Ruij on Insanity, c. 2. p. 69. 2d. Ed. 
 
 [2] Black. Comm. 291, 292; 1 Fonbl. Eq. B. 1. ch. 2. § 1 and note (d); Co. Lilt. 247. 
 Yules V. Buen, 2 Sir. R. 1104. See Shelford on Lunatics, ch 6. ^ 2. p. 263. ch. 9. §-2. 
 p. 407, S^-c. Baxter v. Fortamouth, 7 JJowl. c^- Uyl. 618; S. C. 5 Barn. ^ Cressw. 1,70; 
 Brown v. Joddrell, 3 Carr. cSf Fayne, 30: Newland on Contracts ch. 1. p. 15 to 21. The 
 subject is a good deal discussed by Mr. Justice Blaekstonc, in his Commentaries, who 
 does not attempt to disguise its gross injustice, (2 Black. Comm. 191, 292.) It is fully 
 discussed by Mr. Fonblanque in his learned notes, (1 Fonbl. Eq. B. 1 ch. 2. § 1 and notes 
 {a) to (A:), and by Lord Coke in his commentary on Littleton, {Co. Lit. 247. a. and b.) 
 who adheres firinly to it as a maxim in the conmion law. In America this maxim has 
 not been of universal adoption, in tiie State Courts, if indeed it has ever been recognized 
 as binding in any of tiic Courts of Comn>on Law. See Somes v. Skinner, 16 Mans. R. 
 348; Webster V. Woodford, 3 Day, R. 90-100; Mitchdl v. Kin^inan, 5 Fick. R. 431, 
 In modern times, tlie English C^ouits of Jiaw seem to be disposed, as far as possible, to 
 escajie from the maxim. Ball v. Maunin,3 Bli^h. R. (new series) 1. And even in Eng- 
 land, although the party himself could not set aside his own act, yet the King as having 
 the general custody of idiots and lun>ili<;s, mii^ht by l)is attornty general, on a bill set 
 aside the same acts. Bullcr, N. I'rins, 172 ; 1 Story's Eq. Jur. § 255, note (4); 2 (Jreenl. 
 Ev. § 369; 3 Bucari's Ah. Idiots and Lunatics, V. 
 
 The ancient rule of the common law must now be considered as entirely exploded.
 
 HISTORIA PLACITORUM CORON.gi:. _ 30 
 
 organs; and as it comes from several canses, so it is of several kinds 
 ordeo:rees ; which as to the purpose in hand may be thus distributed : 
 1. There is a partial insanity of mind ; and 2. a total insanity. 
 
 The former is either in respect to things quoad hoc vel illud insa- 
 nire; some persons, that liave a competent use of reason in respect of 
 some subjects, are yet under a particular dementia in respect of some 
 particular discourses, subjects, or applications; or else it is partial in 
 respect of degrees: and this is the condition of v^ry many, especially 
 melancholy persons, who for the most part discover their defect in 
 excessive fears and griefs, and yet are not wholly destitute of the use 
 of reason; and this partial insanity seems not to excuse them in the 
 committing of any offence for its matter capital; for doubtless most 
 persons that are felons of themselves, and others are under a degree 
 of partial insanity, when they commit these offences: it is very diffi- 
 cult to define the indivisble line tliat divides perfect and partial in- 
 sanity; but it must rest upon circumstances duly to be weighed and 
 considered both by the judge and jury, lest on the one side there 
 be a kind of inhumanity towards the defects of human nature, or on 
 the other side too great an indulgence given to great crimes: the best 
 measure that I can think of is this ; such a person as labouring under 
 melancholy distempers hath yet ordinarily as great understanding, as 
 ordinarily a child of fourteen years hath, is such a person as may be 
 guilty of treason or felony. 
 
 Again, a total alienation of the mind, or perfect madness; this ex- 
 cuseth from the guilt of felony and treason :(<:/) de qiiibus infra. 
 This is that, which in my lord Cuke's Pleas of the Crown, p. 6. is 
 called by him absolute madness, and total deprivation of memory. 
 
 Again, this accidental dementia, whether total or partial, 
 is distinguished into that which is permanent or fixed, and [ 3i ]] 
 that which is interpolated, and by certain periods and vicis- 
 situdes: the former is phrenesis or madness; the latter is that, which 
 is usually called lunacy, for the moon hath a great influence in all 
 diseases of the-brain, especially in this kind of dementia; such persons 
 commonly in the full and change of the moon, especially about the 
 equinoxes and summer solstice, are usually in the height of their dis- 
 temper ; and therefore crimes committed by them in such their distem- 
 pers are under the same judgment as those whereof we have before 
 spoken, namely, according to the measure or degree of their distem- 
 per ; the person that is absolutely mad for a day, killino; a man in tliat 
 distemper, is equally not guilty, as if he were mad without intermis- 
 sion. But such persons as have their lucid intervals, (which ordi- 
 narily hap[)ens between the full and change of the moon) in such in- 
 tervals have usually at least a competent use of reason, and crimes 
 committed by them in these intervals are of the same nature, and 
 subject to the same punishment, as if they had no such deficiency ;(e) 
 nay, the alienations and contracts made by them in such intervals are 
 obliging to their heirs and executors. (/) 
 
 (d) 21 //. 7. 31. b. (e) F. Corone, 324. (/) 4 Co. 125. a.
 
 31 HISTORIA PLACITORUM CORON^E. 
 
 Again, tliis accidental demenlia, whether temporary or permanentj 
 is eitlier the more dangerous and pernicious, commonly axWed furor-y 
 rabies, mania, which commonly ariseth from adus.t choler, or the vio- 
 lent inflammation of the blood and spirits, which doth not only take 
 away the use of reason, but also superadds to the unhappy state of 
 the patient, rage, fury, and tempestuous violence ; or else it is such as 
 only takes away the use and exercise of reason, leaving the person 
 otiierwise rarely noxious, such as is a deep delirium, stiijjo7\ memory 
 quite lost, the phantasy quite broken, or extremely disordered. And 
 as to criminals these dementes are both in the same rank; if they are 
 totally deprived of the use of reason, they cannot be guilty ordinarily 
 
 of capital otfences, for they have not the use of understand- 
 [ 32 ] ing, and act not as reasonable creatures, but their actions 
 
 are in eflect in the condition of brutes. (^) 
 III. The third sort of dementia is that, whicli is dementia affec-' 
 tata, namely drunkenness.lo^^ This vice doth deprive men of the use 
 
 (g-) Braci, 420. h. F. Corone, 1^3, 351. 
 
 [3] With regard to drunkenness, it is now settled that a man cannot avail himself of 
 his own gross misconduct and vicious acts, to shelter himself from the legal conseriuen- 
 ces of crime. But to make him criminally responsible, the act must take place and be 
 the immedinte result of the fit of intoxication, and while it lasts; and not tlie result of 
 insanity remotely occasioned by previous habits of gross indulgence in spirituous liquors. 
 The law looks to the immediate, and not to the remote cause; to the actual state of tho 
 party, and not to the causes which remotely produced it. 2 Gieenl. onEv. § 374. Drunken- 
 ness, it was said in an early case, can never be received as a ground to excuse or palliate 
 an offence: this is not merely the opinion of a speculative philosopher, the argument of 
 counsel, or the obiter dictum of a single judge, but it is a sound and long established 
 maxim of judicial policy, from wiiich perhaps a single dissenting voice cannot be found. 
 But if no other authority could be adduced, the uniform decisions of our own Courts from 
 the first establishment of the government, would constitute it now a part of the coinmua 
 la.w of the land. Wharton''s Am. Crim. Law, 13, 14 ; 2 Rice^s Dig. Tit. Murder and Man- 
 slaughter, p. 105; 1 Story's Eq. Jur. § 230, 231, and cases there cited in notes, which, 
 though mostly civil cases, are still valuable for the analogies in principle there to be found. 
 
 " If a person that is drunk kills another, this shall be felony, and he shall be hanged 
 for it, and yet he did it through ignorance, for when he was drunk he had no understand- 
 ing or memory; but inasmuch as that ignorance was occasioned by his own act and 
 folly, and he might have avoided it, he shall not be privileged thereby. And Aristotle 
 says, such a man deserves double punishment, because he has doubly offended, viz: in 
 being drunk to the evil example of others, and in committing the crime of homicide." 
 Per I'oUard, Serg., arguendo in Reniger v. Fogossa, I'lowd. R. 19 ; Beverlei/s CasCy 4 
 Rep. 125. 
 
 " The prisoner's being intoxicated docs not alter the nature of the offence. If a man 
 chooses to get drunk, it is his own voluntary act; it is very diifercnt from a madness 
 •which is not caused by any act of the person. That voluntary sj)ocies of madness which 
 it is in tlic party's power to abstain from, he must answer for." Per Alderson, B., in Rex 
 \.]\lealdn,l C.&; P.2[n. ~ 
 
 "If a nian makes himself voluntarily drunk, that is no excuse for any crime be nia'y 
 commit whilst he is so; he must take the conscqilence of his own voluntary act, or most 
 crimes would otherwise go unpunished. But drunkenness may be taken into considera- 
 tion in cases where what the law deems suHicient provocation has been given, because 
 the question is, in such cases, wiiethcr the fatal act is to be attributed to the paAsion of 
 anger excited by the previous provocation, and that passion is more easily excitable in a 
 person when in a state of intoxication than when be is sober. So, when the question 
 is, whether words have been uttered vv'ith a deliberate purpose, or are merely low and 
 idle expressions, the drunkenness of the person uttering them is ])roner to be considered. 
 But if there is really a previous determination to resent a slight affront in a barbarous
 
 HISTORIA PLACITORUM CORON.E. 32 
 
 of reason, and puts many men into a perfect, but temporary phrenzy; 
 and-therefore, according to some Civilians, (/^) such a person comniit- 
 ing fiojnicide sliall not be punished simply for the crime of homicide, 
 but shall suifer for his drunkenness answerable to ttie nature of the 
 
 (A) Bartholinus and others. See Covarruvias, Tom, 1. p. 557. in relect. ad Clem. Si 
 furiosus. Far. iii. §. 3. ^- 4. 
 
 manner, the state of drunkenness in which the prisoner was, oug-htnot to be regarded, for 
 it would furnish no excuse." Per Parke, B., in Rex v. Thomas, 1 C. ^ P. 820. 
 
 " It is a maxim of law, that, if a man gets himself intoxicated, he is liable to tlie con- 
 sequences, and is not excusable on account of any crime he may commit when infuriated 
 by liquor, provided he was previously in a fit state of reason to know right from wrong. 
 If, indeed, the infuriated state at which he arrives should continue and become a lasting 
 malady, then he is not amenable." Per Holroyd, J. in Burrom^s Case, 1 Lew. C. C. 75. 
 
 "If either the insanity has supervened from drinking, without the panel's having been 
 aware that such an indulgence in his case leads to such a consequence, or if it has arisen 
 from the combination of drinking, with a half crazy or infirm state of mind, or a previous 
 wound, or illness which rendered spirits fatal to his intellect, to a degree unusual in otlier 
 men, or which could not have been anticipated, it seems inhuman to visit him with the 
 c.\treme punishment which was suitable in the other ease.'"' In such a case, the proper 
 course is to convict; but in consideration of the degree of infirmity proved, recommend 
 to the royal mercy." Alison's Princ. of the Crim. Law of Scotland, 654, quoted in Gui/s 
 Med. Jur. 277. Moreover there seems to be little doubt, that in these cases, the occa- 
 sional thirst for spirituous drinks, is, itself, but one of the symptoms or effects of the dis- 
 eased condition of the brain, as we see it occurring in persons who are not habitually in- 
 temperate, and who even abstain for weeks or months from all use of intoxicating liquors.- 
 If this be so, which we think none will dispute, then the intoxication itself is but an 
 accidental and involuntary consequence of a maniacal state of the mind, depending on 
 cerebral disorder, and can, by no means, impart a character of criminality to any action 
 to which it may give rise. Guy's Med. Jur. 217 ; Ray on Insanity, c. 25. 
 
 The following cases are given by the American Editor of Guy, (Dr. Lee) in a note to 
 page 277, above cited. 
 
 I. N. M. Thomas was tried May 13, 1840, for the murder o? Hallet Greenman, at Flo- 
 rida, Montgomery Co., N. Y., Nov. 24, 183D. The homicide was committed during a fit 
 of intoxication, and the prisoner was found guilty. The Judges of the Supreme Court 
 and the Attorney General certified to the legality of the conviction and the sufficiency of 
 the evidence. The sentence was commuted to imprisonment for life. 
 
 II. John Smock was tried in Dec. 1839, for the murder of his wife in the city of New 
 York, Tuesday, June 25, 1839. They were both very intemperate, and in a fit of drunk- 
 enness the wound was inflicted, of which she died, a few days aftqr. The physician of 
 the city prison testified that he was labouring under delirium tremens at the time. He 
 was found guilty, with a recommendation to mercy; in accordance with which the sen- 
 tence was commuted to imprisonment for life. 
 
 III. Robert Miller was tried in Oct. 1839, for the murder of Barney Leddy, at Utica, 
 April, 1839. On the trial it was proved that the killing grew out of a drunken quarrel 
 and light, (without previous animosity,) brought on by a jug of liquor which the deceased 
 brought to Miller's house. The accused was convicted and hung. 
 
 IV. Jabtz Fuller was tried in March, 1840, for the murder of his wife at Somerstoicn, 
 Westchester Co., May 26, 1839. They were both very intemperate, and in a fit of in. 
 toxication, prompted by jealousy, he injured her so severely b}^ stamping upon her, that 
 she died four days afterward from the effect of her bruises. It appeared from the testi- 
 mony, that he was of intemperate habits, and quick tempered; but when sober, of a civil 
 and quiet demeanour. He was convicted, and hung. May 22, 1840. 
 
 V. Johri Johnson was tried in AW. 1840, for the murder of his wife at Buffalo, Aug. 
 19, 1840. It was proved on the trial that he was much intoxicated on the day of the 
 murder, though several witnesses gave him a good character, as a quiet and peaceable 
 man, industrious and trusty. He was convicted and hung on the 19th of June, 1841. 
 
 The law will be found fiilly discussed in the following cases. 
 
 Perm v. McFall, Add. 257. U. S. v. Drew, 5 Mason R. 29, 30. 3 Am. Jur. 7. S. C.
 
 32 HISTORIA PLACITORUM C0R0NJ5:. 
 
 crime occasioned thereby; so tiiat yet the formal cause of his punish- 
 ment is rather the drunkenness, than the crime committed in it: but 
 by the laws of England such a person (^■) shall have no privilege by 
 this voluntary contracted madness, but shall have the same judg- 
 ment as if he were in his right senses. Plowd. 19. a. Crompt. Just. 
 29. a. 
 
 But yet there seems to be two allays to be allowed in this case. 
 
 1. That if a person by the unskilfulness of his physician, or by the 
 contiivance of his enemies^ eat or drink such a thing as causeth such 
 a temporary or permanent phrenzy,as aconituni ox nux vomica,\\\\s 
 puts him into the same condition, in reference to crimes, as any other 
 phrenzy, and equally excuseth him. 
 
 2. Tliat although ihe simplex phrenzy occasioned zmwef/Zc/e/y by- 
 drunkenness excuse not in criminals, yet if by one or more such prac- 
 tices, an habitual or fixed phrenzy be caused, though this madness 
 was contracted by the vice and will of the party, yet this habitual 
 and fixed phrenzy thereby caused puts the man into the same condi- 
 tion in relation to criajes, as if the same were. contracted involuntarily 
 at first. 
 
 Now touching the trial of this incapacity, and who shall be ad- 
 judged in such a degree thereof to excuse from the guilt of capital 
 offences, this is a matter of great difficulty, partly from the easiness 
 of counterfeiting this disability, when it is to excuse a nocent, and 
 partly from the variety of the degrees of this infirmity, 
 [ 33 ] whereof some are sufficient, and some are insufficient to ex- 
 cuse persons in capital offences. 
 
 Yet the law of England hath afforded the best method of trial, 
 that is possible, of this and all other matters of fact, namely, by a jury 
 of twelve men all concurring in the same judgment, by the testimony 
 
 (0 4 Co. 125. a. 
 
 l^ennet v. The Slate, Mart. Sf Yer<r. 136, 137. Cornwell v. The State, Mart. S( Yerg. 155. 
 l59. Per Crabb, J. delivering' tiie majority opinion of the "S. C. of Tennessee. The 
 State V. Toohey, cited from MS. Dec. 1S19, 2 Rice's S. C. Dig., Tit. Murder & Man- 
 slaughter, p. 104, 105. The State v. Turner, 1 Ohio Rep. 29,30. TIte State v. Thompson, 
 Id. 617. 622. 625. Burroughs v. Rirhman, 1 Green's N. J. Rep. 238. John Burrow's 
 Cuse, 1 Lewin C. C. 15. Per Holroyil, J. Rennie's Case, Id. 76. Per Uulroi/d, J, Mar. 
 shaWs Case, Id. 76. Per Parke, J. lioodier's Case, Id. 76. Per Parke, J. Rex v. Carroll, 
 7 Ciirr 4' Payne, 145. Per Park 6f Littledale, J. J. overruling Rex v. Gundlvy, 1 Russ. on 
 C. S^ M. 8. 2iZ Ed. Rex v. Meakin, 7 Carr Sf Payne, 297. Per Aldcrson, B. Rex v. Tho. 
 mas, M. 817. Per Parke, B. Reis. v. Cruse, S Id. 546. Per Palteson, J. Pearson's Case, 
 ^ Lewin C. C. 144. William McDnnough's Case, Ray on Insanity, § 398. 2d ed. Va~ 
 teld's Case, Id. § 299. 2d Ed. Wilson's Case, Id. § 405. M Ed. Budsell's Case, Id. 
 § 406. 2d ed. Western Jour. Med. Science, Vol. 3. Thiel's Case, Ray on Insanity^ 
 \w.).2ded. AI)hotl'sCase,Id.^'il.G.2ded. 
 
 For an ample discussion of the criminal responsibility of the drunkard, the reader is 
 referred to the Treatise of Dr. Ifay (of Maine) on the Medical Jurisprudence of Insanity, 
 c. 24, 25. § 375 to § 418. Mucnish's Anatomy of Drunkenness (passim.) Hojfbauer's Psy- 
 colo'jie, § 195. Oiorget Des Maladies Mentalia, Vol. 2. p. 80, cited by Dr. liay. Mitler. 
 marie on the Effect of Drunkenness upon Criminal Responsibiliti/, § VI. VII. VIll. IX. 
 American Jar. Vol. 3. p. 7, 9. /(/. ^'ul. 21. p. 6. Id. Puley's Mur. Phil. B. IV. c. 2.
 
 HISTORIA PLACITORUM CORONA. 33 
 
 of witnesses vivd voce in the presence of the judge and jury, and by 
 the inspection and direction of the judge. 
 
 There are two sorts of trials of idiocy, madness, or lunacy; the 
 first, in order to the commitment or custody of the person and his 
 estate, which belongs to the king, either to his own use and benefit, 
 as in case of idiocy; or to the use of the party, in case of accidental 
 madness or lunacy; and in order hereunto there issues a writ (A-) or 
 commission to the sheriff or escheator, or particular commissioners, 
 both by their own inspection and by inquisition to inquire, and return 
 their inquisition into the Chancery; and thereupon a grant or com- 
 mitment of the party and his estate ensues ; and in case the party or 
 his friends find themselves injured by the finding him a lunatic or 
 idiot, a special writ may issue to bring the party before the chancel- 
 lor, or before the king to be inspected. Vide Fitz. N. B. 233. (/) 
 
 But this concerns not the purpose in hand ; for whether the party 
 that is supposed to commit a capital offence be thus found an idiot, 
 madman or lunatic, or not, yet if really he be such, he shall have 
 the privilege of his idiocy, lunacy, or madness, to excuse him in 
 capitals. 
 
 Secondly therefore, the trial of the incapacity of a party indicted 
 or appealed of a capital offence is, upon his plea of not guilty, by the 
 jury upon his arraignment, who are to inquire thereupon touching 
 such incapacity of the prisoner, and whether it be to such a degree, 
 as may excuse him from the guilt of a capital offence. (m) 
 
 In presumption of law, every person of the age of discretion is pre- 
 sumed of sune memory, unless the contrary be proved ; and this 
 holds as well in cases civil as criminal. 
 
 Again, if a man be a lunatic, and hath his hicida inter- 
 valla, and this be sufficiently proved, yet the law presumes [ 34 ]| 
 the acts or offences of such a person to be committed in those 
 intervals, wherein he hath the use of reason, unless by circumstances 
 or evidences it appears they were committed in the time of his dis- 
 temper; and this also holds in civils as well as in criminals. 
 
 And although in civil cases, he that goes about to allege an act 
 done in the time of lunacy, must strictly prove it so done, yet in 
 criminal cases (where the court is to be thus far of counsel with the 
 prisoner, as to assist him in matters of law and the true stating of the 
 fact) if a lunatic be indicted of a capital crime, and this appears to 
 the court, the witnesses to prove the fact may and must also be 
 examined, whether the prisoner were under actual lunacy at the time 
 of the offence committed. 
 
 A man that is surdus <^' mntns a nativitate, is in presumption of 
 law an idiot, and the rather, because he hath no possibility to under- 
 stand what is forbidden by law to be done, or under what penal- 
 ties :(/i) but if it can appear, that he hath the use of understanding, 
 which many of that condition discover by signs to a very great mea- 
 
 (Jc) Sec Stamf. Preronr. 33. 6. (Z) N. Edit. 517. 
 
 (m) S-ivil. oU. 1. And. 107. 
 
 {n) Vide Leg. Alfredi, l.li. B. Corone 101 Sf 217.
 
 34 HISTORY PLACITORUM CORONA. 
 
 sure, then he may be tried, and isnffer judgment and execution, 
 though great caution is to be used therein. (o)[4] 
 
 I come now to apply what lias been said to the various natures of 
 capital crimes. 
 
 Jf a man in his sound memory commits a capital offence, and before 
 his arraignment he becomes absolutely mad, he ought not by law to 
 be arraigned during such his phrenzy, but be remitted to prison unti'I 
 that incapacity be removed; the reason is because he cannot advis- 
 edly plead to the indictment; and this holds as well in cases 
 [ 35 ] of treason, as felony, even though the delinquent in his sound 
 mind were examined, and confessed the otfence before iiis 
 arraignment: and this appears by the statute of 33 H. 8. cap. 20. 
 which enacted a trial in case of treason after examination in the 
 absence of the party; but this statute stands repealed by the statute 
 of 1 4' 2 Phil. 4' Mar. cap. 10 Co. P. C.p. 6. And if such person 
 after his plea, and before his trial, become of non sane memory, he 
 shall not be tried; or, if after his trial he becomes of 7ion sane 
 memory he shall not receive judgment; or, if after judgment he be- 
 comes oi non sane memory, his execution shall be spared; for were 
 he of sound memory, he might allege somewhat in stay of judgment 
 or execution. Co. P. C. 4.{p) 
 
 (o) According to 43 Assis. pi. 30. and 8 H. 4. 2, if a prisoner stands mute, it shall be 
 inquired, wlietlier it be wilful or by the act of God; from whence Crompton infers, that 
 if it be by the act of God he shall not suffer. Crompt. Just. 29. a. But if one who is both 
 deaf and dumb, may discover by signs that he hath the use of understanding, much more 
 may one, who is only dumb, and consequently may be guilty of felony, sed qucere, how 
 lie shall be arraigned. 
 
 (j}) See Sir John Ha7vles''s Remarks on Bateman's trial. State Trials, Vol. 4. p. 205. 
 
 [4] It may be observed that from the humane exertions of many ingenious and able 
 persons, and from the extensive charitable institutions for the instruction of the deaf and 
 dumb, many of tiicse unfortunate people have at the present day a very perfect know- 
 ledge of right and wrong. In Steel^s case, 1 Leach, 451, a prisoner wlio could not hear 
 and could not be prevailed upon to plead, was found mute by the visitation of God, and 
 then tried, found guilty, and sentenced to be transported. And in Jones's case, 1 Leach, 
 102, when the prisoner who was indicted for stealing in a dwelling house on being put to 
 the Bar appeared to be deaf and dumb and the jury found a verdict, " Mute by the visita;- 
 tion of God ;" after wliicli a woman was examined upon her oatii to the fact of her being 
 able to make him understand what otiiers said, which she said slic could do by ilieans of 
 signs, such prisoner was arraigned, tried and convicted of the simple larceny. The 
 proper course in such cases is, I. To swear a jury to determine whether tiie prisoner be 
 mute of malice or by the visitation of God. II. Whether he be able to jjlead. III. Whether 
 he be sane or not; on which issue the question is, whetlier lie is of sufficient intellect to 
 comprehend the course of the proceedings on the trial so as to be able to make a proper 
 defence. Rrx. v. Pritchard, 7. C. Sf P. 303. Rex. v. Dyson, Id. 305. n. (a) Per Parke, B. 
 1 Lewin, C. C. R. M.S. C. In Rex. v. Pritchard, the jury were sworn on each of the 
 tliree issues separately. See Rex. v. Dyson, for tlic form of tlic oath administered to the 
 interpreter. See Thompsoji's case, 2 Lrwin's, C. C. R. 137, where tlie prisoner being 
 deaf and dumb, but able to read, llie indictment was handed to him with the usual ques- 
 tions written uponpaper and lie wrote his plea on paper. Tlie juror's names were then 
 lianded to him witli the (piestion, " Whether he objected to any of tlicm ?" and lie wrote 
 for answer "No." The Judge's note of the evidence was lianded to him and lie was aslied 
 in writing if iiC had any (juestions to put. 1 Russ. on Vriiiics 7. votr. Snyder v. Nations, 
 5 Illucf. R. 2!)5. I (,'rcen. on Ev. ^ 3(if). The Pi-ojib v. M'Gee, 1 Denios, N. Y. Rep. 19. 
 Cum. V. Hill, 14. Mass. R. 207. The Stale v. Dcwolf. 8 Conn. R. 93.
 
 HISTORIA PLACITORUM CORON^E. 35 
 
 But because there may be great fraud in this matter, yet if the 
 crime be notorious, as treason or murder^ the judge before such 
 respite of trial or judgment may do well to impanel a jury to inquire 
 ex officio touching such insanity, and whether it be real or counter- 
 feit. 
 
 If a person of non saiie mcinory commit homicide during such his 
 insanity, and continue so till the tune of his- arraignment, such person 
 shall neither be arraigned nor tried, but remitted to gaol, there to 
 remain in expectation of the King's grace to pardon him. 26 ,dss. 27. 
 3 E. 3. Corone 351. 
 
 But it seems in such a case it is prudence to swear an inquest ex 
 officio, to inquire touching his madness, whether it was feigned; 
 and thus it was done in the case of 3 E. 3. and in Somervile^s case, 
 Anderson's Rep. par. 1 n. 154. But in case a man in a phrenzy 
 happen by some oversight, or by means of the gaoler to plead to his 
 indictment, and is put upwi his trial, and it appears to the court upon 
 his trial, that he is mad, the judge in discretion may discharge the 
 jury of him, and remit him to gaol to be tried after ihe recovery of 
 his understanding, especially in case any doubt appear upon the 
 evidence touching the guilt of the fact, and this in favorem vitx; 
 and if there be no colour of evidence to prove him guilty, or if there 
 be a pregnant evidence to prove his insanity at the time of the fact 
 committed, then upon the same favour of life and liberty it 
 is fit it should be proceeded in the trial, in order to his ac- f 36 ]] 
 quittal and enlargement. If a person during his insanity 
 commit homicide or petit treason, and recover his understanding, 
 and being indicted and arraigned for the same, pleads not guilty, he 
 ought to be acquitted; for by reason of his incapacity he cannot act 
 fclleo animo. 12 H. 3. Doiver 183. Forfeiture 33. 21. H. 7. 31. b. il 
 ulera quite, that is, shall be found not guilty. 
 
 And it is all one, whether the phrenzy be fixed and permanent, or 
 whether it were temf)orary by force of any disease, if the fact were 
 committed while the party was under that distemper. 
 
 In the year 166S, at Aylesbury, a married woman of good reputa- 
 tion being delivered of a child, and having not slept many nights fell 
 into a temporary phrenzy, and killed her infant in the absence of anv 
 company; but company coming in, she told them she had killed her 
 infant, and there it lay; she was brought to gaol presently, and after 
 some sleep she recovered her understanding, but marvelled liow or 
 why she came thither ; she was indicted for murder, and upon her 
 trial the whole matter appearing, it was left to the jury with this 
 du'ection, that if it did appear, that she had any use of reason when 
 she did it, they were to find her guilty; but if they found her under 
 a phrenzy, though by reason of her late delivery and want of sleep, 
 they should acquit her ; that had there been any occasion to move 
 her to this fact, as to hide her shame, which is ordinarily the case 
 with such as are delivered of bastard children and destroy them; or 
 if there had been jealousy in her husband, that the child had been 
 none of his ; or if she had hid the infant, or denied the fact, these 
 VOL. I. — 5
 
 36 HISTORIA PLACITORUM CORONA. 
 
 had been evidences that the phrenzy was counterfeit; but none of 
 these appearing, and the honest}^ and virtuous deportment of the 
 woman in her health being known to the jury, and many circum- 
 stances of insanity appearing, the jury found her not guilty, to the 
 satisfaction of all that heard it. 
 
 Touching the great crime of treason regularly the same is to be 
 sard, as in case of homicide, such a phrenzy or insanity as excuseth 
 from the guilt of the one, excuseth from the guilt of th^ other: the 
 reason is the same ; he that cannot act felonice or animo felonico 
 cannot act proditorie, for being under a full alienation of 
 [] 37 J mind, he acts uoi per elect ioncm or intentionem. This ap- 
 pears by the statute of 33 H. 8. cap. 20. which, though it 
 enact, that a non compos mentis shall be tried for treason, yet it 
 expressly declareih, " That if any commit high treason, while they 
 are in good, whole, and perfect memory, and after examination be- 
 come non compos mentis and that it be certified by four of the 
 council, that at the time of the treason they were of good, sound, 
 and perfect memory, and then not mad, nor lunatic, and afterwards 
 became mad; then they shall proceed to trial:" which strongly 
 enforceth, that a treason cannot be committed by a madman, or 
 Junatic, during his lunacy. 
 
 And with this agrees my lord Coke, P. C. p. 6. in these words, 
 "He that is no7i compos ?nentis, and totally deprived of all com- 
 passings and imaginations, cannot commit liigh treason by compass- 
 ing or imagining the death of the king: for fnriosics solo furore 
 piiniler; but it must be an absolute madness, and a total depriva- 
 tion of memory." 
 
 This, though it be general, yet the same author tells us, 4 Rep. 124. 
 b. Beverly^s case, in these words, " Mes in ascun cases non compos 
 mentis poit committe hault treason, come si il tua, o\\ oiler a tuer le 
 roy." This is a safe exception, and I shall not question it, because 
 it tends so much to the safety of the king's person : but yet the same 
 author, P. C. p. 6. tells us, that though this was anciently thought to 
 be law, yet it is not so now ; for such a person as cannot compass 
 the death of the king by reason of Iiis insanity, cannot be guilty of 
 treason within the statute of 25 E. 3. And thus far concerning the 
 incapacity of idiocy, madness, and lunacy. [5] 
 
 [5] Insanity is a disease, which causes the patient wliile awake to mistake the phan- 
 toms and operations of itn agination for realiiies, wliich conscfiucntly become the motives 
 of'iiis discourse and actions, wiiilc at the time tliere is an absence of any bodily disorder 
 that can account for the phenomena. 
 
 Perhaps the best definition ot Insanity is in sir Alexander Critcliori's Commentaries, p. 
 165. Insane persons are arranged into classes. 
 
 1. Maniacs, who are under a j)hrenzy. 
 
 2. Lunatics, having lucid intervals. 
 
 3. Mklancholics, subject to constant depression. 
 
 4. Monomaniacs, under a delusion upon a particular subject. 
 
 .'). I)(.:mkntki), deprived of mind by grief, sickness, accidents, or old age. Chiitj/s 
 Mcilical Jurisprudence, 34.5. 
 
 Lord Coke says, "Many times the Latin word expresses the true meaning, and calletli
 
 HISTORIA PLACITORUM CORONA. 37 
 
 htm not amens demens furiosus, lunatics fntuus stultus, or the like, but non compoa 
 mentis." Co, Lift. 247, a, 
 
 Bracton says, "ftiriosus non inielligit quod agit et animo et ratione caret, et non mul- 
 tutn distat a brutis." Lib. 5, 420, b. 
 
 Lord Hale observes correctly, {ante 29, 30,) that" it is very difficult to define the invisi. 
 ble line that divides perfect and partial insanity, but it mubt rest on circumstances duly 
 to be weighed and considered by judge and jury, lest on tiie one side there be a kind of 
 inhumanity towards defects of human nature, or, on the other side, too great an indul- 
 gence given to crimes." 
 
 " The most difficult cases," said Erskine in HadfieWs trial, " are where reason is not 
 wholly driven from her seat, but distraction sits down upon it along with lier, holds her 
 trembling upon it, and frightens her from her propriety. Such patients are victims to 
 delusion of the most alarming description, wliich so overpowers the faculties and usurps 
 so firmly the place of realities, as not to be dislodged and shaken by the organs of per- 
 ception and sense. Delusion, therefore, where there is no phrenzy or raving madness, is 
 the true character of insanity, and where it cannot be predicted of a man standing for 
 life or death for a crime, he ouglit not to be acquitted." 
 
 Some rules about freeing a hmatic from criminal responsibility may be found in 1 Col- 
 linson on Lunacy, 473, 474. 477. 
 
 There must be an absolute dispossession of the free and natural agency of the human 
 mind. The prisoner must have been incapable of distinguishing between good and evil, 
 and of compreTiending the nature of what he was doing. Being a lunatic before or after 
 the act, is not enouglr; his madness must be complete and absolute at the moment when 
 the offence was committed. 
 
 Cooper expresses the same rule. " The insanity must be distinct and manifest at the 
 time the crime was committed." Cooper''s Med. Jur. 381. 
 
 So Male says. Where no insanity is proved, and there has been none previously ex- 
 isting, wliere the delinquent has acted from facts and existing circumstances, the law 
 does not protect him. Cooper''s Med. Jur. 255. 
 
 Shelford, froma number of adjudged cases, thus deduces the rule of law. If a person 
 liable to partial insanity, which only relates to particular subjects or notions upon which 
 he talks and acts like a madman, still has as much reason as enables him to distinguish 
 between right and wrong, he will be liable to that punishment wliich the law attaches 
 to his crime. Shelford on Lunacy, 458. 
 
 He cites lord Ferrer^s case, 10 HowelVs Slate Trials, 947; Arnold''s case, 16 Howell's 
 State Trials, 764; Parker''s case, 1 Collinson on Lunacy, 477; Bellinghani's case, 1 
 Collinson on Lunacy, 636; Oford's case, 5 Carr and Payne, 168; Bowler''s case, 1 Col. 
 lin^on, 673, and 54 Annual Register, 309. 
 
 Sir John Milford said, in Hadjield's trial, 27 HowelVs Slate Trials, 1290, "because there 
 is a natural impression on the mind of man of the distinction between good and evil, 
 which never entirely loses hold of the mind whilst the mind has any capacity whatever 
 to exert itself, nothing but total and absolute debility deprives the mind of any man of 
 that. If conscious of the act, as the result of design and contrivance, and of tlie conse- 
 qucnces of the act, is there not a moral sense which indicates criminal responsibility/" 
 
 "The true criterion of insanity," said sir John Nichols, '' is 'delusion," and he cites 
 Locke on the Human Understanding, Book 2, ch. 11, § 13. In Dew v. Clark, 3 Addams 
 90, 91. Dementatioh arising from unruly passion, is no excuse. 
 
 Mr. Chitiy {p. 345) thus expresses the rule of law : '' The true test of insanity, where 
 there is no phrenzy or raving, is the absence or presence of delusion, and delusion exists 
 whenever an individual once conceives something extravagant to exist which has no 
 existence, and when he is incapable of being reasoned out of that absurd conception. 
 In criminal cases, therefore, the question is simple, adapted to tiie comprehension of 
 every juryman, "whether, at the^ time the act was committed, the prisoner was incapa- 
 ble of judging between right and wrong, and did not know that the particular act was 
 an offence against the laws of God and nature." 
 
 He adds, "The law presumes the competency, and therefore the question is always 
 presented to a jury upon the negative, which must be established on the part of the 
 prisoner; the burthen of proof is on him." 
 
 Mr. Chitty is entirely supported by I\Ir. Erskine, whom he quotes, and the uniform 
 tenor of authoritative decisions shows that no better rule than that which Erskine laid 
 down in HadfieUVs trial has been framed. * 
 
 To deliver a lunatic from responsibility to criminal justice, said he, above all, in
 
 37 HISTORIA PLACITORUM CORONA. 
 
 a case of atrocity, the relation between the disease and the act should be apparent, the 
 delusion and the act must be connected. I cannot allow the protection of insanity 
 to a man who exhibits only violent passions and malignunt resentments acting upon 
 real circumstances, who is impelled to evil from no morbid delusion, but who proceeds 
 upon the ordinary perceptions of the mind. See Parker arguendo in Roger^s Trial, 
 16-19. 
 
 " In criminal cases, in order to absolve the party from gfuilt, a higher degree of insanity 
 must be shown than would be sufficient to discliargc him from the obligations of his con- 
 tracts. In these cases the rule of law is understood , to be this; that 'a man is not to be 
 excused from responsibility, if he has capacity and reason sufficient to enable him to 
 distinguish between right and wrong, as to the particular act he is then doing ; a know- 
 ledge and consciousness that the act he is doing is wrong and criminal, and will subject 
 liiwi to punishment. In order to be responsible he must have sufficient power of memory 
 to recollect the relation in which he stands to others, and in which others stand to him; 
 that the act he is doing is contrary to the plain dictates of justice, and right injurious to 
 others, and a violation of the dictates of duty. On the contrary, although he maybe 
 labouring under partial insanity, if he still understands the nature and character of his 
 act and its consequences, if he has a knowledge that it is wrong and criminal, and a 
 mental power sufficient to apply that knowledge to his own case, and to know tliat if he 
 does the act he will do wrong and receive punishment, such partial insanity is not suffi- 
 cient to exempt him from responsibility for criminal acts. If then it is proved to the 
 satisfaction of the jury, that tlie mind of the accused was in a diseased and \insound state, 
 the question will be, whether the disease existed to so high a degree, that for the time 
 being, it overwhelmed the reason, conscience, and judgment, and whether the prisoner 
 in committing the homicide, acted from an irresistible and uncontrolable impulse; if so, 
 then the act was not the act of a voluntary agent, but the involuntary act of the body 
 without the concurrence of a mind directing it." 2 Greenl. on Evid. § 372. 
 
 The question of insanjty in a prisoner is a question for the jury, and ought to be 
 clearly made out, in order to exempt the party from punishment. Rex v. Arnold, 1 
 Russ. C. Sf M. 9. 
 
 To justify the aquittal of a prisoner indicted for murder, on the ground' of*insanity, the 
 jury must be satisfied that he was incapable of judging between right and wrong; and 
 that, at the time of committing the act, he did not consider that it was an otFcnce against 
 the laws of God and nature. Rex v. Offord, 5 Car. i^ /'. 168. 
 
 If, to an indictment for treason for attempting the life ofthe sovereign^ by shooting at 
 the Queen, the defence be insanity, the' question for the jury will be, whether the' 
 prisoner was labouring under that species of insanity, which satisfies them that he was 
 quite unaware ofthe nature, character, and consequences ofthe act he was committing; 
 or in other words, whether he was under the influence of a diseased mind, and was 
 really unconscious at the time he was committing tlie act, that it was a crime. If the 
 jury in such a case are of opinion that the prisoner did not in fact do all that the law 
 deems essential to constitute the offence cliarged, they must find him not guilty generally ; 
 and the Court have no power to order his detention, under the 39 & 40 Geo. 3. c. 94, s. 2, 
 although the jury should be clearly of opinion, that the prisoner was in fact insane. 
 Such a state of circumstances appearing to be a casus omissus in the act. Reg. v. Oxford, 
 9 Car. Sf P. 525. 
 
 If on a trial the defence is insanity, a witness of medical skill may be asked whether 
 such and such appearances, proved by otiier witnesses, are in his judgment symptonjs of 
 insanity. Rex v. Wright, R. Sf R. C. C. 456. 
 
 Wiicre a prisoner's defence is insanity, a medical man who has heard the trial, may 
 be asked whether the facts proved, show symptoms of insanity. Rex v. Searle, I M, Sf 
 Roh. 75. 
 
 The prisoner was indicted for shooting at his wife with intent to murder her, &,c., and 
 was defended by counsel, who set U[> for him the defence of insanity. The prisoner, 
 however, objected to such a defence, asserting that he was not insane ; and he was allowed 
 by the judge to suggest questions, to be put by his lordshi|) to the witnesses for the pro- 
 secution, to negative the supposition that he was insane; and the learned judge also, at 
 the request ofthe priscmer, allowed additional witnesses to be called on his behalf for tlie 
 same purpose. Tiiey, however, failed in showing that the dcfince was an incorrect one ; 
 and on the contrary, their evidence tended to establish it, more clearly, and the prisoner, 
 H'as acquitted on the ground of insanity. Reg. v, Piarce, 9 Car. Sf P, 667. 
 
 A party having been indicted for a misdemeanor, in uttering seditious words, and upon
 
 HISTORIA PLACITORUM CORONiE. 37 
 
 his arrai.inmcnt refusing to plead, and showing- symptoms of insanity ; and an inquest 
 being for'tliwith takc-n under 39 & 40 Geo. 3, c. 1)4, s. 2, to try whetlicr he was insane or 
 not: — Held, first, that the jury might form their own judgment of the present state of 
 the prisoner's mind, from his demeanor while the inquest was being taken ; and might 
 thereupon find him to be insane, without any evidence being given as to his present 
 state : — Seeondly, that upon the prisoner showing strong symptoms of insanity in Court 
 during the taking uf the inquest, it became unnecessary to ask him whether he would 
 cross-examine the witnesses, or would offer any remark on the evidence. Reg. v. Goode, 
 7 Ad. Sf E. 536. 
 
 A grand jury have no authority by law to ignore a bill for murder on the ground of 
 insanity; it is their duty to find the bill; otherwise the Court cannot order the detention 
 of the party during the pleasure of the crown either on arraignment or trial, under Utat. 
 3y & 40 Geo. 3, c. 94, ss. 1 & 2. Reg. v. Hodges, 8 Car. <^ P. 195. 
 
 In Massachusctls, when one indicted for murder would make no distinct plea, and 
 appeared to be deranged, a jury were empanelled to try whether he neglected to plead 
 wilfully, or by the act of God ; and on the finding of the jury that it was for the latter 
 reason, the court remanded him to jail. Commonwealth v. Braley, 1 Mass. 103. 
 
 "The great object of punishment by law, (said Chief Justice Shaw, of Massachusetts^ 
 in Roger's case,) is to atford security to the community against crimes, by [>unishing 
 those who violate the laws; and this object is accomplished by holding out the fear of 
 punishment, as the certain consequence of such violation. Its effect is to present to the 
 minds of those who are tempted to commit crime, in order to some present gratification, 
 a strqng counteracting motive in the fear of punishment. But this object can only be 
 accomplished when such motive acts on an intelligent being capable of remembering 
 that the act about to be committed is wrong, contrary to duty, and such as in any well 
 ordered society would subject the offender to punishment. It might in some respects be 
 more accurate to say that the party thus acting under a temptation, must have memory 
 and intelligence to recollect and know that the act he is about to commit is a violation 
 of the l;nv of the land. But this mode of stating the rnle might lead to a mistake of 
 another kind, inasmuch as it would seem to hold up the idea, that before a man can be 
 justly punished, it must appear that he knew that the act was contrary to the law of the 
 land. But the law assumes that every man has knowledge of the laws prohibiting 
 crimes; an assumption not strictly true in fact, but necessary to the security of society, 
 and sulliciently near the truth for practical purposes. It is expressed by the well known 
 maxim, ignorantia legis neminem excusat — ignorance of the law cannot be pleaded as an 
 excuse for crime. The law assumes the existence of the power of conscience in all persons 
 of ordinary intelligence — a capacity to distinguish between right and wrong in reference 
 to particular actions: a sense of duty and of right. It may also be safely assumed that 
 every man of ordinary intelligence knows that the laws of society are so framed and 
 administered, as to prohibit and punish wrong acts — violation of duty towards others — 
 by penalties in some measure adapted to the nature and aggravation of the wrong and 
 injurious acts thus done. If, therefore, it happens to be true in any particular ease, that 
 a person tempted to commit a crime does not know that the particular act is contrary to 
 positive law, or what precise punishment the municipal law annexes to such act; yet, if 
 the act is palpably wrong in itself; if it be manifestly injurious to the rights of another, 
 as by destroying his life, maiming his person, taking away his property, breaking into 
 or burning his dwelling-house, and the like, there is no injustice in assuming that every 
 man knows that such acts are wrong, and must subject him to punishment by law; and, 
 therefore, it may be assumed for all practical purposes, and without injustice, that he 
 knows the act is contrary to law. This is the ground upon which tiie rule has been 
 Usually laid down by judges, when the question is whether a person has sutHcient men- 
 tal capacity to be amenable for the commission of a crime, that he must have sufficient 
 mental capacity to distinguish between right and wrong, as applied to the act he is about 
 to commit, and to be conscious that the act is wrong; instead of saying, that he must 
 have sufficient capacity to know that it is contrary to the law of the land, because this 
 power to distinguish between right and wrong as applied to the particular act — a power 
 which every human being, who is at the same time a moral agent and a subject of civil 
 government, is assumed to possess — is the medium by which tliC law assumes that he 
 knows that the same act which is a violation of high moral duty is also a violation of the 
 law of the land. Whereas, if it were stated that a person must have sufficient mental 
 capacity to know and understand that the act he is about committing is a violation of 
 the law of the land, it might lead to a wrong conclusion, and raise a doubt in regard to
 
 37 HISTORIA PLACITORUM CORON.^. 
 
 persons igrnorant of tlie law. There is no doubt that many a man is held responsible for 
 crime, and that rightfully, who might not know that the act he was about committing 
 was contrary to tlie law of the land, otherwise than as a moral being he knows that it is 
 wrong — a violation of the dictates of his own natural sense of right and wrong. 
 
 To recur, then, to what has already been stated. In order that punishment may ope- 
 rate by way of example, to deter others from committing criminal acts when under 
 temptation to do so, by presenting a strong counteracting motive, the person tempted 
 must have memory and intelligence to know that the act he is about to commit is wrong, 
 to remember and understand, that if he commits the act he will be subject to the punish- 
 ment, and reason and will to enable hiin to compare, and choose between the supposed 
 advantage or gratification to be obtained by the criminal act, and the impunity from 
 punishment which he will secure by abstaining from it. 
 
 A person, therefore, in order to be punishable by law, or in order that his punishment 
 by law may operate as an example to deter others from committing criminal acts under 
 like circumstances, must have sufficient memory, intelligence, reason, and will, to enable 
 him to distinguish between right and wrong in regard to the particular act about to be 
 done, to know and understand that it will be wrong, and that he will deserve punishment 
 by commitiing it. 
 
 This is necessary on two grounds: 1st. To render it just and reasonable to inflict 
 punishment on the accused individual, and 2d. To render his punishment by way of 
 example, of any utility to deter others in like situations from doing similar acts, by hold- 
 ing up a counteracting motive in the dread of punishment which they can feel and com- 
 prehend. 
 
 With more immediate reference to the case, the Chief Justice proceeded as follows: 
 In order to constitute a crime, a man must have intelligence and capacity enough, to 
 have a criminal intent and purpose; and if his reason and mental powers are either so 
 deficient that he has no will, no conscience, or controlling mental power, or if through 
 the overwhelming violence of mental disease, his intellectual power is for the time oblite- 
 rated, he is not a responsible moral agent, and is not punishable for criminal acts. But 
 these are extremes easily distinguished, and not to be mistaken. The dillicully lies 
 between these extremes in the ease of partial insanity, where the mind may be clouded 
 and weakened, but not incapable of remembering, reasoning, and judging, or so per- 
 verted by insane delusion, as to act under false impressions and influences. In these 
 cases, the rule of law, as we understand it, is this: A man is not to be excused from 
 responsibility if he has capacity and reason sufficient to enable him to distinguish be- 
 tween right and wrong as to the particular act he is then doing, a knowledge and con- 
 sciousness that the act he is doing is wrong and criminal, and will subject him to punish- 
 ment. In order to be responsible, lie must have sufficient power of memory to recollect 
 the relation in which he stands to others, and in which others stand to him; that the act 
 he is doing is contrary to the plain dictates of justice and right, injurious to others, and 
 a violation of the dictates of duty. On the contrary, although he may be labouring under 
 partial insanity, if he still understands the nature and character of his act and its conse- 
 qucnces; if he has a knowledge that it is wrong and criminal, and a mental power suffi- 
 cient to a|iply that knowledge to his own case, and to know that if he does the act he 
 will do wrong and receive punishment, such partial insanity is not sufficient to exempt 
 him from responsibility for criminal acts. If, then, it is proved to the satisfaction of the 
 jury, that the mind of the accused was in a diseased and unsound state, the question will 
 be, whether the disease existed to so high a degree that for the time being it ovgrwlielmed 
 the reason, conscience, and judgment; and whether the prisoner committing the liomL- 
 cidc acted from an irresistible and uncontrollable impulse; if so, then the act was not the 
 act of a voluntary agent, but the involuntary act of the body without the concurrence of a 
 mind directing it. The character of the mental disease relied upon to excuse the 
 accused in this case, is partial insanity, consisting of melancholy, accompanied by delu- 
 sion. The conduct may be in many respects regular, the mind acute, and tlie conduct 
 a[)()arcntly governed by rules of propriety, and at the same time there may be insane 
 delusion, by which the niiiul is perverted. The most common in these cases is that of 
 monomania, where the mind broods over one idea, and cannot be reasoned out of it. 
 This may operate as an excuse for a criminal act in one of two modes. Either the delu. 
 sion is such that the |)erson under its influence has a real and firm belief of some fact, 
 not true in itself, but which if it were true, would excuse his act ; as where the belief is 
 that the party killed had an immediate design upon his lilc, and under that belief the 
 iasane man killed him in supposed self-defence. A common instance is where he fully
 
 HISTORIA PLACITORUM CORONA. 37 
 
 t 
 
 believes that the act he is doing is done by the immediate command of God, and he acts 
 under the delusive, but sincere belief, that what he is doing is by the command of a supe- 
 rior power, which supercedes all liuman laws, and the laws of nature; or, 2d. This st;ite 
 of delusion indicates to an experienced person that the mind is in a diseased slate, that 
 the known tendency of that diseased s^tate of mind is to break out into sudden parox- 
 ysms of violence, venting itself into acts of homicide or other violent acts towards friend 
 or foe indiscriminately, so that although there was no previous symptoms and indications 
 of violeHce, yet the subsequent act connecting itself with the previous symptoms and 
 indications, will enable an experienced person to say that the outbreak was of such a 
 character, that for the time being it must have overborne memory and reason: that the 
 act was the result of the disease, and not of a mind capable of choosing: in short, that 
 it was tlie result of uncontrollable impulse, and not of a person acted- upon by motives, 
 and governed by the will." Roger's Trial, Boston, 1844, ^.273., Charge of Ch. Just. Shaw. 
 
 A case of great interest and importance has recently occurred in England, Reg. v. 
 McNaughton, 10 Clark Sf Fin. 210. In that case, the following questions were pro- 
 pounded to the judges of England by the House of Lords: 
 
 "1st. What is the law respecting alleged crimes committed by persons afflicted with 
 insane delusion in respect of one or more particular subjects or persons; as, for instance, 
 w^ere at the time of the commission of the alleged crime, the accused knew he was act- 
 ing contrary to law, but did the act complained of with a view, under the influence of 
 insane delusion, of redressing or avenging some supposed grievance or injury, or of pro- 
 ducing some supposed public benefit ? 
 
 "2d. What are the proper questions to be submitted to the jury, when a person alle- 
 ged to be afflicted with insane delusion respecting one or more particular subjects or 
 persons, is charged with the commission of a crime, (murder, for example,) and insanity 
 is set up as a defence? 
 
 " 3d. In what terms ought the question to be left the jury as to the prisoner's state of 
 mind at the time when the act was committed? 
 
 " 4th. If a person under an insane delusion as to existing facts, commits an offence in 
 consequence thereof, is he thereby excused? 
 
 "5th. Can a medical man, conversant with the disease of insanity, who never saw tlie 
 prisoner previous to the trial, but who was present during the whole trial and the exami- 
 nation of all the witnesses, be asked his opinion as to the state of the prisoner's mind at 
 the time of the commission of the alleged crime, or his opinion whether the prisoner was 
 conscious, at the time of doing the act, that he was acting contrary to law ; or whether 
 be was labouring under any or what delusion at the time?" 
 
 The joint opinion of all the judges, except Mr. Justice Maule, was delivered by Lord 
 Chief Justice Tindal, as follows: — " My Lords, her Majesty's Judges, with the exception 
 of Mr. Justice Maule, who has statpd his opinion to your Lordships, in answering the 
 qaestions proposed to them by your Lordship's House, think it right in the first place to 
 state that they have forborne entering into any particular discussion o])on these ques- 
 tions, from tlie extreme and almost insuperable difficulty of applying those answers to 
 cases in which the facts are brought judicially before them. The facts of each particular 
 case must of necessity present themselves with endless variety, and with every shade of 
 difference in each case, and it is their duty to declare the law upon each particular case 
 on facts proved before them, and after hearing argument of counsel thereon. Tiiey deem 
 it at once impracticable, and at the same time dangerous to the, administration of justice, 
 if it were practicable, to attempt to make minute applications of the principles involved 
 in the answers given them by your Lordships' questions; they have therelbre confined 
 their answers to the statements of that which they hold to be the law upon the abstract 
 questions proposed by your Lordships; and as they deem it unnecessary in this particu- 
 lar case to deliver their opinions seriatim, and as all concur in the same opinions, they 
 desire me to express such their unanimous opinion to your Lordships, 
 
 " In answer to the first question, assuming that your Lordships' inquiries are confined 
 to those persons who labour under such partial delusions only, and are not in other re- 
 spects insane, we are of opinion, that notwitlistanding the party accused did the act 
 complained of with a view under the influence of insane delusion, of redressing or aveng. 
 ing some supposed grievances or injury, or of producing some public benefit, he is, 
 nevertheless, punishable according to the nature of the crime comn)ittcd, if he knew at 
 tl»e time of committing such crime that he was acting contrary to law, — by which ex- 
 pression we understand your Lordships to mean, the law of the land. As the third and 
 Iburth questions appear to us to be more conveniently answered together, we have to 
 
 280980
 
 37 HISTORIA PLACITORUM CORONA. 
 
 I 
 
 submit our opinion to be, tbat the jury ongfht to be told in all cases, that every man ia 
 presumed to be sane and to possess a sutHcient degree of reason, to be responsible fur his 
 crimes, until tiie contrary be proved to tlicir satistiiction; and that to establish a defence 
 on the ground of insanity, it must be clearly proved, that at the time of committing the 
 act, the party accused was labouring under such, a defect of reason from disease ot the 
 mind as nol to know the nature and quality of the act he was doing, or if he did know 
 it, ttiat he did not know that lie was doing what was wrong. The mode of putting 
 the latter part of the question to the jury on tliese occasions has generally been, whether 
 the accused at the time of doing the act, knew the difference between right and wrong ; 
 which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we 
 conceive, so accurate when put generally and in tlie abstract, as when put with reference 
 to the party's knowledge of right and wrong in respect to the very act with which he is 
 ciiarged. If the question were to be put as to the knowledge of the accused solely and 
 exclusively with reference to the law of the land, it might tend to confound tlie jury, by 
 inducing them to believe that an actual knowledge of the law was essential in order to 
 lead to a conviction ; whereas the law is administered upon the principle that every one 
 must be taken conclusively to know it, without proof that he does know it. If the ac- 
 cused were conscious thai the act was one which he ought not to do, and if that act was 
 at the same time contrary to the law of the land, he is punishable; and the usual course, 
 therefore, has been to leave the question to tiie Jury, whether the party accused had a 
 sufficient degree of reason to know that he was doing an act that was wrong ; and this 
 course we think is correct, aceOinpanied with such observations and explanations as the 
 circumstances of each particular case may require. The answer to the fourth question 
 must, of course, depend on the nature of the delusion; but, making the same assumption 
 as we did before, namely, that he labours under such a partial delusion only, and is not in 
 other respects insane, we think he must be considered in the same situation as to responsi- 
 bility, as if the facts with respect to which the delusion exists were real. For example, if 
 under the influence of delusion, he supposes another man to be in the act of attempting to 
 take away his life, and he kills that man, as he supposes, in self defence, he would be 
 exempt from punishment. If his delusion was, that the deceased had inflicted a serious 
 injury to his character and fortune, and he killed him in revenge for such supposed in- 
 jury, he would be liable to punishment. In answer to the last question, we state to your 
 Lordships, that we tiiink the medical man, under the circumstances supposed, cannot, in 
 strictness, be asked his opinion in the terms above stated, because each of those ques- 
 tions involves the determination of the truth of the facts deposed, on which it is for the 
 jury to decide; and the questions are not mere questions upon a matter of science, in 
 which case, such evidence is admissible. But where the facts are admitted, or not dis- 
 puted, and the question becomes substantially one of science only, it may be convenient 
 to allow the question to be put in that general form, though the same cannot be insisted 
 on as a matter of right." Per Tindal, C. J. delivering the opinion of the Judges in, 
 McAaiiphten's Case, 10 CI. S( Fin. 200. 208. Maule, J., diss. p. 204—208. See also 
 Hansard's Pari. Debates, Vol. Ql.pp. 288. 714. 
 
 In a late case, {Commonweallh v. Mosler,) before the Supreme Court of Pennsylvania, 
 the defence of insanity was set up on an indictment for murder, and discussed at great 
 Ivngth. Chief Justice Gibson, in delivering the charge to the jury, said: 
 
 " Insanity is mental or moral — the latter being sometimes called homicidal mania, and 
 properly so. It is my purpose to deliver to you the law on this ground of defence, and 
 not to press upon your consideration, at least to an unusual degree, the circumstances of 
 the present case, on which the law acts. A man may be mad on all subjects; and then, 
 though he may have glimmerings of reason, he is not a responsible agent. This is 
 general insanity; but, if it be not so great in its extent or degree as to blind him to the 
 nature and consequences of his moral duty, it is no defence to an accusation of crime. 
 It must be so great as entirely to destroy his perception of right and wrong; and it is 
 not until that perception is thus destroyed, that he ceases to be responsible. It must 
 amount to delusion or hallucination, controlling his will and making the commission of 
 the act, in his api)rchcnsion, a duty of overruling necessity. The most apt illustration 
 of the latter is the perverted sense of religious obligation, which has caused men some- 
 times to sucrifice their wives and children. 
 
 " Partial insanity is confined to a particular subject — the man being sane on every 
 other. In that species of madness, it is j)lain that he is a responsible agent, if he were 
 not instigated by his madness to perpetrate the act. He continues to be a legitimate 
 subject of punishment, although he may have been laboring undur a moral obliquity of
 
 HISTORIA PLACITORUM CORON.E. 37 
 
 perception, as much so as if he were merely laboring under ah obliquity of vision. A 
 man wliose mind squint'', unless impelled to crime by this very mental obliquity, is as 
 much amenable to punishment as one whose eye squints. On this point, there has been a 
 mistake as melancholy as it is popular. It has been announced by learned doctors, that, 
 if a Jiian has the least taint of insanity entering into his mental structure, it dischariies 
 him of all responsibility to the laws. To this monstrous error may be traced both the 
 fecundity in homicides which has dishonored this country, and the immunity which has 
 attended them. The law is that, whether the insanity be general or partial, the degree 
 of it must be so great as to have controlled the will of its subject, and to have talien 
 from liim the freedom of moral action. 
 
 " But there is a moral or homicidal insanity consisting of an irresistible inclination to 
 kill, or to commit some other particular offence. There may be an unseen ligament 
 pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and 
 placing it under a coercion which, while lis results are clearly perceived, is incapable of 
 resistance. The doctrine which acknowledges this mania is dangerous in its relations, 
 and can be recognized only in the clearest cases. It ought to be shown to have beea 
 habitual, or at least to have evinced itself in more than a single instance. It is seldom 
 directed against a particular individual ; but that it may be so, is proved by the case of 
 Jtbe young woman who%'as deluded by an irresistible impulse to destroy her child, though 
 aware of the heinous nature of the act. The frequency of tliis constitutional malady is 
 fortunately small, and it is better to confine it within the strictest limits. If juries were 
 to allow it as a general motive operating in cases of this character, its recognition would 
 destroy social order as well as personal safety. To establish it as a justification in any 
 particular case, it is necessary either to show, by clear' proofs, its contemporaneous 
 existence, evinced by present circumstances, or the existence of an. habitual tendency 
 developed in previous cases, becoming in itself a second nature." 
 
 The jury convicted tlie prisoner, and the Court was unanimous in refusing a new trial. 
 Com. V, Mosler, 6 Penn, L. J. 93, 4 Barr. Rep. 
 
 The leading works upon the medical jurisprudence of insanity, are Esquirol on In. 
 sanity; Marc de la Folic; Ray on Insanity; Winslow on the Plea af Insanity; Collin- 
 son on Lunacy; Shelford on Lunacy. Taylor's Med. Jur. {London, 1844.) The inquirer 
 will find an article on the value and effect of medical testimony in The British and 
 Foreign Mid. Review for July, 1S43. In Roger's Trial, {Boston, 1844,) reported by 
 Messrs. Bigelow ^ Bemis, counsel for the defendant, will be found all the leading autho- 
 rities, both the text books and the adjudged cases, many of them learnedly and tho- 
 roughly examined. 
 
 CHAPTER V. 
 
 CONCERNI^'G CASUALTY AND MISFORTUNE, HOW FAR IT EXCUSETH 
 
 IN CRIMINALS. 
 
 I COME to the second kind of accidental defects, viz. casicallr/ 
 
 and misfortune, and to consider how far it excuseth : and |] 38 ]] 
 
 first we are to observe in this, and Hkewise in some other 
 
 of the defects before and hereafter mentioned, a difference between 
 
 civil suits, that are terminated z?v, cornpensationem damni iUali,Q.\\di 
 
 criminal suits or prosecutions, that are in vindlclam criminis coni- 
 
 ?nissi. 
 
 If a man be shooting in the fields at rovers, and his arrow hurts 
 a person standing near ihe mark, tlie. party hurt shall have his ac- 
 tion of trespass, and recover his daniages, though the hurt were cas- 
 
 VOL. I.— 6
 
 38 HISTORIA PLACITORUM CORONA. 
 
 iial;(fir) for the party is damnified by him, and the damages are but 
 his reparation ; but if the party had been killed, it had been /;er infor- 
 tunium, and the archer should not suffer death for it, though yet 
 he goes not altogetiier free from all punishment. (6) 6 E. 4. 7. per 
 Cateshy.{c) 
 
 As to criminal proceedings, if the act that is committed be simply 
 casual, and /?er infortunium, regularly that act, which, were it done 
 ex (inimi intentione, were punishable with death, is not by the laws 
 of England to undergo that punishment; for it is the will and in- 
 tention, that regularly is required, as well as the act and event, to 
 make the offence capital. 
 
 Now, what shall be said thus simply casual, and what the 
 ^ 39 ]] punishment, will be at large considered, when we come to 
 homicide /je/' infortunium; only something will be neces- 
 sary to be said thereof here. • 
 
 If a man do ex intent ione and voluntarily an unlawful act tending 
 to bodily hurt of any person, as by striking or beating him, though 
 he did not intend to kill him, but the death of the party struck doth 
 follow thereby within the year and day ;(</) or if he strike at one, 
 and missing him kills another whom he did not intend, this is felo- 
 ny(e) and homicide, and not casualty or per infortunium. . 
 
 So it is if he be doing an unlawful act, though not intending bodily 
 harm of any person, as throwing a stone at another's horse, if it hit 
 a person and kill him; this is felony and homicide and not per infor- 
 tunium;(f) for the act was voluntary, though the event not intended ; 
 and therefore the act itself being unlawful, he is criminally guilty of 
 the consequence, that follows: 
 
 But if a man be doing a lawful act without intention of any bodily 
 harm to any person, and the death of any person thereby ensues,, as 
 if he be cleaving wood, and the axe tlies from the helve, and kills anr 
 other, this indeed is manslaughter, but per infortunium; and the 
 party is not to suffer death, but is to be pardoned of course; for it 
 appears by the statute of Marlbridge, cap. 2G. that it was not done 
 
 (a) Hob. 134. - . 
 
 {h) For he forfeits all liis goods and chattels. 2 //. 3. 18. F. Corone. 302. 2 Co. Instit, 
 14y. 3 Co. Instit. 2:20. Ey llie ancient law he was liable to make the same recompense 
 or were^ild, as in any other case of homicide; e. ff. if one shooting at a mark should 
 accidentally wound and kill anotlier, he was nevertheless to pay his wercgild. Leg. H. 
 2. I. 88. I. 90. Legis (nam est placitain, qui ivscienter peccat, scicntir eintndet ; but by 
 the same law, if one, who was standing on a tree or any other place, where lie was at 
 work, should chance to full on another passing by, he was not to pay any tiling, but was 
 deemed entirely innocent, b'ee Wilk. Leg. AngloSax. p.211, 27D. 
 
 (c) B. Corone 148. Trespass 310. F. Corone 354. 
 
 (d) The reason of tliis is, because the law doth presume, tlrat after the year and day it 
 cannot then be discerned, wiiethcr he died of the stroke, or a natural death. 3 Co. Jnstit. 
 53. 
 
 (e; The like in the case of maiiicm, if a man strike at one, and missing him mailiem 
 another, 13 H. 7, 14. a. 
 
 (/^ II H. 7. 23. a. per Fincux Ch. Just. B. Corone 229. Froclamation 13. 22. Assise 
 pi. 71.
 
 HISTORIA PLACITORUM CORONA. 40 
 
 per feloninm;{g) yet the laws of England are so tender of 
 
 the hfe of man, and to make men very cautions in all their [ 40 ] 
 
 actions that the party, ihough his life be spared, yet forfeits 
 
 his aoods, and must expect the king's grace to restore them. 
 
 There happened this case at Teterhoroiigh: Deer broke into the 
 corn of A. and spoiled it in the night tiriie ; A. sets his servant to 
 watch in the night with a charged gun at the corner of the field, 
 commanding him, that, when he heard anything rush into the stand- 
 ing corn, he should shoot at that place, for it was the deer : the mas- 
 ■ ter was in another corner of the field, rushed into the standing corn ; 
 the servant according to his master's direction shot, and killed his 
 master; it was agreed on all hands, this was neither petit treason, 
 nor murder, but whether it were simple homicide, or ;;erz7?/br/?;«n/m, 
 was a great difficulty: First, the shooting was lawful, when the deer 
 came into the corn, it being no purlieu, nor proclaimed, or chased 
 deer; again, the error of the servant was caused by the master's direc- 
 tion, and his own act ; but if it had been a stranger that had been 
 killed it had been homicide, and not misadventure ; on the other side, 
 the servant was to have taken more care, and not to have shot upon 
 such a token as might have befallen a man as well as a deer; and 
 therefore for the omission of due diligence, and better inspection, be- 
 fore he adventured to shoot, it might amount to manslaughter, and so 
 be capital ; and this seems to be the truer opinion. 
 
 But in the case of Sir WilUam Haivksworth, related by Baker in 
 his chronicle of the time of Edward IV. p. 223, (A) he being weary of 
 his life, and willing to be rid of it by another's hand, blamed his par- 
 ker for suffering his deer to be destroyed, and commanded iiim, that 
 he should shoot the next n)an that he met in his park, that would 
 not stand or speak; the knight himself came in the night into the 
 park, and being met by the keeper refused to stand or speak ; the 
 keeper shot and killed him, not knowing him to be his master; this 
 seems to be no felony, but excusable by the statute of Male- 
 faclores in parcis, for the keeper was in no fault, but his [ 41 ]] 
 master; but, iiad he known him, it had been murder. 
 
 As to matter of high treason, where the life of the king is concern- 
 ed, it is not safe too easily to admit an excuse by chance or misfor- 
 tune ; though such fact cannot be treason, that was purely casual and 
 involuntary, for there must be a compassing or imagining to make 
 
 (c) Here our author rightly says it appears by the statute of Marlhrid^e, that it was 
 not teiony, for that statute only supposes it not to be felony, but does not make that not 
 to be Iblony which was so before, as some have imagined. "2. Co. Instit. 148, 315. for it 
 appears by Magna Charta rap. 26. which was before the statute of Marlhridgc, that he 
 who killed another per infortunium, was in no danger of death. Kel. 123. nor indeed 
 could it be felony, it not being done /e//eo animo, 4 Co, 134 b. The design of that statute 
 was fpiite of another nature, viz. tliat the country should not be amerced where a mau 
 was killed per infortunium, for at that time murdr}im peculiarly signified the secret pri- 
 vate killing of a man; as if he was found killed, but it was not known by whom; and 
 tlius it is defined by Bracton, Lib. III. de corona, cap. 1 to be occulta orcisio; and in the 
 laws of Henry \.l.[)2. murdritus homo dicebuter, cujiis iiUirfectio ncsciebatur ; and in 
 Dialo'jo de Scacrario, Lib, I. cap. 10. 10. murdrum idem est, quod absconditum. 
 
 (//) Sub anno 1471.
 
 41 HISTORIA PLACITORUM CORONA. 
 
 treason ; yet a treasonable intention may be disgnised under the color 
 of chance, and the safety of the king's life is of highest concernment. 
 
 And therefore when JValter Tyrrel, with a glance of an arrow, 
 from a tree involnntarily, as Mattheiv Paris{k) tells us, killed fVil- 
 liuni Rufus,\i could not be treason, (/) because there was no purpose 
 of any mischief, and he shot at the deer by the king's command ; yet 
 the fact was of such a consequence, that he fled for it, which was a 
 circumstance that might probably infer, that there was some iil- 
 intention, which might make him guilty of treason, and not barely 
 accident. Co. P. C. p. 6. 
 
 History tells us, that upon a solemn just, or turnament appointed 
 by Henrr/ II. king of France, upon the marriage of his daughter, the 
 king himself would needs run, and commanded the earl of Montgom- 
 ery to run against him ; the earl's lance breaking upon the king's 
 cuirasse, a splinter flew into the king's eye, and hit it, whereof he 
 died; this was not treason, because purely accidental. [1] 
 
 [ 42 ] CHAPTER VI. 
 
 CONCERNING IGNORANCE, AND HOW FAR IT PREVAILS, TO EXCUSE. 
 IN CAPITAL CRIMES. 
 
 Ignorance of the municipal law of the kingdom, or of the penalty 
 
 thereby inflicted upon oflenders, doth not excuse any, that is of the 
 
 age of discretion and campus mcjilis, from the penalty of the breach 
 
 (k) p. 54. (l) Custumier de Normand. cap. 14. 
 
 [1] Whenever death is the consequence of idle, dangerous and unlawful sports, or of 
 heedless, wanton and indiscreet acts, without a felonious intent the party causing the 
 death is guilty of manslaughter. As if a man rides an unruly horse amongst a crowd of 
 people, 1 East, P. C231 ; or tlirows a stone, or slioots an arrow over a wall into a pub- 
 lic or frequented street, post paire 475, or discharging his pistols into a public street up- 
 on alighting from his carriage, 1 Stra. 481 : in any of these cases, thougli the party may 
 be perfectly innocent of any mischievous intent, still if death ensues lie is guilty of man- 
 slaughter. So, if the pvvner suffers to be at large any animal which he knows to be vi- 
 cious and mischievous, and it kills a man, it has been thought by some that he may be in- 
 dicted for manslaughter; but it is well agreed that he is guilty of a hiorh misdetncanor. 
 2 Hawk. P. C. c. 13, § 8 ; and in a very recent case of that kind. Best, C J. laid down as 
 law, "that if a person think proper to keep an animal of this description, (a bull) knowing 
 its' vicious nature, and another person is killed by it, it will be manslaughter in the own- 
 er, if nothiiiff morfi ; at all events it will he an aggravated speciv& of muiisl an ghter : Black- 
 man v. Simmonds, 3 Carr. 6^ Pay. 140. If workmen in the ordinary course of their 
 business, throw rubbish from a house in a direction in which persons are likely to pass, 
 and any one passing is killed, this is manslaughter; Ward's case, 1 East P. C. 5J61, 262, 
 2G3, 270; Rex v. Marji/ii/, G Carr. Sf I'ay. 103. As to .what are lawiul sports, see Put- 
 ton, title Riot, 4 Sleph. Citinmcntaries 101, 4 Bl. Coin. 183, note bij Ri/land, 19 ed. Land. 
 1836. The cases in which the propriety of the act which causes the injury, the man- 
 ner of doing it, or the circumstances under which it is done, arc considered, may be t()und 
 1 Hawk c. 29 s. 3 ; Foster 262 ; Rex v. Martin, 3 C. S( P.-2\l; Hull's case 1 664, K,l. 
 40; 1 Russell 769; Rex v. Walhr, 1 C. Sf P. 320; Rex v. Gree, 7 C. &; P. 156; R.v. 
 A^lrn et al. 7 C. J^ P. 153; 4 hist. 251 ; R<x v. Van Batchcll, 3 C. 4- P. 629; Rex v, 
 Williamson, 3 C. Sj P. 635; Rex v. Spiller, 5 C. Sf P. 333 ; see post, c. 39 notes.
 
 HISTORIA PLACITORUM CORONA. 42 
 
 of it ; because every person of the age of discretion and compoa men- 
 tis is bound to know the law, and presumed so to do : Jgnoraiilia 
 eornm, qnx qxds scire tenetur, non excusat.{a) 
 
 But in some cases is;nnrantia facti doth excuse, for such an ignor 
 ranee many times makes the act itself morally involuntary; and in- 
 deed many of the cases of misfortune and casualty mentioned in the 
 former chapter are instances that fall in with this of ignorance : I 
 shall add but one or two more. 
 
 It is known in war, that it is the greatest offence for a soldier to 
 kill or so much as to assault his general: , suppose then the inferior 
 otTicer sets his watch, or sentinels, and the general to try the vigilance 
 or courage of his sentinels comes upon them in the night in the pos- 
 ture of an, enemy, (as some commanders have too rashly done) the 
 sentinel strikes, or shoots him, tal«ng him to be an enemy; his igno- 
 rance of the person excuseth his offence. 
 
 In the case of Level indicted for the death of Frances Freeman, 
 the case was, that William Level being in bed and asleep in the 
 night, his servant hired Frances Freeman to help her to do her work, 
 and about twelve of the clock in the night the servant going to let out 
 i^/Yince.s thought she heard thieves breaking open the door; she there- 
 fore ran up speedily to her master, and informed him, that she thought 
 thieves, were breaking open the door; the master rising suddenly, and 
 taking a rapier, ran down suddenly ; Frances hid herself in 
 the b*ittery; lest she should be discovered; Leveies \v\{e, [ 43 J 
 spying Frances in the buttery, cried out to her husband, 
 '^Here they be, that would undo its." Level runs into the buttery 
 in the dark, not knowing Frances, but thinking her to be a thief, and 
 thrusting with his rapier before him hit Frances in the breast mortal- 
 ly, whereof she instantly died. This was resolved to be neither mur- 
 der, nor manslaughter, nor felony. Vide this case cited by justice 
 Jo)ies, F. 15 Car. I. B. R. Cro. Car. 53S. Cook's case. 
 
 CHAPTER VII. 
 
 TOUCHIXG INCAPACITIES, OR EXCrSES BY REASOX OF CIVIL SUBJEC- 
 
 TIOX. 
 
 I COME now to those incapacities, which I have styled civil, and to 
 consider how far they indemnify and excuse in criminals, and crimi- 
 nal punishments. 
 
 And first concerr;ing that, which ariseth by reason of civil subjec- 
 tion. 
 
 And this civil subjection is principally of the subject to his prince, 
 the servant to his master, the child to liis parent, and the wife to her 
 husband. Somewhat I shall say of each of these. 
 
 I. As to the first of these subjections, the subject to his prince; 
 it is regularly true, that the law presumes, the king will do no wrong; 
 
 (a) Phwd. 343. a.
 
 43 HISTORIA PLACITORUM CORON.^. 
 
 neither indeed can do any wrong;(r/) and therefore, if the king com- 
 mand an unlawful act to be done, the offence of the instru- 
 ^ 44 ^ nient is not thereby indemnified;(6) for though the king is 
 not under the coercive power of the law,[l] yet in manycases 
 his commands are under the directive power of the law, which con- 
 sequently makes the act itself invalid, if unlawful, and so renders the 
 instrument of the execution thereof obnoxious to the punishment of 
 the law. Vide Slamf. P. C. 102. b.{c) yet in the time of peace, if two 
 men combat together at barriers, or for trial of skill, if one kill the 
 other it is homicide; but if it be by the command of the king, it is 
 said(o') it is no felony. 11 H. 1. 23. a. 
 
 II. As touching the civil subjection of the child, or servant ; if 
 either of them commit an act, which in itself is treason, or felony, it 
 is neither excused nor extenuateok as to the point of punishment by 
 the command of his master or parent; for the command is void and 
 against law, and doth not protect either the commander or the instru- 
 ment, that executes it by such command. (e) 
 
 III. As to the civil subjection of the wife to the htisbnnd: though 
 in many cases the command, or authority of the husband, either 
 express or implied, doth not privilege the wife from capital punish- 
 ment for capital offences; yet in 5ome cases the indulgence of the law 
 doth privilege her from capital punishment for such ofiences, as are 
 in themselves of a capital nature; wherein tliese ensuing dilferences 
 are observable. ♦ 
 
 1. If a feme covert alone without her husband, and without the 
 coercion of her husband, commit treason or felony, though it be but 
 larceny, she shall suffer the like judgment and execution, as if she 
 were sole ; this is agreed on all hands. Stamf. P. C. Lib. I. cap. 19. 
 15 ^. 2. Corone 383. 
 
 2. But if she commit larceny by the coercion of the hus- 
 
 [ 45 ] band, she is not guilty. 21 Ass. AO;{f) and according to 
 
 some, if it be by the command of her husband Ibid.{g) which 
 
 seems to be law, if her husband be present ;( A) but not if her husband 
 
 be absent at the time and place of the felony comtnitted. 
 
 3. 13ut this command or coercion of the husband doth not excuse 
 in case of treason, nor of murder,»in regard of the heinousness of 
 those crimes. Mr. Balton's Just. Ca. 104.(/) And hence it was that 
 
 (a) Co. Lit. 19.6.4. 
 
 (/>) As if one man arrest anoUicr merely by the kinjr's commandment, that shall be no 
 excuse to hinl, but lie is nevertlielcss liable to an action of false imprisonment. 16 //. 6. 
 F. MunHriiuns de fails 182. 1 //. 7. t. /i. rrerogntir>e 139. 
 
 (c) Vide liractim Lib. III. Dv nrtiniiihus, cap 9. 
 
 ((/) I'cr Fineux Cli. Just, but Jiiuke in bis abridgement of this case, Corona 229. says, 
 that other justices in the time of IJcitrij VIII. denied this opinion of Fineux, and held, 
 that it was felony to kill a man in jusimir iitid the like? notwithstanding the command- 
 ment of the king; for that tlie commandment is against law. 3 Co. List. 56. 160. 
 
 (e) DfiU. Just. Cap. 1.57. N. Edit. 
 
 (/) 7''. Corone, 199. Uracton de Corone. cap. 32. § 9. 
 
 (f) Qiioiiiam ipsa superiori suo ohedire dchet. Leg. Incc, I. 57. B. Corone 108. 
 
 (//) l]ec;iuse the law siipposes her to be then under the coercion of her husband. Kel 31. 
 (i) TV. Edit. cap. 157. ^ 
 
 [IJ The People v. McLeod, 1 IliWs Re p. 377.
 
 HISTORIA PLACITORUM CORONA. 45 
 
 in the cases of the treasons committed by Arden and Somerville{k) 
 against Queen Elizabeth, both their wives were attaint oiliigh trea- 
 son, though their execution was spared; and yet they were only 
 assenters to their husband's treasons, and not immediately actors in 
 it, and so were principals in the second degree; and upon the same 
 account the earl of Somersel and his wife were both attaint, as acces- 
 saries before, in the murder and poisoning of Sir Thomas Over- 
 bury.{l)\_2] 
 (k) 1 And. p. 104. (0 Stat. Trials, Vol. I. TV. 28 ^- 29. 
 
 [2] Somerville's case, 1 And. 104, which is the only case where husband and wife have 
 been convicted of treason, only shows that a wife may be convicted of treason with her 
 husband. There Arden and iiis wife were cliarcred with procuring- Sotnerville to destroy 
 the Queen, and both found guilty, but as none of the evidence is stated, it may have beea 
 that the wife was the instigator, and both properly convicted. In SomerseVs case, which 
 is the only case of a wife convicted as well as her husband, as an accessary to a murder, 
 according to 3 Inst. 50, the Earl and Countess were indicted as accessaries before the 
 fact, to tlie murder of Sir T. Overhury, the wife was arraigned alone, first, and pleaded 
 guilty, and being asked what she had to say why judgment of death should not be given 
 against her, she said, " I can much aggravate but nothing extenuate my fault." {2 St, 
 Tr. 957.) Assuming, therefore, that the indictment was joint against both, the case only 
 proves tlicLt the wife may properly be convicted upon her own confession, which indicates 
 that she was the more guilty party ; as it is clear she was in this case. See Hume^s 
 Hist, Eng. vol. 6, |». 68, &,c. Bat as the Earl and Countess were separately arraigned, 
 and on ditFurent davs, and as the indictment against the Earl, as recited in his pardon, 
 (2 St. Tr. 1014,) is against him alone, it may be inferred that the Countess was indict- 
 ed alone; if so, the case is merely that of a wife pleading guilty to an indictment charg- 
 ing her alone as accessory, and unless in such a case she either pleaded that she com- 
 mitted the offence in company witii lier husband, (as it seems she may. Post. 47, M. 37 
 Ed. 3 Rot. 34,) or such appeared to be the case upon her trial, no question as to coercion 
 could arise. In Reg. v. Alison, 8 C. S^ P. 418, Mr. J. Paiteson mentions an old case 
 where a husband and wife intending to destroy themselves, took poison together, the 
 hujiband died but the wife recovered, and was tried for murder, and acquitted solely on 
 the ground that being the wife of the deceased she was under his control, and inasmuch 
 as the proposal to commit suicide had been first suggested by him, it was considered 
 that she was not a free agent; but I know from the best authority, (says Mr. Greaves, 
 in a note in RusseWs C. <V M.) that the very learned judge guarded against subscribing to 
 the reason given for this decision. Probably the case referred to is an anonymous one. 
 Moor, 754, where it is said the question was, whether it was murder in the woman, and 
 the Recorder caused the special matter to be found, but no decision is stated, nor have 
 I been able, (adds Mr. Greaves,) to find the case elsewhere: 1 Russ. on Crimes, 18, note. 
 Before Somerville''s case, 26 Eliz. and Somersets case, A. D. 1615, tliere seems no ex. 
 ception to the general rule that the coercion of the husband excuses the act of the wife. 
 (See 27 Ass. 4iJ ; Stamf. P. C. 26, 27. 142; Pzilion de Pace Regis. 130; Br. Ah Coron, 
 108; Filz Ab. Coron 130. 160. 199.) But after those cases there are the following 
 exceptions in the books: — Bac. ]\!ax. 57, excepts treason only; Dalton, 147, treason 
 and murder, citing for the laiter. Mar, Lect. 12, (perhaps some reader of some Inn of 
 Court,) 1 Hale P. C. p. 45. 47, treason, murder, and liomicide; and p. 434, treason, 
 murder, and#nanslaughter; Keyling, 3], an obiter dictvm, murder only ; Hiwli. Ii. 1, c. 
 1, s. 11, treason, murder, and robbery; Black. Commentaries, vol. i. p. 444, treason and 
 murder: vol. iv. p. 29, treason and mala in se, as murder and the like. Hale, there, 
 fore, alone excepts manslaughter, and Hawkins introduces robbery without an authority 
 for so doing; and, on the contrary, in Reg. v. Cruse, 8 C. 4' P- 545, a case is cited 
 where Burrttngh, J., held, that the rule extended to robbery. It seems long to have been 
 considered that the niere presence of the husband was a coercion, (see 4 Black Com. p. 
 23.) and it was so contended in Reg. v. Cruse; and Bac. Max. 56, expressly states that 
 a wife con neither be principal nor accessary by joining with her husband in a felony, 
 because the law intends her to have no will, and in the next page he says, " If husband 
 and wite join in committing treason, the necessity of obedience doth not excuse the 
 wife's offence, as it docs in felony." Now if this means that it does not absolutely excuse 
 as he has stated in the previous page, it is warranted by Somerville^s case, which shows
 
 45 HISTORIA PLACITORUM CORONA. 
 
 4. If the husband and wife together commit larceny or burglary, 
 by the opinion of Bracton, Lib. III. cap. 32. § \0.{m) botli are 
 guihy; and so it hath been practised by some judges. Vide Dull, 
 ubi supra, cap. 104. and possibly in strictness of law, unless the 
 
 (/n) And Sect. 9. and Flefa, Lib. I. cap. 38. § 12, 13, 14. especially, Sifurtum invenia- 
 tur sub Clavibus Uxoris. Vide Bracton Sf Fleta, ibid, and LL^ Cnuti, Z. 74. ' 
 
 that a wife may be guilty of treason in company with her husband, and which would be 
 an exceplion to the general rule as stated by Bacon. So also would the conviction of a 
 wife with her husband for murder in any case be an exception to the same rule. Dalton 
 cites the exception from Bacon, without the rule, and Hale follows. Dalton and the 
 other writers follow Hale; and it seems by no means improbable that the exceptions of 
 treason and murder, which seem to have sprung from Somerville''s and SomerseVs cases, 
 and vi'hich were probably exceptions to the rule as stated by Bacon, have been, continued 
 by writers without adverting to their origin, or observing that the presence of the hus- 
 band is no longer considered an absolute excuse, but only affords a prima facie pre 
 sumption that the wife acted by his coercion. See the argument of Mr. Carrington, .in 
 Reg. V. Cruse, 8 C. Sf P. 541. 1 Russ. on Crimes, 18. 24. Mr. Greave''s Notes, Am. 
 ed. 1845. See Com. v. Neat, 10 Mass. R. 152. Marlow v. Com. 1 Mass. R. 347. 391. 
 Com. V. Leicis, 1 Mete. R. 151. T/ie People v. Townscnd, 3 HiWs N. Y. R. 479. The 
 iState V. Harvey, 3 N. Hamp. R. 65. Com. v. Trimmer, I Mass. R. 476. Jones v. The 
 State, 5 Blackf. (Ind.) R. 141. 492. Biirn's Just. tit. Wife, 23th Lond. ed. 
 
 There is no doubt that in all misdemeanors a wife may be jointly convicted with Ijer 
 husband, as she may be proved to have acted voluntarily, but there is no authority that the 
 same rule as to coercion, which applies to felonies, docs not extend to misdemeanors. On 
 the contrary. Rex v. Price, 8. C. cSj- P. 19, and Anon. Math. Dig. Cr. Law 262, show 
 that the rule applies to the misdemeanor of uttering base coin, and the reason given in 
 Rex V. Dixon, ID Mud. 335, and Reg. v. Williams, Sulk. 384, as to tiie keeping of gaming 
 and bawdy houses, that the wife mny probably have as great, nay a greater share in the 
 criminal management of the house, tiian the liusband, tends to show that in order to convict 
 the wife, she must be acting voluntarily and not under coercion. In Reg. v. Cruse, 8 C. Sf 
 P. 541, the wife had taken a very active part. Reg. v. Williams, and Reg. v. Ingram, 
 Salk. 384, were in arrest of judgment, and therefore the Court would presume if necesr 
 sary, that the wife had acted voluntarily ; and Reg. v. Dixon, was on demurrer, and 
 the Court would, and it seems did, hold the indictment good,^ because it might be proved 
 that the wife was not under coercion. There is no autiiority, therefore, that the rule 
 does not extend to misdemeanors, and the tendency of the authorities certainly is, that it 
 does. 1 Russ. on Crimes, 19 note (i), 5th Am. Ed. 1845. 
 
 The following positions seem fairly deducible from the cases upon this subject; 1st, 
 There is no objection on demurrer to an indictment which charges husband and wife 
 jointly, with the commission of an offence; for the indictment is joint and several, and 
 both may be convicted, if it appear that the wife was not acting under the coercion of the 
 husband or eitiier of them ; 2dly, 'I'liere is no objection cither in arrest of judgment or on 
 error, to the joint conviction of husband and wife of the same offence, for she may have 
 been the instigator, and both guilty; 3dly, Upon the trial of husband and wife, the 
 prima facie presumption is, tiiut she acted under liis coercion, provided he were actually 
 present at tiie lime the fch^ny was committed. If, tiierctorc, nothing appear but that the 
 felony was committed w hilc they were both togetiier, she jury ought to be directed to 
 acquit the wife ; 4tlily Tliis jjresumption is prima facie only, and may be relutted either 
 by showing that the wife wns the instigator or more active party, or that the husband 
 though present was incapable of coercing, as that he was a crip[)le, and bed ridden, or 
 that the wife was the stronger of the two. 1 Russ. on Crimes, 21 note (g), 4 Steph.C . 81. 
 The Englisli cases will be found in 1 Russ. cited sup., and the American in Wharton's 
 Am. Crim. Law, 19,23. 
 
 I'lic following passage is taken from the Report of the Massachusetts Commissioners, 
 appointed " to reduce so much of the Common Law as relates to Crimes and Punish- 
 nients to a written and systematic cotle:" 
 
 "A married woman is presumed not to act under compulsion by her husband in the 
 commis>ioii of treason, murder, or robbery in his presence. In respect to other felonies, 
 and to misdemeanors committed by her, or to which she is accessary before the fict, in 
 prcbcncc of her husband, and in which lie is concerned, she is presumed to act under
 
 HISTORIA PLACITORUM CORONA. 45 
 
 actual coercion of the husband appear, she may be guilty in such a 
 cnse ; for it may many times fall oat, that the husband doth commit 
 larceny by tlie instigation, though he cannot in law do it by the 
 coercion of his wife; but the latter practice hath obtained, that if the 
 husband and wife commit burglary and larceny together, the wife 
 shall be acquitted, and the husband only convicted; and with this 
 agrees the old book, 2 E. 3. Corone 160. And this being the modern 
 practice and infavorem vitasis fittest to be followed ; and the rather, 
 because otherwise for the same felony the husband may be saved by 
 the benefit of his clergy, and the wife hanged, where the 
 case is within clergy ;(?i) though I confess this reason is but (^ 46 ^ 
 
 (n) The reason of this is, because a woman cannot by law have tlie benefit of the 
 clergy, li Co. 29. b. yet in Fitz. Corone 461, it was admitted, that a woman might claim 
 clerg-y; however, as the law now stands, she may in all cases have the same benefit by 
 the statute of 3 4" 4 W. Sf M. cap. 9. § 7. as a man may by his clergy. See post c, 44 n, 
 
 compulsion by him, unless such presumption is precluded by the kind, nature, or charac- 
 ter of the offence, as in case of her being a common scold; but such presumption may 
 be rebutted bv the circumstances of the case, or bv other evidence. Archb., P. Q. S. 80. 
 Dick's C, i'Russ. 1G. 1 Hawk, c. 1, s. 12, led. Dixon Sf Wise's C, 10 Mod. 375. 
 Dult, 126. 
 
 She is not chargeable with instigating her husband to any crime. 
 
 She is not chargeable for receiving goods stolen, embezzled, or extorted by her hus- 
 band; nor as an accessary after tlie fact to the commission of a crime by her husband. 
 
 The common law holds the wife answerable for treason, murder, and robbery commit- 
 ted by her in presence of her husband, without any presumption tliat she is under com- 
 pulsion by him. In respect to other felonies, and to misdemeanors so committed by her, 
 the doctrine of the common law is very obscure. It is most frequently laid down that 
 she is presumed to be under compulsion in tiie commission of otlier felonies in his pre- 
 sence. But it is distinctly stated by Mr. Deacon, v. 2, p. 1377, and by Mr. Archbdd, 
 Pr. Q. S., 81, citing 1 Hale, 516, that this presumption may be rebutted by evidence ta 
 the contrary. And yet in case of its being proved that the wife was the active party in 
 receiving stolen goods in her husband's presence, she has been held not to be chargeable 
 with the offence. Draper's C, Ry. ^- M. 234, cited 2 Deac. 178-9. Archer's C, cited 
 Archb., P. Q. S. 80, which is a direct contradiction of the above doctrine ; and see also 
 Squire's C, 1 Russ. 16, ltd., cited 2 Deac. 1378, which was the case of an apprentice 
 being starved to death by the husband and wife. By the Englishlaw, this presumption, 
 though confined to felonies, has a very wide application, since the catalogue of felonies is 
 in England much extended by statutes. It is implied in the English law, though no 
 rule is emphatically laid down to that effect, that the presumption is applicable to mis- 
 demeanors committed by the wife in presence of her husband. Thus Mr. Deacon, v. 2, 
 p. 1378, says, " In inferior misdemeanors, there is another exception to the irresponsi- 
 bilty of the wife, for she may be indicted and punished with her husband for keeping a 
 brothel, this being considered to be an offence touching the domestic economy and govern- 
 ment of the house in which the wife has necessarily a principal share." This distinctly 
 implies that, the presumption extends to misdemeanors. But there are some other 
 misdemeanors to which the exception seems to apply more obviously than to that of 
 keeping a brothel. In case of perjury by the wife, though the husband might be present 
 at the time of her testifying, the presumption of coercion by him would ordinarily be 
 absurd. The presumption of coercion by the husband is also limited in the code re- 
 ported by the commissioners, to offences by the wife in which "the husband is concerned," 
 for otherwise the law would make the husband guilty of a crime committed by the wife, 
 though he should endeavour to prevent her from committing it. This limitation of the 
 presumptmn is not known to be stated in the books of the common law, but it can hardly 
 be supposed that it is not part of that law, though the language in which the presump. 
 *^°" 's "sually stated in the books excludes such limitation. 1 Hawk, c. 1, led. 
 Archb. P. Q. S. 80, 81. See Hammond's Project of a Code of Forgery, a. G33, p. 197. 
 Six v. Cheeney,, Wright's R., 9. Report of the Penal Code of Massachusetts, c. iv. {Boston, 
 lo44.) 
 
 VOL. I. — 7
 
 46 HISTORIA PLACITORUM CORONA. 
 
 of small value, for in manslaughter committed jointly by husband 
 and wife the husband may have his clergy, and yet the wife is not 
 on that account to be privileged by her coverture. 
 
 And accordingly in the modern practice, where the husband and 
 wile, by the name of his wife, have been indicted for a larceny, or 
 burglary jointly, and have pleaded to the indictment, and the wife 
 convicted, and the husband acquitted; merciful judges have used to 
 reprieve the wife before judgment, because they have thought, or at 
 least doubted, that the indictment was void against the wife, she ap- 
 pearing by the indictment to be a wife, and yet charged with felony 
 jointly with her husband. 
 
 But this is not agreeable to law, for the indictment stands good 
 against the wife, in as much as every indictment is as well several as 
 joint; and as upon such an indictment the wife may be acquitted, and 
 the husband found guilty, so e converso the wife may be convicted, 
 and the husb^ind acquitted; for the indictment is in law joint, or sev- 
 eral, as the fact happens; and so is the book of 15 E. 2 Coronse 3S3, 
 and accordingly has been the frequent practice Vide Dull, ubi siip. 
 cap. 104, where there are several instances of the arraigning of hus- 
 band and wife upon a joint indictment of felony; which, if by law 
 she could not be any way guilty, had been erroneous, for the indict- 
 ment itself had been insuflicient: therefore, though the former prac- 
 tice be merciful, and cautious, it is not agreeable to law; for, tliough 
 ordinarily according to the modern practice the wife cannot be guilty, 
 if the husband be guilty of the same larceny or burglary; yet if the 
 husband upon such an indictment be acquitted, and the wife convict, 
 judgment ouglit to be given against her upon that indictment; for 
 every indictment of that nature is joint or several, as the matter falls 
 out upon the evidence. Vide 22 E. 4. 7.(o) 
 
 5. But if the husband and wife together commit a treason, 
 r 47 ]] murder, or homicide, though she only assented to the trea- 
 son, they shall both be found guilty, and the wife shall not 
 be acquitted upon the presumption, that it was by the coercion of this 
 husband, for the odiousness, and dangerous consequence of the 
 crin)e;[3] the same law it is, if she be accessary to murder before 
 the fact. 
 
 6. If the husband commit a felony or treason, and the wife know- 
 ingly receive him, she shall neither be accessary after as to the felony, 
 nor principal as to the treason, for such bare reception of her hus- 
 band; for she is suh pot est ate viri., and she is bound to receive her 
 husband ; but otherwise it is, of the husband's receiving the wife 
 knowingly after an olfence of this nature committed by lier.(/;) 
 
 " M. 37. E. 3. Rot. 34. Line, coram liege. lUcardus Dcy t^- Mar- 
 fferia Uxor ejus indictati, pro receptamento felonum ; /l/c/r^fcr/V/ dicit, 
 quod indictamenlum i)redict' super predictam Marge)'ia?n facium mi- 
 Co) B. Charire de pardon 51. {p) Co. P. C. 108. 
 
 [3] See note ante p. 47.
 
 HISTORIA PLACITORUM CORONA. 47 
 
 nussufficiens est, eo quod praed' 3far^eria tempore quo ipsa dictosfel- 
 ones receptasse, seu eis consentire debuisset,fuit cooperta pra:d, Ji/- 
 cardo viro suo, & adliuc est, & omnino sub poteslate sua, cui ipsa in 
 nullo contradicere potuit : & ex quo nou iuseritur in iudictamento 
 praedicto, quod ipsa aliqnod malum fecit, nee eis consentivit,seu ipsos 
 felones receptavit, ignorante viro suo, petit judicium, si ipsa, vivente 
 viro suOjde aliquo receptameuto in prrcsentia viri sui occasionari pos- 
 sit. — Postea viso & diligeuter examinato iudictamento prsedicto super 
 praefatam Murs^eriam facto, videtur curias, quod indictamentum illud 
 minus sufficiens est ad ipsam inde ponere responsuram : Ideo cesset 
 processus versus earn onininu, &c." 
 
 Upon which record these things are observable: 
 
 1. That the wife, if alone and without her husband, may be acces- 
 sary to a ielouy post fa chnn. 2. But she cannot together with her 
 husband be accessary to a felony post factum ; for it shall be entirely 
 adjudged the act of the husband ; and this is partly the reason, why 
 she cannot be accessary in receipt of her husband being a felon, be- 
 cause she is sub potestate viri. 3. That in this case she was not put 
 to plead to the indictment not guilty, but took her excep- 
 tion upon the indictment itself; and so note the diversity [43]) 
 between an indictment of felony, as principal, and the indict- 
 nrent of her, as accessary after; for in the former case she shall be 
 put to plead not guilty to the indictment, though it appear ki the 
 body thereof, that she is covert. 4. That yet the indictment stood 
 good, as to tiie husband ; and upon this consideration, though it is 
 true the husband and wife may be guilty of a treason, as is before 
 shown, yet it seems, she shall never be adjudged a traitor barely for 
 receiving her husband, that is a traitor, or for receiving jointly with 
 her husband any other person that is a traitor, unless she were also 
 consenting to the treason, for it shall be entirely adjudged the act of 
 her husband. 
 
 It is certain a fetyie covert may be guilty of misprision of treason 
 committed by another man than her husband: but whether she can 
 be guilty of misprision of treason, if she knows her husband's treason, 
 and reveal it. not, is a case of some difficulty: on the one side, the 
 great obligation of duty she owes to the safety of the king and king- 
 dom, the horridness of the offence of treason, and the great danger 
 that may ensue by concealing it, seems to render her guilty of n)is- 
 prision of treason, if she should not detect it; on the other side, it 
 may be said, she is sub potestate viri, she cannot by law be a wit- 
 ness against her husband, and therefore cannot accuse him. Ideo 
 quxre. But, certainly, if she consented to the treason of her husband, 
 though he were the only actor in it, she is guihy as a principal, and 
 hath no privilege herein by her coverture, as is before shown.
 
 49 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER VIII. 
 
 CONCERNING THE CIVIL INCAPACITIES BY COMPULSION AND FEAR. 
 
 I JOIN these two incapacities together, because they are much of the 
 same nature, as to many purposes ; and how far these give a privi- 
 lege, exemption, or mitigation in capital punishments, is now to be 
 considered. 
 
 First, There is to be observed a difference between the times of 
 war, or public insurrection, or rebellion, and the times of peace; for 
 in the times of war, and public rebellion, when a person is under so 
 great a power, that he cannot resist or avoid, the law in some cases 
 allows an impunity for parties compelled, or drawn by fear of death, 
 to do some acts in tjiemselves capital, which adrnit no excuse in the 
 time of peace. 
 
 M. 21 E. 3. coram Rege, Rot. 101. Line.'' " Walter deJiJyngton, 
 and divers of his confederates at St. Botolph's Res;iam potestatem 
 assumentes, & ut de Guerra insurgentes' quendam Thomam de Oke- 
 ham sutorem in capitaneum, & majorem suum eligerunt," seized ou 
 two ships, and took away the corn ;(«) appointed a bell to be rung ;(6) 
 and commanded, that at the ringing thereof ipsi Sf eorum quilihet 
 €sser0parati, ^^e. " Et plures homines villae prsedictse, qui ad male- 
 ficia sua consentire noluerunt, ceperunt, & eos sibi jurare fecerunt ad 
 imprisas suas manutenendas." They were arraigned upon the in- 
 dictment, and committed: " lUi, qui coacti fnerunt jurare, dimittun- 
 tur per manucaptionem ; & illi, qui receperunt denarios, petunt quod, 
 ex quo patet per indictamentum prsedictum, quod ipsi coacti fuerunt 
 recipere denarios contra voluntatem suam, petunt, quod possint quieti 
 recedere ; & consideratum est per curiam, quod nihil mali in 
 [ 50 3 his reperitur ; sed quia curia nondum advisatur, dies datus 
 est per manucaptionem ; ideo venit jurata." 1 find no fur- 
 ther proceeding against them. 
 
 M. 7 H. 5. cnram Rege. Rot. 20. Here/, cited Co. P. C. p. 10. 
 Those, that supplied with victuals '^'w John Oldcasile, and his accom- 
 plices then in rebellion, as is said, were acquitted by judgment of the 
 court ; because it was found to be done pro timore mortis, 8^- quod 
 rccesserunt, qiunn cito jjotiieriint: note, it was only furnishing of 
 victuals, and pro timore mortis, which excused them : for afler the 
 battle of Evesham, n\ 49 //. 3., when that prudent act vi^as made for 
 the settling of the kingdom, called Dictum de Keni/worth, those, iha.t 
 were drawn to assist tlie barons against the king, though they were 
 not put into the rank of those that paid five years value of their lands 
 for their assistance, viz. those, that gratis, S,' voluutarie, ^- non coacti 
 tniscriint servitia sua contra regem, <§• ejus Jiiium; yet, it seems, 
 they were put to a smaller mulct ; for by the 12th, 13th, 14th, and 15th 
 
 , (fl) One liuiidrccl and twenty quarters ofcorn, value 36Z. 
 (6) Quondam eoinmunein campanam ordinaverunt pulsari.
 
 HISTORIA PLACITORUM CORONA. 50 
 
 articles: " Coacti, vel metu ducti, qui veneriint ad bella, nee pugna- 
 veruiit, HOC male fecerunt ; impotentes, qui vi vel metu coacti mise- 
 ruiit servitia sua contra regem, vel ejus filium ; coacti, vel metu ducti, 
 qui fuerunt deprgedatores, & cum principalibus prcedonibus prseda- 
 tiones fecerunt, & quando commode potuerunt, recesserunt, & ad 
 domos redierunt; [emptores scienter rerum alienarum valorem bo- 
 norum, quse emerunt, restituant, & in misericordia domini regis sint, 
 quia contra justitiam fecerunt, quia rex inhibuit, jam dimidio anno 
 elapso;] illi, qui ad mandatum comitis Leycestrise ingressi sunt 
 Northampton, nee pugnaverunt, nee malum fecerunt, sed ad Eccle- 
 siatn fugerunt, quando regem venientem viderunt, & hoc sit attinctum 
 per bonos,solvant, quantum valet terra eorum per dimidiura annum; 
 illi, qui ex feodo comitis tenebant,sint solum in misericordia 
 domini regis : impotentes, & alii homines, qui nihil mali fe- [ 51 ] 
 cerunt, statim rehabeant terras suas, & damna recuperent in 
 curia domini regis." 
 
 But even in such cases, if the whole circumstances of the ease be 
 such, that he can sutliciently resist, or avoid the power of such rebels, 
 he is inexcusable, if upon a pretence of fear, or doubt of compulsion, 
 he assist them. 
 
 Now as to times and places of peace. 
 
 If a man be menaced with death, unless he will commit an act of 
 treason, murder, or robbery, the fear of death doth not excusejiim, 
 if he commit the fact; for the law hath provided a sufficient remedy 
 against such fears by applying himself to the courts and officers of 
 justice for a writ or precept de securitate pacis.{d) 
 
 Again, if a man be desperately assualted, and in peril of death, 
 and cannot otherwise escape, unless to satisfy his assailant's fury he 
 Avill kill an innocent person then present, the fear and actual force 
 will not acquit him of the crime and punishment of murder, if he 
 commit the fact; for he ought rather to die himself, than kill an 
 innocent : but if he cannot otherwise save his own life, the law per- 
 mits him in his own defence to kill the assailant ; for by the violence 
 of the assault, and the offence committed upon him by the assailant 
 himself, the law of nature, and necessity, hath made him his own 
 protector cxi7n debifo moderamine inculpatse tulelse, as shall be 
 farther showed, when we come to the chapter of homicide se 
 defendendo.{*) 
 
 But yet farther, it is true in cases of war between sovereign princes 
 the law of nations allows a prince to begin hostility with such a prince 
 that designs a war against him; and if the fear Tdc real, and upon 
 just ground, non tantuni de potentid sed <§• de animq. — Grot de 
 jure belli Sf pacts, Lib. II. cap. 22. § 5. he may prevent the other's 
 actual aggression, and need not expect, till the other actually invade 
 him, when possibly it may be too late to make a safe defence ; and 
 the reason is, because they are not under any superior, that 
 may by his processor interposition secure the prince against [ 52 ] 
 
 (d) See this writ in the Register, fol. 88. b. F. N. B. Vet. Edit. 79. N. Edit. 177, 
 (•) Postea cap. 33.
 
 52 HISTORIA PLACITORUM CORONA. 
 
 such a just fear; and therefore in such case the law of nations 
 allows a prince to provide for his own safety. 
 
 But it is otherwise between subjects of the same prince : If Jl. 
 fears upon just grounds, that B. intends to kill him, and is assured, 
 that he provides weapons, and hes in wait so to do ; yet without an 
 actual assault by B. upon Ji. or upon his house, to commit that fact, 
 Ji. may not kill B. by way of prevention ; but he must avoid the 
 danger by flight, or other means; for a bare fear, though upon a just 
 cause, and though it be upon a fear of life, gives not a man power to 
 take away the life of another, but it must be an actual and inevitable 
 danger of his own life ; for the law hath provided a security for him 
 by flight, and recourse to the civil magistrate for protection by a writ 
 or precept de securitate pacts: and thus far touching the privilege by 
 reason of compulsion or fear.[l] 
 
 CHAPTER IX. 
 
 CONCERNING THE PRIVILEGE BY REASON OF NECESSITY. 
 
 Although all compulsion carry with it somewhat of necessity, and 
 abates somewhat of the voluntariness of the act that is done, yet 
 there are some kinds of necessities, that are not by any external com- 
 pulsion or force. 
 
 Touching the necessity of self-preservation against an injurious as- 
 
 [1] An apprehension, though ever so well grounded, of having property wasted or 
 destroyed, or of suffering any other mischief not endangering the person, will afford no 
 excuse for joining or continuing with rebels. Rex v. McGrowlher, 1 East. P. C. 71. 
 
 But it is otherwise if the party join from fear of death, or by compulsion. . Rex v. 
 Gordon, 1 East. P. C. 71. 
 
 'On the indictment on the stal. 7, and 8 Geo. 4, c. 30, s. 4, for breaking a threshing 
 machine, the judge allowed a witness to be asked whetiier the mob, by whom the ma- 
 chine was broken, did not compel persons to go with them, and then compel each person 
 to give one blow to the machine; and also at the time when tiie prisoner and himself 
 were forced to join the mob, they did not agree together to run away from the mob the 
 first opportunity. Rex v. Cnitcliley, 5 Car. i^* P- 133. 
 
 A., who was insane, collected a number of persons together, who armed themselves, 
 having a common purpose of resisting the lawfully constituted authorities; A. having 
 declared that he would cut down any constable who came against him. A., in the pre- 
 sence of C and D., two of the persons of his party, afterwards shot an assistant of a con- 
 stable, who came to apprehend A. under a warrant : — Uv.ld, that C. and D. were guilty of 
 murder, as jjrinciplcs in the first degree, and that any apprehension that C. and L). had of 
 personal danger to tliemselves from A. was no ground of defence for continuing with 
 iiiiii after he had so declared his purpose ; and also that it was no ground of defence that 
 A. and his party had no distinct or particular object in view when they assembled together 
 and armed themselves. Reg. v. Tyler, 8 Cur & /'. 61G, I'er Demnan, Ch.Just. 
 
 The apprehension of .personal danger does not furnish any excuse for assisting in 
 doing ;iny act which is illegal. 
 
 The only force that doth excuse, is a force upon the person and present fear of death ; 
 and this force and fear must continue all the time the i)arty forced remains with the 
 party forcing. It is incumbent upon men, who make force their defence, to show an 
 actual force, and that they joined pro liinorc mortex, et rccesserunt tjuam celo poliierunt. 
 Fo.u. Dis. 14, 5^16; 4 Sleph. Com. 8384. The U. S. v. Vigol, 2 Dull. R. 346; U. S. v. 
 JIaskeU, 4 Wash. C. C M. 402.
 
 HISTORIA PLACITORUM CORONA. 52 
 
 sault somewhat has been said in the last chapter, and more will be 
 said hereafter in its due place: I shall proceed therefore to other 
 instances. 
 
 I'iie necessity of the preservation of the peace of the king- 
 dom by the apprehending notorious malefactors excuseth [ 53 ] 
 some acts from being felony, which in the matter of them 
 without such necessity were felony. 
 
 If a thief resist, and will not sutler himself to be taken upon hue 
 and cry or pursuit, justiciari se iwhlit permit tere,\{ he b'e killed by 
 the pursuants, it is no felony ;(a) de quo vide latins infra. 
 
 By the statutes of 3 (§• 4 E. 6 cap. 5 and 1 Mar. cap. 12. If there 
 be a riotous assembly to the number of twelve assembled to commit 
 the disorders mentioned in those acts, the justices of the peace, the 
 sheriff, mayor, or other officer of any corporation, &c. may raise a 
 power to suppress and apprehend them; and, if they disperse not 
 upon proclamation, if any of the rioters be killed, or maimed, or hurt 
 by tiie justices, &c. or those assembled by them to suppress the riot, 
 it is by this act dispunishable. 
 
 It is true, this act(6) continued only during queen Elizabeth's life, 
 and is now expired ;(c) but although, perchance, as to the killing of 
 such persons, as do not presently return upon proclamation to their 
 homes, it needs the aid of an act of parliament to indemnify them ; 
 yet if they attempt any riotous act, "and cannot be otherwise supprest, 
 the sheriff, or justice of the peace may make use of such a force upon 
 them for preservation of the peace, as well by the Common law, as 
 by the statute; quod vide in ^nder.son''s Rep. part 2 n. 49 p. 67. 
 Burton's case in fine ; and the statute of 13 //. 4. cap. 7. in princi- 
 pio, and 2 H. 5. cap. 8, wiiereby all men are bound, upon warning, 
 10 be assistant to the sheriff and justice for the suppressing of riots 
 even by force, if it cannot be otherwise effected; so that the clauses 
 touching this matter m the temporary statutes of 3 8,' 4 E. 6. and I 
 Mar. are but pursuant to the law and former statutes for necessity 
 of preserving the peace. 
 
 Some of the casuists, and particularly Covarruvias, Tom 
 .1 Defurti <§♦ rapinx restitutione, § 3. 4. p. 473, and Gro- [ 54 ] 
 tins de jure belli ac pads, Lib. II. cap. 2. § Q.{d) tell us, 
 that in case of extreme necessity, either of hunger, or clothing, the 
 civil distributions of property cease, and by a kind of tacit condition 
 the first community doth return, and upon this, those common asser- 
 tions are grounded ; " Quicquid necessitas cogit, defendit.'' " Ne- 
 cessitas est lex temporis 4* loci.'' " In casu extremse necessitatis 
 omniasunt communia :" and therefore in such case theft is no theft, 
 or at least not punishable as theft; and some even of our own law- 
 
 (ff) Sec Leg. Ince, I. 25. 
 
 (/>) Viz. 1 Mar. cap. 12. for 3 Sfi Ed. 6. cap. 5. was repealed by 1 Mar. cap. 12 
 
 (c) It was at first made to conlinue only till the end of the next session, but was 
 afterwards by several new acts continued during the life of queen Mary; and by 1 Eliz, 
 cap. IG. was continued during her lite also, and has never since been revived ; but in 
 1 CrfO. 1. cap. 5. a new act was made to much the same purpose, which is perpetual. 
 
 {d) See Fujf. dcjure naturm. Lib. 11. cap. 6. § 6.
 
 54 HISTORIA PLACITORUM CORONyE. 
 
 yers(e) have asserted the same ; and very bad use hath been made 
 of this concession by some of the Jesuitical casuists in France^ who 
 have thereupon advised apprentices and servants to rob their masters, 
 when they have judged themselves in want of necessaries, of clothes, 
 or victuals; whereof, they tell them, they themselves are the compe- 
 tent judges; and by this means let loose, as much as they can, by 
 their doctrine of probability, all the ligaments of property and civil 
 society. 
 
 I do therefore take it, that, where persons live under the same 
 civil government, as here in England, that rule, at least by the laws 
 of England, is false ; and therefore, if a person, being under neces- 
 sity for want of victuals, or clothes, shall upon that account clan- 
 destinely, and anirno furandi steal another man's goods, it is 
 felony, (/) and a crime by the laws of England punishable with 
 death; although the judge, before whom the trial is, in this case (as 
 in other cases of extremity) be by the laws of England intrusted 
 •with a power to reprieve the offender before or after judgment, in 
 order to the obtaining the king's mercy. 
 
 For 1. Men's properties would be under a strange insecurity, 
 being laid open to other men's necessities, whereof no man can pos- 
 sibly judge, but the party himself. 
 
 2. Because by the laws of this kingdoTn(^^) sufficient provision is 
 made for the supply of such necessities by collections for the poor, 
 and by the power of the civil magistrate; and consonant 
 r 55 3 hereunto seems to be the law even among the Jeivs, if we 
 may believe the wisest of kings. P?-overbs vi. 30, 31, 
 "Men do not despise a thief, if he steal to satisfy his soul, when he 
 is hungry ; but if he be found, he shall restore seven-fold, and shall 
 give all the substance of his house." It is true, death was not 
 among them the penalty of theft, yet his necessity gave him no ex- 
 emption from the ordinary punishment inflicted by their law upon 
 that offence. (A) . 
 
 Indeed this rule, "in casu extremse necessitatis omnia sunt com- 
 munia,'^ does hold in some measure in some particular cases, where 
 by the tacit consent of nations,,or of some particular countries or 
 societies, it hath obtained. 
 
 1. Among the Jeivs it was lawful in case of hunger to pull ears of 
 standing corn, and eat, Matth. xii. 1. <S'C.(/) and for one, that passed 
 through a vineyard, or oliveyard,to gather, and eat without carrying 
 away. Dent, xxiii., 24, 25. 
 
 2. By the lihodian law,(/r) and the common maritime custom, if 
 
 (c) Britlon. cap. 10. Crompt. 33. a. Plowd. 18. b. 19. a. Dalt. Just. cap. 99. 
 
 (/) Sec Dallujt nln supra. (g) 43 Eliz. cap, 2. Sfc. 
 
 {h) But tliuir oidiiuiry i)iinisliincrit Ijcingr onl}' jiccnniiiry could aftVct liim only when 
 he was in a condition to answer it; and tlierel'ore llie same reasons, which would justifj' 
 that, can by no means be extended to a corporal, niucli less to a capital punishment. 
 
 (i) For the Pharisees objected ajruinst it only on account of its being done on the 
 subhiith day. Mark xi. 23. «lyc. huke vi. 1. ^c. 
 
 (k) Vide Dig. Lib. XIV. tit. 2. de lege Jihudia de jaciu, I. 2. § 2. in fine. Leg. Gu- 
 lielmi Conquest, cap. 38.
 
 HISTORIA PLACItORUJVI CORONA. 55 
 
 the common provision for the ship's company fail, the master may 
 under certain temperaments break open (he private chests of the 
 mariners or passengers, and make a distribution of that particular 
 and private provision for the preservation of the ship's company. 
 Vide Consolato del Mare, cap. 256. (l) Les ciistomes de la Mere, 
 ;;. 77. 
 
 3. Nay, I find, among our Ens^Ush voyages to the West-Indies 
 described by Hackluit, that it was a received custom, that if a ship 
 wanted Jiecessaries, and the inhabitants of tlie continent would not 
 furnish them for nioney, they might, by the usage of the sea and 
 nations, take provision by force, making the inhabitants reasonable 
 satisfaction; ibr in these cases the common consent of nations hath, 
 made it lawful, and therefore it is lawful; 1. because ne- 
 cessary in extremity; 2. because there are no other means [ 56 "] 
 to obtain it by an application to superiors; but were this 
 done by English mariners upon the English shore, where both are 
 inider the same civil magistrate the case would be otherwise, because 
 capable of another remedy. 
 
 It is not lawful voluntarily to assist the king's enemies with money 
 or provision, for it is an adhering to the king's enemies, and so trea- 
 son within the letter of the statute of 25 E. 3. but yet, if the king's 
 enemies come into a county with a power too strong for the county 
 to resist, and will plunder the country, unless a composition be made 
 with them, sucli a ransoming of themselves is so far from being trea- 
 son, that it hath been allowed as lawful. 1. In respect of the ex- 
 treme necessity. 2. Because it is a less detriment to the country, 
 and a less supply to the enemy, than that plunder would be; and for 
 that purpose I shall set down the case at large. 
 
 M. 14 E. 2. B. R. Rot. 60. Diinelm. " Placitum de transgress, 
 coram Jl. D. de Brome & sociis suis justiciariis domini Regis in epis- 
 copatu Dunelm. sede vacante anno decimo regni sni mittitur hue 
 propter errores, &c. Juratores dicnnt, quod Scoti inimici &: rebelles 
 regis prsedict. die JNIartis in festo Sanct* Catharinse virginis anno 
 regni regis nunc nono ingressi fuerunt terram episcopatus Dunelm. 
 ea de causEt, ut ipsam destruerent, & quod omnes de communitate 
 episcopatus preedicti tunc apud Dunelm. existentes, volentes prasca- 
 vere dictorum inimicorum malitiam, ordinarunt, quod unusquisque 
 illornm praestarent sacramentum corporate stare ordinationi,qua3 pro 
 proficuo communitatis pra^dictee contingeret ordinari, qui quideni 
 fyHlielmiis de Heberne jurat' fuit cum aliis, &c. Item quod post 
 oonsuhierunt facere finem cum prsedictis inimicis, &cum eis fecerunt 
 fiuem de mille & sexcent' marc'; quam quidem summam oporteret 
 solvi incontinent! per quod, quia non habuerunt pecuniam presto, 
 ordinarunt, quod quidarn de communitate prasdicta irent de domo in 
 donuim infra ball,' Dunehn. &. extra, & perscrutarent ubi denarii 
 ossent in deposito, & ubicunq; denarii hujusmodi invenirentur, ca- 
 perentur ad solutionem dicti finis fesiinand', quousq; levari possit 
 
 {I) Printed at Venice 1584, in 4to. 
 VOL. I. — S
 
 67 HISTORIA PLACITORUM CORONiE. 
 
 de coinmiinitat. prccdict. &• satisfieri illis, quorum denarii sic ca- 
 piendi fiierunt; et quod prajdictus JVillielnms de Kellaioe simul 
 cum quodam Dovid de Rofheber jurat' ad perscrutandum in forma 
 prsedicta venit ad prsedictas domos, & cistam & 70l. de propriis de- 
 nariis ipsius WilUelmi de Heberne in cista prcedicta inventas cepit 
 & asportavit, &c. Et juratores requisiti, si prasdictus Willielmus 
 de Heberne consentiebat captioni prsedictorum denariorura, dicunt, 
 quod non, & quia compertum est, &c. quod ubi praedicta ordinatio 
 fuit facta de denariis in deposito perscrutand' & capiend', praedict' 
 Willielmus de Kellawe simul, &c, cepit denarios praedict', qui fue- 
 runt in domo & propria custodia prsedicti WilUelmi de Heberne & 
 contra voluntatem suam, & etiam pro eo, quod videtur curiae, quod 
 prasdict' Willielmus de Heberne omnino esset sine recuperare, quoad 
 denar' suos prasdici', nisi esset versus praefat' WitUelmum de KeU 
 laive, &c. qui praedictos denarios in forma prasdicta cepit & aspor- 
 tavit, consideratum est, quod praedict' Willielmus de Heberne recu- 
 peret versus praedict' Willielmum de Kellawe praedictos denarios & 
 dampna sua, quae taxantur ad c. s. & idem Willielmus de Kellawe. 
 committatur gaolas, &c. praetextu.cujus recordi ad sectam praedicti 
 WilUelmi de Kellatve, asserentis errores & defectus in praedictis re- 
 cordo and processu interesse,mandatum fuit episcopo Dunelm. quod 
 scire fac' prsdicto Willielmo de Heberne, &c, qui non venit. 
 
 " Ideo processum est ad examinationem recordi per ejus defaltum, 
 & assignat hos errores; primum, quod nihil fecit contra pacem regis, 
 nee denarios illos cepit vi & armis, maxime cum praedictus Williel- 
 mus de Heberne juratas fuit stare ordinationi praedictae, & quod 
 ipse Willielmus de Kellaiue per sacramentum pra^hibitum injunctus 
 fuit scrutari & denarios praedictos capere; & non est consonuin, quod 
 dictus Heberne recuperaret praedictos denarios & dampnum contra 
 assensum & juramentum suum proprium, nee quod ipse Kellawe 
 committeretur goalae. 
 
 " Item in lioc quod justic' fundaverunt judicium suum, quod dictus 
 Heberne non posset habere suum recuperare de denariis praedictis, 
 cum iUud habere posset directe versus commun-itatem vir- 
 r 58 ] tute ordinationis & concessionis praxlictarum, &c. ob quoe 
 errores hie in judicio recitalos consideratum est, quod erro- 
 nict; in primo judicio processum est, & quod idem Kellaioe a gaola 
 deliberetur, & totus processus evacuetur, &c." 
 
 Ill Pasch. 15 Rot. 17. " Patet, quod Scoti cum hominibus de 
 Rippon similiter concordarunt pro mille marc', ne villa comburetur." 
 
 Nota, this was an act done for the security of the country in a 
 time of actual war and invasion by enemies, and tlierefore rendered 
 that by-law and the execution thereof justifiable by reason of that 
 necessity, which would hardly have done it in time of peace. 2. But 
 that, wliich this record princijially evidenceth, is, that such a supply 
 of the king's enemies upon such a necessity in a time of war, and 
 to prevent the devastation of the country, was not taken at all to be 
 an adhering to, or treasonable aiding of tlie king's enemies."
 
 HISTORIA PLACITORUM CORONiE. 58 
 
 CHAPTER X. 
 
 CONCERNIXG THE OFFENCE OF HIGH TREASON, THE PERSON AGAINST 
 WHOM C03IMITTED, AND THE REASON OP THE GREATNESS OP 
 THE OFFENCE ; AND TOUCHING ALLIGEANCE. 
 
 Having premised these general observations relating to all crimes, 
 that are capital, and their punishments, I shall now descend to con- 
 sider of capital crimes particularly, and therein first of high treason. 
 
 And yet, before I descend to the particulars thereof, I shall premise 
 also some things in general touching alligeance, since the specifica- 
 tion of this otlence consists principally in this aggravation, thai it is 
 contra li^eantise sux debitum. 
 
 The offence of high treason is an offence, that more im- 
 mediately is against the person or government of the king ; [ 59 ] 
 and the greatness of the offence, and the severity of the 
 punishment is upon these two reasons. 
 
 1. Because the safety, peace, and tranquillity of the kingdom is 
 highly concerned in the safety and preservation of the person, dignity, 
 and government of the king; and therefore the laws of the kingdom 
 have given all possible security to the king's person and government 
 under the severest penalties. 
 
 2. Because as the subject hath his protection from the king and his 
 laws, so on the other side the subject is bound by his alligeance to be 
 true and faithful to the king ; and hence all indictments of high trea- 
 son run prodilorie, as a breach of the trust, that is owing to the king; 
 contra ligeantias sux debitum, agamst that faith and alligeance he 
 owes to the king, and contra paceni domini regis, coronam, 4* digni- 
 tatem ejus. 
 
 And hence it is, that if an alien enemy come into this kingdom 
 hostilely to invade it, if he be taken, he shall be dealt with as an 
 enemy, but not as a traitor, because he violates no trust nor allige- 
 ance: resolved in the lord flerise'scgise. Co. P. C. cap. Ip. ll.l Co. 
 Hep. 6. a. Perkin fFarbeetc's case. 
 
 But if an alien, the subject of a foreign prince in aniity with the 
 king, live liere, and enjoy the benefit of the king's protection, and 
 commit a treason, he shall be judged and executed, as a traitor ; for 
 he owes a local allegiance. 7 Co. Rep. 6. the case o/Stephano Fer- 
 rara(a) a Portuguese ; and the indictment shall not run contra natu- 
 raltm dominum, but contra dominum snum, and conclude contra 
 ligeantix sux debitum; and such an alien was compellable to take 
 the oath of alligeance m.the leet. 2 Co. Instit.p. 121. (A) 
 
 If a merchant, subject of a foreign prince in hostility with our 
 king, come hither, after the war begun, without the king's license, or 
 safe-conduct, such a person may be dealt with as an enemy, viz. 
 taken, and ransomed. Mag. Chart, cap. 30. (c) 
 
 (a) And Emanuel Lewis Tinoco. Hill. 36 Elix. Dyer. 145. 
 
 (6) Mirroir de justice, cup. 5. § 1. ?j. 6. (f) Co. Instit. 58.
 
 60 HISTORIA PLACITORUM CORONA. 
 
 By that statute merchants of a hostile country found hi 
 [ 60 ] this realm at the heginniug of the war shall be attached 
 without harm to their body or goods, till it be known, how 
 the English merchants are used in the hostile country; and if the 
 English merchants be well used there, theirs shall be likewise used 
 here ; so that in this case such merchants, though alien enemies, 
 have the benefit of the king's protection, and so owe a local alli- 
 geance, which, if they violate, they may be dealt with as traitors, 
 not as enemies, for they have the advantage of the king's protec- 
 tion, as well as his other subjects ; yea, it seems also, that if the sub- 
 ject of a foreign prince lives here as a private man, and then war is 
 proclaimed betwixt our king and that foreign prince, and yet that 
 alien continues here in England without returning to his natural 
 sovereign, but under the cover and protection of the king of England 
 commits a treason, he shall be judged and executed as a traitor; for 
 by continuing here he continues the owning of his former local 
 alligeance.[l] 
 
 Yet for greater security in the times of hostility between this and 
 foreign kingdoms, especially that of France, there went out precepts 
 under the great seal to arrest all those of that hostile kingdom, until 
 they gave security, quodse bene gereni erga regeni, Sf quod sua bona 
 non transferent sine Ucentid regis, Sf quod literas ant nuncios non 
 miltent ad partes externas, nee aliquid contra pnceni atlemptubunf. 
 Rot. Vascon. 18 E. II. M. 24, 23 <5'21. Borso. And sometimes those 
 aliens were constrained actually to swear fealty to the crown of 
 England in the times of hostility, and thereby to superadd an actual 
 alligeance to that local alligeance, which they had being under the 
 king's protection as subjects, though in truth they were the natural 
 subjects of the hostile prince. Pat. 14. H. Q. part. 2. m. 34 4' 35. and 
 
 [I] If an alien residing and receiving- protection in England should, after the com- 
 mencement of a war between the English king and the alien's sovereign, go over to his 
 native country, but leave his family and effects in England, and adhere to her enemies 
 (the alien's countrymen) in acts or purposes of hostility, he may be dealt with as a trai- 
 tor. Tills rule was laid down by all the judges assembled at queen vlnwe's command, 
 January 12th, 1707. And they laid in that resolution a considerable stress on the 
 queen's declaration of war, in which she expressly took under her protection the persons 
 and estates of the subjects of France and Spain (with whom she was at war) residing ia 
 England, and demeaning themselves dutil'ully, and not corresponding with the enemy ; 
 for by that declaration these aliens were put under a kind of safe-conduct, and enabled 
 to acquire chattels and to maintain actions for the recovery of their personal rights in as 
 full a manner as alien friends may. Font. Disc. 1, sect. 4, Sec also Rix v. De la Muttc, 
 21 Howell's St. Tr. G87; 1 East. F. C. 53 ; Salk. 46 ; Latw. 34 ; Lord Raym. 282. 
 
 Aiicfi enemies, resident in the country, may sue and be sued as in time of peace ; for 
 protection to their jjcrsons and property is due, and implied from the |)crmission to them 
 to remain, witiiout being ordeicd out of the country by the l*resident of the United States. 
 The lawful residence does, pro hac vice, relieve the alien from the character of an enemy, 
 and entitles his person and property to protection. 2 Kent's Com. 63 ; Dauhigny v. 
 Darellon, 2 Anst. 462 ; Clark v. Marcy, lU Johns. Rep. 69 ; llussel v.Skipwith, 6 Jiinn. 
 Rep. 241. But it is a|)preliende(l that such a person, tiie moment he quits the country, 
 even though he leaves liis family and etl'eets bchitid, becomes an enemy, and conscquetitly 
 incapable of committing treasr)n against the United Slates, unless |)erhaps himself, his 
 family, and his efl'oets, were taken expressly under the protection of the United Slates, 
 as in the case above stated from Foster.
 
 HISTORIA PLACITORUM CORONJ^. 60 
 
 if they refused, were either imprisoned, or expelled the kingdom. [2] 
 Vide infra cap. 15, 
 
 And upon the same account it is, that though there be an usurper 
 of the crown, yet it is treason for any subject, while the usurper is ia 
 full possession of the sovereignty, to practise treason against his per- 
 son ; and therefore, although the true prince regain the sovereignty, 
 yet such attempts against the usurper in compassing his death have 
 been punished as treason, unless they were attempts made in 
 the right of the rightful prince, or in aid or assistance of him, [ 61 ] 
 because of the breach of ligeance, that was temporarily due 
 to him, that was king de facto; and thus it was done A E. A. 9 E. 4. 
 \,{d) though H. 6. wasdeclared an usurper by act of parliament 1 E. 
 4. and therefore king Edivard IV. punished Ralph Grey with de- 
 gradation, as well as death, not only for^lis rebellion against himself, 
 but also pur cause de son jjerjury 4* doubleness, qii'il avoil fait al 
 roy H. 6. 4 E. 4. 20. 
 
 And because high treason is said to be contra ligeantise debitiim, 
 it will not be amiss to premise something touching alligeance and its 
 kinds, referring myself to 7 Co. Rep. Calvin's case, in relation to 
 what is here omitted touching it. 
 
 Alligeance therefore due to the king is of two kinds: 1. Original, 
 virtual, and implied. 2. Exprest, and declared by oaths or pro- 
 mises.[3] 
 
 The virtual or implied alligeance is that, which the subject owes 
 to his sovereign antecedently to any express promise, oath, or engage- 
 ment; this is that, which the Custumer de Normandie mentions cap. 
 13. Aliance & la loyaulte de tons ses homes de toute la contree, par 
 quoy ils sont tenus a lui donner conseil &ayde de leurs propres corps 
 contre toutespersonnes qui peuvent viver & mouryr&soy garderde lui 
 nuyre en toutes choses ne de soustenir in aulcune chose la partie de 
 ceulx qui parlent contre luy. 
 
 And from the breach of this original ligeance ariseth, the crime of 
 treason, though the person committing it never promised or swore 
 faith or alligeance to his prince : for as the king by the very descent of 
 the crown is fully invested with the right of sovereignty before his 
 coronation, (which is only a magnificent solemnity[4] attending that, 
 which is before settled in the prince by the descent of the crown,) so 
 the subject is bound to his king by an intrinsic alligeance before the 
 superinduction of those express bonds of oath, homage, and fealty, 
 which were instituted for the belter securing thereof. 
 
 And this alligeance is either natural from all that are sub- 
 jects born within the king's alligeance; or local, which [ 62 ] 
 
 ('/) It was not done in this case, but only it is said by the counsel, that it may bo 
 done. 
 
 [~] In the United States, an alien enemy is not permitted to make the declaration 
 required by law, preparatory to the naturalization of aliens. Ex parte Newman, 3 
 Oallis. C. C. R.l]. 
 
 [3] 1 m. Com. 3G6. 1 East, P. C. 49. 2 Kent's com. 39. 
 
 [4] .See Fust. ia9.
 
 62 HISTORIA PLACITORUM CORONA. 
 
 obligeth all that are resident within the king's dominions, and partake 
 of the benefit of the king's protection, althongh strangers born. 
 
 The breach of this primitive or virtual ahigeance is that, which is 
 Called high treason ; what shall be said of breach of this alligeance, 
 so as to make a person guilty of treason, shall be shown hereafter. 
 
 The express or explicit alligeance consists in certain promises, 
 oaths, or professions attesting and witnessing that alligeance, and 
 instituted for the farther security thereof: and they are of two kinds; 
 first, those, which were anciently instituted by the Common law, 
 namely the oath of fidelity and alligeance, and the profession of lige 
 homage : and such, as are instituted by act of parliament, namely the 
 oath of supremacy instituted by the statute of 1 Eliz.,{e) and the 
 oath of obedience instituted by the statutes of 3 J(icobi.{f) Some- 
 thing I shall say of all these. 
 
 The oath of fidelity or fealty is of two kinds: 1 That which is due 
 by tenure, whether of the king, or of mesne lords, which is ratione 
 feodi vel vassalagii, and hath a special relation to the lands so held, 
 and is set down by Littleton, § 19. " Hear ye, my lord, I shall be 
 faithful and loyal, and faith to you shall bear for the tenements, 
 which I claim to hold of you, and I shall lawfully do to you the cus- 
 toms and services, which I ought to do at the terms assigned. So 
 help nie God»^ 
 
 Touching this feudal fealty, or fealty by reason of tenure, I have 
 
 not much to do in this place. The other kind of fealty is that oath, 
 
 which is called Jidelitns lii2;ea, or alligeance, and performed only to 
 
 a sovereign prince, and therefore regularly ought to be performed by 
 
 fall men above the age of twelve years, whether they hold any lands 
 
 or not. The tenor of this oath according to Fleta, Lib. III. 
 
 [ 63 "l cap. 16,(g-) runs thus: "Hoc auditis, circumstantes, quod 
 
 fidem regi portabo de vita, & membris, & terreno honore, & 
 
 arma contra ipsum non portabo: sic me Deus, &c." 
 
 According to Briton, v^ho wrote about 5 E. 1 cap. 29. (which is 
 also mentioned in Cali'in''s case, 7 Co. Rep. 6.) the common form of 
 the oath of alligeance taken in leets runs thus: "Ceo oyes vous A1 
 bailife, que jeo Jl. de ceo jour en avaunt serray feal, & leal a nostre 
 seigniour E. roy d'Angleterre, & a ses heires, & foy & lealte lui por- 
 teray de vie, & de membre, & de terrien honour, & que jeo lour mal, 
 lie lour damage, ne saveray, ne orray, que jeo ne le defeiidray a moii 
 
 (e) Cap. 1. 
 
 (/) Cup. 4. [ Vide 7 Jac. I. cap. 2. Sf. G. 13 Car. II. St. 2. cap. I. 13. ^- 14 Car. II. cap. 
 3 ^- 4. 25 Car. II. cap. 2. '60. Cur. li. »S7. 2. cap. 1.] But these oaths are abrop;ite(l by 1 
 W. Sf M. Scss. 1. cap. 1 «V 8. and new ones appointed in thcir_,|ooai ; sec 1 W. 6f M. Sess. 
 
 2. cap. 2. § 3. and 3 W. S( M. cup. 2. 13 W. 3. cap. 6. 1 AnncB, cap. 22. 4. AnucCy cap. 
 8. 6 Annas, cap. 7. 14. 23. 1 Gto. 1. cap. 13, i^-c.[3] 
 
 (g) Sect. 22. 
 
 [5] See also the oath of abjuration, 6 Geo. 3. c. 53. Tlie Declaration ag^ainst Tran, 
 eui).slaniiation, 10 Geo. 4. c. 7. Aflimiations of Quakers and Moravians, 9 Geo. 4. c. 32. 
 
 3. & 4 IV. 4. c. 4y. 1 & 2 Vict. cc. 5. 15. 77. AHirinatious of Separatists, 3 &. 4. W. 
 
 4. c. 82,
 
 HISTORIA PLACITORUM CORONA. 63 
 
 poyer: si moy eyde Dieu & les Seyntz." This is the form of tlie 
 ancient oath of alhgeance, or fidehty to the king, and as it is used at 
 this day; and he that is minded to see the antiquity of it, may read 
 thereof 7 Co. Rep. 7. Calvin's case, Spe/man^s Gloss. Titiilo Fide- 
 litas, which carry it up as high as king Jirlhnr ; more particularly it 
 was established by the laws of the Confessor, {/^) and by the laws of 
 king William I. quod vide in Spicilegiis Seldeni ad Edmerum le^e 
 52,{i) "Statuimus, ut omnes Uberi homines foedere & sacramento 
 affirment, quod intra & extra universum regnum Anglia3 JVilUelmo 
 regi domino suo fideles esse volunt, terras & honores illius omiii 
 fidelitate ubique servare cum co & contra inimicos & alienigeiias 
 defendere."(A^) 
 
 And herein the prudence of the Common law is observable ; the 
 ancient oath of alligeance, 1, was short, and plain, not entangled with 
 long and intricate clauses or declarations, but the sense of it is obvi- 
 ous to the most common understanding; and yet, 2, it is comprehen- 
 sive of the whole duty of the subject to his prince, and therefore 
 hath obtained for above six hundred years in this kingdom ; and if 
 any difficulties should occur in the sense or extent thereof, 
 length of time and long experience and practice hath suf- [ 64 ]] 
 ficiently expounded it. 
 
 I shall subjoin some observables concerning this oath, which indeed 
 explain that implied and virtual alligeance, whereof before. 
 
 1. By whom this oath is to be taken : It is to be taken by all per- 
 sons above the age of twelve years, whether denizens or aliens, 2 Co. 
 Instil.])' 121, except women, earls, prelates, barons, and men of 
 religion, according to Brillon., cap. 12. which exception is not to be 
 absolutely and universally understood ; for all persons above the age 
 of twelve years are bound to take this oath of alligeance, except 
 women, as shall be shown, but not in the same manner or place, as 
 others; but because regularly this oath was to be taken in the leet, 
 or at least in the sheriff's turn, which is in nature of a leet, where 
 earls, barons, prelates, and men of religion were not bound to do 
 their suit, therefore by the statute of Marlbr. cap. 10, is this excep- 
 tion added : but yet at other times and in other places men of reli- 
 gion and noblemen were to take it: as shall be shown. 
 
 It differs from the oath of fealty performed to the king by tenure, 
 for that includes somewhat more, and somewhat less ; and according to 
 Britton cap. 68.(/) runs thus when performed to the king : " Ceo oyes 
 vous bone gents qe jeo J. S. foy a nostre seignior le roy Edward 
 porterai de ceo jour en auaunt de vie & de membre, de cors & de 
 chateux, & de terrene honor, & les services qe a lui appendent de 
 
 (/() i. 35. but these laws are evidently spurious, and seem to be tlie composition of some 
 lawyer alter the reign of William II. Vide Hiclusii Dissert. Epist. p. [)5. and even in tiie 
 best MS. copies of these laws the legendary account of king Arthur is omitted. 
 
 (i) Vide Leg. Angln-Six. Edit. Wilkins. p. 228. Edit. Lambard, p. 170. 
 
 (A) 1 ide axsisas Henrici regis facias apud Clarendon dc renovutus apud Northampton. 
 Hoveden, p. 314. Edit. Savil. 
 
 (/) § 47^.
 
 64 HISTORIA PLACITORUM CORONA. 
 
 fees & de tenements, qne jeo teigne de lui, leanment les ferray as 
 termes dues a mon poer : si moy ayde Dieu & les Seyniz, &c." 
 
 Now, besides this oath of fealty or ailigeance to the king, there 
 were anciently certain oaths administered to persons of a different 
 age; but these have been long disused, as namely, that, which Brit- 
 ton mentions ca/?. 12. viz. that all above the age of fourteen years,(7??.) 
 should swear to be true and foithful to the king, and that they should 
 not be felons nor assenters to felons, excepting men of religion, wo- 
 men, clerks, knights, and their eldest sons;(?i) and of the like 
 [ 65 ] nature was that oath appointed by king Henry III. to be 
 taken by all men above fifteen years, consisting of divers 
 particulars in order to the preservation of the peace, and mentioned 
 at large by Bracton, Lib. III. Tract. 2. cap. 1. f/e Corona; both 
 which it seems were temporary provisions for preservation of the 
 peace, and therefore administered to persons above fourteen and 
 fifteen years, and diifered from this settled oath of ailigeance above 
 mentioned. 
 
 2. What kind of oath of fidelity this is: As there is homagium 
 ligeum, and homagium simplex, so there \s fidelilas ligea and Jide- 
 litas simplex; this, that is performed to the king, is jidelitas ligea, 
 and differs from the later, 1. In that this is performed to a king, the 
 other to a mesne lord. 2. This is performed without relation to any 
 tenure of lands. 3. This is without exception of the fidelity to any 
 person, that is always salvd fide S^- ligeantid domini regis. 
 
 Yet there seems to be a double kind of lige fealty, [6] as where 
 there is a prince, that is subordinate to another, and yet hath jura 
 summi imperii over his subjects : such was the king of Scots, whilst 
 in some times of Edward I. and Edivard III. he was in subjection to 
 the crown of England ; such was the prince of Wales before the 
 conquest thereof by Edward I. and the full union of it to the crown 
 o( England ; and thus it was in many investitutes made formerly 
 by the kings of England: for instance anno 35 H. 3. when that 
 king gave to his son Edward the principality of Gascoigne in 
 France, so that the great men of that coxxnlXY fecerunt ei homa- 
 gium Si' fidelitatis jar amentum ; yet Matthew Paris(o) tells us, 
 that dominus rex tamen sibi retinuit principale dominium, scili- 
 cet ligeantiam. 
 
 The like was done by E. 3. when Rot. Vascon. 36 E. 3. m. IS. 
 the king had given to the Black Prince the principality oi t^quitain 
 
 (to) This probably should be twelve years. Sec 2 Co. Instil. 147. Vide supra in 
 notis, p. 24. 
 
 {n) Tliis exception seems not to relate to the oath, but to the being in a decenna or 
 titliin^. The whole piissa^ro runs thus : " Volons nous, que trcs tous eeux de xiiii ans de 
 southe nous facent le sereuicnt, que ils nous firrount f'ealx & leaux, & que lis ne ser- 
 rount fuions, ne a (lions asscntauiits, & volons, (pie tout/, soierit cndizcyne, & plevys par 
 dcseyners, sauvc gentz de religion, clers & chivalers & lours litz cynes, & femes." 
 
 (0) p. 845. 
 
 [C] Sec Anstei/s Cons, of Engl. 92.
 
 HISTORIA PLACITORUM CORON.^. 65 
 
 with a regal jurisdiction, viz. merum 4* mixtum imperium, 
 so that ill relation to the subjects of Jlquitaia he was in [ 66 1 
 nature of a sovereign; yet the iiing not only reserv^ed hortia- 
 gium ligeiim to be performed to him by the prince, but also reserved 
 his own sovereignty, viz. Dominio directo c^* superioritate 7iobis 
 semper specialiler reservatis: by reason whereof tlie king did not 
 only substitute his delegates or judges de la sovereignty et de resort 
 to receive appeals from the prince, as appears by INIr. Seidell's Tit. 
 Honoris, part 2. cap. 3. § 4. but was intitled to a.superior alligeance 
 of all the subjects of Jlquitain: so that here were two alligeances; 
 one due to the prince, which was qualified and restrained, salva fide 
 regis; and the other absolute, which was due to the king as 
 supreme. [7] 
 
 Again, when in the year 1170, Hen. 2. by consent of parlia- 
 ment,{p) as it seems, (for otherwise it could not be done,) made his 
 eldest son king of England; so that there was rex pater, and rex 
 filius, yet he reserved to himself the supreme alligeance of all his 
 subjects: " Et in crastino coronationis illius rex pater fecit Williel- 
 miirn regem Scotorum, & Davideni fratrem suum, & comites, & 
 barones regni devenire homines novi regis, & jurare ei fidelitateni 
 contra omnes homines, salva fidelitate sua;" Quod vide apud Hove- 
 den sub eodem anno,(y) and the instrument itself at large apud 
 Brampton, p. 1104:(r) " Hasc est conventio & finis, quae Williel- 
 mus rex Scotias fecit cum domino suo Henrico rege Anglias filio 
 Matildis imperatricis, viz. quoddictus IVilliehnus xqx Scotiae devenit 
 homo ligeiis domini regis x'Vngliae contra omnem hominem de Scotia, 
 & de omnibus terris suis aliis, & fidelitatem ei fecit, ut ligeo domino 
 suo, sicut alii homines suo principi facere solent ; similiter fecit; 
 homagium Henrico filio suo, &. fidelitatem, salva fidelitate domini 
 regis patris sui, &c. Comites & barones de terra regis Scotiae, de qui- 
 bus dominus rex Angliae homagium habere voluerit, facient ei homa- 
 gium contra omnem hominem, & fidelitatem, ut ligeo 
 domino suo, sicut alii homines sui ei facere solent, & Hen- [ 67 1 
 rico regi filio suo &. haeredibus suis, salva fidelitate domini 
 regis patris sui." 
 
 Here was first the supreme king, namely rex pater, who did not 
 oust himself of his regality, as some have mistaken, but had the sove- 
 reignty still, for he reserved his ligeance tVom the new king, and from 
 all his subjects; yea, and in farther testimony thereof, the rex filius 
 in the year 1175, did his father lige homage, and swore alligeance 
 contra omnes homines, as appears by Hoveden. Secondly, Here is 
 a subordinate king, rex filius, who, though in relation to his father 
 
 (p) Hoveden sub anno 1170, Brompton,p. 1061. 
 (7) Et sub anno 1175. 
 
 (r) Et in libra rubra scaccariijol. CLXVI. Sf Rymer's Faedera, vol. I. p. 39, ex magna 
 rotulo penes Camerar\ 
 
 [7] The citizens of the United States owe a double allegiance; first, to the United 
 Stales, and then to the State of whicli they are citizens. 2 Kent's Cum. 43. 
 VOL. I. — 9
 
 67 HISTORIA PLACITORUM CORONA. 
 
 he was a subject, yet in relation to his subjects, and particularly to 
 the king of Scots, was a sovereign. ThircUij, Here is yet another 
 subordinate king, IVilUam, the king of Scots, who was a sovereign 
 in relation to his subjects ; and altho there was an alligeance or 
 Jideliius ligea due by the subjects of Scotland to their king William, 
 yet it was salvd fidelitate to the kings of England, father and son ; 
 and tho there was a lige fealty due to rex Jilius, yet it was salvd 
 fide regis patris; but the fidelity or alligeance to the rex pater was 
 ipmely fidelitas ligea, for it had no exception. 
 
 3. The third observable upon this oath of alligeance is, that it is 
 not only applicable to the politic capacity of the king, but to thq 
 person of the king, as well as to his office, or capacity; and for the 
 misapplication of the alligeance to the jegal capacity or crown, ex- 
 clusive of the person of the king, among other things the Spencers 
 were banished. T^^ide Judicium inde in Veteri Magna Chartd, ^- 
 7 Rep. 11. Calvin's case, for the oath is to be applied to the person 
 of the king, as well as his crown. 
 
 4. That in all oaths of fealty, as likewise in the profession of ho- 
 mage to any inferior or subordinate lord or prince, it must be salvd 
 fide 4' ligeantid domini regis; and to omit this saving, is punisha- 
 ble in such lord: see for this, the notable Record of 6 E. 1. against 
 the bishop of Exeter, Co. Lilt. § S5,{s) and it is no more than is used 
 in other kingdoms. Vide Spelm. in titulo Fidelitas. The emperor 
 Frederic Barbarossa in the year 1152, made a law that within his 
 
 empire in omni sacramento fidelitatis imperator nomina- 
 [ 68 3 ^^^^ excipiatur, which obtained presently the like observa- 
 tion in all other countries, and accordingly is the Ciistumer 
 de Normandy , cap. 29 t^^ Glossa, 2 da. Ibidem. 
 
 5. That tho there may be due from the same person subordi- 
 nate alligeances, which tho they are not without an exception of 
 the fidelity due to the superior prince, yet are in their kind sacramento, 
 ligea fidelitatis, or subordinate alligeances, yet there cannot, or at 
 least should not be two or more co-ordinate absolute ligeances by 
 one person to several independent or absolute princes; for that law- 
 ful prince, tiiat hath the prior obligation of alligeance from his sub- 
 ject, caiuiot lose that interest without his own consent by his subject's 
 resigning himself to the subjection of another; and hence it is, that 
 the natural-born subject of one prince cannot by swearing alligeance 
 10 another prince put off or discharge him from that natural allige- 
 ance ; for this natural alligeance was intrinsic and primitive, and an- 
 tecedent to the other, and cannot be devested williout the concurrent 
 act of that prince to whom it was first due :[S] indeed, the subject of 
 
 (s) p. 65, a. b. 
 
 [8] In liis lectures on the Laws and Constilntion of Englarid, p. 94, Mr. Anstey thus 
 speaks : "Upon no better foundation than the speculation of a Publicist, it has been as- 
 sumed, that the rights of the subject arc so thoroug'hly reciprocal, Ihat, where the one 
 ceases or is suspended, the other ceases and is suspended too: and that the one cannot be 
 lessened and impaired, witiiout the other bcin;yr weakened in proportion. Such positions 
 arc unknown to the kws of England. It is not from compact or reciprocity but fiora
 
 HISTORIA PLACITORUM CORONA. 68 
 
 a prince, to whom he owes alHgeance, may entangle himself by his 
 iibsolute subjecting himself to another prince, which may bring 
 him into great straits; but he cannot by such a subjection devest the 
 right of subjection and aUfgeance, that he first owed to his lawful 
 prince. (^) [9] 
 
 It appears by Bradon, Lib. V. cap. 2A,{u) that there were very 
 many, that had been anciently ad Fideni regis Jlnglx <5' Fraiicise, 
 especially before (he loss of Normandy; such were the comes mares- 
 callus that usually lived in England, and M. de Feynes manens in 
 Francid, who were ad Jidem tilriiisgue regis, but they ever ordered 
 their homages and fealties so, that they swore or professed ligeance or 
 lige homage only to one ; and the homage they performed to the 
 other, was not purely lige homage, hut vather feudal, as shall be 
 shewn more hereafter : and therefore when war happened between 
 the two crowns, remaneai personaliti^rquilibet eortcm cum 
 €0, cut fecerat ligeandam, S,' facial serviliuni dehiluni ei, [ 69 ]] 
 cum quo non stetcrat in persona, namely, the service due 
 from the feud or fee he holds: but this did not always satisfy the 
 prince, cum quo non sleterat in persona, but their possessions were 
 
 (<) The case here put by our autlior is evidently meant of a private subject's swearing 
 alligeance to a foreign prince, and lias no relation to a national withdrawing alligeance 
 from a prince, who has abdicated the throne. 
 
 (u) Traclat 5. De Exceptionibus. 
 
 birth, that the Queen's claim to subjection and her subject's claim to liberties arise. Both 
 claims spring together and from the same source. The subject's life is the natural term 
 of both. Yet it is always possible that one of them may be determined incidentajly and 
 before its time. The subject may forfeit his liberties, or the Queen may by her own act, 
 withdraw him from her subjection. In the first case, the Queen is not deprived of her 
 Fubjfct, notwithstanding his forfeiture of right. In the second case, albeit, no longer de 
 facto true and lawful, he still retains the rights wiiich were vested in him by his birth. 
 Tliere is, indeed, a close connexion between this fallacy and the proposition of -American 
 jurists — false as we have seen it to be — that it is in the power of the citizen to renounce 
 his alligeance, and without ihe consent of Ijis sovereign, to take upon hin self, in all 
 respects, the character and rights of a citizen of a foreign state. To this pretension it is 
 once f()r all to be replied, that the eliaracter of a British subject — once vested by birth — 
 cannot be extinguished or suspended by the mere adoption of any foreign allegiance. 
 The party may withdraw himself from the local obedience and protection of his sove- 
 reign, and yet not cease to be within her actual obedience and protection. {Calvin's Case, 
 7 Rep. 8.0.) He may place himself beyond the jurisdiction of the public justice of his 
 country, and thus forego its benefits; but he cannot place himself be}'ond the jurisdic- 
 tion of the executive power. The Queen's remedial writs cannot by any means extend 
 into his foreign domicil; but those that are mandatory and not remedial, do reach him 
 even there. TJiey arc not tied to any place, but do follow subjection and ligeance in 
 what country or nation soever the subject is. (7 Rep. 20. a.) Amittit regnum sed non 
 Rcgem. Amittit patriam, sed non patrem patria." (7 Id. 2. b.) See 2 Kent's Com. 
 43.49. 
 
 [9] The doctrine of perpetual allegiance is riot applied by the British courts to the Arneri- 
 can ante nati-. Their doctrine is, that the American ante nnti, by remaining in America 
 alter the peace, lost their character of British subjects; and our rule is, that by witlidraw- 
 ing from this country and adhering to the Brit'sh government, they lost, or rather never ac- 
 quired the character of American citizens. The right of election in all revolutions like 
 that of America is well cstablislied. IngUs v. The Sailor's Smiff Harbour, 3 Peters, 99. 
 The Revolution severed the ties of allegiance; and made the inhabitants of each country 
 aliens to the other. 3 Story on Cons. 571.
 
 69 mSTORIA PLACITORUM CORONvE. 
 
 usually seized, and rarely or not without difficulty restored without a 
 capitulation to that purpose between the two crowns. Vide Clause. 
 15 H. 3. m.2l. pro Henrico de la Vagnr, Clans. 20 H. 3. m. 1. pro 
 Simone Montford ixnd Placita Pari. IS E. \,{cc) the petition ofjhe 
 earl of Eive in France for the castles of Hasting and Tikchiul is 
 answered, " Quandocunque placuerit domino regi Franciae terras & 
 tencmenta honiinibus istius regni restituere, quee sua fuerunt, in po- 
 testate ipsius domini regio, quod ipse dominusrex Jinglise de castris 
 & terris prsedictis preedicto comiti reddendis faciet, quod de consilio 
 suo viderit esse faciendum." 
 
 But sometimes it fell out, that the inconsiderateness of persons 
 carried them upon presumptions of some advantages to make alli- 
 geance to both princes; and then the successes of either side ren- 
 dered them within the penalty of the breach of alligeance to the 
 adverse party. 
 
 Peter Brian had tlie earldom of Pichmond here in England, and 
 held it of the crown of Engla)id,and the duchy oi Britany in France, 
 ■which was held of the crown o{ France, (though Brompton tells us, 
 that by an agreement between Richard I. and the king of France 
 sub anno 1191.(y) the seigniory thereof was bestowed upon the 
 king of England) he was an homager of the crown of France, and 
 iipon some agreement between him and the king of England touch- 
 ing a war with France, he came into England, and, as it seems, 
 swore fealty to the crown of England; but afterwards he fell in 
 again with the king of France, and betrayed the army of the king 
 of England, and per internuncios reddidit Anglas regi honiagium; 
 but he lost himself with both crowns: the king of France disposed 
 of the duchy oi Brit any to his son, and the king of England ^Q.\e 
 the earldom of Richmond to Peter de Sabaiidia; tho upon an 
 exchange he afterwards took it back, and restored it to a 
 [ 70 ] son of the former earl. 71/. Paris siib anno 1234./?, 406. 
 and Clans. \9 H. 3 m. 17. dors, where in a letter by the 
 king to the pope the whole story is related. 
 
 After this, John de Breme otherwise Montford descended from 
 the above-mentioned Peter, falling in with king Edward III. after 
 his assumption of the title of France, was restored to the duchy of 
 Britany and earldom of Richmond; and Clans. 19 E. III. p. 1. m. 
 14. dors, did his lige homage to king Edward III. as king oi France 
 in these words: " Monseigneur, jeo vous recognoisse droiturell roy 
 de France, et a vous, come a mon seignior liege et droiturell roy de 
 France, face mon homage pur le dit duchy de Bretagne, quel jeo 
 claime tener de vous, mon seignior, et deveigne vostre iiome lige de 
 vie, et de mcmbre, et de terrene honor, a vivre et morir cquntre touts 
 gents." His son John de Montford falling back to the king of 
 France lost the earldom of Richmond by judgment in parliament, 
 7 R. 2. but entered de recordo. Rot. Pari. 14 R. 2. n. 14. 
 
 These ditficulties befel those, that were adfdem utriusqne regis; 
 
 {x) Ryley's, Plac. Fad. p. 20. (y, Vide Bioiintov,p. 1106.
 
 HISTORIA PLACITORUM CORONiE. 70 
 
 they were sure to be losers on one side, and sometimes on both 
 sides. 
 
 And thus far touching the oath of aUigeance or fea]ty.[10.] 
 
 II. The second express obUgation of the subject to his prince is 
 that of homage. 
 
 This, though it be no oath, but a very solemn profession of duty, 
 yet it hath always fealty performed with it, and after it; for homage 
 draws with it fealty, which in case of simple homage done to a sub- 
 ject is with the same exceptions as the homage is; but in case of 
 hoTnagium ligeum it hath attending upon the performance thereof 
 fidelilas Ugea, or alligeance. 
 
 The kinds of homage are three: 1. Simple, as that which is per- 
 formed to a mere subject by virtue of his tenure. 2. Homagiiun 
 ligeum. 3. Homagitirn mixtxim,. 
 
 1. The simple homage, which is performed barely by reason of 
 tenure, is that which Littleton describes both in the words and cere- 
 monies, Lib. II. tap. \.{z) wherein always there is an exception of 
 the faith due to the king. 
 
 2. Homagium ligeum, which is thus: "Jeo deveigne 
 
 vostre home de ceo jour en avant de vy et membre, et de [ 71 ] 
 terrene honor, el a vous serra foyal et loyal, et foy a vous 
 portera contre touts gents, qe viure point, ou morierj" this is the 
 form, that Fleta gives Lib. III. ca. 16.(«) 
 
 The ceremony is the same, when done to the king, as when it is 
 performed to a mesne lord, only Kot. Pari. 18 H. 6. n. 58. the cere- 
 
 {z) Sect. 85. (a) Sect. 21. 
 
 [10] It has been a question, says Chancellor Kent, frequently and gravely argOed, both 
 by llieoretical writers, and in forensic discussions, whether the English doctrine of per- 
 petual allegiance applies in its full extent to this country. The writers on public law 
 have spoken loosely, but generally in favour of the right of a subject to emigrate, and 
 abandon his native country, unless there be some positive restraint by law, or he is at 
 the time in tlie possession of a public trust, or unless his country be in distress, or in 
 war, and stands in need of his assistance. Cicero regarded it as one of the firmest foun- 
 dations of Roman liberty, that the Roman citizen had the privilege to stay or renounce 
 his residence in the state, at pleasure, {Orat. pro Balbo, ch. 13.) The principle which has 
 been declared in some of our state constitutions, that the citizens have a natural and in- 
 herent right to emigrate, goes far towards a renunciation of the doctrine of the English 
 Common Law, as being repugnant to the natural liberty of mankind, provided we are to 
 consider emigration and expatriation, as words intended in these cases, to be of synony- 
 mous import. But the allegiance of our citizens is due, not only to the local government 
 under which they reside, but primarily to the government of the United States; and the 
 doctrme of final and absolute expatriation requires to be defined wit!) precision, and to 
 be subjected to certain established limitations, before it can be admitted into our juris- 
 prudence, as a safe and practicable principle, or laid down broadly as a wise and salutary 
 rule of national policy. The question has been frequently discussed in the courts of the 
 Lnited Slates, but it remains to be definitively settled by judicial decision." 2 Com. 43. 
 He then enters into an analysis of the American cases on the subject, and concludes 
 thus: " From this historical review of the principal discussions in the Federal Courts on 
 this interesting subject in American jurisprudence, the better opinion would seem to be, 
 that a citizen cannot renounce his allegiance to the United States without the permission 
 of government to be declared by law; and that as tiiere is no existing legislative regula. 
 tion on the case, the rule of the English Common Law remains unaltered." j>. 49. See 
 Serg. on Const. 304. Raicle on Const. 96.
 
 71 HISTORIA PLACITORUM CORONA. 
 
 mony of kissing the king was dispensed with by reason of the danger 
 of contagion in time of plague. 
 
 And touching this homage these things are observable : 
 
 1. It difiers from the oath of alHgeance, in that this is only hy a 
 profession; but alhgeance is by an oath, though the oath of ailige- 
 ance also accompany it, 
 
 2. It differs in this, that, whereas all men above the age of twelve 
 years are to take the oath of alligeance, whether they hold land, or 
 not ; yet lige homage is not to be performed but by three sorts of 
 persons: 1. Such as hold of the king by homage, which though it be 
 performed in respect of tenure, yet it is homaghim ligeum, because 
 performed to the sovereign, and without any exception of the ho- 
 mage due to inferior lords. 2. Such as are dukes, earls, or viscounts, 
 or barons, though they hold nothing of the king, yet at the corona- 
 tion they perform a lige homage; the tenor whereof runs thus: 
 " I become your liege man of life and limb, and of earthly worship, 
 and faith and truth I shall bear unto you to live arid die against all 
 manner of tblk: so God me help!^^ and then he toucheth the crowil, 
 and then toucheth the ground ; nota, it refers not to any lands, 3, By 
 prelates or bishops; and this is not only at the coronation of the 
 king, but after their election, and before the restitution of their tem- 
 poralities. Vide Statute 25 H. S cap. 20. 
 
 Anciently the clergyman quarrelled at the performance of homage 
 to the prince ; but by the constitutions of Clarendon set down by 
 Maltheio Paris, p. 101. they were bound to perform it, and it hath 
 been hitherto practiced ; only to gratify them in something antiently 
 it was indulged in this manner, viz: "Faciet electus homagium & 
 
 fidelitatem regi, sicut ligeo domino suo, de vita, & mem- 
 j] 72 ] bris, & de honore terreno, salvo ordine suo, priusquam con- 
 
 secretur;" and though I do not find this salvo ordine in- 
 serted in after-times, yet there hath been a temperament added to 
 that homage performed by clergymen, which it seems satisfied 
 their scruple, their homage running thus: "I do you homage and 
 faith, and truth bear unto you, our sovereign lord, and to your heirs 
 kings of England, and I shall do, and truly acknowledge the service 
 of the lands, which I claim to hold of you in the right of the church, 
 as God me help." 
 
 And this is fealty, as well as homage, for it is accompanied with 
 an oath, though it hath the solemnity of genuflexion, and kissing the 
 king's check. 
 
 3. The agreements and differences between that homage, that is 
 simply feudal, or by reason of tenure only, and this homage, that is 
 homagium ligcum, are these: 1. Because though homage is not to 
 be done by any, but those that hold by that service, or by the no- 
 bility, or clergy, as before: yet when done to the king, it becomes 
 homagium ligeum in respect of the person to whom it is performed. 
 2. If it be homage done to the king, it is homagium ligeum, and 
 hatli no exception of homage due to others. 3. But principally the 
 diUcrencc is in the eflect of it, wiiich is excellently described by
 
 HISTORIA PLACITORUM CORONiE. 72 
 
 Terrien'm his Comment upon the Custumer of Normandy , Lib. III. 
 cap. 1. Feudal homage, that is simply such, binds only ratione 
 feodi; therefore if the homager alien, pr deliver to his lord his fief, 
 or fee, he is discharged of the obligation; but lige homage, tho' 
 it may be performed by reason of the fee in its kind or species, 
 yet it principally binds the person; and though the fief itself be 
 aliened, or transferred to another, yet the obligation of lige homage 
 continues. 
 
 3. There are certain liomages, that are mixt, and partly lige, and 
 partly not; and they are of two kinds: 1. When the homage is per- 
 formed to a prince, that is sovereign in relation to his subjects, yet 
 owes a subjection to some other prince,; this was the case of the 
 prince of tVales, and the king of Scots before mentioned, the 
 homage, that they performed to the king of England, was simply 
 hge homage, as we may read before, and particularly in Walsing- 
 ham's Ypodigma News triss sub anno 1291,(6) where the 
 tenor of the homage of John de Baliol king of Scots is en- [ 73 ] 
 tered in hxc verba : " Domine Edvarde rex Jlnglise, superior 
 damine regni Scofix,ego Johannes Baliol rex Scoiise recognosco me 
 hominem vestrum ligeum de toto regno Scoti3e,&L omnibus pertinentiis, 
 & hiis,quae ad hoc spectant ; quod regnum meum teneo & de jure debeo 
 & clamito tenere haereditarie, de vobis & hseredibus vesiris regibus 
 jingliae, de vita & de membris, & de terreno honore contra omnes 
 homines, qui possunt vivere & mori." 
 
 I mention this homage of the king of. Scots not to revive the 
 ancient controversy touching the subordination of that kingdom to 
 tliis, for that difference hath been long settled and at peace ; but only 
 to apply my instances of the various sorts of homages performed by 
 sovereign princes. 
 
 But the homage, that was performed by their subjects to them, 
 was partly lige homage, and partly not; it was lige homage as to 
 between the king of Scots and them, and as to all persons in the 
 world, except the king of England; for the king" of Scots and prince 
 of Wales had the rights of sovereignty ^to'a imperii as in relation to 
 their subjects and all others, but the king of England. 
 
 But in relation to the king of England, the homage performed 
 to the prince of Wales or king of Scots was not lige homage ; for 
 there was an exception either expressed or implied at least salvd 
 fide domini regis Jinglix,diS appears plainly above. 
 
 2. Another instance of a mixt homage is, when a sovereign prince 
 hath a vassalage, or possession in another absolute prince's do- 
 minion; this was the case of the king oi England, in relation to the 
 lordships and seignory he had in France, as Jiquitaine, ^dnjou, 
 and Picardy,^'c. which were all held of the crown of France; these 
 descended to king Edward III. the king of France required lige 
 homage from the king of England for these territories; the king of 
 England, as king of England, had no dependence on France, and 
 therefore for the more caution performed to the king of France for 
 
 [h) ^1292.p. 477. 479. 480.
 
 73 HISTORY PLACITORUM CORONA. 
 
 the dntchy of Jlquitaim and other his possessions in France 5 
 general homage by these words, "Nous entromysin I'hom- 
 [ 74 lage de roy de France per ainsi, come nous et nous pre- 
 decessors dues de Giiyeyi estoient jades enterent en 
 I'homage des royes de France pur temps esteant;" and aUhough 
 afterwards a settled form of homage was prescribed in this case,(c) 
 yet most evident it is, that it was not hornagiimi ligeum, but only a 
 feudal homage relative to those territories of the crown of France, 
 but not at alt. with any relation to the person or crown of the king' 
 of England. 
 
 For the Ymg oi England had a double capacity, one as an ab- 
 solute prince, that owed no subjection to the crown of France; nor 
 to any other king, or state in the world; in this capacity he neither 
 did nor could do homage to the king of France ; he had another ca- 
 pacity, as duke oi Jiquilaine,VLndi in that capacity he owed di feudal, 
 but not /)er5o?io/_subjection to the crown of France ; and in this latter 
 capacity only, and as a ditierent person from himself, as king of 
 England, he did the homage, which was in truth no lige homage, 
 but a bare feudal homage, which I rather mention to rectify the 
 mistakes of those that call it a lige homage. 
 
 But by the way 1 must observe, this feudal homage, as duke of 
 K^quitaine, lasted not long ; for in 14 ^. 3 the king of England as- 
 sumed the title of king of France together with the arms of France 
 by hereditary descent, which style his successors have ever since 
 used. 
 
 And indeed the name of lige homage from him that was king- of 
 England, to the king of France, though purely in the capacity of 
 duke of Aquilaine, sounded so ill, that when a peace was in treaty 
 between, the king of France and Richard II. viz. rot. pari. \1 R. 
 2 n. 16. the entry is made, "Fait a remember qe le roy, seigneurs, 
 chivalers, et justices assenterent en cest parliament a la pees, purensi 
 cj£ noslre dit seigneur le roy ne face homage lige, et sauant touts dits 
 le liberty de la person nostre seigneur le roy, et de son royalme de 
 Angleterre et de ses liges du dit royalme," and with power to resort 
 to the title of the crown of France, in case of breach of league by 
 the king of France; this is farther arnplified by the speech made 
 openly by the speaker of the house of commons. Ibid. n. 
 [ 75 ] 17. The homage here meant was with relation to the 
 duchy of Jlquilaine, which upon this treaty was to be de- 
 hvered to the king of England. 
 
 And thus mucli touching these two securilies of the subject's alli- 
 geance to the king of England, wherein I have been the larger, be- 
 cause many things occur in this business, that give some light to 
 antiquity, and do not so commonly occur, and because the great 
 brand of high treason is, that it is a violation or breach of that sacred 
 bond from the subject to his king commonly called alligeancc, for 
 the security whereof this oath of alligeance and lige homage were 
 
 (c) Vide Vat. 5 E. 3. i)art 1. m. 17.
 
 HISTORIA PLACITORUM CORONA. 75 
 
 instituted, and effectually expounds the obligation, and duty of that 
 allig^ance, that is due from the subject to the king. 
 
 fshall now only mention those two eminent oaths of supremacy, 
 and obedience, though there were besides them other temporary oaths 
 relating to the crown, as that of 25 H. 8. cap. 22. 26 H. 8. cap. 2. 2S 
 H. 8 cap. 7. 35 H. 8. cap. 1. 
 
 The supremacy of the crown of England in matters ecclesiastical 
 is a most unquestionable right of the crown of England, as might 
 be shewn by records of unquestionable truth ^nd authority, but this 
 is not the business of this place; yet nevertheless the pope made 
 great usurpations and encroachments upon the right of the crown 
 herein. 
 
 King Henry VIII. in the twenty-fifth year of his reign having 
 pared off those incroachments in a good measure by the statute of 
 25 H. 8. capp. 19, 20, 21. in the twenty-sixth year of his reign the 
 supremacy in matters ecclesiastical is rejoined and restored to the 
 crown by the statue of 26 H. S. cap. 1. 
 
 The papal encroachments upon the king's sovereignty in causes 
 and over persons ecclesiastical, yea even in matters civil under that 
 loose pretense of in or dine ad spiritualia, had obtained a great 
 strength, and long continuance, notwithstanding the security the 
 crown had by the oaths of fealty and alligeance; so that there was 
 a necessity to unrivet those usurpations by substituting by authority 
 of parliament a recognition by oath of the king's supremacy as well 
 in causes ecclesiastical as civil. 
 
 And therefore after those revolutions, that happened in 
 the life, and on the death oi Henry VIII. Edward VI. and [ 76 ] 
 queen Mary,(\\\ee\\ Elizabelh coming to the crown, the oath 
 of supremacy was enacted by the statute of 1 E/iz. cap. l,for the 
 better securing of the supreme authority of the crown of England 
 as well in matters ecclesiastical as temporal ; which I shall not here 
 irepeat, but reserve the same, and what is proper to be said touching 
 it, to a particular chapter hereafter.(fl^) 
 
 Afterwards the dangerous practices of popish recusants gave the 
 occasions of enacting of the oath of obedience by the statute of 3 Jac. 
 cap. 4, which I shall likewise refer to its proper place. 
 
 And thus far touching alligeance, and the securities of the same by 
 the oath of alligeance, and the profession of lige homage. [11] 
 
 (d) Vide postea cap. 25. 
 
 [11] The Acts of Congress relating to naturalization are, An Act to establish an uni- 
 form rule of naturalization, 26 March, 1790. An Act to establish an uniform rule of 
 naturalization and to repeal the acts heretofore passed on that subject, January 29, 1795. 
 An Act to establish an uniform rule, &.C., and to repeal, &c., April 14, 1802. Ch. '28. 
 An Act in addition to an Act entitled, "An Act to establish, &c., and, to repeal," &c., 
 March *,6, 1804. Ch. 47. An Act relatintr to evidence in cases of naturalization, March 
 22, 1816. CA. 32. An Act in further addition to an "Act to establish, &,c., and to 
 repeal," Ace, Maij2G, 1824. Ch. 186. An Act to amend the Acts concerning naturaliza- 
 Uon, J»/oy, 24, le28.C/<. 116. • 
 VOL. I. — 10
 
 76 HISTORIA PLx\CITORUM CORONiE. 
 
 CHAPTER XI. ■* 
 
 CONCERNING TREASONS AT THE COMMON LAW, AND THEIR UNCER- 
 TAINTY. 
 
 Having shewn in the former chapter the kinds and bonds of fidelity 
 and alligeance from the subject to the king, I come to consider o/ 
 those crimes, that in a special manner and signally violate that allige- 
 ance, namely high treason. 
 
 At Common law the crime of high treason had some kinds of limits 
 and bounds to it. 
 
 In the time of Henry II. Glanvili who then wrote Lib. 
 \_ 11 ~\ IV. cap. 1 4' 7, tells us of four kinds of crimmse Ixsas mojes- 
 tatis, viz. de niorte regis, de seditione regni, de sedilione 
 exercittis regis, and the counterfeiting of the great seal ; for as to the 
 counterfeiting of money, that came under the title of Crimen falsi, 
 and the punishment thereof antiently was various; but of that par- 
 ticular hereafter. 
 
 Bructon,\\\?ii wrote in the \\mQoiHenry\\\.IAh.\\\.cap.^. "Siquis 
 avisn temerario machinatus sit in mortem domini regis; vel aliquid 
 egerit, vel agi procuraverit ad seditionem(rt) domini regis, vel exer- 
 citus sui ; vel procurantibus auxilium & consilium pra^buerit, vel con- 
 sensum, licet id, quod in voluntate habuerit, non perduxerit ad effec- 
 tum ;" to which he adds counterfeiting of the seal and money; 
 which, though they come under crimen falsi, yet are reckoned by 
 him among the crimina Ixsse niajesiatis; tho in these old authors 
 treason is sometimes expressed by the name of sedition, yet that 
 word is too general and comprehensive of other ofienses not capital, 
 as well as of treason ; and therefore a charge of sedition against the 
 king, or of exciting sedition, or of speaking, writing, or doing any 
 \.\\m2, seditiously, doih not amount to a charge of treason; and there- 
 fore It was, that in the case oi Selden and others, Trin. 5 Car. B.R.{b) 
 when upon an habeas corpus tiie parties were returned committed 
 
 (a) In the case of Mr. Selden this is supposed to be the true reading, but in most of 
 tlie jli-S'/S. of Bracton tlie word in this place is seductionem, altlio in otlier places of 
 the same chapter the word seditio is used: Fleta makes frequent use of the word Seduc- 
 tio, Lih. I. cap. 20. § 1 cap. 21 . § § 1, 2, 3. (the last of vi^hich places seems to be a direct 
 transcript from Bracton) thou;,'h the word seditio is once used by him dicto capite, § 8. 
 and Bracton afterwards in this same cliajjler styles a traitor sedvctor. 
 
 Hengham, cap. 2. and Glauvil, Lib. I. cap. 2. botii of them phcc scditionem in the rank 
 of treasons, and so it was esteemed by tiic t'ivil law. Difr. Lib, XLVIII. tit. 4. ad leg. Jul. ' 
 Majeslalis, I. 1. tit. 19. De pasnis, I. 38. § 2. Seditio continued to be the technical word 
 in iejjal proceedings (as will appear from several records hereafter quoted) until the terms 
 proditio ^' prodilorie \nc\ai\cd In its room, which last word must now be necessarily 
 used in every indictment of treason. 3 Co. Inst. 4. 12, 1.5. 
 
 (6) Mich. 5. Car. I. Vide Rusliv-orlh's Historical Collections, Vol. I. p. 679. Appendix, p. 
 18, 6(c. Seldeni Opera, Vol. \'\.p. 1938. 'I'lic court was content, that they should be 
 bailed, but said, that tliey ou;rht to find sureties also for their good behaviour: they had 
 their sureties ready for the bail, but they were remanded to the Tower, because they 
 would not find sureties for the good behaviour. SeUhn was notb.iiled till May 1(531, and 
 not discharged from his bail till Januanj 1G31. Vindi^a Maris Clausi. Stldeni Opera, 
 Vol.lV.p.li21,SfC.
 
 HISTORIA PLACITORUM CORON.^. _ 78 
 
 ly the privy council by the kim^^s command for stirring up sedition 
 against the king, the prisoners were bailed in the king's court, 
 because it amounted not to a charge of treason, for sedition in a true 
 legal signification doth not import treason.[l] 
 
 Fleta, who wrote in the time of Edward I. agrees almost verba- 
 tim with Bracton, viz. Lib. I. cap. 20, 21.(c) 
 
 Brifton, who made his book in the time also of king Edward I. 
 reckons up treasons much in the same manner, yet makes some addi- 
 tions, cap. 8. de treson', " Grand treson est a compasser nostre mort, 
 ou disheriter nous de nostre royalme, on de fauser nostre seal, ou de 
 countrefaire nostre monoye, ou de la retoundre." 
 
 And cap. 22. de appeles: '• Sont ascunes felonies, que touchent 
 nostre snyt, et poient estre suys pur nous, sicome de vers nos mortels 
 enemies, de nostre seal, de nostre corone, et de nostre monoye fause." 
 
 Again; " En primes, c'est a dire, de appels de felonies, que poient 
 estre faitz par nous, et nemye pour nous, sicome de treson, et de com- 
 passement purveu vers nostre persone pour nous mettre a mort, ou 
 nostre compayne, ou nostre pere, ou nostre mere, ou nous enfauntz, 
 ou nous disheriter de nostre royalme, ou de trahir nostre hoste, tout 
 ne soit tiel compassement mys en effect." 
 
 And in the latter end of the same chapter, " Et de fausyn de nostre 
 seal, & de nostre monoye, purra lenseur appels pour nous en mesme 
 la manere, et ausi del purgiserde nostre compayne, ou de nous filles, 
 ou des norices de nos enfauntz :(c() En queiix cases soit le jugement, 
 de estre treyne, et pendu, &c." By these various expres- 
 sions of Britton, it appears that the crime of high treason f 79 ~\ 
 was very uncertain ; sometimes styled under the name of 
 felony, sometimes had the punishment of petit treason applied to 
 the crime of high treason, and some crimes mentioned, as treasons, 
 which were not so taken by Bracton, or Fleta ; and indeed in the 
 farther pursuit of this argument we shall find, that at common law 
 there was a great latitude used in raising of offences into the crime 
 
 (c) He does not rank the counterfeiting of the seal or of the coin among the crimina 
 l(Bs<B majestaiis (as Bracton does,) but among the crimina falsi. Lib. I. cap. 22. 
 
 {d) According to tlie Mirror of Justice, p. 21, 22. high treason is committed, 1. Per 
 ceujr, que Occident le roy, ou compassent de faire. 2. Per ceu.x, que luy disheritent del 
 royalme, per [ceux que] traliissent un host, ou compassent de le faire. 3. Per ceux 
 avowterors que spargissent le femme le roy, le file le roy eignesse. legitime, avant ceo que 
 die soit mary, en la garde le roy, ou la nurice le ant le heire le roy. These are the only 
 offenses, which that treatise calls Crimes de Majesty. Counterfeiting of the king's seal 
 or money is ranked under Fausonnery, p. 29. And every species of petit treason is 
 styled Treason, p. 30. as it is also by Britton, cap. 8. 
 
 It is one of the articles against Roger Mortimer, Rot. Pari. 4 £. 3 n. 1. 28. E. 3 n. 8: 
 that he compassed to destroy les nurriz le roy. If a private lord was injured in this man- 
 ner, it was anticntly petit treason: " Traditores aulem, qui dominum dominamve inter- 
 fcccrint, vel qui cum uxoribus dominorutn suoruni, vel nliabus, vel nutricibus dominorum- 
 concubuerint," &,c. Fleta Lib. I. cap. 37. § 4. "Ou disparage ma file, en ma chambre, 
 ou ma femme, ou la norrice, de mon heire, ou le aunt, &c." Mirroir de Justice, p. 31. 
 Vide Britton, cap. 22. (70) 
 
 [1] For the distujction between sedition and hlffh treason, see 1 East, P. C. 48. Archb, 
 C. P. 493. 5 . •
 
 79 HISTORIA PLACITORUM CORONtE. 
 
 and punishment of treason, by way of interpretation and arbitrary 
 construction, whicli brought in great inconvenience and uncer- 
 tainty.[2] 
 
 In the parhament of 33 E. I. now printed, (e) which is Hkewise 
 •entered P. 33 E. I Rot. 22 NorthH. coram rege: Nicholaus de 
 Segrave was impeached(/) de eo, quod cum dominus rex nunc in 
 ultima guerrasua Scotise inter hostes & inimicos suos extitisset, & idem 
 Nicholaus de Segrave liomo hgeus tenens de ipso domino rege per 
 homagium & fidehtatem in eadem guerra in exercitu & auxilio ipsius 
 commorans esset; idem Nicholaus de Segrave motu proprio, mali- 
 tiose, & absque causa contentionem & discordiam versus Johannem 
 de Crumbwell in eodem exercitu simiUter in auxihum regis existen- 
 tem movebat," laying great iniquities to his charge ; that Crumbwell 
 offered to defend himself against these imputations, as the king's 
 court should award : Et ad hoc fidem suam ei dedit ; et post ejusdem 
 fidei dationem prsedictus Nicholaus elongando se & suos, & extra- 
 hendo pra3dictum Johannem & suos ab exercitu & auxilio ipsius 
 domini regis, quantum in ipso Nicholao fuit, eundem dominumregem 
 inter inimicos suos periculo hostium suorum relinquendo sprevit, & 
 prajdictum Johannem ad se defendendum in curia regis FrancisB 
 adjornavit, & certum diem ei dedit; et sic, quantum in eo fuit, sub- 
 mittens & subjiciens dominium regis & regni Jlnglix subjectioni 
 domini regis Francise; and that in pursuance thereof con- 
 [ 80 ]] trary to the king's prohibition he took his journey towards 
 France; and that he did this " nequiter & malitios^ in per- 
 sonse domini regis periculura, curiaj suae contemptum, coronte & dig- 
 nitatis suae regige laesionem & exhoeredationem manifestam, & contra 
 ligeantiam, homagium, juramentum, & fidehtatem, quibus ipse domino 
 regi tenebatur." Segrave confessed the offence. The lords in par- 
 liament are charged by the king upon their alligeance to give advice, 
 what punishment was to be inflicted: " Quiomnes habito super hoc 
 diligenti tractatu & advisamenlo, consideratis & intellectis omnibus in 
 dicto facto contentis & per prasdictum Nicholauni plene & express^ 
 cognitis, dicunt, quod crimen hnjusmodi meretur poenam amissionis 
 vita;, &c." but he was after pardoned. 
 
 Which judgment seems to import no less, than the crime of high 
 treason, though the whole judgment be not declared at large but 
 with an ^'c. 
 
 Accroaching of royal power was a usual charge of high treason 
 antiently, though a very uncertain charge, that no man could' well 
 tell what it was, nor what defence to make to it. [3] 
 
 The great charge against the Spencers about the 1 E. 2. was, that 
 they did accroach royal power, whereof several instances are 
 given.(^) 
 
 (e) In 72yZf7/'s Placifa Parlimentarii7,p.^GCi. 
 
 (/) Per Nic/inlauin de. Warcwick, qui scqiiilur pro domino rege. 
 
 ig) Vide Knighton, p. 2545, 2547. Edit. Twysden. 
 
 [2] See HuUntn's Constitiitionol Ilistonj of England, vol. '3. p. 203. 
 [3J Luders^ Tract on Constructive Treasun, 57 el seq.
 
 HISTORIA PLACITORUM CORONiE. SO 
 
 The great charge against Roger Mortimer in the parliament of 4 
 E. 3, next to that of the procnrement of king Edward II's death, was 
 accroaching of royal power, whereof several instances are given ; 
 but he had judgment by the lords in parliament to be drawn and 
 hanged, upon that article only, that concerned the death of king 
 Edward II. Vide infra cap. 14. 
 
 Trin. 21 £.3. Rot. 23. rex coriim rege. John Gerberge, Knt. in- 
 dicted "Quod ipse simul cum aliis in campo villae de Royston in alta 
 regia strata," rode armed with his sword drawn in his hand modo 
 guerrino, and assaulted and took IVilliam de Botelisford, and de- 
 tained him till he paid 90/ &c. and took away his horse, "usurpando 
 sibi infra regnum regis regiam potestalem ipso domino rege in partibus 
 exteris existente, contra sui ligeantiam, & regis & coronse suae pree- 
 judicium & seditionem manifestam:" he prayed his clergy, 
 but was ousted of it, Quia privilegium clericale in hujusmodi [ 81 ] 
 casu seditionis secundum legem & consuetudhiem regni 
 hactenus obtentas & usitatas non est allocanduni :(A) but yet he re- 
 fusing to plead was not convicted, as in case of treason, but was put 
 to penance, ad pce.nitentiam suam; two of his companions being 
 convicted by verdict, had judgment, quod distrahantur Sf suspend- 
 antur. 
 
 This judgment it seems troubled the commons in parliament, who 
 thought that the accroaching of royal power was somewhat too 
 general a charge of treason before the ordinary courts of justice, 
 though it had been used in charges of treason in parliament; and there- 
 fore in the parliament following held Crastino Ililarii 21 E. 3. n. 15] 
 there is a petition in parliament in these words : Item prie le com- 
 men, qe come ascuns des justices en place devant eux ore de novel 
 ont adjudges pur treason accrochment de royal poer, pry le dit corn- 
 men, que le point soil desclare en ceo parlement, en quele case ils 
 accrochent royal poer, per quei les seigneurs perdent lour profit 
 de le forfeiture de lour tenents, et les arreynes beneficie de seint 
 esglise. 
 
 Ro'. En les case, on tiel judgments sont rendus, sont les points 
 des tieux treasons et accrochments declares per mesmes les judg- 
 ments. 
 
 In 22 ^iss. 49.,(?) it appears that John at Hill was indicted, and 
 attaint of high treason for the death of Adam de Walton nuntii 
 domini regis missi in mandalum ejus exeqiiendum. 
 
 And in the year before, viz. 21 E. 3. 23. it seems admitted, that 
 an appeal of treason lies for the killing one of malice prepense, that 
 was sent in aid of the king in his wars with certain men of arms. 
 
 King Edward II. being deposed, and committed prisoner to Bar- 
 clay castle under the custody of John Matravers and Thomas 
 Gurney, was there by the procurement of Roger Mortimer barbar- 
 
 (h) For the same reason clergy was refused in Thorpe's case, T.21 E. 3. Rot. 23. Rex. 
 de quo vide postea, 
 (i) B, Treason 14.
 
 81 HISTORIA PLACITORUM CORON.E. 
 
 ously murdered ; for which Mortimer and Gurney were attainted of 
 treason by judgment of the lords in parhament. 4 E. 3. n. 1, 5.{k) 
 
 JMatravers was suspected to be guilty, but yet he played 
 [ 82 ] another game, for though he knew of the death of EJivard 
 II. yet he informed Edmund earl of Kent, half brother to 
 Edward II. that he was living; the earl therefore with many others 
 raised a force for his deliverance, but prevailed not, but was for that 
 fact attainted of treason, anno 3 E. 3. which attainder was after- 
 wards in the parliament 2S E. 3. reversed, and the grandchild of the. 
 earl oi Kent restored :(/) John Matravers, who it seems had animated 
 the insurrection of the earl of Kent, though he fled into Gtrmany^ 
 yet by judgment of the lords in parliament 4 E. 3 n. 3. was attainted 
 of treason for the death of the earl oi Kent: the words of the record 
 are, " Tres-touts les peres, counts, et barons assembles a ce^t parle- 
 ment a fVestminsier si out examine estraitment, et sur ce sont 
 assentus et accordes, qe John Matravers si est culpable de la mort 
 Esmon count de Kent le uncle nostre seigneur le roy qe ore est, 
 come celui qe principalment, trayterousment et fausment la mort le 
 dit counte compassa issint, qe la ou le dit John savoit la mort le roy 
 Edward, ne per quant le dit John par enginous manner et par ses 
 fausses et mauveyse subtilties fist le ditco.unte intendre la vye le roy, 
 le quel fausse compassement fust cause de la mort le dit counte et de 
 tout le mal qe s' ensuist, par quoi les sus-dits peres de la tre et jugges 
 du parlement ajuggent et agardent, que le dit John soit treine, 
 penclus, et decoUe, come treitre, queu part, qil soit estre troue." 
 
 Upon this judgment Matravers brought a petition of reversal. 
 Pot. Pari. 21 E. 3. n. 65. dors, but nothing was done Upon it ; but 
 Rot. Paid. 25 E. 3. p. 2. n. 54, 55. he was restored by act of parlia- 
 ment. 
 
 By these and the like instances, that might be given, it appears, 
 how uncertain and arbitrary the crime of treason was before the 
 statute of 25 E. 3. whereby it came to pass, that almost every offense, 
 that was, or seemed to be a breach of the faith and alligeance due to 
 the king, was by construction and consequence and interpretation 
 raised into the otfense of high treason. 
 
 And we need no greater instance of this multiplication of 
 [ 83 3 constructive treasons, than the troublesome reign of king 
 Richard II. which, though it were after the limitation of 
 treasons by the statute of 25 E. 3. yet things were so carried by fac- 
 tions and parties in this king's reign, that this statute was little 
 observed; but as this, or the other party prevailed, so the crimes of 
 high treason were in a manner arbitrarily imposed and adjudged to 
 the disadvai]tage of that party, that was intended to be suppressed; 
 so that de facto that king's reign gives us as various instances of 
 these arbitrary determinations of treasons, and the great inconve- 
 
 (fc) Yiih. liot. Pari. 28 E. 3. n. 8. when the jii()frmcnt ngaLnst Mortimer was reversed. 
 
 {I) That altuinder was reversed lonfj before, uiz. 4. T'^.'S. Vide Rut. I'arl. 4 Z?. 3. n. II, 
 12. upon tlio petit,iori oi Edmund liis eldest son, and Margaret countess dowager oi Kent; 
 and Edmund the son was restored.
 
 HISTORIA PLACITORUM CORONA. 83 
 
 niences that arose thereby, as if indeed the statute of 25 E. 3. had 
 not been nnade or in force. And though most of those judgments 
 and declarations were made in parliament ;(*) sometimes by the 
 king, lords, and commons ; sometimes by the lords, and afterwards 
 atiirmed and enacted, as laws; sometimes by plenipotentiary power 
 committed by acts of parliament to particular lords and others, yet 
 the inconvenience, that grew thereby, and the great uncertainty, that 
 happened from the same, was exceedingly pernicious to the king 
 and his kingdom. 
 
 I shall give but some instances. Rot. Pari. 3. R. 2. n. IS. Johfi 
 Imperial, a. public minister, came into the kingdom by the safe-con- 
 duct of the king, and he was here murdered :(m) and an indictment 
 taken by the coroner upon the view of his body, " Quel case examine 
 et dispute entre les seigneurs et commons, et puis monstre au roy en 
 plein parlement, estoit illoques devant nostre dit seigneur le roy 
 declare, determine, et assentus, qe tiel fait et coupe est treason, et 
 crime de royal majesty blemy, en quel case y ne doet allouer a nulli 
 de enjoyer privilege de clergy."(n) 
 
 This declaration, it is true, was made and grafted upon the clause 
 in the latter end of the statute of 25 E. 3. touching declaring of trea- 
 sons by parliament. 
 
 In the parliament of 10 R. 2. there was a large commission (o) 
 granted by the king upon the importunity of certain great 
 lords, and of tlie commons in parliament, to the archbishop [ 84 1 
 of Canlerhury and others for the reformation of many 
 things supposed to be amiss in the government; which commission 
 was thought to be prejudicial to the king's prerogative. Vide Rot. 
 Pari. IO^R.2. n. 34, Rot. Pari. 21 R.2.n.U. 
 
 After this, viz. 25 Jlug. \\ R. 2. the king called together the two 
 chief justices, and divers others of the judges, and propounded divers 
 questions touching the proceeding in that parliament, and the obtain- 
 ing of that commission; and they gave many liberal answers, and 
 among the rest, " Qualem poenam merentur, qui compulerunt sive 
 arctarnnt regem ad consentiendum confectioni dictorum statuti, ordi- 
 nationis, & commissionis ? Ad quam qugestionem unanimiter respon- 
 deruut, quod sunt, ut proditores, merito puniendi: Item qualiter sunt 
 illi puniendi, qui impediverunt regem, quo minus poterat exercere, 
 quae ad regalia & pracrogativam suam pertinuerunt? Unanimiter 
 etiam responderunt, quod sunt ut proditores, etiam puniendi,'^ with 
 divers other questions, and answers to the like purpose.(/)) 
 
 This extravagant, as well as extrajudicial declaration of treason 
 by tliese judges, gave presently an universal oflence to the kingdom; 
 for presently it bred a great insecurity to all persons, and the next 
 parliament crastino purijicationis 11 R. 2. there were divers appeals 
 
 C) This was the reason why the statute of 25 E. 3. was not followed, because that 
 statute was not thought to limit declarations in parliament. 
 
 (in) Holin. Chron. p. 422. 60. b. (n) See 3 Co. Instit. 8. 
 
 (o) See this coniniission 10 R. 2. cap. 1. and State Trials, Vol. I. p. 3. 
 (p) See the questions and answers, i>tate Trials, Vol. I. p. 8.
 
 84 HISTORIA PLACITORUM CORONA. 
 
 of treason by certain lords appellors, wherein many were convict of 
 high treason under general words of accroaching royal power, sub- 
 verting the realm, ^^c. and among the rest those very judges, that 
 had thus liberally and arbitrarily expounded treason in answer to 
 the king's questions, were for that very cause adjudged guilty of 
 high treason, and had judgment to be hanged, drawn, and quartered, 
 though the execution was spared ;((7) and they having led the way 
 by an arbitrary construction of treason not within the statute, they 
 fell under the same fate by the like arbitrary construction of the 
 crime of treason. 
 
 Neither did it rest here, for the tide turned, and in Rot. 
 [ 85 ]] Pari. 21 R. 2. n. 12, 13. the commission before-mentioned, 
 and the whole parliament of 11 R. 2. is repealed, and a new 
 appeal of treason against the duke of Gloucester, esix\ o{ Jirundel, 
 and the commissioners in the former commission, and the procurers 
 thereof under that common style of accroaching royal poiver, where- 
 upon divers of them were condemned as traitors: and n. 18, there 
 were four points of treason farther declared, viz. " Chescun qe com- 
 passe, et purpose la morte le roy, ou de lui deposer, ou de susrend-re 
 son homage liege, ou celuy, qe levy le people, et chivache encountre 
 le roy a faire guerre deins son realme, et de ceo soit dument attaint, 
 et adjugge en parlement, soit adjuggez come traytor de haul treason 
 encountre la corone, et forfeit de lui, et de ses heyres, quecunques 
 touts ses terres, tenements, et possessions, et libertys, et touts autres 
 inheritements, queux il ad, ou ascun autre a son oeps, ou avoit le 
 jour de treason perpetres, si bien en fee tayl, come de fee simple, 
 au roy." 
 
 These four points of treason seem to be included within the statute 
 of 25 E. 3. as to the matter of them, as shall be hereafter shewed; 
 but with these differences, viz. 1. The forfeiture is extended farther 
 than it was formerly, namely to the forfeiture of estates-tail and uses. 
 2. Whereas the ancient way of proceeding against commoners was 
 by indictment, and trial thereupon by the country, the trial and judg- 
 ment is here appointed to be in parliament.[4] 3. But that, wherein 
 the principal inconvenience of this act lay, was this, that whereas 
 the statute of 25 E. 3. required an overt-act to be laid in the indict- 
 ment, and proved in evidence, this act hath no such provision, which 
 left a great latitude, and uncertainty in point of treason, and without 
 any open evidence, that could fall under human cognizance, sub- 
 jected men to the great punishment of treason for their very thoughts, 
 
 {q) Tlicy were all banished to Ireland except Tresilian, wlio was executed according 
 to the judgment. See Slate Trials, Vol. I. p. 13, 14. 
 
 [4] In 1G81, the House of Commons passed a resolution to impeach one Fitzkarris 
 of high treason, at the bar of llic Mouse of Peers, 'i'ho Lords refused to entertain the 
 cause; und voted that he should he jjrocecded against by indictment in the lower courts. 
 It seems to be the better opinion, that the House of f-ords have no jurisdiction in sucJi 
 a case. 4 BL Cum. 25^, though Mr. Ilallam thinks differently. 2 vol. Cons. Ihs., p. 603.
 
 HISTORIA PLACITORUM €0RON.^. 85 
 
 which without an overt-act to manifest them are not triable but by- 
 God alone. 
 
 These were the unhappy effects of the breaking of this great 
 boundary of treason, and letting in of constructive treasons, which, 
 by various vicissitudes and revolutions mischieved all parties 
 first or last, and left a great unquietness, and unsettledness [ 86 ] 
 in the minds of people, and was one of the occasions of the 
 unhappiness of that king. 
 
 Henry IV". usurping the crown, and the people being sufficiently 
 sensible of the great mischiefs they were brought in by these con- 
 structive treasons, and the great insecurity thereby, Rot. Pari. 1 H. 
 4. n. 70. the parliament of 21 R. 2. is entirely repealed, that of 11 R. 
 2. entirely revived; and it was enacted, (r) that a parliamentary au- 
 thority be not for the future lodged in a committee of particular per- 
 sons, as it was done 2IJ?. 2. "Et auxint mesme nostre seigneur le roy 
 de son propre motif reherceant, qe come in le dit parlement tenuz 
 I'an 21, y fueront ordeynes per estatute phiseurs pains de treason, si 
 qe y ne avoit ascun home, qe sauoit, come il se deust savoir, de faire, 
 parler, ou dire pur doubt des tielx paines, dist, qe sa voiunte est tout 
 outrement, qe en nul temps avener ascun trayson soit adjugges autre- 
 ment qil ne feust ordeignez par statute en temps de son noble aiel le 
 roy E. le 3. qe dieu assoyi; dont les dits seigneurs et comens fuerent 
 tres grandment rejoyces, et mult humbleraent ent remercierent nostre 
 dit seigneur le roy."(5) 
 
 Now although the crime of high treason is the greatest crime 
 against faith, duty, and human society, and brings with it the greatest 
 and most fatal dangers to the government, peace, and happiness of 
 a kingdom, or state, and theretbre is deservedly branded with the 
 highest ignominy, and subjected to the greatest penalties, that the 
 law can inflict; yet by these instances, and more of this kind, that 
 might be given, it appears, 1. How necessary it was, that there 
 should be some fixed and settled boundary for this great crime of 
 treason, and of what great importance the statute of 25 B. 3. was, in 
 order to that end. 2. How dangerous it is to depart from the letter 
 of that statute, and to multiply and enhanse crimes into treason by 
 ambiguous and general words, as accroaching of royal power, suh- 
 vttrling of fundamental laws, and the like; and 3. How dangerous 
 it is by construction and analogy to make treasons, where 
 the letter of the law has not done it: for such a method f 87 ]] 
 admits of no limits or bounds, but runs as far as the wit and 
 invention of accusers, and the odiousness and detestation of persons 
 accused will carry men.(/) 
 
 (r) See 1 H. 4. cap. 3, 4, ^ 5. (s) See 1 H. 4. cap. 10. 
 
 (0 This reasoning of our author is equally strong against constructive interpretations 
 of compassing the death of the king, 
 
 VOL. I. — 11
 
 87 HISTORIA PLACITORUM CORON^^ 
 
 CHAPTER XII. 
 
 TOUCHING THE STATUTE OF 25 E. III. AND THE HIGH TREASONS 
 THEREIN DECLARED. 
 
 A Parliament was held on Wednesday on the feast of St. Hill. 25 E. 
 ,3. at which parliament the statute declaring the points of treason was 
 made. The petition of the commons, upon which it was made, is 
 Rot. Pari. 25 E. 3. p. 2. n. 17. in these words: " Item come les jus- 
 tices nostre seigneur le roy assignes en diverses countees ajaggent les 
 gents, qe sont empeches devant eux, come treitors par divers causes 
 disconus a la comen estre treison, qe plese a nostre seigneur le roy 
 par son counsel, & par les graunts & sages de la terre declarer les 
 points de treson en cest pres^ent parlement. 
 
 " Ro\ Quant a la petition touchant treison nostre seigneur le roy 
 ad fait declarer les articles de ycele en manner qe ensuit : cest assa- 
 voir, en case quant home face compaser ou ymaginer la mort nostre 
 seigneur le roy, ou madame sa compaigne, ou de lour fitz primer & 
 heir ; ou si home violast la compaigne le roi, & la eisne fille le roy 
 niente marie, & la compaigne a leisne fitz & heire du roi; & si home 
 leve de guerre centre nostre seigneur le roy en son royahne ; ou soit 
 adhereant as enemies nostre seigneur le roy en le royahne, donant 
 a. eux eide, & confort en son royalme ou par aillours, & de ceo pro- 
 
 vablement soit atteint de overt fait par gents de lour condi- 
 [ 88 1 cion; Et si home contreface le grant scale le roy, ou sa 
 
 monoie, & si home apporte fausse monoie en cest royalme 
 contrefait a la monoie dengleterre, si come la monoie appelle Lusse- 
 6t/r^A, ou autre semblable a la dite monoie dengleterre, sachant la 
 monoie estre fausse, pur marchander ou paiement faire en deceit 
 nostre seigneur le roy & de son people : Et si home tuast chancellory- 
 treasurer, ou justice nostre seigneur le roi delun baunk, ou del autre, 
 justice en eir, des assisez & de touz auters justices assignez a oyer & 
 terminer, esteantz en lour places enfesant lour oflice. Et fait a enten- 
 dre qe en les cases susnomees doit estre ajuggee treisonce, qe estent 
 a nostre seigneur le roi & a sa royale majeste, & de tiels maneres de 
 treison la forfeiture desescheets appertient a nostre seigneur le roy, 
 sibien des terres, & tenementz tenuz des auters, come de lui mesme : 
 ouesque ceo il y ad autre manere de treison, cest assavoir, quant nil 
 servant lue son mestre, une feme, qu tue son baron, quant home se- 
 cular ou de religion tue son prelate, a qi il doit foi & obedience, & tiel 
 manere de treison doun forfeiture des escheets a chescun seigneur de 
 son fee propre; & pur ceo qe plusours aulres cas de semblable trei- 
 son purront eschaier en temps avenir, queux home ne purra penser 
 ne declarer en present, assentu est qe qui autre cas suppose treison, 
 qe ilest especifietz peramont,aviegne de novel deuant ascuns justices, 
 demoerge la justice sanz aler a juggement de treison, tantque per de- 
 vant nostre seigneur le roy & son parlement soit le case monstre, &
 
 HISTORIA PLACITORUM CORON.E. 88 
 
 declare, le quel ceo doit estre ajiigge treson, ou aiit' felonie ; & si par 
 cas ascun home de cest royalme chivache armee descovert,ou secret- 
 ment ad geiitz armez coiitre ascun autre pur lui tuer ou desrobber, 
 ou pur lui preudre & retener tanque i I face fyu ou raunceon pur sa 
 deliverance avoir, nest pas lentent du roy & du son counseil, qe en 
 tiel cas soit ajugge treison, eiriz soit ajugee felonie, ou trespass solonc 
 la ley de la terre auncienement usee, & solonc ceo que le cas demand: 
 Et si en tiel cas, ou autre semblable devant ces heures ascun 
 justice eit ajugge treison, & par ycelle cause les terres & tene- [ 89 ] 
 menfz devenuz en la maiue nostre seigneur le roi come for- 
 faitz eient les cheifes seignours de fee lour escheets des tenementz de 
 eux tenuz, le quel qe les tenementz soient en la maine le roi ou en 
 main dauters par doun, ou en autre manere : savant toutes foits a 
 nostre seigneur le roi Ian, & le wast, & auters forfeitu resides chatelx, 
 qe a lui attient en les cas susnomez, & qe briefs de scire facias vers 
 les terre-tenants soient grantez en tiel cas sanz autre original & sanz 
 alouer la protection nostre seigneur le roi en la dite suyte ; & de les 
 terres, qe sont in la maine le roi, soient grantes briefs as viscontz des 
 countees la, ou les terres serront, de ouster la maine sanz autre delaie." 
 The statute itself is drawn up upon this petition and answer, and 
 differs nothing in substance from the answer to the petition upon the 
 parliament-roll : the statute itself runs in these words : " Item, where- 
 as divers opinions have been before this time in what case treason 
 shall be said, and in what not, the king at the request of the lords 
 and of the commons hath made a declaration in the manner, as here- 
 after followeth: that is to say, when a man doth compass or ima- 
 gine[l] the death of our lord the king, or our lady his queen, or of 
 their eldest son and heir; or if a man do violate the king's compa- 
 nion, or the king's eldest daughter unmarried, or the wife of the. 
 king's eldest son and heir; or if a man do levy war against our lord 
 the king in his realm, or be adherent to the king's enemies in his realm, 
 giving to them aid and comfort in the realm or elsewhere, and thereof 
 be provably(a) attainted of open deed by the people of their condi- 
 tion; and if a man counterfeit the king's great or privy seal, or his 
 money; and if a man bring false money into this realm counterfeit to 
 the money of England, as the money called Lushburgh, or other 
 like to the said money ot England, knowing the money to be false, 
 to merchatidize or make payment in deceit of our lord the king and 
 of his people: and if a man slay the chancellor, treasurer, or the 
 king's justices of the one bench or the other, justices in eyre, or jus- 
 tices of assize, and all other justices assigned to hear and 
 determine, being in their places doing their offices. And it [ 90 ] 
 is to be understood, that in the cases above rehearsed that 
 ought to be judged treason, which extends to our lord the king and 
 liis royal majesty, and of such treason the forfeiture of the escheats 
 pertaineth to our lord the king, as well of the lands and tenements 
 
 ■ (a) See 3 Co. Inst, p. 12. 
 
 [1] See Luders' Tracts, 137.
 
 m HISTORIA PLACITORUM CORON.E. 
 
 holden of others, as of himself: and moreover there is another man- 
 ner of treason, that is to say, when a servant slayeth his master, or a 
 wife her husband, or when a man secular, or religious, slayeth his 
 prelate, to whom he oweth faith and obedience; and of such treason' 
 the escheats ought to pertain to every lord of his own fee : and be- 
 cause that many other like cases of treason may happen in time to 
 come, which a man cannot think nor declare at this present time, it 
 is accorded, that if any other case supposed treason, which is not 
 above specified, doth happen before any justices, the justices shall 
 tarry without any going to judgment of the treason, till the cause be 
 shewed and declared before the king and his parliament, whether it 
 ought to be judged treason, or other(6) felony: and if par case any 
 man of this realm ride armed[2] covertly, or secretly with men of 
 arms against any other to slay him, or rob him, or take him, or 
 retain him, till he hath made fine or ransom for to have his deliver- 
 ance, it is not the mind of the king, nor his council, that in such case 
 it shall be judged treason, but shall be judged felony, or trespass ac- 
 cording to the laws of the land of old time used, and according as 
 the case requireth. And if in such case, or other like, before this 
 time any justices have judged treason, and for this cause the lands 
 and tenements have come into the king's hands as forfeit, the chief 
 lords of the fee shall have the escheats of the tenements holden of 
 them, whether that the same tenements be in the king's hands, or in 
 others by gift, or in other manner; saving always to our lord the 
 king the year and the wast, and the forfeitures of chattels, 
 [] 91 ] which pertain to him in the cases above-named; and that 
 ' writs of scire facias be granted in such case against the 
 land-tenants without other original, and without allowing any pro- 
 tection in the said suit; and that of the lands, which be in the 
 king's hands, writs be granted to the sheriffs of the counties, where 
 the lands be, to deliver them out of the king's hands without de- 
 lay."[3] 
 
 The several high treasons hereby declared are these: 
 
 1. The compassing of the death of the king, queen, or prince, and 
 declaring the same by an overt -act. 
 
 2. The violation or carnal knov/ledge of the king's consort, the 
 king's eldest daughter unmarried, or the prince's wife. 
 
 3. The levying of war against the king. 
 
 4. The adhering to the king's enemies within the land or without, 
 and declaring the same by some overt-act. 
 
 5. The counterfeiting of the great seal or privy seal. 
 
 6. The counterfeiting of the king's coiti, or bringing counterfeit 
 coin into this realm. 
 
 (6) The old transl.ition seems here to be preferable, viz. else; for auV being abbreviated 
 may be cither autre or autrement. 
 
 [2] Liidcrs, 141. 
 
 [3] Mr. Luderf translation of this statute is somewhat different from the one here 
 given. I'ract i. p. 4.
 
 IIISTORIA PLACITORUM CORONJE. 91 
 
 7. The killing of the chancellor, treasurer, justices of the one 
 bench or the other, justices in eyre, justices of assise, justices oi oyer 
 and terminer in their places doing their offices.[4] 
 
 [4] By Art. 3. Sect. 3. of the Constitution of the United States, treason against the 
 United Staes shall consist only in levying weur against them; or adhering to their 
 enemies, giving them aid and comfort. No person shall be convicted of treason, unless 
 on the testimony of two witness to the same overt act, or confession in open court. 
 
 Congress shall have power to declare the punishment of treason; but no attainder of 
 treason shall work corruption of blood, or forfeiture, except during the life of the person 
 attainted. 
 
 In furtherance of this constitutional provision, an Act of Confess was passed April 
 3{)tk, 1790,. for the punishment of certain crimes against the United States, by which it 
 is enacted, "That if any person or persons, owing allegiance to the United States of 
 America shall levy war against them, or shall adhere to their enemies, giving them aid 
 and comfort within the United States, or elsewhere, and shall be thereof convicted, on 
 confession in open Court, or on the testimony of two witnesses to the same overt act of 
 the treason whereof he or they shall stand indicted, such person or persons shall be ad- 
 judged guilty of treason against the United Slates, and shall sutfer death." 
 
 The other parts of the Act of Congress with the decisions of the federal Courts, de- 
 claring what acts amount to the two species of treason defined by the Constitution and 
 laws of the United States, and the cases that have come within the cognizance of the 
 courts of the different States, will be given in their proper places. It may, however, be 
 here observed, that under the old confederation there was no judicial power organized or 
 clothed with authority for the trial and punishment of treason against the United States. 
 It became necessary therefore to provide for it under the judicial powers of the several 
 States. But since the framing of the Constitution, the jurisdiction is exclusively in the 
 United States Courts, II Johns. 553. Many of the States have provisions in their Con- 
 stitutions respecting this crime; thus: "Treason against the State shall consist only in 
 levying' war against it; or in adhering to its enemies, giving them aid and comfort. No 
 person shall be convicted of treason, unless on ths testimony of Iwo witnesses, or on 
 confession in open court," is to be found in the Constitutions of Maine, Connecticut, 
 New Jersey, Kentucky, Indiana, Louisiana, Mississippi, Alabama, Missouri, Michigan, and 
 Arkansas. And most of them have enacted laws, some of which contain treasons un- 
 known to the Constitution of the United States, 
 
 It has been doubted by several learned gentlemen whether, since the making of the 
 Constitution of the United Stales, treason can in any case be committed against a State. 
 Mr. Livingston, in his System of Penal Laws, p. 148, says that, " from the nature of the 
 federal union, a levy of war against one member of the Union is a levy of war against the 
 whole; therefore it is concluded that treason against the State, being treason against the 
 United Slates, it is to be punished under their laws and in their courts." See also p. 380. 
 A writer in the American Law Magazine, vol. 4, p. 318, argues in the same manner; 
 and Mr. Justice Story says, that a State cannot take cognizance, or punish the offence, 
 (treason against the United States,) whatever it may do in relation to the offence of trea- 
 son committed exclusively against itself, if, indeed, any case can, under the Constitution, 
 exist, which is not at the same time treason against the United States. Const. 3 vol. p. 
 173; but in his charge to the Grand Jury, {June 15, 1842,) he speaks thus, " Treason 
 may be, and often is, aimed altogether against the sovereignty of a partieu'ar State. 
 Thus, for example, if the object of an assembly of persons, met with force to overturn the 
 government or constitution of a State; or to prevent the due exercise of its sovereign 
 powers, or to resist the execution of any one or more of its general laws; but without 
 any intention whatsoever to intermeddle with the relations of that State with the national 
 government, or to displace the national laws or sovereignty therein, every overt act done 
 with force towards the execution of such a treasonable purpose, is treason against the 
 Slate, and against the State only." 1 Story's Rep. 616. That this offence may be com- 
 milted against a State, seems to be recognized by the second section of article four of the 
 Constitution of the United Slates, which provides that, "a person charged in any State 
 with treason, &.C., who shall flee from justice and be found in another State, shall, on 
 demand of the executive authority of the State from which he fled, be delivered up, to be 
 removed to the State having jurisdiction of the crime;" it was assumed in the case of 
 The People v. Lynch, U Johns. 54'J, where the court said, " that it might be by an open 
 and armed opposition to the laws of the State, or a combination and forcible attempt to
 
 91 HISTORIA PLACITORUM CORON.E. 
 
 overturn or usurp the government. And, indeed, the State in Its political capacity, may, 
 under certain special circumstances pointed out by ttie Constitution of the United Slates, 
 be engag'ed in war with a foreign enemy;" and it was directly decided, after argument, 
 in Dorr's case, Pamph. p. 123. See also 4 Tucker's Bl. Com. Apdx. 21. Serg. on Const. 
 382. Rawle on Const. 305. 
 
 CHAPTER XIII. 
 
 TOUCHING HIGH TREASON IN COMPASSING THE DEATH OF THE KING, 
 QUEEN, OR PRINCE. 
 
 The first article of high treason declared by the statute of 25 E. 
 3. is this, and in these words: 
 
 ^^ fV/ien a man doth compass or imagine the death of our lord 
 the king, or of our lady the queen, or of their eldest son 
 [ 92 ] and heir." 
 
 Upon this division there will be these considerations. 
 
 I. What shall be said a man that compasseth. 
 
 II. What shall be said the king, queen, or their eldest son. 
 
 III. What shall be said a compassing or imagining of any of 
 their deaths. 
 
 IV. Wliat shall be evidence, or an overt-act to prove such ima- 
 gining.. 
 
 V. The form of an indictment of compassing the death of the 
 king, queen, or prince. 
 
 I. What shall be said a man compassing, S,'C. 
 
 The general learning of this point in relation to natural, accidental, 
 or civil incapacities hath been at large handled in the former chap- 
 ters; but there is something peculiar to the case of high treason, 
 which is considerable in this division. 
 
 If an alien amy comes into England, and here compass the death 
 of the king, queen, or prince, this is a man compassing within this 
 law; for, tlio he be the natural subject of another prince, yet during 
 his residence here he owes a local alligeance to the king o[ England, 
 and tho the indictment shall not style hiiti natnralis subditiis, nor 
 style the king naturalem dominuni, yet it shall run prodilorie <5' 
 contra ligeantise sute dehituni. Co. P. C. p. 5. 7 Hep. Calvin^s 
 ccise.{a) Dyer. 144. • 
 
 If an alien amy subject of another prince comes into this kingdom 
 and here settles his abode, and afterwards war is proclaimed between 
 the two kings, and yet the alien contiimes here and takes the benefit 
 of the king's laws and protection, and yet compasses the death of 
 the king, this is a man compassing within this law; for, tho he be 
 the natural subject of another prince, lie shall be dealt with as an 
 English subject in this case, unless he first openly remove himself 
 from the king's protection bypassing to the other prince, or byapub- 
 
 (a) fol. 6, 17.
 
 HISTORIA PLACITORUM CORONA. 92 
 
 lie renunciation of the king of England^s protection, which hath 
 some analogy with that, which they call diffidatio, or defiance. 
 
 And the same law I take to be, if the subject of a forein 
 prince in war with ours come into England and here trade [ 93 1 
 and inhabit either as a merchant, dweller, or sojourner, if 
 such a person compass the death of the king, he may be dealt with 
 as a traitor, because he comes not hither as an enemy, or by way of 
 hostility, but partakes of the king's protection: with this agrees the 
 case oi Stephano Farrara de Gama, and Emanuel Lewes Tinoco, 
 Portugueze born, and then subjects to the king of Spain, between 
 whom and the queen of England there was then open war, who 
 were indicted and attaint of high treason for conspiring with Dr. Lo- 
 pez to poison the queen. (6) 37 Eliz. Calvin's case. 7 Co. Rep. p. 6. 
 
 And, though they came hither with the queen's protection, it alters 
 not the case, for every foreigner living publicly and trading here is 
 under the king's protection : and this appears by the statute of Magna 
 Charta, cap. 30. " Et si sint de terra contra nos guerrina, &. tales in- 
 veniantur in terra nostra in principio guerraB,attachientur sine damno 
 corporum suorum vel rerum, donee sciatur a nobis vel a capitali jus- 
 tieiario nostro, quomodo mercatores terras nostras tractentur, qui 
 tunc inveniantur in terra ilia contra nos guerria; & si nostri salvi sint 
 ibi, alii salvi sint in terra nostra." 
 
 The statute speaks indeed of mercatores, but under that name all 
 foreigners living or trading here are comprised. 
 
 And therefore in ancient times before the subjects of forein princes 
 in hostility residing here were dealt with as enemies, a proclamation 
 issued for their avoidance out of the kingdom; and in default of their 
 avoidance within the time limited by such proclamation they lost the 
 benefit of the king's protection. 
 
 And after such proclamation, yet upon caution given sometimes 
 by mainprise de se bene gerendo, sometimes by oaths of fidelity to 
 the king, they had sometimes special, and oftentimes general protec- 
 tions, notwithstanding such hostility. Rot. Vascon. 18 E. 2. 21, 24. 
 Pat. \4 H. 6. part. 2. m. 34, 35. 
 
 The statute of the Staple,{c) cap. 17. hath made provision for mer- 
 chants strangers, in case war shall happen between their prince and 
 the king of England, viz. that they shall have convenient ■ 
 warning by forty days by proclamation to avoid the realm; [ 94 1 
 and if they cannot do it by that time by reason of some acci- 
 dent, they shall have forty days more, and in the mean time liberty 
 to sell their merchandizes: during these eighty days they have the 
 king'sprotection, andif they do any treasonable act above-mentioned, 
 they shall be indicted of treason, notwithstanding the hostility be- 
 tween their sovereign and the king oi England; but it seems, that if 
 he remain here in a way of trade after proclamation so made, and 
 the time of his demurrage allowed by this act, he may be dealt with 
 as an alien enemy; but yet if he after that time continues in his way 
 
 (6) Vide Camdeni Eliz. sub anno 1594. (c) 27 E. 3.
 
 94 HISTORIA PLACITORUM CORONA. 
 
 of trade or living as before, and shall then conspire the king's death,' 
 &c. the king may deal with him as an alien enemy by the law of 
 nations, or as a traitor by the law of the land; because de facto he 
 continues as a subject, and under the benefit de facto of the king's 
 protection. 
 
 Therefore the general words in Co. P. C. p. 5. wherein he 
 supposeth an alien enemy cannot be guilty of treason, but must be 
 dealt with by martial law, are to be taken with that allay, that is 
 given in Calciii's case, foL 6. b. in these words : " But if an alien 
 enemy come to invade this realm, and be taken in war, he cannot be 
 indicted of treason, for the indictment cannot conclude co;i/?'a ligean- 
 iiae suse dehitum-P the like may be said of such as are sent over 
 merely as spies by a foreign prince in hostility ; but an alien enemy 
 living here in the condition of an inhabitant or trader may be guilty of 
 treason as well as an alien amy, for he doth it praditoriedin& treacher- 
 ously, and against the obligation that lies upon him, as well as any 
 others, to be true to the prince, the benefit of whose laws and protec- 
 tion he holds, so long as he is under the same.[l] 
 
 But yet this is observable upon the statute of Magna Charta, cap. 
 30. and what hath been before said, 1. That if an alien enemy comes 
 into England a.{{ex the war begun, and lives here under the king's pro- 
 tection as a subject, yet if he practise treason against the king during 
 such his abode hefe, he may be indicted of high treason contra ligean- 
 tias sux de.hitum. 2. Yet such an alien, coming in after the war 
 begun without the king's licence or safe-conduct, cannot 
 [[ 95 ] claim the privilege allowed by the statute of 7V/a^;irt CAar/fl?, 
 cap. 30. to those that were here before the beginning of the 
 war. 2 Co. Inst. 58. 3. That by the law of England debts and 
 goods found in this realm belonging to alien enemies belong to the 
 king, and may be seized by him. 19 E. 4. 6. 7 E. 4. 13. and there- 
 fore in debt brought by an alien enemy it is a good plea in bar prima 
 facie, that the person is an alien born m G. in partibus transmarinis 
 sub obedientid Phillippi regis Hispaniae hostis Sf' inirnici domini 
 regis; so that, though to some purposes he is under the king's pro- 
 tection, so as to be guilty of treason, if he conspire against the king's • 
 life, yet his goods are not by law privileged from confiscation ; and 
 the reason is, because he might secure his goods by purchase of let- 
 ters patents of denization, and he shall not take away the king's 
 rights by his neglect therein. 
 
 But then, what if in truth our merchants have liberty of reclaiming 
 their goods and recovering their debts in the hostile country ? May 
 the merchant plaintiif reply with this clause of the statute oi Magna 
 Charta, that " Nostri mercatores salvi sunt ibi, &c. ?" 
 
 I answer, he cannot, for it is reserved to another kind of trial ; for 
 the words are "donee sciatur a nobis vcl a capitali justiciario nostro, 
 quomodo mercatores nostri ibi tractentur." The king must be as- 
 certained of the truth of the fact, in whose cognizance it best lies; 
 
 [1] See De la Motte'a case, 21 St. Tr. (by Howell), 687.
 
 IIISTORIA PLACITORUM CORONA. 95 
 
 and if he be satisfied, that our merchants are permitted to recover 
 their debts in the hostile kingdom without impediment or confiscation, 
 this is to be notified and declared by some proclamation, or instru- 
 ment under the great seal declaring the fact, and allowing them to 
 prosecute for their debts here ; and then, by virtue of this statute or 
 public declaration, the merchant alien plaintiff, may reply with this 
 special matter in maintenence of his action. [2] 
 
 Here somewhat may be of use to be said -touching treasons by 
 embassadors of foreign princes, wherein altho sometimes reason 
 of state and the common interest of princes do de facto govern in 
 these cases, yet it will not be amiss to consider the opinions 
 and practices of former times in relation to this matter. [ 96 J 
 
 First, If an Englishman born, though he never took the 
 oath of alligeance, becomes a sworn subject to a foreign prince, and 
 is employed by him into England as his minister, agent, or em- 
 bassador, and here conspires against the king's life, he shall be in- 
 dicted and tried for treason, as another subject should be ; and the 
 reason is, because no man can shake off his country wherein he was 
 born, nor abjure his native soil or prince at his pleasure. This was 
 the case of Dr. Story, who had sworn alligeance to the crown of 
 Spain, and was here condemned and executed for treason. Vide 
 Camden's Eliz. 14 Eliz. p. 168.((/)[3] 
 
 Secondly, But if a foreigner being the agent, minister, or embas- 
 sador of a foreign prince either in amity or enmity with the king of 
 England come over with or without the king's safe-conduct, and 
 here conspire against the life of the king, or to raise rebellion or war 
 against him, some have been of opinion, that he may be indicted of 
 treason; but by the civilians he cannot, because he came in as a 
 foreign embassador representing the person of his prince, and there- 
 fore is not to be so dealt with in such case, but by the law of nations 
 may be dealt with as an enemy, not as a traitor ; and though he have 
 the pfotection and safe-conduct of the king of England, yet it is imder 
 a special capacity, and for a special end, namely, as a foreign agent ; 
 but if he be criminally proceeded against, it must be as an enemy by 
 the law of war or nations, and not as a traitor; but how far and in 
 what cases he may be dealt with as an enemy, remains to be further 
 considered. Camden\'i Eliz. sub anno \51\. p. \Q4:. 
 
 Thirdly, therefore those, that are most strict after the rights and 
 privileges of embassadors, yet seem to agree, that if he do not only 
 
 {(1) English folio. 
 
 [2] See ante, p. 60. in notis. 
 »■ [3] It has always been the law of England, that a natural born subject owes an alle- 
 giance to the crown, which is intrinsic and perpetual, and whic!) cannot be divested by 
 anyactorbisown. Storie's case, Dyer, 228, b. 1 Bl. Com. 370; and that no foreign letters 
 ol natilralization can in any manner take from him his allegiance, or alter his duty to 
 his lawful sovereign, Macdnnald's case, Fost. 60. And yet the British parliament nnt 
 unfreqiiently passes acts of naturalization, tiiereby aiding a foreigner to shake off that 
 natural allegiance to his own country, wliich they deny every other nation the power to 
 do in regard to British subjects. 
 
 VOL. I. 12
 
 96 HISTORIA PLACITORUM CORONA. 
 
 conspire the death of the king or the raising a rebellion against him, 
 but actually attempt such an act, as actually or interpretatively is a 
 consummation thereof, though possibly the full effect thereof 
 r 97 3 ^° ^^^^ ensue, yet he may be dealt withal as an enemy, and 
 by the law of nations he may be put to death, as if he 
 should stab or poison the prince, and yet dotli not kill him, or raise 
 an actual rebellious army, or should levy an actual war against the 
 prince to whom he was sent, and in that prince's country, as 
 Fabius{e) the Roriian embassador to the Gauls, by challenging and 
 fighting with the champion of the Gauls ; Plutarch in vita jYumse, 
 the prince, to whom he is sent, may, without consulting the prince 
 that sends him, inflict death upon such an embassador by the law of 
 nations, as an enemy: " Consummata autem sunt, quoe eousque pro- 
 ducta sunt, quo produci ab hominibus solent, & quae delinquendi 
 iinem statuere solemus. Vide Albericus Gentilis, Lib. II. cap. 2. de 
 legationibus.^^ 
 
 Fourthly, But in case of a bare conspiracy against the life of the 
 king, or a conspiracy of a rebellion or change of government, no- 
 varuni rerum molimina, there is great diversity of opinions among 
 learned men, how far the privilege of an embassador exempts him 
 from penal prosecution as an enemy for such conspiracies or incon- 
 summate attempts, that do not proceed farther than the machination, 
 solicitation, or conspiracy. 
 
 Upon ah attempt of this nature by the bishop of Rosse, agent and 
 embassador of the queen of Scots, 14 Eliz. the question was pro- 
 pounded to Lewes, Dale, Drury, Jlubry, and Jones, doctors of law, 
 viz. 
 
 "Whether an embassador, who stirreth up rebellion against the 
 prince to whom he is sent, should enjoy the privileges of an em- 
 bassador, and not be liable to the punishments of an enemy?" 
 
 They answered, that such an embassador hath by the law of na- 
 tions, and by the civil law of the Romans, forfeited all the privileges 
 of an embassador, and is liable to pimishment. See the rest of the 
 resolutions touching this matter Camden^s Eliz. sub anjio 1571. p. 
 164, 165. <5' ibidem p. 370. 
 
 Hereupon he was committed to the Tower, but yet no criminal 
 process against him as an enemy. [4] 
 
 (c) Fahivs Amhustus. 
 
 [4] See Ward's Hist. 2 vol. 486; Somers' Tracts, 1 vol. 186; 4 Inst. 153; Hawk. e. 
 17. 8. 5 ; Hah. 211 ; Salk. 630. It was lield in Rex v. Owen, 1 Rolle, 185, that if an am- 
 bassador corn|)ass the king's death, it is treason in him, althougli he would not be punished 
 for otlier treasons. Mr. Justice Foster says, that for murder and other offences of great 
 enormity, whieh are agait)st tlie liglit of nature and the fundatneiitai laws of all society, 
 ambassadors arc certainly liable to answer in the ordinary course of justice, as other 
 persons offendingr in the like manner are. For tliough they may not be thought to owe 
 allegiance to the sovereign, and so incapable of committing high treason, yet they are 
 to be considered as members of society, and* consequently bound by that eternal, uni- 
 versal law by which all civil societies are united and kept together. Disc. 1. s, 7. 
 After stating the above doctrine, Blackttone says, "But however these principles might
 
 HISTORIA PLACITORUM CORONA. 98 
 
 And Mendoza, the Spanish embassador, who here in 
 Eni^land fostered and encouraged treason, was not dealt [ 98 ] 
 with according to the utmost severity, that possibly in such 
 cases might be used, but^as only sent away, sub anno 21 Eliz. 
 Camder/s Eliz. p. 2dQ. The lord U Jluhespine also, the French 
 embassador, that conspired the queen's death, was not proceeded 
 against criminally, but only reproved by Burghley, and advised to 
 be more careful for the future. Camden'' s Eliz. sub anno 15S7. p. 
 378, 379. 
 
 And upon these and some antient instances among the Romans 
 and Carthaginians learned men have been of opinion, that an 
 embassador is not to be punished as an enemy for traitorous con- 
 spiracy against the prince, to whom he is sent, but is only to be 
 remitted to the prince that sent him. Albericus Gentilis de Lega- 
 iionibus, Lib. II. cap. 18. Grolins de Jure Belli, Lib. II. cap. 
 18.(/) who gives these two instances in confirmation thereof. 
 
 The truth is, the business of embassadors is rather managed ac- 
 cording to rules of prudence, and mutual concerns and temperaments 
 among princes, where possibly a severe construction of an embas- 
 sador's actions, and prosecutions of them by one prince may at 
 another time return to the like disadvantage of his own agents and 
 embassadors; and therefore they are rather temperaments measured 
 by politic prudence and indulgence, than according to the strict 
 rules of reason and justice; for surely conspiracies of this kind by 
 embassadors are contrary to the trust of their employments, and 
 may be destructive to the state whereunto they are sent, and accord- 
 ing to true measures of justice deserve to be punished, as acts of 
 enmity, hostility, and treachery by private persons. 
 
 And altho of all hands it is admitted, that the prince, to wirom 
 the embassador is sent, is the judge of the miscarriage of such for- 
 eign embassador without any application to the master from whom he 
 is sent, and without any actual dedition or giving him up to the judg- 
 ment of the law; yet they assign this reason of the difference be- 
 tween a bare conspiracy or machination against the prince, and an 
 
 (/) in notis ad § 4. n. 5. 
 
 formerly obtain, tlie general practice of this country, as well as of the rest of Europe, 
 seems now to pursue the sentiments of the learned Groiius, that the security of 
 ambassadors is of more importance than the punishment of a particular crime." 1 Co?n. 
 254. See Vatd, ZJ. 4. c. 7. The Schooner Exchange \. McFaddon, 7 Cranch, }38, and 
 1 Kent's Cum. 37. 38, where the learned author comes to the contilusion that an ambas- 
 sador cannot, in any case, be made amenable to the civil or criminal jurisdiction of the 
 country to wliich lie is sent. The Act of Congress of the 30th April, 1790, declares 
 {srcts. 25. Sf 26.) void any writ or proces.s, whereby the person of any ambassador, or 
 oilier public minister, their domestic or domestic servants, may be arrested or im- 
 prisoned, or his or their goods or chattels may be distrained, seized or attached ; and 
 subjects the parties concerned to fine and imprisonment. This Act seems to take away 
 ail process of execation, civil as well as criminal, against the person or goods. Serg. oa 
 Cons. 90. 
 
 But if a foreign minister commits the first assault he forfeits his immunity, so far 
 as to excuse the defendant for returning it. U. S. v. Ortega, 11 Wteal. 467.
 
 98 HISTORIA PLACITORUM CORON,^. 
 
 actual attempt of treason, whether against his person or 
 [ 99 ]] government, which hath attained as great a consumma- 
 tion as such embassador is able to effect, as procuring 
 the wounding of the prince, or an actual attempt to poison him, 
 tho death ensue not, or an actual raising of a rebellious army 
 against him; because in these latter the mischief is consummate, as 
 far as the embassador could effect it, and so prohibited not only by 
 the civil and municipal laws, but by tlie laws of nations; but incon- 
 sumnjate machinations, according to their opinions, are raised to the 
 crimen Ixsx majestatis by civil or municipal laws or constitutions; 
 and they think it too hard, that an embassador or foreign agent, 
 who doth sustinere personayn principis, should be obnoxious to a 
 capital punishment for bare machination or conspiracy, which is a, 
 secret thing and of great latitude; but this, as I have said, is rather 
 a prudential and politic consideration, and not according to the strict 
 measure of justice. 
 
 But now, altho it should be admitted that a foreign embassa- 
 dor committing a consummate treason is not to be proceeded againsJ^ 
 as a traitor, but as an enemy; yet if he or his associates commit any 
 other capital offence, as rape, murder, theft, they may be indicted 
 and proceeded against by indictment in an ordinary course of justice, 
 as other aliens committing like offences ; for though those indictments 
 run contra paceyn regis, yet they run not contra ligeantise siias del)i- 
 tiim; and therefore, when in the late troubles the brother and ser- 
 vants of the Portugal embassador committed a murder in the Ex- 
 change,{g) they were tried and convicted by a special commission of 
 oyer and terminer directed to two judges of the common law, some 
 civilians, and some gentlemen, to proceed according to the ordinary 
 course, secundum, legem (§' consuetudinem regni Angliae, whereupon 
 some of them were convict by jury, and had judgment ; and, as I re- 
 member, some of them were executed.(A) And yet many 
 [ 100 ] civilians(/) allow the same privilege to the comites legati, as 
 to the embassador himself. 
 And the difference between proceeding against an alien (whether 
 embassador or other) in cases of felony and treason, is well illustrated 
 by the book of 40 ^ss. 25, where a Norman captain of a ship with 
 the help of English mariners committed robbery and piracy upon the 
 narrow seas ; the English pirates were convict and attaint of trea- 
 son, (>^) but the Norman captain was attaint of felony, but not of trea- 
 son, because it could not be said contra ligeantix sux debitum. 
 
 (ff) The New Exchange in llie Strand. 
 
 (h) Don Panlah'.on Sa, tlie embassador's brother, was condemned to die for it: he had 
 like to have prevented iiis execution by makin£f iiis escape out of Newgate; but he was 
 retaken, and belieaded on Towerhill, July 10, 1G54, tiic same day tlie embassador signed 
 the peace between England and Portugal. 
 
 (i) Dig. Lib, XLVIII. tit. G. ad leg. Jul. de vi puhlica. I. 7. Grot, de jur. Belli, Lib. II. 
 cap. 18. § 8. . . 
 
 (k) For before the 25 E. 3. piracy was petit treason. Co. P. C. 113. and tho' tijis 
 case be quoted in the 40 E. 3. yet it must be intended to have happened before the sta- 
 tute of 2.5 Ed. 3. because piracy, not bcin<r enumerated therein among the species of 
 treason, has never been counted treason since that statute. Co. /*. C, 8.
 
 HISTORIA PLACITORUM CORONA. ]00 
 
 The queen consort the wife of the king, or the husband of the 
 queen regent, compassing the death of the king her husband or the 
 queen recent his wife, are persons compassing within this act. Co. 
 P. C. p. 8. 
 
 If. As to the second inquiry, what shall be said a king, queen, or 
 Iheir eldeat son, within this law, 
 
 1. The words our lord the king, S,-c., extend to his successor, as 
 well as to him.(/) 
 
 1. Because it is a declarative law. 
 
 2. Because usually acts of parliament speaking thus generally, and 
 not confining it to the person of that king, when the law passed, in- 
 clude his successor; therefore the statute of 8 H. 6. cap. 11, 23 Hen. 
 S. for Brewers. 27 H. 8. cap. 24, that were limited to continue during 
 the pleasure of our lord the king,(m) continued after that king's 
 death: Mich. 38 <§• 39 Eliz. Cro. Eliz. 513. Lord Darcie's case. 
 The statute of 11 //. 7. c. 1, of aiding our lord the king in his wars, 
 extends to the successor.(?i) Hill. 10 Jac. 12 Co. Rep. 109. 
 
 M. 24 Eliz. Moore 176. Coke Litt. 9. b.{o) But the statute [ 101 ] 
 of 34 ^ 35 H. 8. cap. 26, giving power to our said lord the 
 king to alter the laws of Wales, died with him;(/>) yet in majorem 
 cautelam it was specially repealed by the statute of 21 Jac. cap. 10. 
 2, The heir of the king is a king within this act the next moment 
 after the death of his ancestor, and commenceth his reign the same 
 day the ancestor dies; and therefore tlie compassing his death before 
 coronation, yea before proclamation of him, is a compassing of the 
 king's death, for he is a king presently upon the ancestor's death; 
 and the proclamation or coronation are but honorable ceremonies(5') 
 
 (Z) Vide Co. P. C. p. 6, 
 
 (w) Of these statutes the first only is so limited; but the 23 H. 8, cap. 4. sect. 5, 14. 
 and 27 Hen. S. cap. 24. sect. 10. only name the king- without the addition of his heirs and 
 successors. 10 H. 7. 7. b. it is said by Kcble with relation to 9. H. G. cop. 2. and not denied 
 by the court, that where a statute limits to continue so long as it shall please our lord 
 the king, it continues in force, if no proclamation be made to the contrary in the times 
 of that king or of any of his successors. 
 
 (n) This statute comes not up to the point, because the words of it are not, our lord 
 the king, but the king and sovereign lord of this land for the time being. Our author 
 seems to have intended the Irish statute of 10 H. 7. called Poijning^s act, upon which 
 act a doubt was conceived, whether it extended to the successors of H. 7. for that the act 
 speaks only of the kin;^ generally, and not of his successors; the chief justices, chief 
 baron, attorney and solicitor general were of opinion, that the word king imported his 
 politic capacity, which never dies; and therefore being spoke indefinitely, extended in 
 law to all his successors, and was so expounded by an Irish act in the 3 «.V 4 Fhil. &■ Mar. 
 12.Co.Rep.H)9. i J i i 
 
 (o) The case in Moore relates to statutes during the pleasure of the king: the words 
 are, " Wahnesley moved a question, whether the demise of the king determines a statute 
 limited to continue during the king's pleasure, and the whole court agreed that the de- 
 mise of the king determines his will." 
 
 (p) The words of that statute, § 119. are, "That the king's most royal majesty shall 
 and may, &,c. as to his most excellent wisdom and discretion shall be thouglit conveni- 
 cnt; and also to make laws, .Slc. at his majesty's pleasure." It was resolved by the 
 justices, nil. 5 Jac. 12 Co. Rep. 48. that this was a temporary power, and confined to 
 the person of king //cnry VIII. Vide Plowden, 176. b. &;c. 458. a. 
 
 iq) The coronation is something more than only an honourable ceremony, for it is a 
 Bolenin engagement to govern according to law, which was always required by the
 
 101 HISTORIA PLACITORUM CORONA. 
 
 for the farther notification thereof: resolved 1 Jac. in the case of 
 Watson and Clerk. Co. P. C. p. 7. 
 
 3. Tlie queen regent, as were queen Mary and queen EUzabethj 
 is a king within this act.(r)[5] 
 
 4. A iiing de facto but not de Jiire,{s) such as were H. 4. H. 5. 
 
 ancient constitution of the iiingdom. Brompton speaking of the coronation of W. I. says, 
 the archbishop of York performed the office. Ipsumque Gulielmum regem ad jura eccle. 
 sice AnglicanoB luenda Sf conservanda, populumque suum rede regendum, Sf le'/es rectus 
 statuendum sacrumento solemniter adstrinxit; and Brad. Lib. 111. cap. 9. says, that the 
 king of^ England debet in coronations sua in no?nine Jesu Ckristi pnestito Sacramento 
 h(EC tria promittere populo sibi subdito, Sfc, See also 1. W. S( M. cap. 6. 
 
 (r) Vide Co. P. C. p. 7. This appears by the declarative law in favour of queen 
 Mar II, 1 Mar. cap. 1 sess. 3. 
 
 (s) This distinction, which with respect to the kingly office was never known \n our 
 law before the statute of 1 E. 4. seems to have been purposely invented to serve the turn 
 of the house of York; nor do I find any such distinction ever mentioned or supposed in 
 any of our ancient law-books, save only in BagoVs case, 9 E. 4. \.b. cited by our author, 
 p. 61. for the doubt conceived by Markham, 4 E. 4. 43. a, concerning the authority of 
 coroners chosen in the time of H. 6. was not founded (as some have supposed) on H. 6. 
 being only king de facto, but on another point, viz. whether the demise of the crown did 
 not determine the power of coroners, as it does the commissions of judges and other com- 
 missioners; and as to BagoVs case, if carefully considered, it will but little serve the 
 purpose of such a distinction, for the principal point in that case was concerning the 
 validity of letters patent of denization granted to Bagot by H. 6. whether they were void 
 by the act of 1 E. 4. set forth in the pleadings; this point was not argued by the judges, 
 but by the searjeants and apprentices, 9 E. 4. 2. a. ii; will therefore be necessary to dis- 
 tinguish the discourse of the counsel from the resolution of the court. 
 
 BagoVs counsel asserted, "That all judicial acts relating to royal jurisdiction, which 
 were not in diminution of the' crown, though done by an usurper, would nevertheless 
 bind the king de jure upon his regress, that H. 6. was not merely an usurper, the crown 
 having been entailed on him by parliament, that BagoVs denization was an advantage to 
 the prince on tiie throne, for tlie more subjects he had, the better it was for him ; and 
 they likened it to the case of recoveries suffered in a court-baron, while the disseisor was 
 in possession, which would continue in force notwithstanding the re-entry of the dis- 
 eeisee." 
 
 This was all that could be expected for them to say, considering tliat E. 4. was then 
 on the throne, and they were obliged to admit, that grants of the regal revenue made by 
 H. 6. were void against E. 4. because tiie act of parliament of E. 4. which declared H. 4. 
 H. 5. and H. 6. usurpers, vested in E. 4. all such manors, castles, honours, liberties, fran. 
 chises, reversions, remainders, &c. and all hereditaments with their appurtenances, whatso. 
 ever they icere, in England, Wales, and Ireland, arid in Calais, as king Richard //. hud 
 on the feast of St. Matthew the twenty-third year of his reign in right of the crown of 
 England and lordship o/ Ireland: all mesne grants therefore of such manors, Sfc. were 
 by this act indisputably defeated. 
 
 l^he counsel on the other side objected, *' That the letters patent of denization were 
 void, for that the king ought not to be in a worse condition than a common person; and 
 that if a common person were disseised and re-entered, his re-entry would defeat all 
 mesne acts; and that therefore E. 4. being in by descent from king Richard, and this act 
 being but an affirmance of the common law, his regress would avoid ail acts done by the 
 usurper, for wliicii reason provision was made in that act for grants of wards, licenses of 
 mortmains, charters of pardon, and judicial acts, but no provision was made for grants 
 of denization ; tiiat the patent in controversy was to the disadvantage of the king, since 
 it was not reasonable, that such an alien should be made his subject against his will, for 
 by the same reason H. 6. might have made twenty thousand Frenchmen denizens ; that 
 if a league was made between //. 6. and another king, it would not bind E. 4. and yet 
 such league is intended for the advantage of the realm; that an exeniption granted by 
 //. G. from being put ujion juries in assises, iSpn. would now be void." 
 
 Here Billing the chief justice interposed and said, / do not agree to this; he added, 
 " It pertains to every king by reason pf his f^ice to do justice and grace, justice in execu- 
 
 [5] R. V. Oxford, 9 C. Sf P. 525.
 
 HISTORIA PLACITORUM CORONiE. 102 
 
 H. 6. /?. 3. H. 7. being in the actual possession of the crown is a 
 king within this act, so that compassing his death is treason 
 within this law; and therefore the 4 E.4.20. a.,{t) a person [ 103] 
 that compassed the death of H. 6. was attainted for that trea- 
 son in the time of the rightful king; but had it been an act of hos- 
 tility in assistance of the rightful heir of the crown, (*) which after- 
 wards obtained, this had not been treason, but e converso those that 
 assisted the usurper, though in actual possession of the crown, have 
 sutfered as traitors, as appears by the statute of 1 E. 4,(t) and as was 
 done upon the assistants of H. G. after his temporary re-adeption of 
 the crown in 10 ^. 4. and 49 i/. 6. 
 
 5. A king admitting by act of parliament his son in consortium 
 imperii, as was done by H. 2. whereby there was rex pater and rex 
 filius, only the father reserved to iiimself the lige homage or allige- 
 ance of his subjects, yet tlie son actually administered the kingdom; 
 
 • 
 
 ting the laws, &c. and grace in granting pardon to felons, and such legitimation as this 
 is." Yelverlon seemed at first to think that the denization was void, not because the 
 regress of E. 4. avoided all mesne acts done by H. 6. but because the acl of 1 E. 4. re- 
 sumed all liberties and franchises, and denization being a liberty was therefore resumed. 
 The cause was adjourned, during wiiich time it was abated by the death oi Swirenden 
 one of the plaintiffs; a new assise was brought by Bwrot, and the same matter was 
 pleaded as before; the assise was taken, and the verdict was in fitvour of Bagot 9 E. 4. 
 5. the defendant's counsel moved in arrest of judgment, and Brian (who was of counsel 
 against Ba^ol, and not one of the judges) repeated the former objection, that since E. 4. 
 was in possession by remitter, as cousin and fieir of king Richard, the patent of deniza- 
 tion by H. 6. who was but an usurper and intruder was void, 9 JF. 4. 11. but the justices 
 said, that they had conferred upon all points of this case with the justices of tlie common 
 pleas, and they were all of opinion, that those matters were not sufficient to arrest judg- 
 ment; and accordingly judgment was given for Bagot 9 E. 4. 12. a. abridged in Br. Pa- 
 tents 21. Denizen 'i, Chartre de Pardon 22. Exemption 4, Judgment i2. F. Assise 29. 
 Denizen 1. _ 
 
 From this state of the case it appears, that the question was entirely upon the con- 
 struction of an act of parliament, and not upon any maxims of common laic; and tho 
 it was said, that that act was an affirmance of the comrn'on law, yet that was only the 
 saying oi counsel, and unsupported by any book-case or record: so that the distinction 
 here taken by our author between a rex de facto and a rex de jure being no way war- 
 ranted by the constitution or common law of this kingdom, all that is here said by him 
 on that supposition must fall to the ground. 
 
 {() This case is cited before by our author, p. 61. but is somewhat differently related 
 in Sloio's Annals, p. 418. Seld. Titles of Honour, cap. 5. p. 654. 
 
 (*) But who shall take upon them to determine who that is? Our author therefore 
 prudently adds, which afterwards obtained, for this is the most effectual way of deciding 
 questions of this nature; hut then by the same rule, if he should not obtain, such act of 
 hostility had been treason, for it cannot be imagined, that any prince in the actual pos- 
 session of the government will suffer his own title to be disputed, nor indeed is it fitting, 
 that private subjects should set themselves up for judges in such an affair, whose duty it 
 IS to pay a legal obedience to the powers that are in i'act set over them ; for the powers 
 that be, are ordained of God. Rom. xiii. 1. 
 
 This serves to show how idle the distinction is between a rex de jure and a rex de 
 facto, which is not only founded on a precarious bottom, but also must in fact prove a 
 distinction without a difference, being equally serviceable to all sides and parties; and 
 thus it was iu regard of H. 6. and E. 4. who were both of them by turns declared by par- 
 liament to be rij/hlful kings and usurpers. 
 
 (t) This must have been for acts before E. 4. first obtained the crown, and therefore 
 was wrong according to our author's own doctrine, because, as he says below, even the 
 nghtdil heir before he has got possession of the crown is not a king within the statute 
 of 25 £. 3. --
 
 103 HISTORIA PLACITORUM CORONiE. 
 
 the father continued a king, and a treason committed against 
 [ 104 ] liiiii by his son or any of iiis subjects was treason within this 
 
 act; and so was the son a king within this act, as in. refer- 
 ence to all but the father, a subordinate king, that had the j.ura 
 imperii, as the king ei Scots was after his homage done to king 
 Edward I. and therefore compassing his death by any of his subjects 
 had been high treason within this act, if it had been then made; for 
 it is mistaken in lord Coke's P. C. p. 7. that H. 2. resigned his crown, 
 for he continued still rex de facto 4* de jure, as Hoveden tells us. 
 Vide snpra cap. 10. 
 
 Having thus shewn who is a kii]g within this act, we shall the 
 more easily see who is not a king within this act. 
 
 1. The right heir of the crown, during such time as the usurper is 
 in plenary possession of it, and no possession thereof in the heir, is 
 not a king within this act ;[6] such was the case of the house of York 
 during tlie plenary possession of the crown in H. 4. H. 5, H. 6. but 
 if the right heir had once the possession of the crown as king, though 
 an usurper hath gotten the possession thereof, yet the other continues 
 his style, title and claim thereuilto, and afterwards re-obtains the full 
 possession thereof, a compassing the death of the rightful heir during 
 that interval, is a compassing of the king's death within this act, for 
 he continued a king still, quasi in possession of his kingdom ;[7] this 
 was the case of E. 4. in that small interval, wherein H. 6. re-obtained 
 the crown, and the case of E. 5. notwithstanding the usurpation of 
 his uncle ^.3. 
 
 2. If a king voluntarily resign, as some in other countries have 
 done, and this resignation admitted and ratified in parliament, he is 
 not afterwards a king within tliis act;(?/) but we never had such an 
 example in England, for that of ^. 2. was a constrained act, touch- 
 ing which and tlie deposition of E. 2. I shall not say farther, for they 
 were acts of great violence and oppression. 
 
 Only thus much is certain, that although E. 2. had a kind 
 £ 105] of pretended deposing, and his son E. 3. took upon him the 
 kingly name, and office, yet in the opinion of those times E. 
 2. continued, as to some purposes, his regal character, for in the par- 
 liament of 4 E. 3. Mortimer, Berisford, Guerney, and others had 
 judgment of high treason given against them for the death of E. 2. 
 after his deposition. 
 
 Neither was this judgment grounded simply upon that old opinion 
 
 (m) Tlie same reason holds in tlic case of a king-, who is deemed by parliament to have 
 abdicated, or by actions subversive, of the cotisliliition virtually to have renounced the 
 government; this was the case of king Jumes II. who, tho not in words, yet by acts 
 and deeds equally expressive had renounced liolding the crown upon the terms of the 
 constitution. .' 
 
 • . -. T ■■ . ,, , • - • _ 
 
 [6] A king may be kept out of the exercise of the kingly office, (as Charles II. was 
 for twelve year.s, Ijy Croitiiiull,) and still be a king, bntli de facto and de jure; and all 
 acts done to keep liim out are high treason. Sir Henry Vane's case, Kel. 15. Fost, 402, 
 
 [7] This is denied by Foster, pp. Icti. 398.
 
 HISTORIA PLACITORUM CORONA. 105 
 
 in Bn'/fo}i,{x) that killing of the king's father was treason ; for, 
 though in some parts of that record, as in the judgment of the lords 
 against Mortimer, the words are, Touchant le mort seigneur Ed- 
 ward pere nostre seigneur le ,roy, qe ore est, — countes, barons, & 
 peres, come jugges de parlement, agarderent & adjuggerent le dit 
 Foster, come trelor & enemy de roy & de realme, feust treine & 
 pendu; yet in other parts of that roll of parliament he is styled at 
 the time of his murder seignior lige, and sometimes rex, as n. 6. 
 The lords make their protestation, that they are not to judge any but 
 their peers; yet they declare that they gave judgment upon some 
 that were not their peers, in respect of the greatness of their crimes ; 
 et ce per encheson de murder de seigneur lige, fyc. and in the 
 arraignment of Thomas lord Berkele for that oifense, the words of 
 the record are, Qualiter se velit acquietare de morte ipsius domine 
 regis, who pleaded, Quod ipse de viorle ipsius douiini regis in 
 nullo est inde culpabilis; and the verdict, as it was given in parlia- 
 ment, 4 E. 3. n. 16. and the record is. Quod prsedictus Thomas iti 
 nullo est culpabilis de m,orte prsedicti domini regis patris domini 
 regis nunc ; so that the record styles him rex at the time of his death, 
 and yet every one acquainted with history knows, that his son was 
 declared king, and took upon him the kingly office, and title upon 
 the twenty-fifth, or, according to IVulsinghani, the twentieth of 
 January; and E. 2. was not murdered till the twenty-first oi Sep- 
 tember following. 
 
 I have been the longer in this instance, though it were before the 
 making of the statute of 25 E. 3. when treason was determined 
 according to the common law, that it may appear, that this 
 judgment was not singly upon this account, that he was f 106 1 
 father to king E. 3. but that notwithstanding the formal 
 deposing of him, and that pretended or extorted resignation of the 
 crown mentioned by the histories of that age, yet they still thought 
 the character regius remained upon him, and the murder of him 
 was no less than high treason, namely, the killing of him who was 
 still a king, though deprived of the actual administration of his king- 
 dom. 
 
 3. The husband of a queen regent is not a king within this law, 
 for the queen still holds her sovereignty entirely, as if she were sole : 
 vide 1 Mar. cap. 2. sess. 3. and for the remedy hereof there was a 
 special temporary act made enacting and extending treason as well 
 to the compassing of the death of king Philip of Spain husband to 
 queen Mary, as of the queen, and for the making of other acts against 
 the king, as against the queen, within the compass of high treason, 
 during the continuance of the marriage between them. 1 (§• 2 Phil. 
 Sf' Mar. cap. 10. so that it seems, tho the husband of a queen 
 regent be as near to him, as the wife of a king regnant, the statute 
 Ot 25 E. 3. declaring the comi)as^ing of the death of the king's wife 
 to be treason, did not extend to the husband of a queen regent. (y) 
 
 (j:) Brit. cap. 22. Co. P. C. p. 7. (y) Co. P. C. p. 6, 7. 
 
 VOL. I, — 13
 
 106 HISTORIA PLACITORUM CORON,^. 
 
 4. A prorex, viceroy, custos resent, ox jiisticiorius Jlnglix, which 
 import ill substance the same office, viz. the king's heiitenant in his 
 absence out of the kingdom, is not a king within this act,(2) though 
 his power be very great, and all commissions, writs and patents pass 
 under his teste ; and the same law is touching the lord lieutenant or 
 justitia7'it(s Hiberniae or his deputy. Vide .statu/. Hibernian. 
 
 Rot.. Pari. 31 H. 6. n. 3S. 4- 39. Richard duke of York by the 
 king's letters patent, and by consent of parliament, was constituted 
 protector &)- defensor regni, S,' ecclesix Anglicanse S/- consiliarius 
 regis principalis, till the full age of the prmce, or till discharged of 
 that employment by the king in parliament by the consent of the 
 lords spiritual and temporal; though this were a high office, and. 
 exceeded much the power of a protector of the king during 
 [ 107]] his minority, such as were the earl of Per)ibroke to H. 3. 
 and the duke oi Somerset to E. 6, yet this protector was not 
 a king within this statute, 
 
 III. I come to the third division, what shall be said a compassing 
 or imagining of the death of the king, queen, or prince. 
 
 The words compass or imagine are of a great latitude. 
 
 1. They refer to the purpose or design of the mind or will, tho the 
 purpose or design take not etfect. 
 
 2. Compassing or imagining singly of itself is an internal act, and 
 without something to manifest it, could not possibly fall under any 
 judicial cognizance, but of God alone; and therefore this statute 
 requires such an overt-act, as may render the coiupassing or imagin- 
 ing capable of a trial and sentence by human judicatories. 
 
 And yet we find that other laws, as well as ours, make compassing 
 or conspiring the death of the prince to be crimen Isesx mojestatis, 
 though the effect be tfoi attained. 
 
 Ad legem Jitliam majesiatis in Codice(«) in the law of Honorius 
 and Arcadius, Quisquis cum militibus, vel privatis, vel barbaris sce- 
 lestam inierit factionem, vel factionis ipsius susceperit sacramentum 
 vel dederit, de nece etiam virorum illustrium, qui consiliis & consis- 
 torio nostro iiUersunt, senatorum etiam (nam & ipsi pars corporis nos- 
 trisutU,) velcujustibet postremu, qui nobis militat,cogitaverit, (eadem 
 enim severitate voluntatem sceieris, qua etfectum, puniri jura volue- 
 runt) ipse quidem, utpote majesiatis reus, gladio feriatur, bonis ejus 
 omnibus fisco nostro addilis. 
 
 A bare accidental hurt to the king's person, in doing a lawful act, 
 without any design or compassing of bodily harm to the king, seems 
 not a compassing of the king's deatli within this act. 
 
 Walter Tirrcl by command of IViUiam Rufus shot at a deer; 
 the arrow glanced from an oak, and killed the knig; Tirrcl fi'd, but i 
 this being purely accideutal, without intention of doing tlie king any 
 harm, hath been held not to be a compassing of the king's death. 
 Co. P. C.p. 6. Paris ^' Hovcden anno tilt. IVillieimi secundi. 
 
 Calculating of the king's nativity, or thereby or by witchcraft, &c. 
 
 (2) Co. I\ C. p. 8. (a) Lib. IX. tit. 8. I. 5. pr.
 
 HISTORIA PLACITORUM CORON.E. 108 
 
 seeking to know, and by express words, writing, &c. publishing 
 and declaring how long the king shall live, or who shall succeed him, 
 or advisedly or mahciously to that intent uttering any prophecies, 
 seems not a compassing of the king's death within the statute of 25 
 E. 3.{h) but was made felony during the life of queen Elizabeth by 
 23 Eliz. cap. 2 and before that, was only punishable by fine and 
 ransom. Co. P. C. p. 6, 
 
 Compassing the death of the king is high treason, (c) though it be 
 not edected ; but because the compassing is only an act of the mind, 
 and cannot of itself be tried without some overt-act to evidence it, 
 such an overt-act is requisite to make such compassing or imagina- 
 tion high treason. [S] Ee quo infra. 
 
 IV, Therefore as to the overt-act in case of compassing the death 
 of the king, queen, or prince. 
 
 1. Tiiough the words in the statute of 25 E. 3. and he provably 
 thereof attaint by open deed, &c. come after the clause of levying of 
 war, yet it refers to all the treasons before-mentioned, viz. compass- 
 ing tlie death of the king, queen, or prince. Co. P. C. 6. 12. and 
 therefore what is said here concerning the compassing of the death of 
 the king is applicable to queen and prince. 
 
 And therefore in an indictment of treason for compassing the death 
 of the king, queen, or prince, there ought to be set down both the 
 treason itself, viz. Quod preditorie compassavit & imaginatus fuit 
 mortem & destructionem domiui regis, & ipsum dominum regem in- 
 terficere, and also the overt-act, & ad illam nefandam & preditoriam 
 compassationem & propositum perimplend', and then set down the 
 particular overt-act certainly and sufficiently, without which the in- 
 dictment is not good. Co. P. C. p. 12. 
 
 2. If men conspire the death of the king and' the manner, 
 
 and thereupon provide weapons, powder, harness, poison, or [ 109 ] 
 send letters for the execution thereof, this is an overt-act 
 within this statute. Co. P. C.p. 12. 
 
 3. Though the conspiracy be not immediately and directly and 
 expressly the death of the king, but the conspiracy is of something 
 that in all probability must induce it, and the overt-act is of such a 
 thing as must induce it ; this is an overt act to prove the compassing 
 of the king's death, which will be better explained by the instances 
 themselves, and therefore, 
 
 4. If men conspire to imprison the king by force and a strong hand, 
 till he hath yielded to certain demands, and for that purpose gather 
 company or write letters, this is an overt-act to prove the compassing 
 
 (h) Even before UiA statute, viz. Hit. 18. E.2, Rot. 24. rex coram rege, there was an 
 instance of several persons charged with endeavouring to conipass the king's death by 
 necromancy by making his image in wax, 6fC. yet they were appealed only de felonio 
 6f malrjicio, and were all aequilled by the jury. 
 
 (f) Insomuch that where the king is actually murdered, it is the compassing his death 
 which is the Ueason, and not the killing, which is only an overt-act. Kel. 8. 
 
 [8] Overt acts must not only show the intentions of the heart ; but they are tiie means 
 made use of to effectuate the purposes of the heart. Fusi. 203.
 
 109 HISTORIA PLACITORUM CORONA. 
 
 of the king's death, for it is in effect to despoil him of his kingly 
 government, and so adjudged by all the judges in the lord Cohham's 
 case, 1 Jac.(d) and in the case of the Earl of Essex, 43 Eliz.,{e) Co. 
 P. C. p. 12. But then there must be an overt-act to prove that con- 
 spiracy to restrain the king, and then that overt-act to prove such 
 a design is an overt-act to prove the compassing the death of the 
 king. 
 
 But then this must be intended of a conspiracy forcibly to detain 
 or imprison the king; and therefore, when in the time of E. 2. in 
 parliament a commission was somewhat hardly gotten from the king, 
 which seemed to curb his prerogative too much, the answer of the 
 judges to the general question, " Qualem poenam merentur illi, qui 
 compulerunt sive arctarunt regem ad consentiendum diet' statut' ordi- 
 nation' & commission' ? ad quam qusestionem unanimiter responde- 
 runt, quod sunt, ut proditores, merito puniendi, ^o/. Par/. 11. R, 
 2."(/) was too rash and inconsiderate, and for which the judges them- 
 selves were condemned as traitors, as before is shown ;{g) for compiil- 
 er\inldi\'\A arctaverunt may have a double construction ; either it may 
 be intended of an actual force used upon the person of the king, as 
 by restraint, imprisonment, or injury to his person, to enforce 
 [ 110 3 his consent to that commission ; and then it had not differed 
 from the execrable treason of the Spencers, who declared, 
 that since the king could not be reformed by suit of law, it ought to 
 be done per aspertee, for which they were banished by two acts of 
 parliaraent.(A) Vide 7 Co. Rep. fol. 11. in Calvin's case. 2. Or it 
 might be intended, not of a personal compulsion upon the king, but 
 by not granting supplies, or great persuasion or importunity, and then 
 it could not be treason; the latter whereof was the only compulsion 
 or arctation, which was used for the obtaining that commission. 
 
 And therefore the judges that delivered that opinion, were inex- 
 cusable in their decision of treason under such ambiguous and large 
 expressions of cojnpulerunt <5' arctaverxini; and tho the parlia- 
 ment of 11 R. 2. was repealed by 21 R. 2. yet that again was re- 
 pealed 1 H. 4. cap. 3. 
 
 5. A conspiring to depose the king, and manifesting the same by 
 some overt-act, is an overt-act to prove the compassing of the death 
 of the king within this act of 25 E. 3. Videl Mar. B. Treason 24. {i) 
 Co. P. C. p. 12. 
 
 (d) Slate Trials, Vol. J. p. 206. (e) State Trials, Vol. I. p. 199. 
 
 (/) State Trials, Vol. I. p. 9. > i<r) rap. W.p.'M. 
 
 {h) One in the reinfn of Edward 11. called" Exilium Hugonis le Spencer; wad the other 
 in anno 1 Edvxtrd 111. cap. 1. . 
 
 (!) Broke makes this quare : "Quaere vel depriv , car home polt depriver, & uncoro 
 intctide null morte, cSt pur ccst cause un statute I'uit cut fait tempore H. 8. tSf E. 6. Nuta." 
 The statutes here referred to are 2G //. 8. cup. 13 by which it was made hif;ii treason 
 "to wish or desire by words or wiilinjr, or to iinajriue, or invent, or attempt to deprive 
 the kinjr, tlic queen, or tlieir heirs apparent of the din^nity, title, or name of their royal 
 estates." And 1 E. 6. cap. 12. by which it was made highly penal (for the third offense 
 liifjh treason) "to compass or imagine by open preachiiijr, express words or sayinj^s, to 
 de[)ose or deprive the king, his Ijcirs, or successors, kings of this realm, from his or their 
 royal estate or titles to or of tlic realm aforesaid."
 
 HISTORTA PLACITORUM CORONA. HO 
 
 It is true, that by the statute of 21 i?. 2. Ca. 3. it was enacted, 
 That every man that compasseth or purposeth the death of the 
 king, or to depose him, or to render up his homage ht^ge, or he that 
 raiseth people, and rideth against the king to malje war within his 
 realm, and of tliat be duly attainted and adjudged in parliament, 
 shall be adjudged as a traitor of high treason against the crown; 
 and this act is particularly repealed by the statute of 1 H. 4. cap. 10. 
 as a great snare upon the subject ; for it is recited, that by reason 
 thereof no man knew hoiv he ought to behave himself, to do, speak, 
 or say, for doubt of such pains of treason. 
 
 But the true reason was not in regard of the four points 
 themselves, for many of them were treasons within the [ 111 ] 
 statute of 25 i5. 3. but that wherein the act of 21 R. 2. varied 
 from the act of 25 E. 3. were these: 1. That the. compassing to levy 
 war is made treason by the statute of 21 i?. 2. whereas the levying 
 of war only was treason by 25 E. 3. Again 2dly, Tho compass- 
 ing the death of the king was treason within the letter of 25 E. 3. 
 and compassing to depose him was an evidence or overt act of a 
 compassing of the king's death within the meaning of the act of 25 
 E. 3. yet both required an overt-act. The statute of 21 B. 2. makes 
 the bare purposing, or compassing, treason, without any overt-act; 
 and though it restrains the judgment thereof to the parliament, yet it 
 was too dangerous a law to put men's bare intentions upon the judg- 
 ment even of parliament under so great a penalty, without some 
 overt-act to evidence it: this was one reason of the repeal of the 
 treasons declared by the statute of 21 /?. 2. But this was not all, for 
 in that parliament of 21 B. 2. the resolutions of the judges to the 
 questions propounded by the king are entered at large, and received 
 an approbation not only by the suffrage of some other judges and 
 Serjeants, but by the statute made in the same parliament, as appears 
 at large by the statute of 21 B. 2. cap. 12. 
 
 And therefore, wholly to remove the prejudice that might come to 
 the king's subjects by those rash and unwarrantable resolutions, the 
 statute of 1 H. 4. Ca. 10. was made, reducing treasons to the standard 
 of 25 E. 3. and the entire parliament of 21 B. 2. also repealed as 
 app^ears 1 H. 4 Ca. 3. 
 
 6. Regularly words, unless they are committed to writing, are not 
 an oven-dict within this statute. Co. P. C. p. 14;(A?) and the rea- 
 son given is, because they are easily subject to be mis- 
 taken, or misapplied, or misrepeated, or misunderstood by [ 112] 
 the hearers.(/.) 
 
 (h) Vide. Co. P. C. p. 38, 140. The passages quoted 5". P. C. 2. b. from Braclon and 
 Britton, only describe the forin of accusation, but are far from proving that words alone 
 were, in the opinion of those writers, a sufficient evidence of treason ; but if they were so 
 at common law, yet it d6is not follow, that they would be so by the statute of 25 E. 3. 
 which expressly requires the proof of an overt-act, and consequently disallows the evi- 
 dence of bare words, for words and acts are contra-distinguished from each other. See 
 Co. P. C. 14 in inarjiiTie. The preamble of 1 Murioi, cap. 1. sess. 1. makes it matter of 
 complaint, that many had for words only suffered shameful death. 
 
 Cl) This is one but not the only reason, for another reason was, because men in a pas.
 
 112 HISTORIA PLACITORUM CORONA. 
 
 And this appears by those several acts of parhament, which were 
 temporary only, or made some words of a high nature to be but 
 felony. Co. P. C. cap. 4. p. 37. The statute of 3 H. 1. cap. 14. 
 makes conspiring the king's death to be felony; which it would not 
 have done, if the bare conspiring without an overt-act had been 
 treason. 
 
 26 H. 8 cap. 13. malicious publishing by express writing or words, 
 that the king were an heretic, schismatic, tyrant, infidel, or usurper, 
 enacted to be high treason. (m) 
 
 1 E. 6. cap. 12. If any person or persons do affirm or set forth by 
 open preaching, express words or sayings, that the king, his heirs or 
 successors, is not or ought not to be supreme head of the church of 
 England and Ireland ; or is not or ought not to be king of England, 
 France^ and Ireland; or do compass or imagine by open preaching, 
 express words or sayings to depose or deprive the king, his heirs or 
 successors from his or their royal estate or titles aforesaid, or do 
 openly publish or say by express words or sayings, that any other 
 person or persons, other than the king, his heirs or successors, of right 
 ought to be kings of this realm; every such offender being convicted, 
 for his first oflense shall forfeit his goods, and be imprisoned during 
 the king's pleasure; for the second otTense shall lose his goods and 
 the profits of his lands during \\{e, and shall suffer imprisonment dur- 
 ing life ; and the third offense is made high treason. 
 
 But if this be done by writing, (?z) printing, overt-deed, or act, then 
 every such oflense is high treason by the act of 25 E. 3.[9] 
 
 sion or heat might say many things, which tliey never designed to do; the law therefore 
 required, that in a case of so nice a nature, where the very intention was so higlily penal, 
 the reality of tliat intention should be made evident by the doing of some act in prosecu- 
 tion thereof. 
 
 (/«) This same statute makes it high treason to wish or desire by words or writing to 
 deprive the king of his dignity. 
 
 (n) This is said by Lord Coke, P. C. 14. and in Sidney^s case. State Tr. Vol. III. p. 
 733. it is said, scribe est efjere ; qucere tamen, for if our author argues rightly, that words 
 were not treason by 25 E. 3. because tliere needed new acts to make them so in particu- 
 lar cases afterwards, the same argument holds good with respect to writing, especially if 
 not published; for there were also new acts to make that treason. 
 
 [&] Although writings cannot be laid as an overt act, unless published, yet if they tend 
 to prove any overt act laid, they shall be admitted in evidence for that purpose, although 
 never ])ublish<Ml. R. v. Lord Preston, 4 St. Tr. 410. 440. R. v. Layer, 6 St. Tr. 272. R. 
 V. Watson, 137. And the pa])ers found in Sidney's closet, had they been plainly relative 
 to tiie otlier treasonable practices charged in the indictment, might have been read in 
 evidence against him. Fost. 198. 4 lU. Com. 80. The papers found in Lord Preston's 
 custody, those found where Mr. Laijer had deposited them, and the intercepted letters 
 of Dr. Hensey, were all read in evidence as overt acts of the treasons respectively charged 
 on them ; for tliey were all written in prosecution of certain determinate purposes which 
 were treasonable, and then in coritoinplation of tiie offenders; and such papers being 
 found in the custody of the prisoners are admissible in evidence, without any proof of 
 the hand-writinir bein;r theirs, ^'reo-jr's ('use, 10 iS7. Tr. Appdx. 77. Dr. Hensei/'s Case, 
 Burr. 614. Kvidenee of the same nature was received in the case of Home Tooke and 
 others, at tl)e Old Bailey, in 171)4, as also in Stone's Case, Ilil. 36 Geo. 3. And iitot only 
 was evidence received of such papers as were foimd in their own possession, but also of 
 such as were found in the possession of tlieir accomplices; the connexion between them 
 being first proved. 1 East, P. C. IIU.
 
 HISTORIA PLACITORUM CORONA. 113 
 
 So much of this act, as concerns any thing in derogation 
 of the papal supremacy, is repealed by the statute of I S,' 2 [ 113 ] 
 Fh. S,' M. cap. 8. And so much as concerns treason, farther 
 than it stands settled by 25 E. 3. is repealed by the statute of 1 Mar. 
 cap. 1. sess. 1. But the rest of this act, that concerns only misde- 
 meanors, stands perpetual, as it seems. 
 
 Bv 1 (§• 2 P. 4* M. cap. 9. Prayers by express words, that God 
 v/ould shorten the queen's days, or take her out of the way, or such 
 hke malicious prayer, amounting to the same effect, made treason; 
 but if person penitent upon his arraignment, no judgment to ensue ;(o) 
 the like provision is made daring the queen's life by 23 Eliz. cap. 2. 
 
 1 4'2 P. ^' M. cap. 10. Compassing to levy war against the queen, 
 or to depose her or the heirs of her body, and maliciously, advisedly, 
 and directly uttering such compassing by open preaching, express 
 words or sayings; and also affirming by preaching, express words 
 or sayings, maliciously, advisedly and directly, that the queen ought 
 not to be queen of this realm, is punishable by loss of goods and 
 chattels, whole profits of the offender's lands during life, and perpe- 
 tual imprisonment ; and the second offense is made high treason ; 
 but if this be done by writing, printing, or overt-act, then it is made 
 high treason. 
 
 1 Eliz. cap. 5. the same act almost verbalim for the safety of 
 queen Elizabeth and the heirs of her body. 
 
 By 13 Eliz. cap. 1. Compassing the death or bodily harm of the 
 queen, or to deprive her of the imperial crown, or to levy war against 
 her; at)d such compassing, maliciously, expressly or advisedly uttered 
 or declared by printing, writing, cyphering, speech, words or sayings; 
 and also malicious, advised and direct publishing and declaring by 
 express words or sayings, that she ought not to be queen, that she 
 is an heretic, schismatic, tyrant, infidel, or usurper, is made high trea- 
 son in the principal, procurers and abettors. (;;) 
 
 14 Eliz. cap. 1. Compassmg to take, or detain, or burn 
 the queen's castles, and such compassing declared by any [ 114 ] 
 express words, speech, act, deed, or writing, is made felony ; 
 but the actual taking, or vvith-holding, or burning them, is made 
 treason. 
 
 13 Car. 2. cap. 1. Compassing the death of the king or any bodily 
 harm tending to his wounding, imprisonment, or restraint, or to de- 
 p'ose him, or to levy war against him, or to stir foreigners with force 
 to iiivade the kingdom, and such compassing declared by printing, 
 writing, preaching or malicious and advised speaking, is made high 
 treason: publishing or affirming the king to be an heretic or a papist, 
 or that he endeavours to bring in popery ; or inciting the people by 
 
 (o) This last clause extended to such only, who had been g^uilty during tliat session of 
 parliament, for the act had a retrospect to the beginning of the session. 
 
 (p) " The indictments and attainders of treason by Ibrce of tliis statute are not more 
 to be lollowed; because the statute, which made them good, is expired." Co. P. C. p. 10. 
 in the margin.
 
 114 HISTORIA PLACITORUM CORONiE. 
 
 writing, printing, preaching, or other speaking to hatred of his ma- 
 juSty or the government, disables to hold office. («7) 
 
 By ail which it seems, that regularly, 1. words of themselves can- 
 not make high treason ; 2. words of themselves are not a sufficient 
 overt-act within the statute of 25 E. 3. to serve an indictment of com- 
 passing the king's death. [10] 
 
 And with this agrees that notable case of Mr. Pi/ne in Crake's re- 
 ports, T. 4 Car.{r) the words of which are these : " Upon considera- 
 tion of the precedents of the statutes of treason it was resolved by 
 the seven judges there named, and so certified to his majesty, that the 
 speaking of the words there mentioned, tho they were as wicked 
 as might be, were not treason; for they resolved, that, unless it were 
 by some particular statute, no words will be treason; for there is no 
 treason at this day, {viz. 4 Car. 1.) but by the statute of 25 E. 3. for 
 imagining the death of the king, S,'c. and the indictment must 
 [ 115] be framed upon one of the points in that statute; and the 
 words spoken there can be but evidence to discover the cor- 
 rupt heart of him that spake them; but of themselves they are not 
 treason, neither can any indictment be framed upon them." 
 
 Baker in his Chronicle, p. 229, tells us of two very hard judg- 
 
 {q) No penalties are to be incurred by this act, unless the prosecution be within six 
 months next after the offense committed. See also the 4 Ann. cap. 8. and 6 Ann. cap. 7. 
 whereby it is made high treason to declare by writing or printing-, that the queen is not 
 lawful or rightful queen, or that any other person hath right to the crown otherwise than 
 according to tlie acts of settlement, or that the kings or queens of this realm by autho- 
 rity of parliament are not able to make laws of sufficient force and validity to bind the 
 descent of the crown: persons who declare the same by preaching or advised speaking 
 incur a prmmunire ; but no prosecution to be for words spoken, unless information be 
 given upon oath before a justice of peace within three days after, and the prosecutioa 
 be witliin three months after such information. 
 
 (r) Cro. Car. 125. 
 
 [10] This doctrine is maintained with great ability by Sir Michael Foster, see his C 
 L. 202 et seq : Bluckstone, (4 Cum. 80.) says, "But now it seems clearly to be agreed 
 that, by the common law and the statute of Edw.'S. words spoken amount only to a high 
 misdemeanour, and no treason. F'or they may be spoken in heat, without any intention, 
 or be mistaken, perverted, or misremembered by the hearers; their meaning depends 
 always on their connexion with other words and things; tiiey may signify differently 
 even according to the tone of voice, with which they are delivered; and sometimes 
 eilence itself is more expressive than any discourse. If the words be set dovirn in writ- 
 ing, it argues more deliberate intention; and it has been held that writing is an overt act 
 of treason; for scrihcre est agere. But even in this case, the bare words are not the trea- 
 son, but the deliberate act of writing them. And such writing, tliongh unpublished, has 
 in some arbitrary reigns convicted its author of treason." But Hawkins, {ch. 17. sects. 
 3H to 31).) reasons differently; amongst other things he observes, that to charge a man 
 with speaking treason, is uiiqucstionably actionable, which could not be, if no words 
 could amount to treason ; also, that as, in case of felony, he who by command or persua- 
 sion imiuceth another to commit felony, is an accessary in felony, so he who does the 
 same in treason is a piincipal traitor, (there being no accessaries m treason, but all being 
 pririci[):ils,) and yet such person doth not act but by words. And in another place (ch, 
 17. s. 4f).) -'neither does it apjx'ar to nu; that my Lord ("hief .lustiee Hiile was at all of 
 this opinion; for though in the hitler edition of his Trealisr of the Plens of the CroioUf 
 it is s:iid, that compassintr by bare words is not an overt act, &c. yet in tiie first edition, 
 published in the year 1()78, it is twice said, that it hath been adjudged that words are aa 
 overt act." Sec R. v. Lord George Gordon, Dougl. 5^0. 1 East, I'. C, 117.
 
 HISTORIA PLACITORUM CORONA. 115 
 
 ments of treason given in the time of E. 4. viz. that of Walter Wal- 
 ker, dwelling at the sign of the crown in Cheapside, who told his httle 
 child if he would be quiet, he would make him heir of the crown : 
 the other of Thomas Burde/f,{s) who having a white buck in his 
 park, which in his absence was killed by E. 4. hunting there, wished 
 it, iiorns and all, in his belly that counselled the king to it; where- 
 as in truth none counselled him to it, but he did it of himself: for 
 these words both these were attaint of high treason, and executed: 
 thontrh Markha?n chief justice rather chose to leave his place, tlian 
 assent to this latter judgment. Vide indictment of treason for trea- 
 sonable words, P. 3 H. 4. Kot. 4. <§• 12. Walton's case and Southe's 
 case.(/) 
 
 Therefore tho this be regularly true, that words alone make not 
 treason or an overt-act, yet it hath these allays and exceptions. 
 
 (1.) That words may expound an overt-act to make good an in- 
 dictment of treason of compassing the king's death, which overt-act 
 possibly of itself may be inditferent and unapplicable to such an in- 
 tent ; and therefore in the indictment of treason they may be joined 
 with such an overt-act, to make the same applicable and expositive of 
 such a compassing, as may plainly appear by many of the precedents 
 there cited. (?/) 
 
 (2) That some words, that are expressly menacing the death or 
 destruction of the king, area sufficient overt-act to prove that 
 compassing of his death M 9 Car. B. R. Crohagan's case f 116] 
 in Croke,{x) who being an Irish priest, 7 Car. 1 at Lisbon 
 in Portugal used these words, ''^ I will kill the king (innuendo 
 dominum Carolum regem Jlnglicc) if I may come unto him^^^ 
 and in Jiiig. 9. Caroli he came into England for the same pur- 
 pose.(;y) This was proved upon his trial by two witnesses, and for 
 that his traitorous intent and the imagination of his heart was de- 
 clared by these words, it was held high treason by the course of the 
 common law, and within the express words of the statute of 25 E. 3. 
 and accordingly he was convicted, and had judgment of high trea- 
 son; yet it is observable, that there was somewhat of an overt-act 
 joined with it, namely, his coming into England, whereby it seems to 
 be within the former consideration, namely, tho the coming into 
 England was an act indiflerent in itself, as to the point of treason-; 
 
 (s) See Rapin's history sub anno 1478. who mentions it in the same manner; but it 
 appears from the indictment in Cro. Car. 120. that he was indidted for calculating the 
 kinir's and prince's nativity, and declarinfj that they would not live long; and also .for 
 publishing seditious rhymes and ballads, although this was not treason, and was there- 
 tore made felony during queen Elizahetirs lite, by 23 Eliz. cap. % Co. P. C. p. 6. 
 
 (/) iMutli's (not South's) and Walton's case are Trin. 3 H. 4, coram. re<re rot. 4. and P. 
 3 //. 4. coram rei/e rot. 12. in Sperhauck's case, who was also convicted of treason for 
 scoitdalous svords. 
 
 (n-) ]a Pyne's case. (:t) Cro. Car. 332. 
 
 (V) 1 his case docs by no means prove, that words alone are a sufRciont overt-act, for 
 lier(-v;iMC not otily thrciitning words, but also an act done in order to put that threatiiing 
 in execution; so that, as our author admits, it comes more properly under the former 
 Jicad; the resolution therefore in Kelijng 13. that words are an overl-act, which is founded 
 on thii case, must fall to the ground. 
 
 VOL. I. — 14
 
 116 HISTORIA PLACITORUM CORONA. 
 
 yet it being laid in the indictment, that he came to that purpose, and 
 that in a great measure expounded to be so by his minatory words, 
 the words coupled with the act of coming over make his coming over 
 to be probably for that purpose, and accordingly applicable to that 
 end. 
 
 To say that the king is a bastard, or that he hath no title to the 
 crown, is held high treason. M. 5 Jac. Yelvert. 197. BlanchJiower''s 
 case, 4* ibidem Hill. S Jac. Berisfurcfs case.(z) 
 
 P. 13 Jac. B. R.{a) John Owen alias Collins was indicted 
 (] 117 J of treason, for that he, intending the king's death, /also Sf 
 ma I iliose spake these words of the king: The king being 
 excommunicate by the pope may be lawfully deposed and killed by 
 any whatsoever, which killing is not murder; and being demanded 
 by Henri/ While, how he durst utter such a bloody and fearful con- 
 clusion, Owen answered, " The matter is not so heinous, as you sup- 
 pose, for the king being the less is concluded by the pope being the 
 greater: and it is all one as a malefactor being convicted by a tem- 
 poral judge is delivered to execution, so the king being convicted by 
 the pope may be lawfully slaughtered by any whatsoever, for this is 
 the execution of the supreme sentence of the pope, as the other is the 
 execution of the law :" to this indictment he pleaded not guilty; 
 and it was ruled to be high treason by Coke chief Justice and all the 
 Court ; and being found guilty he had judgment to be hanged, drawn 
 and quartered. (6) And here it was said by the king's attorney (c) 
 upon the evidence, and not denied by the court, 1. that the statute of 
 (25. E. 3, as to compassing the king's death was but an affirmance of 
 the common law, 2. That it is treason by the laws of all nations; and 
 therefore an embassador for compassing the king's death shall be 
 executed here for treason; but tor other treasons shall be remitted 
 into his own country to be tried. 3. That words of this nature spoken 
 defuturo have been adjudged high treason presently; and therefore 
 it was there said to be adjudged in the time of H. S. in the case of 
 the duke of Bucks, that these words were high treason, If the king 
 
 (?) This case is likewise reported Cro. Jac. 275. and 1 Buls. 147. but both the cases quoted 
 here by our autlior, were actions for scandalous words, and tlie single point in judgment 
 before the court was, whctlier the words were actionable, and even as to that Yelverton 
 and Croke in BcvUford^s case dilfcred from ti)c other judges; so tliat none of these cases . 
 prove, that bare words arc an overt-act of treason williin 2.') Ed. 3. indeed vvlicre any one 
 not only utters words declaring his own thoughts, but endeavours by promises of reward 
 or other arguments to persu:ide another to kill the king, or the like, this has been con- 
 str.ucd an overt-act of treason, because here is something besides the words, here is an 
 attempt to draw another into the design, and is as much an overt-act as an agreement or 
 a consultation how to effect it. Lr)rd Stafford's ease, Slate Tr. Vol. 111. p. 208. Charnock's 
 case, Slate Tr. Vol. l\ . p. 681. 2.Salk. G31. 
 
 {a) 1 Roll. Rip. l«o. 
 
 (ii) These words, tho very wicked and of a mischievous tendency, and therefor^ an 
 high misdemeanor, yet unless aecDMipanied with some circumstances to show that tliey 
 were made use otin order to persuade somebody to kill the king, cannot according to tlie 
 resolution in I'yne's case amount to an overt-act ofliigh treason, for they are not any act 
 at all, and besides might be said by .a bigoUed papist, in the height of his ignorant zeal, 
 •without intending or imagining the death of the king. 
 
 (c) Bacon.
 
 HISTORIA PLACITORUM CORONA. 117 
 
 shntthl arrest him of hi^h treason^ he ivoiild stab him; (videca.se 
 
 dt duke Bucks, 13 H. 8. 11. b. 12. a. where there are other words 
 
 also ;)(fy) and in the case of another. If H. 8. will not take again 
 
 qxieen Catlierine as his wife, he shall not be king ;{e) and in 
 
 the case of Stanley, Temp. H. 7. That if Pierce Warbeck [ 118 ] 
 
 were the son ofJu. 4. he would take part with him against 
 
 H. 7.(/) 
 
 And note, that king James had been long excommunicated by the 
 pope, and that every Maunday Thursday the pope excommunicates 
 all Calvinists, <$'c. and all that have withdrawn their obedience from 
 the pope: Owen was executed accordingly, F'ide la{g) the whole 
 judgment and particulars and consequence thereof, 
 
 7. Those words, which being spoken will not make an overt-act 
 to make good an indictment of compassing the king's death; yet, if 
 they are reduced into writing by the delinquent either letters or 
 books, and published, (/6) will make an overt-act in the writer to 
 make good such an indictment, if the matters contained in them zm- 
 port such a compassing,{i)\\2'] Co. P. C p. 14. 
 
 Instances of this kmd are many in 4 Cur. Croke,ubi supra: but I 
 shall instance particularly only in IVilliams^s case, P. 11 Jac. B. R.ik) 
 
 {d) There was also somewhat of an overt-act joined with the words; for being told by 
 a monk, that he should be king-, and commanded to obtain the good will of the com- 
 nionaliy, he was accused of giving certain robes for that intent: this duke's case was 
 counted hard, and his fate is lamented by the reporter, 
 
 (c) This was the case of Elizabeth Barton, the holy maid o? Kent: the words as related 
 by lord Bacon in his history of Henry VII. p. 134. were these; " That if king Henry the 
 eighth did not take Catharine his wife again, he should be deprived of his crown, and 
 die the death of a dog." She and her accomplices were attainted of treason by a particular 
 act of parliament, riz. 25. H. 8. cap. 12. upon which lord Coke observes, Co. P. C. 14. 
 that they could not have been attainted of treason within 25 E. 3. 
 
 (/) Lord Bacon in his history of Henry VII. p. 134. reports, that the criminal words, 
 for which Stanley was accused, were these; ''That if he was sure, that the young man 
 {Perkin Warbeck) were king Edward's son, he would never bear arms against him." 
 Upon which the historian makes this observation; "This case seems somewhat an hard 
 case, both in respect of the conditional, and in respect of the other words, S^c." — But (says 
 he) "Some writers do put this out of doubt; for they say, tlmt Stanley did expressly pro- 
 mise to aid Perkin, and sent him some help of treasure." And it appears by the record of 
 Stanley's indictment quoted in Cro. Car. p. 123. that he was accused not only of words, 
 but of an express agreement and conspiracy to bring in Peter Warbeck and make him 
 king. Note, That the lord Bacon, whose history is here quoted, is tiie attorney general 
 mentioned in Owen's case, 
 
 is) 1 Rol. Rep. 185. 
 
 (rt) In Peacham's case quoted in Cro. Car. 125. an unpublished writing was admitted 
 in evidence as an overt-act of treason; the like in tlie case of Col. Sidney, State Ti . Vol. 
 WI. p. 710. but both those cases were unwarrantable; as to the first it does not appear 
 there was any judgment, for the book says it was against the opinion of many of tlie 
 judges, and the latter was resolved at a time of day, when the resolution of the judges, 
 in such an affair ought to be but little regarded ; that judgment was accordingly reversed 
 by act of parliament, 1 W. S^ M.[\\] 
 
 (i) As was Ticyn's case, Kelyns 22. for report says, that the people were exhorted by 
 that book to put the king to death. Slate. Tr. Vfil. 2. p. 524. 
 
 (k) This case (which seems a very hard one) is reported, 2 Rol. Rep, 88. and is 
 quoted, Cro. Car. 125. , 
 
 [11] Hallam's Const. His. 1 vol. p. 409. Fost. 198. 
 
 [12] "But this is indefinitely expressed ; and the case of Williams, under James I. 
 which Hale cites in corroboration of this, will hardly be approved by any constitutional 
 lawyer." 3 Hallam, 213. note.
 
 119 HISTORIA PLACITORUM CORONA. 
 
 JVilliams wrote a book, intitled Balaam's Ass.{l) in 
 [ 119 ] whicli there were many tliitigs reproachful and dangerous, 
 to the king, and among others, that the kins;, should die 
 anno domiiii 1621, and that the realm should he destroyed, because 
 it was anti-christian and the ubomincttion of desolation: this book 
 he inclosed and sealed up in a box and sent it to the king;(w) and 
 for this he was indicted and attainted and executed tor high treason, 
 vide Co. P. C. 14. concerning words, where it is said thus: '•'■But if 
 the same be set down in writijig by the delinquent himself, this is a 
 sufficient overt-act within this statute.'^ And the same law it is, 
 if it be set down in writing by any other by his command or direction. 
 
 8. If there be an assembling together to consider how they may 
 kill the king, this assembUng is an overt-act to make good an indict-, 
 ment of compassing the king's death. This was ./^r^en'* case,(n) 
 26 Eliz.n.nd accordingly it was ruled Decern. 14. Caroli at Newgate^ 
 in the case of Tonge and other confederates. (o) 
 
 By my lord Coke's opinion, Co. P. C. 14. "A conspiracy to levy 
 ■war is no treason by the statute of 25 E. 3. till war be levied ;" 
 and there have been several particular and temporary acts, that 
 make the conspiracy to levy war treason, as well as compassing the • 
 king's death. And therefore he saith, "That it hath been resolved, 
 35 Eliz. that conspiracy to levy war against the king shall rii3t be 
 said an overt-act, to serve an indictment for the compassing the 
 king's death, because the clauses concerning compassing of the 
 king's death, and that of levying war, are distinct clauses, and de- 
 clare distinct treasons; and thefefore the latter shall not be an overt- 
 act to serve the former, because this were to confound several classes 
 or membra dividentia of high treason."[13] 
 
 And yet in the same book,/?. 12. the case of the earls of 
 j^ 120 ] Essex and Southampto7i, 43 Eliz. are cited, which seem to 
 contradict that opinion ; the words are, "That the said earls 
 intended to go to the court where the queen was, and to have taken 
 her into their power, and to have removed divers of her council, and. 
 for that end did assemble a multitude of people; this being raised to the 
 end aforesaid was a sufficient overt-act for compassing the death of the 
 queen,'^ which seems to contradict what is elsewhere by him said.(/;) 
 
 (I) He wrote two books, one called Balaavi's Ass, and the other Speculum Regale. 
 
 {m) In thi.s case was first broached that famous doctrine, sccjfcere est agere. The 
 court went so far as to declare it to be their opinion, that if thi.s book had been found 
 in his study, it would liave been a sufficient evidence of the treason, for which lie was 
 indicted; but this case destroys its own authority by going too far, for they agreed 
 it to be a clear point, Ihut bare words might amount to treason; strange contradiction 
 of the statute of 25 Ed. 3. 
 
 (n) Anderson, pars. I. p. 104. (o) Krlyng 17. State Tr. Vol. 11. p. 474. 
 
 {p) I do not see how this contradicts what is said by lord Cuke, p. 14. for he-re was an 
 express design to put the person of the <pieen under a force ; niy it had proceeded farther 
 than a design, for there was a multitude actually assembled for that end. State Tr. Vol. 
 I. p. 190. 
 
 [13] lyord Hale was once himself of this opinion. In his Summarij of the Fleas of the 
 Crown, p. 13. he says, "Conspiring to levy war no overl-act, uuless levied, because it 
 relates to a distinct treason."
 
 HISTORIA PLACITORUM CORONJ^.. 120 
 
 And he that shall read the proceeding against the duke of Norfulk 
 set forth at large by Camden Eliz. sub. anno \512. p. 170. <5' seqite/i- 
 iibus, will find, that not only the conspiring with a foreign prince to 
 invade this kingdom, and signifying it to him by letters, is an overt- 
 act to maintain an indictment for compassing the queen's death: but 
 tliat the duke's purpose to marry the queen of Scotland, who had 
 formerly laid claim to the crown of England, and signifying it by 
 letters, and all this done without the consent of the queen of England^ 
 was held an overt-act to depose the queen of Eyigland, and to com- 
 pass her death ; for if the queen of Scots claimed the crown of En- 
 gland, he that married her, must be presumed to claim it also in her 
 right, which was not consistent with the safety of the queen of En- 
 gland, and her title to the crown ; and altho this extending of treason 
 (as to this point of marriage) by illation and consequence was hard \{q) 
 yet the duke was convict and attaint of treason generally upon 
 this indictment, tho there are likewise some other crimes charged in 
 the indictment. 
 
 I will therefore set down the resolutionsof the judges 1663. touch- 
 ing those that were assembled in Yorkshire at Farley Wood,[r) di- 
 vers of whom were after indicted, and attainted of higli treason for 
 compassing the death of the king : the resolution was in 
 these words, as I have transcribed it verbatim cut of a MS. [ 121 ~\ 
 of my lord keeper Bridgman then chief justice of the C. B. 
 who was present at the conference, Fuit agree par les justices sur 
 conference touchant ceux, queux assemble eux in Farley Wood in 
 Yorkshire 1663, que sur indictment pur compassing mort le roy overt 
 fait poet estre layd in consulting a levyer guerre contre lui (que est 
 overt-act de soy mesnie) & actual assembling, & levying guerre: Et. 
 ou Co. P. C. 14. dit, " Qe conspiracy a levyer guerre nest treason, 
 tanquc soit levyed, & pur ceo nest overt-act, ou manifest proofe de 
 compassing mort le roy, car le parols sont, (de ceo) i. e. compassing 
 niort le roy, & ceo soit a oonfounder le several classes, ou membra 
 dividentia :" Uncor le ley est contra ; &: issint fuit resolve per touts 
 les justices <§• councel de roy in le case des regicides, T^enner, Tonge 
 <5* yane,{s) que sur indictment de compassing de mort le roy, con- 
 sulting a levyer guerre, ou actual assembhng de guerre fueront evi- 
 dence, & overt fails provant compassing mort le roy ; & ceo appeirt 
 in Co. P. C. 14. "Si subject conspire ove forein prince de invader 
 le realm, & prepare pur ceo per overt fait, ceo est sufficient overt-act 
 pur mort le roy : Et ibidem p. 13. Le count de Essex 8,- Soittk^ in- 
 tended daler al court, &daver prise lareigneen lour power, ^- remover 
 ascun de councel, & a ceo fine assembled multitude de people ; this 
 being raised for the end aforesaid fuet sufficient overt-act pur com- 
 passing de mort le roy," queux 2 cases sont expresse contrary al 
 primer. 
 
 (7) According: to lord Coke's understanding of the statute of 25 Ed. 3. it was not only 
 hard but illeg'al, for by that statute no one ouL'ht to be convicted by inferences or illations. 
 Coke, F. C. p. 1-2. "= 
 
 (r) Kelyug, 13. (s) Kclyng, 20, 21.
 
 121 HISTORIA PLACITORUM CORONA. 
 
 Fait auxi agree, que si un overt-act soil lay en le enditement, & 
 le proof est dun outre overt-act de mesme le kinde, ou species de 
 treasorj, ceo est assets bone evidence. 
 
 I must confess, that I could never assent to. this last part of the 
 resohition : tho I know it was so practised in criminal cases in the 
 star-chamber, for I liave always thought, 1. That the overt-act is an 
 essential part of the indictment. 2. As it must be laid, so it must be 
 proved ;(/) for otherwise, if another act than what is laid should be 
 sufficient, the prisoner would never be provided to make his- 
 r 122 ]] defense. [14] 3. That more overt-acts than one may be laid 
 in an indictment, and then the proof of any of them so laid, 
 being in law sufficient overt-acts, maintains the indictment. 4. That 
 if any overt-act be sufficiently laid in the indictment, and proved, any 
 other overt-acts may be given in evidence to aggravate the crime 
 and render it more probable. 
 
 This resolution, as to the point of compassing the king's death, 
 being the latter and of great weight, and more than twice practised, (t/) 
 ought to out-weigh the opinion before cited, and with this agrees 
 the resolution of 13 Eliz. Dyer 298. b. in Dr. St or ie' s c?ise, who 
 conspired with a foreign prince to invade this realm; it was adjudged 
 an overt-act to make good an indictment of compassing the queen's 
 death. (a:) Vide Anderson's Rejiorls Placito 154. which was the 
 case of »/^;*fl(e;^ and Somerville and others, who conspired the death 
 of queen Elizabeth, resolved by all the justices, that a meeting 
 together of these accomplices to consult touching the manner of 
 ^effecting it was an overt-act to prove it, as well as Somerville' s buy- 
 ing of a dagger actually to have executed it. Jlnderson's Rep. Pars, 
 l.^p. 104. 
 
 And yet this difference seems to me agreeable to law, and recon- 
 ciles in some measure both resolutions. 
 
 (<) Kelyng 8. is contra, however this point is put out of all doubt by 7 W. 3. cap. 3. 
 § 8. whereby it is provided tliat no evidence shall be^iven of any overt-act, which is not 
 expressly laid in the indictment. 
 
 (m) But yet it does by no means follow from thence, that this resolution is right as to 
 this point any more than as to the other resolved at the same time, which yet our author 
 thinks to be wrong; were it a point of common law tlie repeated resolutions of the judges 
 is the only way to know what the law is; but where the question arises upon an act of 
 parliament, that is to be the rule for courts of justice to go by, of which they are to judge 
 according to tiieir own reason and understanding, and are not in such cases tied down 
 by former dctermin;itions any farther tlian the reasons or arguments thereof appear con- 
 clusive, for judicandum est legihus non excniplis. Co. P. C 6 in inargine. A bare con- 
 spiracy to levy war is certainly not treason, and was so adjudged in the case of Sir John 
 Friend; but if it appears upon evidence, that the design was to kill the king, or depose 
 him or imprison him, or put any force on him, and the levying war was only the way or 
 method made use of to ('ffcct that design, then it will be an overt-act of compassing the 
 death of the king: and this is the dislinclion taken by lord chief justice Holt in Sir John 
 Frimd's case, Statr. Tr. Vol. IV. p. 613, 614. 
 
 (:i) See 2 Vent. 315. 
 
 [14] The clause in the Constitution of the United States which says, that in all 
 criminal prosecutions, the accused siiall enjoy the riglit " to be informed of the nature 
 and cause of tiie accusation," soMires to him suclj information as will enable him to pre- 
 pare for his defence. 2 Burr's Trial, 424.
 
 HISTORIA PLACITORUM CORONA. 122 
 
 An assembly to levy war against the king, either to depose or 
 restrain, or enforce him to any act, or to come to his presence to 
 remove his counsellors or ministers, or to fight against the king's 
 lieutenant or mihtary commissionate officers, is an overt-act 
 proving the compassing of the death of the king; for such [ 123 ] 
 a war istlirected against the very person of the king, and he, 
 that designs to fight against the king, cannot but know, at least, it 
 must hazard his life; such was the case of the earl of Essex and 
 some others. [15] 
 
 But if it be a levying of war against the king merely by interpre- 
 tation and construction of law, as that o{ Burt07i.{y) and others, to 
 pull down all enclosures, and that of the apprentices in London 
 lately, to pull down all bawdy-houses, (r) de quibiis infra, this seems 
 not to be an evidence of an overt-act to prove compassing the king's 
 death, when it is so disclosed upon the proof, or if it be so particu- 
 larly laid in the indictment ; though prima facie if it be barely laid 
 as a levying war against the king in the indictment, it is a good 
 overt-act to serve an indictment of compassing the king's death, till 
 upon evidence it shall be disclosed to be only to the purpose afore- 
 said, and so only an interpretative or constructive levying of war. 
 And Burton\s case 39 Eliz. seems to intimate, as much, because 
 
 (y) Co. P. C. 10. (2) Kel 70. 
 
 [15] It gradually became an established doctrine with lawyers, that a conspiracy to 
 levy war against the king's person, tliough not in itself a distinct treason, may be given 
 in evidence as an overt act in compassing his death. Great as the authorities may be on 
 which this depends, and reasonable as it surely is, that such offences should be brought 
 within the pale of high treason, yet I must confess, that this doctrine has ever appeared to 
 me utterly irreconcilable with any fair construction of the statute. It has indeed by some, 
 been chiefly confined to cases where the attempt meditated is directly against the kind's 
 person for the purpose of deposing him, or of compelling him, while under actual duress, 
 to a change of measures; and this was construed into a compassing of his death, since 
 any such violence must endanger his life, and because, as has been said, the prison and 
 graves of princes are not very distant. But it seems not very reasonable to found a 
 capital conviction on such a sententious remark, nor is it by any means true that a de- 
 sign against a king's lite is necessarily to be inferred from the attempt to get possession 
 of his person. So far indeed, is this from being a general rule, that in a multitude of 
 instances, especially during the minority or imbecility of a king, the purposes of the con- 
 spirators would be totally defeated by the death of the sovereign whose name they de- 
 signed to employ. But there is still less pretext for applying the same construction to 
 sciiemcs of insurrection, when the royal person is not directly the object of attack, and 
 when the circumstances indicate any hostile intentions towards his safety. This ample 
 extension of so ptnal a statute, was first given, if I am not mistaken, by the judges in 
 lo63, on occasion of a meeting by some persons at Farley Wood in YorksJiire, in order 
 lo concert measures for a rising. But it was afterwards confirmed in Harding''s case, 
 (~ vcnir. 317.) immediately after the revolution, and has been repeatedly laid down from 
 the bench in subsequent proceedings for treason, as well as in treatises of very great 
 authority. It has, therefore, all the weight ot established precedent; yet I question 
 whelhiT another instance can be found in our jurisprudence, of giving so large a con- 
 strurtion, not only to a penal, but to any other statute. Nor does it speak in favour of 
 this construction, that temporary laws have been enacted on various occasions, to render 
 a conspiracy to levy war treasonable ; for which purpose, according to the current doc- 
 trine the statute of Edward III., needed no sup|)lcmental provision. Such acts were 
 I)asscd uniler Uliznhclh, Charles II, Sj George III., each of them limited to the existing 
 rcign. 3 Hallavi's Cons, His. 2U7.
 
 123 HISTORIA PLACITORUM CORONA. 
 
 they took him to be indictable only upon the statute of 13 Eliz. cap. 1. 
 for conspiring to levy war against the queen, whereas if this had 
 been an overt-act to prove the conipassi»)g of the death of the king, 
 the fact had been treason within 25 E. 3. as surely it would have 
 been, if he had conspired to have raised a war directly against the 
 king or his forces, and assembled people for that purpose, tho an 
 actual war had been caused by him. 
 
 But such a levying of war may in process of time rise into a direct 
 war against the king ; as if the king send his forces to suppress them 
 and they fight the king's forces; and then it may be an overt-act to 
 prove the compassing of the king's death. [16] 
 
 And thus far of compassing the king^s death. 
 
 Something I shall add touching the compassing of the death of the 
 queen, ox prince, wherein I shall first consider, what sliall be said the 
 qneen, or their eldest son within this act. 2. What a compassing of 
 their death. 
 
 1. A queen dowager, namely the queen after the deatli 
 \_ 124 ] of her husband, is not a queen within this act, for tho she 
 bear the title of queen, and hath many prerogatives answer- 
 ing the dignity of her person, yet she is not (his queen) or, as the 
 other parts of the act express it, [his companion) it must be the queen 
 consort, the king's wife, and during the marriage between them. 
 
 2. The queen divorced from the king a vinculo nialrimo?iii, dis for 
 cause of consanguinity, is not a queen within this act, tho the king 
 be living : this was the case of queen Katharine, who was first mar- 
 ried to prince ^/Irthnr, and by him, as was said, carnally known, and 
 after his death married to prince Henry (afterwards king Henry 
 VIII.,) by whom she had issue Mary (afterward queen of England,) 
 and afterwards after twenty years marriage was divorced causa, 
 affmitatis, which divorce was confirmed in the parliament 25 H. 8. 
 cap. 22. 
 
 This was also the case of his second wife queen Anne, who was 
 also divorced a vinculo, and that divorce confirmed by the statute of 
 2S H. 8. cap. 7. which nevertheless was again repealed in part by 
 the statute of 35 H. 8. cap. 1. and in effect wholly by the statute of 
 1 Eliz. cap. 3. and yet there is one clause observable in the act- of 
 28 //. 8. that treasons committed against queen Jlnne, or the lady 
 Elizabeth her daughter, mesne between the marriage and that 
 divorce were punishable, ahho the divorce made a nullity of the 
 marriage; and therefore there is a special clause to pardon all such 
 
 [Ifi] Mv.East (1 P. C. G3.) suys tliathc tlocs not know that flic point, that a mere con- 
 Btructive levying of war is evidence of conipassinfr the kin{r\s deatii, lias ever come 
 directly in judgment. It was not so considered in Cottoit^s case, Kel. 73. and tlie point 
 could notarise on the trials of Diunaret <.y I'mrliase, who were severally convicted upon 
 a constructive charge of ievyinir war only; there heijig' no count for coinpassing- the 
 queen's death. It must, however, be admitted, that the object of a j/rcat ri(jt or insor- 
 reetioti, eoiiiparativc'ly trivial in its ori^nn, may so far vary by its success, continuance, 
 or otiier circumstances, as to assume a di cided tone of resistance to the person of the king 
 and liis government, and so become an overt act of compassing his deatli. ■
 
 HISTORIA PLACITORUM CORONA. 124 
 
 treasons, so that the relation of the divorce, and separation to dissolve 
 (he marriage ab initio, was not thought sufficient to discharge those 
 treasons, without a special pardon discharging tlie treasons commit- 
 ted against tliem. 
 
 ]?ut we need not put the case of a divorce a mensd S^' thoro causa 
 arhilterii, because adultery by the king's wife is high treason in her, 
 and so the case of a divorce cannot well come in question, for she 
 must be executed for treason. P. 28 H. S. Spilmeai's Rep.{a) 33 H. 
 8. cap. 21.(6) Co. P. C.p. 9.[17] 
 • II. Ou lour fit z eigne 4' heir. 
 
 At common law compassing the death of any of the king's f 125"] 
 children, and declaring it by overt-act was taken to be trea- 
 son, Briton, ubi supra; but by this act it is restrained to the eldest 
 so?i and heir. 
 
 1. The eldest son and heir extends not to a collateral heir, tho 
 declared heir apparent to the crown, unless there be a special provi- 
 sion for that purpose by act of parliament: thus Roger Mortimer 
 11 ^.2. Richard duke of York 39 H. 6. John de la Poole tempore 
 R. 3. and Henry marquis of Exeter tempore H. 8. were declared 
 heirs apparent of the crown; yet compassing any of their deaths ia 
 the king's life time was not treason within this act. Co. P.C. 8, 9. 
 
 And therefore in that great agreement made in the parliament of 
 39 H. 6. when Richard duke of York made his claim to the crown, 
 and it was enacted, that H. 6. should hold the crown during his life, 
 and that Richard duke of York should succeed him, Rot. Pari. 39 
 H. 6. 71. 24. it is specially enacted, that if any person do compass or 
 imagine the death of the duke, and thereof be attaint by open act, it 
 shall be high treason; which had not been so, unless it had been 
 specially enacted. 
 
 2. The king takes wife, and by her hath issue two sons, the eldest 
 dies, the wife dies, he takes a second wife; this second son, though 
 he were once not eldest, and tho he be not lour eigne fitz, but only 
 the king's son, is eldest son within this statute. 
 
 3. King Edward III. had issue the Black Prince, who had issue 
 Richard of Burdeaux afterwards king Richard II. his eldest grand- 
 child, tho he were not, in the life of his father the Black PrincCy 
 the king's eldest son within this statute, yet his father being dead in 
 the liie of Edward III. it may be very considerable whether prince 
 Richard be the king's eldest son within this statute, and the com- 
 passing of his death be high treason; for he is heir apparent of the 
 crown, and his heirship cannot be devested by any after born child. 
 
 The duchy of Cornwall was settled upon the Black Prince 
 &r ipsius «S' hxredum suorum regum Anglias filiis prima- [ 126 ~\ 
 senilis, altho the king's eldest daughter be not duchess 
 
 (a) In the case of queen Anne Bulen. 
 
 {l>) In the case of queen Katharine Howard, 
 
 [17] A wife de facto until a divorce, is a queen within this statute. But after a di- 
 rce, though it be only a mensa et thoro, she is not. Hob. 13. 3G. See 1 East, F. C. 64. 
 VOL. I. — 15
 
 126 HISTORIA PLACITORUM CORONiE. 
 
 o{ Cormvall, because not ^lius, yet, (contrary to the opinion deli- 
 vered in the prince's case 8 Co. Rep. 30. a) H. 8. after the dearh of his 
 brother prince v/^r//iwr, and our late king Charles, after the death of 
 bis eldest brother prince Henry, were dukes of Cornwall in the life 
 of their fathers: the latter appears expressly by the statute of 21 Jac. 
 cap. 29. wherein it is so declared by judgment of parliament; and 
 Richard of Biirdeaux was also duke of Cornwall after the death of 
 his father the Black Prince, and comes in the catalogue of dukes of 
 Cornwall in the collection of Fincent and Mills of the nobility of 
 England; and had the revenues thereunto belonging, as appears 
 undeniably. Rot. Pari. 51 E. 3. n. 65. 
 
 But it seems it was not by virtue of that limitation in the grant to 
 the Black Prince, but by a new special creation; for Rot. Pari. 50 
 E. 3. n. 50. the common petition, that he might be created duke of 
 Cormvall, earl of Chester, and prince of Wales; the king declined 
 the doing of it at their request, as being a thing proper only for the 
 king to do his pleasure therein: the truth is, the king had done it 
 before the request made, viz. Rot. Cart. 47, 48 c^' 49 E. 3. n. 10. the 
 words of the charier are, '■^ Ex consilio Sc consensu prssla torn m, du- 
 cum, comituni 4' horonurn, ipsum Ricardum principem Walliee 
 ducem Cornubise, 8^- coniitem Cestria3 fecimus Sc creavirniis,''^ and 
 grants him the possessions thereunto belonging, which he accordingly 
 enjoyed: vide Rot. Pari. 51 E. 3. n. 9. and observe a certain estate 
 is limited by the patent of creation for life; or otherwise, it seems, it 
 was thought fit to leave it to the construction of law, whether he had 
 it purely by a new creation, or by the construction of the charter 
 11 E. 2. to the Black Prince. 
 
 This case therefore touching conspiring the death of such a prince, 
 as Richard of Burdeaux then was, tho it may be probable to be 
 treason within the intent of this act, is fittest to be first decided by 
 parliament according to the caution used in the statute of 25 E. 3. 
 
 3. If the king of England hath two daughters only, and no son, 
 the eldest daughter is not within tFie words or intent of the 
 [ 127 ] king^s eldest son within this clause, for a son may be after 
 born; but several statutes have made temporary pro- 
 visions iu this case; vide the statutes of 25 H. 8. cap. 22. 2Q M, 
 8. cap. 7. 
 
 It is true the implication of Co. P. C. p. 9. where it is said, "If 
 the heir apparent be collateral heir apparent, lie is not within this 
 statute, until it be declared by parliament," implies that the lineal 
 heir, male or female, is within this statute. 
 
 But the implication of the statute itself is against it, because this 
 act. almost in the same breath takes notice of the king's eldest 
 daughter upon anotlier rank of treason, namely defiling her; and it 
 is not safe to extend this act by construction. 
 
 The second daughter, living the first, is certainly not within this 
 law, because not immediately inheritable to the crown. 
 
 Yet by the statute of 25 //. 8. cap. 22. which was but temporary, 
 provision is made, that if any thing should be written or done to the 
 
 J
 
 HISTORIA PLACITORUM CORONA. 127 
 
 peril, slander or disherison of any of the issues and heirs between, 
 him and queen Jntie, the same should be treason. 
 
 Thus far touching»lie persons of the queen or prince. 
 
 Now what shall be said a compassing of their death, or an 
 overt-act to prove the same: what shall be said a compassing of the 
 king's death, hath been at large declared, much whereof may be ap- 
 plied to the queen or prince, but not universally; for the king is 
 above the coercion of the law, tho his actions are not exempted 
 from the direction of the law in many cases; but the queen and 
 prince are subjects of the king, and subjects to the laws; whence 
 it comes to pass, that there are certain overt-acts manifesting com- 
 passing the king's death, which are specifical and appropriate to 
 the king and his sovereign power and royal dignity, which are not 
 applicable to the queen or prince. 
 
 If a man compass to imprison the king, tho it be colorably done 
 by process of law, it is a compassing of the king's death within this 
 act, as hath been shewn. 
 
 But if the queen or prince commit a misdemeanor of such a na- 
 ture, as is a contempt against the king's laws, to which im- 
 prisonment is proper, as in case of treason, felony, rescue, [128 ^ 
 they may be imprisoned by process of law without danger 
 of treason: thus was the son of Henry IV. committed by Gascoign 
 chief justice for rescuing a prisoner from the bar; and several acts of 
 attainder of treason have passed in parliament against some queen- 
 consorts, as appears by 28 H. 8. cap. 7. 33 H. 8. cap. 21. against 
 queen Catharine Howard. Rot. Pari. 5 H. 5. n. 11. 
 
 Again, to compass to depose the king is treason, but to compass a 
 divorce between the king and queen by the king's commission by 
 due process of law was no treason, as appears in the process before 
 the archbishop of Canterbury, whereupon queen Catherine, and 
 afterwards queen Anne were divorced. 
 
 The compassing therefore of the death of the queen or prince, 
 which is treason within this act, is where a man without due process 
 of law expressly compasseth the wounding or death of them either 
 by force or poison.[18] 
 
 (18] The following^ are some of the instances, under the English law, as it is laid 
 down by the writers or decided by the cases, of what are deemed sufficient overt acts of 
 compassing the king's death. Every thing- wilfully or deliberately done or attempted, 
 whereby the king's life may be endangered, is an overt act of compassing his death. 
 Fast. l;)5. Killing the king is an overt act of compassing -liis death, and was so laid in 
 the case of the regicides of Charles I. Kel. 8. So, going armed for the purpose of kill- 
 ing the king, R. v. Som.err.ille et al; 1 And. 104; providing arms, ammunition, poison, 
 or the like, lor the purpose of killing the king, 3 Ins. 12; conspirators meeting and con- 
 sulting of the means of killing the iiing, Fosl. 195, R. v. Vane, Kel. 15, R. v. Ton g el al, 
 id. 1 / ; or of deposing him, or of usurping the powers of government, R. v. Hardy et al, 
 I East, P. V. GO; or resolving to do it, R. v. Rookwood, 4 St. Tr. 661, R. v. Charnnck, 
 Iff. SG"-, Salk. G31 ; acting as counsel against the king, in order to take away his life, 
 R. V. (Jokr, Kel. 12, R. v. Harrison, 2 St. Tr. 314. So, other species of high treason, 
 which are distinct heads of treason in themselves, may be laid as overt acts of compass- 
 ing the death of the king; thus levying war directly against the king, Fost. 195. 210. 
 4i'4, Kel. .,1,3 Jnst. 12; or a conspiracy to levy war directly against the king for the 
 purpose of detiironing him, or obliging him to change his measures, or the like, Fosf.
 
 128 HISTORIA PLACITORUM CORONA. 
 
 And thus much for treason in compassing the death of the king, 
 queen, or prince; and because the next treason declared, namely the 
 violation of the king's wife, the king's eldest Sten's wife, the king's 
 eldest daughter, hath not much to be said concerning it, I shall close 
 this chapter with it. 
 
 1. The violating; the Icing's companion, that is the king's wife, 
 the queen consort, her husband being now living; this is liigh trea- 
 son, and so it is in her if she consent. P. 28 H. 8. 33 H. 8. cap. 21. 
 Co. P. C. p. 9. 
 
 2. The wife of the king's eldest son and heir, a princess consort, 
 and during the coverture between them; and if she consent, it is 
 treason in her. 
 
 3. The king^s eldest daughter not married: this extends to a 
 second daughter, the eldest being dead; for she is now eldest, and, 
 for want of issue male, inheritable to the crown; but at common law 
 this treason extended to any of the daughters. Briton, cap. 22. §. 11. 
 It extends to an eldest daughter, tho there be sons ; and qudere, whe- 
 ther to an eldest daughter, that hath been married, and is now a 
 
 widow, nient marry may be construed either way; or if it 
 [^ 129 ] doth, yet whether it extends to an eldest daughter, that is a 
 
 widow, and hath children by her husband; the words of the 
 old books are avant ceo, qel est marry: it seems, that if the eldest 
 daughter hath been once married, she is not within this law, because 
 of tiie words nient marry, tho the reason may possibly be the same ; 
 and it seems, tho there be sons, yet the violating of the king's eldest 
 daughter, being within the express words of the law, the violation of 
 her is within this law, because within the words; and yet the viola- 
 tion of the wife of the king's second son is not within this statute, 
 yet he and his issue is inheritable to the crown before the eldest 
 daughter ; in this case therefore the words of the law are to govern. 
 Altho it should seem probable, that the eldest son of the prince 
 after the death of his father may be the king's eldest son within this 
 act, as is before observed ; yet the daughter of the king's eldest 
 daughter, after her mother's death, seems not an eldest daughter 
 
 197. 211, R. V. Friend, 4 Si. Tr. 599, R. v. Darrell, 10 Mod. 321, R. v. Layer, 4 St. Tr. 
 229. 332. R. v. Campion et al. Saville, 3, R. v. Lord Russel, 3 St. Tr. 705. R. v. Sydney, 
 3 St. Tr. 807. R. v. Cook, 4 St. Tr. 737. (But not a conspiracy to eftect a general rising 
 for the purpose of throwinjSf down all enclosures, &c. or of any otlier species of construc- 
 tive levying of war. Fast, 213, per Holt, C. J., Holt, 682. 10 Mod. 322.) Adhering to the 
 king's enemies, Fast. li)(), R v. Harding, 2 Vcntr. 315, R. v. Liird Preston, 4 St. Tr. 
 410, R. V. Stoup, 6 7'. R. 527; inciting foreigners to invade the realm. Fost. 196. R. v. 
 Parkyns, 4 St. Tr. 627. Writings which import a compassing of the king's death, are 
 suflicient overt acts of this species of treason, if pubhshed, Fost. 198, 1 Hawk. c. 17, s. 31 ; 
 as for instance, writings inciting persons to kill the king. R. v. Tioyn, Kel. 22. Sqe 
 I'yne^s case, Cro. Car. 1 17. So, words of advice or persuasion arc sutficient overt acts 
 of this species of treason, if they advise or persuade to an act which would of itself (if 
 comniitted) be a sufficient overt act. Fost. 195. R. v. Charnock, 4 iS7. Tr. 562. Salk. 631. 
 So, words may be laid in the indictment, to cx[)lain an act; as for instance, an act seem- 
 ingly innocent in itself^ may he shown to be an act of treason, by its connexion with 
 words spoken by the party at the time. R. v. Crohugan, Cro. Car. 332. R. v. Lee, 7 St. 
 Tr. 43.
 
 HISTORIA PLACITORUM CORONA. 129 
 
 within this act, her grandfather being Hving, for the grandson, who 
 is heir apparent of the crown, is of more consideration than the 
 daughter of a daughter, who cannot be heir apparent, because a son 
 may be born. 
 
 Quxre, Whether violating the eldest daughter, after the death of 
 the king her father, be treason within this act, where a son succeeds 
 to the crown : it seems not, for the relatioti is ceased.(c) 
 
 And thus far for the two first branches of high treason. 
 
 CHAPTER XIV. [ 130 ] 
 
 CONCERNING LEVYING OF WAR AGAINST THE KING. 
 
 The JKs ^ladii, both military and civil, is one of the j^ira mojes- 
 tatisy and therefore no man can levy war within this kingdom with- 
 out the king's commission. Co. P. C. p. 9. See the statute, or 
 rather proclamation(tf) de defensione portandi armo, wherein it is 
 recited by the king, that the prelates, earls, barons, and commonalty 
 illueque asembles en evisement sur cest besoigne nous eiont dit, que 
 a nous appent (§• de nous par nostre royal seignorie defendre^fort- 
 ment des armes, 4* de tout\iulre force contre nostre pees, a touts 
 lesfoitz, que nous plerra ;{b) and hence it is in all declarations and 
 indictments touching things done against the peace, the conclusion 
 goes contra pacem domini regis. 
 
 It is true, there have been great disputes in this kingdom touching 
 the disposition of the militia o{ \h\s kingdom, which are now all set- 
 tled, and declared to be the right of the crown by the statutes of 13 
 Car. 2. cap. 6, and 13 & 14 Car. 2. cap. 3.[1] 
 
 •(c) She is no longer leigne file le roy. It having been before observed that a queen 
 regent is a king within this act, it follows of course that the eldest son and eldest daugh- 
 ter of such a queen is likewise within it. Co. P. C. p. 8. 
 
 (a) In the seventh year of Edward I. 
 
 {b) This statute is only a proof of the king's power to issue his proclamation against 
 coming armed to the parliament. Vide Rot. Pari. 25 E. 3. pars. I. n. 58. dorso. 
 
 [1] By the Constitution of the United States, Art. 1, Sect. 8, Congress shall have power 
 to provide for the calling forth the militia to execute the laws of the Union, suppress in- 
 surrections, and repel invasions : To provide for organizing, arming, and disciplining 
 the mihtia, and for governing such part of them as may be employed in the service of 
 the Liiited States ; reserving to the States respectively, the appointment of the officers, 
 and the authority of training the militia according to the discipline prescribed by Con- 
 gress. Accordingly the following acts of Congress for the establishment of an uniform 
 system for the government of the militia, have been passed: An Act more eftectualiy to 
 provide for the national defence, by establishing an uniform militia throughout the United 
 States; May 8, 1792, ch. 33. An Act providing arms for the militia throughout the 
 United States, July G, 1798, ch. 65. An Act in addition to an Act entitled, "An Act 
 more effectually to provide for the national defence, by establishing an uniform militia 
 throughout the United Slates,'' March 2, 1803, eh. 15. An Act more effectually to pro- 
 vivle for the organizing of the mihtia of the Districtof Columbia, March 3, 1803, ch. 28. 
 An Act establishing rules and articles for the government of the armies of the United
 
 130 HISTORIA PLACITORUM CORONiE. 
 
 Now as to this clause of high treason, Ou si home levy guerre 
 coiintre. noslre seigneur le roy en son realme. 
 
 To make a treason within this clause of this statute there must be 
 three things concurring, 
 
 I. It must be a levying of war. 
 
 II. It must be a levying of war against the king. 
 
 III. It must be a levying of war against the king in his realm. 
 
 I. For the first of these, the act saith levy guerre; what shall be 
 said a levying of war, is in truth a question of fact, and re- 
 \_ 131 3 quires many circumstances to give it. that denomination, 
 which may be difficult to enumerate or to define ; and com- 
 monly is expressed by the words more guerrino arraiati. 
 
 As where people are assembled in great numbers armed with 
 weapons offensive, or weapons of war, if tliey march thus armed in 
 a body, if they have chosen commanders or officers, if they march cum 
 vexillis explicatis or with drums or trumpets, and the like ; whether 
 the greatness of their numbers, and their continuance together doing 
 these acts may not amount to more guerrino arraiati, may be con- 
 siderable. • 
 
 But a bare conspiracy or consultations of persons to levy a war, 
 and to provide weapons for that purpose ; this, tho it may in some 
 eases amount to an overt-act of compassing the king's death, yet it is 
 not a levying of war within this clause of this statute ; and therefore 
 there have been many temporary acts of parliament to make such a 
 conspiracy to levy war treason during the life of the prince, as 13 
 Eliz. cap. 1. 13 Car. 2, cap. 1. and others. Vide accordant Co. 
 
 P. c.p. 10. 
 
 Again, the actual assembling of many rioters in great numbers to 
 do unlawful acts if it be not modo guerrino or in specie belli, as if 
 they have no military arms, nor march or continue together in the 
 posture of war, may make a great riot, yet doth not always amount 
 to a levying of war : vide statute 3 4' 4 J5?. 6. cap. 5. 1 Mar. cap. 
 12.(C)[2J 
 
 (c) See also 1 Geo. 1 cap. 5. 
 
 States, April 10, 1806, ch. 20. An Act in addition to the Act entitled, "An Act to pro- 
 vide for calling forth the militia to execute tlie laws of the Union, suppress insurrections, 
 and to re])eal the Act now in force for these purposes," April 18, 1814, ch, 82. An Act 
 coticernin<r field otHcers of the militia, April 20, 1816, ch. 64. An Act to establish an 
 uniform mode of discipiiiie and field exercise for the militia of the United States, May 12, 
 1820, ch. 'J6. An Act to reduce and fix the military peace establishment of the United. 
 Slates, March 2, 1821, ch. 12, sect. 14. See 3 Story on Cons. 81. 
 
 [2] " It is obvious that Lord Hale supposed an assemblage of men in force, in a mili- 
 tary posture, to be necessary to constitute the fact of levying' war. 'I'he id^^a he appears 
 to suggest, that tiie apparatus of war is necessary, has been very justly coVnbated by an 
 able judge, (Mr. Justice Foster ; see Disc. 208.) who has written a valuable treatise on 
 the subject of treason; but it is not recollected tiiat his position, that the assembly 
 should bo in a posture of war for any treasonable attempt, has ever been denied." per 
 Marshall, C. J. 2 Burr's Tr. 434. And again, (p. 432.) " If the party be in a condition 
 to execute the proi)osed treason, without the usual implements of war, I can perceive no 
 reason for rc(}uiring those implements in order to constitute the crime." 
 
 Alluding to the dillerence which Lord Hale makes (pp. 13L 141. 150 to 153.) between
 
 HISTORIA PLACITORUM CORONA. 131 
 
 IT. As to the second; the statute saith, {against its) to make it 
 therefore treason, it must be a levying of war against the king: 
 otherwise, the it be more g^ierrino, and a levying of war, it is 
 not treason. 1. Therefore if it be upon a private qnarrel, as many 
 times it happened between lords marchers, tho it be vexillis expli- 
 catis, it seems no levying of war against the king. 2. If it be only 
 upon a private and particular design, as to pull down the inclosures 
 of such a particular common, it is no levying of war against the king. 
 Co. P. C.p. 9. 3. But a war levied against the king is of two sorts, 
 1. Expressly and directly, as raising war against the king or his 
 general and forces, or to surprise or injure the king's [)er- 
 son, or to imprison him, or to go to his presence to enforce [ 132 J 
 him (0 remove any of his ministers or counsellors, and the 
 like. 2. Interpretatively and constructively, as when a war is levied 
 to throw down inclosures generally, or to inhanse servants wages, or 
 to alter religion established by law; and many instances of like na- 
 ture might be given ; this hath been resolved to be a war against the 
 king, and treason within this clause; and the conspiring to levy such 
 a war is treason, tho not within the act of 25 E. 3. yet by divers 
 temporary acts of parliament, as 13 Eliz. during the queen's life, 13 
 Car. 2. during our king's life. Co. P. C. p. 10. [3] 
 
 The first resolution, that I find of this interpretative levying of war, 
 is a resolution cited by my lord Coke, P. C. p. 10. in the time of 
 Henry VIII. for inhansing servants wages ; and the next in time was 
 \h?\,\. o( Burton, 39 Eliz. Co. P. C. p. \0.{d) for raising an armed 
 force to pull down inclosures generally : this is now settled by these 
 instances, and some of the like kind liereafter mentioned ; the pro- 
 ceeding against Burton and his companions was not upon the statute 
 of 25 E. 3. which required, that in new cases the parliament should 
 be first consulted; but upon the statute of 13 Eliz. for conspiring to 
 
 {d) Poph. 122. 2. Wilson, 363. 
 
 insurrections which carry with them the appearance of an army and those assemblies 
 which have been drawn together without any of the show or apparatus of war, Foster 
 says, ''I do not think any great stress can be laid on tiiut distinction. It is true that in 
 case oflevying war, the mdictments generally charge tluit the defendants were armed 
 and arrayed in a warlike manner; and where the case would admit of it, the otiier cir- 
 cumstances of swords, guns, drums, colours, &c. have been added. But I think the 
 merits of the case have never turned singly on any of these circumstances. In the case 
 o\ Dumaree S^ Purchase, (8 St. Tr. 218. 267.) there was nothing given in evidence of the 
 usual pageantry of war; no military weapons, no banners, no drums, nor any regular 
 consultation previous to tiie rising. And yet the want of these circumstances weighed 
 nothmg will: the Court, though the prisoner's counsel insisted much on that matter. 
 The number of the insurgents supplied the want of military weapons; and they were 
 provided with axes, crow.«, and other tools of the like ni^ure proper for the mischief they 
 intended to effect. Furor arma ministrat'" It was tlie opinion of the Court iti the case 
 oi Fries, p. 197, that the legal guilt of levying war might be incurred without the use 
 of military weapons or military array. 
 
 Mr. East thinks that Sir Matthew Hulo did not mean to carry his observations further 
 than concerned cases of constructive levying of war. 1 F. C. 67. Judae Tucker is 
 strongly in fnvoiir of the doctrine that warlike array and arms are essential to complete 
 the crime. 4 Tucker's Bl. Apdx. p. 18. and Mr. LuJers, in his Tract on Constructive 
 Treason, pp. 52 & 69, is of tlie same opinion. 
 
 [o] .\iid 36 Geo. 3. c. 7, during that king's life.
 
 132 HISTORY PLACITORUM CORONA. 
 
 levy war, which hath not that clause of consulting the parliament in 
 new cases, and therefore seems to leave a latitude to the judges to 
 make construction greater, than that was left by the statute of 25 E. 3. 
 
 These resolutions being made and settled we must acquiesce in 
 Ihem ; but in my opinion, if new cases happened for the future, that 
 have not an express resolution in point, nor are expressly within the 
 words of 25 E. 3. tho they may seem to have a parity of reason, it is 
 the safest way, and most agreeable to the wisdom of the great act of 
 25 E. 3. first to consult the parliament and have their declaration, 
 and to be very wary in multiplying constructive and interpretative 
 treasons, for we know not where it will end. 
 
 But particular instances will best illustrate this whole learning, 
 which I shall subjoin, tho somewhat promiscuously, as they occur to 
 my memory. 
 
 A conspiring or compassing to levy war is not a levying 
 r 133 ] war within this act, unless the war be levied; this appears, 
 Co. P. C. p. 9. and also by those many acts of parliament 
 above-mentioned, which were but temporary and limited to continue 
 during the life of the king or queen, whereby it is specially enacted, 
 that such compassing to levy war shall be treason ; which needed 
 not have been, if it had been treason by the statute of 25 E. 3. 
 Vide 1 4- 2 P. <5' M. cajJ. 10. 1 Eliz. cap. 5. 13 Eliz. cup. 1. 13 
 Car'. 2. cap. 1. 
 
 And therefore in the case of Robert Burton and others, that con- 
 spired to assemble themselves and pull down inclosures, and to gain 
 arms at the lord Norris^s house, and to arm themselves for that pur- 
 pose, Co. P. C. 10. they iwere indicted and attainted purely upon the 
 statute of 13 Eliz. cap. 1. whereby conspiring to levy war is made 
 treason. 
 
 But if divers conspire to levy war, and some of them actually levy 
 it, this is high treason in all the conspirators, because in treason all 
 are principals, and here is a war levied. (e) 
 
 If divers persons levy a force of multitude of men to pull down a 
 particular inclosure, this is not a levying of war within this statute, 
 but a great riot; but if they levy war to pull down all inclosures, or 
 to expulse strangers, or to remove counsellors, or against any statute, 
 as namely the statute of Labourers, or for inhansing salaries and 
 wages, this is a levying war against the king, because it is generally 
 against the king's laws, and the otfenders take upon them the refor- 
 mation, which subjects by gathering power ought not to do. [4] Co. 
 P. C. p. 9, 10. Vide the act >3 & 4 ^. 6. cap. 5. " If any to the number 
 of twelve shall intend, go about, practise, or put in ure by force to 
 alter the religion establiyhed by law, or any other laws, and depart 
 
 (e) Co. P. C.p. d. Kelyng.p. 19. 
 
 [4] Post. 219, bamaree's case, 8 St. Tr. 218. Purchase's case, id. 267. 4 Bl. C'om.'&i. 
 Mr. Luders iirfres that none of tlicso acts can be treason by a fair construction of tiie 
 Slat. 25 Edw. 3. p. &2 el seq.
 
 HISTORIA PLACITORUM CORONA. 133 
 
 not within an hour after proclamation, or after that shall wilfully 
 in a forcible manner attempt to put in ure the things above specified, 
 then it is high treason." 
 
 If men levy war to break prisons to deliver one or more particular 
 persons out of prison, wherein they are lawfully imprisoned, 
 unless such as are imprisoned for treason; this upon advice [ 134 ] 
 of the judges upon a special verdict found at the Old Bailey, 
 was ruled not to be high treason, but only a great riot 1668, but if it 
 were to break prisons, or deliver persons generally out of prison, this 
 is treason, Co. P. C. p. 9. 
 
 There was a special verdict found at the Old Bailey, anno 20 Car. 
 II.,(/) that ^. B. and C. with divers persons to the number of an 
 hundred assembled themselves rnodo gnerrino to pull down bawdy- 
 houses, and that they marched with a flag upon a staff, and weapons, 
 and pulled down certain houses in prosecution of their conspiracy: 
 this by all the judges assembled, except one, (o-) was ruled to be levy- 
 ing of war, and so high treason within this statute ; and accordingly 
 they were executed. 
 
 But the reason that made the doubt to him that doubted it, was 
 1. Because it seemed but an unruly company of apprentices, among 
 whom that custom of pulling down bawdy-houses had long obtained, 
 and therefore was usually repressed by officers, and not punished as 
 traitors. 2. Because the finding to pull down bawdy-houses might 
 reasonably be intended two or three particular bawdy-houses, and the 
 indefinite expression should not in materia odioscl be construed either 
 universally or generally. And 3. Because the statute of 1 Mar. cap. 
 12. though now discontinued makes assemblies of above twelve per- 
 sons and of as high a nature only felony, and that not without a con- 
 tinuance together an hour after proclamation made; as namely an 
 assembly to pull down bawdy-houses, burn mills or bays, or to abate 
 the rents of any manors, lands or tenements, or the price of victuals, 
 corn or grain ; or if any person shall ring a bell, beat a drum, or sound 
 a trumpet, and thereby raise above the muiiber of twelve for the pur- 
 poses aforesaid, which are raised accordingly and do the fact, and 
 dissolve not within an hour after proclamation, or that shall convey 
 money, harness, artillery, it is enacted to be felony ; and if any above 
 the number of' two, and under twelve, do practise with force of 
 arms unlawfully, and of their own authority to kill any of the queen's 
 subjects, to dig up pales, throw down inclosures of parks, 
 pull down any house, mill, or burn any stack of corn, or [ 135 1 
 abate rents of manors, lands or tenements, or price of corn 
 or victual, and do not depart within an hour. after proclamation, 
 and continue to attempt to do or put in ure any of the things above- 
 mentioned, they are to have a year's imprisonment. 
 
 And the statute of 3 & 4 E. 6. cap. 5. is to the same purpose, only 
 if the number of forty, or above, come together to do such acts as 
 
 (/) V\de Kehpg, p. 70. ^-c. 
 
 ig) Tliis was our author himself. Vide Kelyng, 75. 
 
 VOL. I. — 16
 
 135 HISTORIA PLACITORUM CORONA. 
 
 before, or any other felonious, rebellious, or traiterous acts, and con- 
 tinue together two hours, it is made high treason. (A) 
 
 But yet the greater opinion obtained, as it was fit; and these ap- 
 prentices had judgment, and some of them were executed, as for high 
 treason. 
 
 Yet this use may be made of those statutes : 1. That there may be 
 several riots of a great and notorious nature, which yet amount not to 
 high treason. 2. But again, those acts and attempts possibly might 
 not be general, but might be directed only to some particular instances, 
 as for the purpose not to pulldown all houses or mills, but some spe- 
 cial ones, wliich they thought offensive to them; nor to abate the 
 rents of all manors, but of some particular manor, whereof they were 
 tenants; nor to make a general abatement of the prices of victuals or 
 corn, but in some particular market, or within some precinct; and so 
 crosseth not the general learning before given of constructive treason. 
 3. It seems by that act also, they did not take the bare assembly to 
 that intent to be a sufficient overt-act of levying of war; that was 
 but an attempt and putting in ure, unless they had actually begun 
 the execution of that intention, going aboiU, practising or putting in 
 ure; for this act puts a difference between the same and the doing 
 thereof. 
 
 In the parliament of 20 E. 1. now printed in Mr. Ryley.p. 77. it 
 appears there arose a private quarrel between the earls of Gloucester 
 and Hereford, two great lords marchers; and hereupon divers of the 
 earl of Gloucester's party with his consent cum multitudine 
 r 136 1 tam equiium quam peditum exierunt de terra ipsius comitis 
 de Morgannon cum vexillo de armis ipsius comitis expli- 
 cato versus terram comitis Heref de Brecknock, & ingressi fuerunt 
 terram illam per spatium duarum leucarum, & iilam deprsedati fue- 
 runt, & bona ilia depra3data usque in terram dicti comitis Glocestrix 
 adduxerunt, and killed many, and burnt houses and committed divers 
 outrages; and the like was done by the earl of Hereford and his 
 party upon the earl of Gloucester: they endeavoured to excuse them- 
 selves by certain customs between the lords marchers; by the judg- 
 ment of the lords in parliament their royal franchise' were seised as 
 forfeited during their lives, and they committed to prison, till ran- 
 somed at the king's pleasure. 
 
 Altho here was really a war levied between these two earls, yet 
 in as much as it was upon a private quarrel between them, it was 
 only a great riot and contempt, and no levying of war against the 
 king; and so neither at common law, nor within. the statute o{ 25 E. 
 3. if it had been then made, was it high treason. 
 
 It appears by IValsingham sub anno 1403. a great rebellion was 
 raised against Henry W. by Henry Percy son of the earl o[ North- 
 timberland and others: the earl gathered a great force, and actually 
 took part with neither, but marched with his force, as some thought, 
 towards his son, and, as others thought, towards the kiugpro redinte- 
 
 (/t) See also 1 Geo. I. cap. 5.
 
 HISTORIA PLACITORUM COROx\.^. 136 
 
 grando pacts negolio; he was hindered in his march by the earl of 
 fFesfmorehind and returned to his house at fVerkworth; the king 
 had the victory; the earl petitioned the king; the whole fact was 
 examined in parliament, Rot. Pari. 5 H. 4. n. 12. The king de- 
 manded the opinion of the judges and his counsel touching it: the 
 lords protest the judgment belongs in this case to them; the lords by 
 the king's command take the business into examination, and upon 
 view of the statute of 25 E. 3. and the statute of Liveries " Adjuge- 
 rent, qe ceo, qe fuit fait par le counte, nest pas treason, ne felony, raes 
 trespass tantsolement, pur quel trespass le dit counte deust faire fine 
 & ransom a volunte du roy ;" but Henry the son was attaint of 
 treason. 
 
 It appears not what the reason of that judgment was, 
 whether they thought it only a compassing to levy war, and P 137 ~\ 
 no war actually levied by him, because not actually joined 
 with his son; or whether they thought his intention was only to 
 come to the king to mediate peace, and not to levy a war, nor to do 
 him any bodily harm; that it was indeed an offense in him to raise 
 an army without the king's commission, but not an offense, of high 
 treason, because it did not appear that he raised arms to oppose the 
 king, but possibly to assist him; but whatever was the reason of it, 
 it was a very mild and gentle judgment, for the earl was doubtful of 
 a more severe judgment : no?«, he returns thanks to the lords and 
 commons de lour bone &)- entyre coers a lui monslre, and thanks the 
 king for liis grace.- 
 
 The clause in the statute of 25 E. 3. If any man ride armed 
 covertly or secretly with men of arms against any other to slay, rob, 
 or take him, or to detain him, till he hath made fine or ransom, or 
 have his deliverance, it is not in the mind of the king or his council, 
 that in such case it shall be judged treason, but shall be judged 
 »felony or trespass according to the laws of the land of old times used, 
 and according as the case requireth; and if in such case or-other 
 like(«) before this time any judges have judged treason, and for this 
 cause the lands and tenements have come to the king's hands as for- 
 feited, the chief lords of the fee shall have the escheat. 
 
 This declares the law, that a riding armed with men of arms upon 
 a private quarrel or design against a common person is not a levying 
 of war against the king ;(/t) and the especial reason of the express 
 
 (i) Vide simile H. 26. E. 3. coram re.ge. Rot. 30. Rex. Hale. 
 
 This case was in the county of Essex, and was no more than this; Sir John Fitzwau- 
 ter and IVilliam Baltrip, his steward, <SfC. were presented by juries of divers liundreds for 
 taking' men by force, and detaining them till they paid fines for their ransom, for exacting' 
 and extorting money from others, and for several great and enormous riots, misdemeanors 
 and trespasses in the ceunty of Essex, attractando sibi regalem pofestalem, upon which. 
 Sit John Fi<2ica«ter surrendered himself, and was committed to the Tower oi' London, and 
 Baltrip was outlawed, who afterwards pleaded the king's pardon pro feloniis, conspira- 
 tiOTie, manutcnenlia Sf transsressionibus prcedictis, necnon pro iitlagariis occasione pramis- 
 sorum in ipsum promulgalis, upon which he was discharged sine die. 
 
 (k) Co. P. C. p.iO.
 
 138 HISTORIA PLACITORUM CORONA. 
 
 adding of this clause seems to be in respect of that judgment of trea- 
 son given against Sir Johii Gerberge, Trin. 21, E. 3. Hot. 23. Rex. 
 and at large before mentioned, chirp. 11. which judgment is in etfect 
 repealed by this act. 
 
 It appears by Sir F. Moore's Rep. n. 849. (/) the earl of Essex was 
 arraigned and condemned for high treason before the lord high 
 steward, whereupon it was resolved by the justices, 1. That when 
 the queen sent the lord keeper of the great seal(m) to him, command- 
 ing him to dismiss the armed persons in his house and to come to her, 
 and he refused to come, and continued the arms and armed persons 
 in his house, that was treason. 2. That when he went with a troop 
 of captains and others from his house in the city of London, and 
 there prayed aid of the citizens in defense of his life, and to go with 
 him to the queen's court to bring him into the queen's presence with 
 a strong hand, so that he might be powerful enough to remove cer- 
 tain of his enemies, that were attendant on the queen, this was high 
 treason, because it tends to a force to be done upon the queen, and a 
 restraint of her in her house; and the fact in London was actual 
 rebellion, tho he intended no hurt to the person of the queen. 3. That 
 the adherence of the earl of Southampton to the earl of Essex in 
 London, tho he did not know of any other purpose than of a private 
 quarrel, which the earl oil Essex had against certain servants of the 
 queen, was treason in him, because it was a rebelhon in the earl of 
 Essex. 4. That all they, that went with the earl of Essex from Essex- 
 house to London, whether they knew of his intent or not, were 
 traitors, whether they departed upon the proclamation or not ; but 
 those, that suddenly adhered to him in London, and departed upon 
 the proclamation made, were within the proclamation to be par- 
 doned : there were other points resolved touching the manner of his 
 trial, whereof hereafter. 
 
 The whole history of Essex his treason and the proceeding there- 
 upon is set forth at large by Camden anno 44 Eliz. p. 604. <^' seqnen- 
 iibus, wherein the charge of his indictment appears to be, 
 £139] that he and his accomplices had conspired to deprive the 
 queen of her crown and life, having consulted to surprize 
 the queen in the court ; and that they had broken out into open re- 
 bellion by imprisoning the counsellors of the realm, by stirring up the 
 Londoners to rebellion by tales and fictions, by assaulting the queen's 
 faithful subjects in the city, and defending the house against the 
 queen's forces; so that the great part of the indictment was compass- 
 ing the queen's death, and the rest of the charge were the overt-acts, 
 which was treason within the statute of 25 E. 3. with which my 
 lord Coke agrees, P. C. p. 12. 
 
 If divers persons levy war against the king, and others bring them 
 relief of victuals /?ro thnore mortis, c^* recesserunt quam citd potue- 
 runt, this was adjudged not to be a levying of war, because pro 
 timore mortis; quvere, if the same law be in case of marching with 
 
 (Z) p. 620. (m) And others of her council.
 
 HISTORIA PLACITORUM CORONA. 139 
 
 them in their company for fear of death. [5] Co. P. C.p. 10. vide 
 Slip. crrp. 8. Mich. 2\' E. 3 Rot. 101. Line, coram rege. lUi, qui 
 £oacti fnerunt ad denarios recipiendos & similiter coacti juravernnt, 
 dimittuntur per curiam per manncaptionem, quia sic in personis ipso- 
 rnm nihil mah reperitur, in case of a great riot, not unlike a levying 
 of war, for which they were indicted of treason. 
 
 Rot. Par. 17 R.2. n. 20. upon the complaint of the diikes of ^9giii- 
 tain and Gloucester, shewing that Thomas Talbot and others his 
 adherents by confederacy between them fauxment conspirerent pur 
 tuer les dits'ducs uncles le roy & autres persones grants de realme, & 
 pur accomplyer le malice susdit le dit Thomas & les autres mistrent 
 tout lour poyar, come notoirement est conus, & le dit Thomas ad en 
 grand party confesse, en anietuisment des estats & de loys de vostre 
 realme, & sur ceo firent divers gents lever armes, & arrayes a feire 
 de guerre en assembles & congregations a tres grant & liorrible num- 
 ber en divers parties en les countie de Cestre, and pray that it may 
 be declared in this parliament the nature, pain and judgment of this 
 otfense: the conclusion whereof was thus: 
 
 " Est avys au roy & a les seigniors de cest parlement en droit de 
 mesne la bille touchant Thomas Talbot, que la matter contenus en 
 la dite bill est overt & haut treason, & touche la person du 
 roy & tout son realme, & pur treason le roy & touts les seig- [^ 140 ~\ 
 neurs snsdits adjuggent & declarant ;" and thereupon writs 
 of proclamation for his appearance in the king's bench are ordered 
 to issue for his appearance in one month, or otherwise to be attaint 
 of treason :(?i) vide Pas. 17 R. 2 B. R. Rot. 16. Rea-. Writs of pro- 
 clamation issued accordingly to the sheritfs of Yorkshire and Derby- 
 shire, and the sheriffs returned non est inventus; Talbot afterwards 
 came and rendered himself, and was committed to the Tower, and 
 afterwards a Supersedeas came for his enlargement.(o) 
 
 But this declaration being only by the king and house of lords is 
 not a conclusive or a sufficient declaration of treason according to the 
 purview of this statute, but yet it was a real levying of war against 
 the king, because done more guerrino and by people arrayed de fet 
 de guerre, as in Bensted^s case hereafter mentioned; but had it been 
 a bare conspiracy, it had not been treason, as appears by the special 
 statute of 3 H. 7. cap. 14. whereby a conspiracy to kill the king 
 
 (n) And all persons, that shall receive the said Sir Thomas Talbot within the realm 
 of England, after the said month elapsed from the time of the said proclamation, are 
 declared guilty of high treason upon conviction of such harbouring or receiving. 
 
 (o) The Supersedeas was not expressly for his enlargement, Sed quod cuicunq : proces- 
 sui versus ipsum Thomam Talbot ex causis pradictis ulterius faciendo supersedeanl, quo- 
 ousque aliud a rege inde habuerint in mandutis. 
 
 [5] It seems that it would. But the fear of having houses burnt or goods spoiled, is 
 no excuse in the eye of the law for joining and marching with rebels. The only force 
 that doth excuse, is a force upon the person, and present fear of death ; and this force 
 and fear must continue all the time the party remains with the rebels. It is incumbent 
 on every man who makes force his defence, to show an actual force, and that he quitted 
 the service as soon as he could. Per Lee, C. J., McGrOwlhcr's case, Fost. 14. 216. 
 1 Ea8t, P. C. 70. U. S. V. Vigol, 2 Dall. 347.
 
 140 HISTORIA PLACITORUM CORONA. 
 
 without an overt act, (for then it were treason within the statute of 
 25 E 3.) or a conspiracy to kill any of his privy council and certain 
 great officers, tho the event followed not, is made felony. 
 
 See for instances of very great riots with multitudes of persons 
 modo gicerri/io arraiati, which yet amounted not to high treason, 
 because upon particular quarrels and differences between private 
 persons. Claus. 5 E. 2 M. 4. inter Griffinum de Pole & Johannem 
 de Cherleton pro castro de Pole. Pat. S E. 4. part 1. n. 7. dors. 
 between the citizens and bishop of Norwich.{p) Rot. Pari. 5 R. 2. 
 n. 45. between the town and university of Cambi^idge, Rot. Pari. 
 11 H. A. 11. 37. <5' sequentibits, between Hugh de Erdeswick and 
 others touching the castle of Bothall. Rot. Pari. 13 H. 4. n. 12. be- 
 tween the lord Ross Sir Robert Tyrrhyt touching Turbary in 
 JVrovghtly. Rot. Pari. 4 H. 5. n. 15. between Robert 
 [ 141 ] Whiltingfon and Philip Lingdon and others. H. 26 E. 3.' 
 Rot. 30. Rex Fitzivauter^s c^d.SQ.{q) 
 
 All which, tho they were enormous riots, and done more guerrinOf 
 yet being private and particular quarrels, not much unlike that be- 
 tween the earls of Gloucester and Hereford, did not amount to high 
 treason, but contempts, riots; or, if death ensued, felony, as the case 
 required. [6] 
 
 Bnt going in a warlike manner with drums and arms to surprize 
 the arclibishop of Canterbury., who was a privy counsellor, it being 
 witli drums and a multitude (as the indictment was) to the number 
 of three hundred persons, was ruled treason by all the judges of 
 England, •Awd,\\\Q, offenders had judgment accordingly; and at the 
 same time by ten of the judges it was agreed, that the breaking of 
 prison, where traitors were in durance, and causing them to escape 
 was treason, altho the parties did not know that tiiere were any 
 traitors there, upon the case of 1 H. 6. 5. b. and so to break a prison 
 where felons are, whereby they escape, is felony without knowing 
 them to be imprisoned for such offense. P. 16 Car. Croke, Thomas 
 Bensted''s case.(r) 
 
 The case of Sir John Oldcastle for levying of war against the king 
 is entered Rot. Pari. 5 //. 5. n. \\. 
 
 The twenty-fifth of September an7io domini 1413, Thomas arch- 
 bishop of Canterbury the pope's legate by his sentence definitive 
 
 (p) Tliis is not to be found among' tlie records. 
 
 {q) Nicholas Bnindish and otlicrs to the number of one hundred were sent by Sir 
 John Filzwauter anncd platis, pladiis, liokelariis, arcubus «^ safrjttis ad modum guerr<B 
 to seize and take l/oves, asiiins, Sfc. of Thomas Hubert in He rlawr upon tiie lands of the 
 said Thomas, qiias tenuit de alits dnmxnis i^- nihil de ipso Johanne Fitzwauter ; accor- 
 din<,'Iy tiiey did so, and curried them away to manors belonging to the said Sir John; 
 but neither this riot, nor any other the facts, whicli lie or his accomplices were indicted 
 for, were conceived to amount to treason, since none of them were arraigned of more 
 than felony; vide supra in notis, p. 137. 
 
 (r) Cro. Car. 583. W. Jones 455. 
 
 [6] For an account of these private wars which were so prevalent during the early 
 feudal ages, see Robertson's Charles V. vol, I. 45. 286.
 
 HISTORIA PLACITORUiM CORONA. 141 
 
 declared Sir John Oldcastle lord Cohham an heretic, especially in 
 the point of the sacrament of the eucharist and penance, excommu- 
 iiicaied hitn, relinquentes ipsumex nunc tanquam hxrelicumjudi- 
 cio sxcula7-i.{s) 
 
 Hill. 1 //. 5. Rot. 7. inter placita regis, Middlesex, there is an 
 indictment against him before certain commissioners o{ oyer 
 and terminer of London and Middlesex, xe\\.uv\Q(\. into the [ 142 ] 
 king's bench to this effect :(/) 
 
 " Quod Johannes Oldcastell Ae Coulyng in com' Kane' chivaler, 
 &. alii lollardi vulgariter nnncnpati, qui contra fidem catholicam di- 
 versas opiniones liaereticas & alios errores manifestos legi catholicae 
 repugnantes, a diu est, temerarie tenuerunt opiniones & errores prse- 
 dictos manutenere, aut in facto minime perimplere valentes, qnam 
 diu regia potestas & tam status regalis domini nostri regis, qnuni 
 status & officium praelatiaj dignitatis, infra regnuni Snglise in pros- 
 peritate perseverarent ; falso & proditorie machinando tam statum 
 regium quum statum & ofRcium prtelatorum, nee non ordines religio- 
 sorum infra dictum regnum Anglios penitus adnuliare ac dominuni 
 nostrum regem, fratres suos, prselatos & alios magnates, ejusdem 
 regni interficere, nee non viros religiosos, relictis cultibus divinis & 
 religiosis observantiis, ad occupationes mundanas provocare ; & tam 
 ecclesias cathedrales, quam alias ecclesias & domos religiosas de reli- 
 qniis & aliis bonis ecclesiasticis totaliterspoliare acfunditus ad terram 
 pxosternere, & dictum Johannem Oldcastell regentem ejusdem regni 
 consiituere, & quamplura regimina secundum eorum voluntatem infra 
 regnuni prsedictum, quasi gens sine capite, in finaleni destructionem 
 tam tidei caiholicse & cleri, quam status & majeslatis dignitatis rega- 
 lis, infra -idem regnum ordinare, falso & proditorie ordinaverunt .& 
 proposuerunt, quud ipsi insimul cum quampluribus rebellibus don^ini 
 regis ignotis ad numerum viginti milhCim hominum de diversis parti- 
 bus regni Anglise modo guerrino arraiatis privatim insurgerent, & 
 die Mercurii proximo post festura Epiphanise domini anno regni re- 
 gis nunc primo apud P^illam & parochiam sancti Egidii extra bar- 
 ram veteris Templi London in qnodam magno campo ibidem una- 
 nimiier convenirent & insimul obviarent pro nefando proposito suo in 
 praimissis perimplendo, quo quidem die Mercurii apud Vil- 
 lum & parochiam prsedictas preedicti Johannes Oldcastell &i [ 143 ] 
 alii in hujusmodi proposito proditorio perseverantes praidic- 
 tum domiiium nostrum regem, fratres suos, viz. Thomam ducem Cla- 
 rencix, Johannem de Lancastre, & Humfridiim de Ltincastre, nee 
 noji pra^lalos & magnates praedictos interficere, nee non ipsum domi- 
 iium nostrum regem & haeredes suos de regno suo prasdicto eshare- 
 dare, &. pramissa onniia & singula, nee non quampkn^a alia mala & 
 iutolerabilia facere & perimplere, falso & proditorie proposuerunt &. 
 
 (s) Sec Slate Tr. Vol I. p. 42, 
 
 \t) See Ulate '1\. Vvl.W. Appendix p. 4. Fox in Iiis acts and monuments, Vol. T. p. 
 655. brings several arjruments to prove this indictment to be a f ir;rcd one; but whatever 
 the indiclinent was, tliere is reason sufficient to believe tlic pretended conspiracy was so. 
 See liapiii's history sub anno 141 i.
 
 143 HISTORIA PLACITORUM CORONiE. 
 
 imaginaverurit, & ibidem versus campum prsBdictiim modo guerriao 
 arraiati proditorie modo insurrectionis contra ligeantias suas equita- 
 veriint ad debellaudum dictum dominum nostrum regem, nisi per 
 ipsum manu forti gratiose impediti faissent, quod quidem indicta- 
 mentum dominus rex nunc ceriis de causis coram eo venire fecit ter- 
 
 minandum Per quod prscceptum fuit vie' quod non omitteret, 
 
 &c. quin caperet prasfatum Johaiinem Oldcastell, si, &c. & salvo, 
 &c." upon this indictment removed into tlie king's bench he was 
 outlawed. 
 
 All this record and process at the request of the commons was re- 
 moved into parliament, and in the presence of the citstos re<(m, 
 lords, and commons was read, and expounded in English to Sir John 
 Oldcasile, and it was demanded what he could say why execution 
 should not be done upon him upon that utlary, and he saying nothing 
 in his excuse " pur que agard est en mesme le parlement per les 
 seigneurs avani clits, de I'assent de le dit gardein, & la pryer suisdit, 
 qe le dit Joh?i, come traytoura dieu & heretique notoirement approve 
 & adjugge, come peirt per un instrument I'archevesque consue ala 
 dors de cest roll & come traytour a roy & son roialme, soil amesne a 
 la Ihwer de Londres, & d'illoeques soit treins per my le city de 
 Londres, tanque as novel surches en le paroche de St. Giles hors de 
 la baire de viel Temple de Londres, & illoeques soit pendus, & ars 
 pendant. "(^^) 
 
 How this nobleman was pursued by the ecclesiastics, and 
 r 144 "] the whole story is set down by IValsingham. 
 
 That which 1 observe in it is, 1. That the indictment is prin- 
 cipally founded upon that article of this statute of compassing the 
 king's death, and yet the overt-act is an assembly to levy- war, and 
 actual levying of war. 2. Altho this indictment is not expressly 
 upon this clause of levying of war, for that is not the principal charge 
 of the indictment, but compassing the king's death, yet the marching 
 with a great army to St. Giles'' s modo g^ierrino arraiati was an ex- 
 press levying of war, tho there were no blow yet struck. [7] But 3. 
 it seems their first meeting to contrive Iheir-coming to St. Gileses, tho 
 it might be an overt-act to compass the king's death, and so. treason 
 within the first clause of the statute, yet was not an actual levyingof 
 war, and so not treason within that clause of the statute ; but 
 their actual marching in a body modo guerrino &; viodo insurrec- 
 tionis might be a levying of war within the statute. 4. That actual 
 levying of war, tho it be a treason, upon which Oldcustle might 
 have been indicted, yet it was also an overt-act to serve an indict- 
 meiit for compassing the king's death, as hath been shewed at large 
 before. 
 
 If there be an actual rebellion or insurrection, it is a levying of 
 
 (u) The autlior of the triiil of Sir Jnhn OlJcaallc says, that this sentence was in pur- 
 suance of an act of parliament, wiiich appointed tiiat punislnnent in those cases. See 
 State Tr. Vol. I. Ji. 4L>. 
 
 [7] Fost. 218. Vaughan's case, 5 St, Tr. 17. Salt. G31. 
 
 I
 
 HISTORIA PLACITORUM CORONiE. 144 
 
 war within this act; and by the name of levying of war it must be 
 expressed in the indictment. Co. P. C. p. 10. 
 
 And in Anderson'' s Rep. part 2 n. 2. after Trinity-term 37 Eliz.{x) 
 before the two chief justices, master of the rolls, baron Clerk and 
 Efvens, the case was, that divers apprentices of London and South- 
 wark were committed to prison for riots, and for making proclamation 
 concerning the prices of victuals, some whereof were sentenced in the 
 star-chamber to be set in the pillory and whipt; after which divers 
 other apprentices and one Grant of Uxbridge conspire to take and 
 deliver those apprentices out of ward, to kill the mayor of London, 
 and to burn his hoiise, and to break open two houses near the Tower, 
 where there were divers weapons and arms for three hundred men, 
 and there to furnish themselves with weapons; after which divers 
 apprentices devised libels, moving others to take part with 
 them in their cLevices, and to assemble themselves at Bun- [ 145 l 
 AzV/and Tower-hill ; and accordingly divers assembled them- 
 selves at Bun-hill, and three hundred at the Tower, where they had 
 a trumpet, and one that held a cloak upon a pole in lieu of a flag, 
 and in going towards the lord mayor's house the sheriffs and sword- 
 bearer with others otfered to resist them, against whom the appren- 
 tices offered violence. 
 
 And it was agreed by the judges referees, that this was treason 
 wiihin the statute of 13 Eliz. for intending to levy war against the 
 queen; for they held, that if any do intend to levy war for any thing, 
 that the queen by her laws or justice ought or may do in government 
 as queen, that shall be intended a levying of war against the queen; 
 and it is not material, that they intended no ill to the person of the 
 queen, but if intended against the office and authority of the queen, 
 to levy war, this is within the words and intent of the statute, and 
 hereupon Grant and divers others were indicted and executed. 
 
 And eodem libro n. 49. (y) the case of Burton mentioned by my 
 lord Coke, P. C.p. 10. is reported, viz. in the county of Oxford di- 
 vers persons conspire to assemble themselves, and move others to 
 rise and pull down inclosures, and to effect it they determined to 
 go to the lord Norris's house and others, to take their arms, horses, 
 and other things, and to kill divers gentlemen, and thence to go to Lofi- 
 don, where they said many would take their parts ; and this appeared 
 by their confessions: and it was agreed, 1. That this was treason 
 within the statute of 13 Eliz. for conspiring to levy war against the 
 queen. 2. But not within the statute of 25 E. 3. because no war 
 was levied, and that statute extended not to a conspiracy to levy 
 war. 
 
 ^ota; in both these cases there was a conspiring to arm them- 
 selves as well as to assemble, which had they effected and so assem- 
 bled viore guerrino, it had been a war levied, atid by construction 
 and interpretation a war levied against the queen. 
 
 If any with weapons invasive or defensive doth hold and f 146 "l 
 defend a castle or fort against the king and his power, this is 
 
 (r) 2 And. 4. (j,) 2 And. 66. 
 
 VOL. I. — 17
 
 146 HISTORIA PLACITORUM CORONA. 
 
 a levying of war against the king within this act. Co. P. C. p. 10. 
 Vide the statute 13 Eliz. cup. 1 <§• dicta ibid postea. 
 
 There is a great difference hetween an insurrection upon the ac- 
 count of a civil interest and a levying of war.[S] 
 
 ,/^. recovers possession against B. of a house, &c. in a real action, 
 or in an ejectione Jirrnx, and a writ of seisin or possession goes to 
 the sheriff, B. holds his house against the slierilf with force, and as- 
 sembles persons with weapons for that purpose, who keep the house 
 with a strong hand against the sheriff, tho assisted with the pofise 
 coniitatus: this is no treason either in B. or his accomj)lices, but only 
 a great riot and misdemeanor; the like is to be said touching a man 
 that keeps possession against a restitution upon an indictment of for- 
 cible entry. 
 
 But if B. either fortifies his own house or the house of 
 
 r *142 1 another with weapons defensive or invasive purposely to 
 
 make head against the king and to secure himself against 
 
 the king's regal army or forces, then that is a levying of war against 
 
 the king. 
 
 But the bare detaining of the king's castles or ships seems no levy- 
 ing of war within this statute: vide infra 13 Eliz. cap. 1 <§- dicta 
 ^■6^V/e7n.[9] 
 
 If the king's lieutenant in a time of hostility or rebellion within the 
 realm be assaulted upon their march or in their quarters as enemies, 
 this is a levying of war; but if upon some sudden falling out or in- 
 jury done by the soldiers, the countrymen rise upon them and drive 
 them out, this may be a great riot, and if any be killed by the assail- 
 ants it is felony in them ; but this seems not a levying of war against 
 the king, unless there be some traitorous design under the cover of 
 it : and clans. 26 E. 3. mx. 24. it appears, that an open resistance of 
 the justices of oyer and terminer in the county of Surrey, viz. re- 
 sistendo justiciariis, & ipsos justiciarios, quo minus contenta in coni- 
 missione nostra eis inde facta exequi & facere potuerunt, impediendo, 
 was felony, and the offenders were executed for the same as felons. 
 
 I shall conclude this matter with a consultation of the 
 
 [ *143 ] judges, where I was present. All the judges except J. 
 
 Windham and J. Atkins were assembled by my lord 
 
 keeper, September 1675. to consider of this case, as it was stated in 
 
 writing by the attorney general in manner following: 
 
 " A great number of the weavers in and about London being 
 offended at the engine-looms (which are instruments, that have been 
 used above these sixty years,) because thereby one man can do as much 
 in a day, as near twenty men without them, and by consequence can 
 afford his ribbands at a much cheaper rate, after attempts in parlia- 
 ment and elsewhere to suppress them did agree among themselves 
 to .rise and go from house to house to take and destroy the engine- 
 
 [8] Crirryinjj off or destroyiiifj tiic kinfr's stores, provided for the defence of the king'- 
 dom, if done in eonjunclioii witit, or in aid of rebels or enemies, will he treason; but 
 Scots, ifdorie only lor lucre, or some jtrivatc malicious motive. 1 East., V. C. 66. 
 
 ['.)] '-That case is denied," per Mnrshall, C. J. 2 Burr's Trial, 224. It is denied by 
 East, 1'. C. 1 vol. 68. Sec also Fast, 2VJ.
 
 HISTORIA PLACITORUM CORONA. ^143 
 
 looms; in pursuance of which they did on the 9th, 10th, and 11th of 
 this instant v^up;ust assemhle themselves in great numbers at some 
 places to an Imndred, at others to four hundred, and at others, 
 particularly at St nil ford- Bow to about fifteen hundred. 
 
 *' Thev did in a most violent manner break open the houses of 
 many of the king's subjects, in which such engine-looms were, or 
 were by them suspected to be, they took away the engines, and 
 making great fires burnt the same, and not only the looms, but in 
 many places the ribbands made thereby, and several other goods of 
 the persons whose houses they broke open; this they did not in one 
 place only, but in several places and counties, viz. Middlesex, London, 
 Essex, Kent, and Sitrrei/, in the last of which, viz. at Southwark 
 tliey stormed the house of one Thomas Byhhy, and tho they were 
 resisted and one of them killed and another wounded, yet at last they 
 forced their way in, took away his looms and burnt them ; the value 
 of the damage they did, is computed to several thousand pounds. 
 
 <' This they did after several proclamations made and command 
 given by the justices of peace and the sheriffs of Middlesex to de- 
 part, but instead of obeying they resisted and affronted 
 the magistrates and officers: It is true they had no war- [*144] 
 like arms, but that was supplied by their number, and they 
 had such weapons, as such a rabble could get, as staves, clubs, 
 sledges, hammers, and other such instruments to force open doors. 
 
 "There was this further evil attending this insurrection, that the 
 soldiers and officers of the militia were so far from doing their duty 
 in suppressing them, that some, tho in arms and drawn up in com- 
 panies, stood still looking on while their neighbours houses were 
 broken open and their goods destroyed, others incouraged them, and 
 others, to whose custody some of the oflenders, who were taken, 
 were committed, suffered them to escape, so that during all the time 
 of the tumult little or nothing was done to suppress them, until the 
 lords of the council were constrained at a time extraordinary to 
 assemble, by whose directions and orders as well to the civil magis- 
 trates, as to the king's guards, they were at last quieted." 
 
 Five of the judges seemed to be of opinion that this was treason 
 witliin the act of 25 E. 3. upon the clause of levying war against 
 the king, or at least upon the clause of the statute of 13 Car. 2. 
 cap. l.[10.] 
 
 1. In respect of the manner of their assembling, who, tho they 
 had no weapons or ensigns of war, yet their multitudes supplied that 
 defect, being able to do that by their multitudes, which a lesser num- 
 ber of armed men might scarce be able to effect by their weapons; 
 and besides, they had staves, and clubs, and some hammers or 
 sledges to break open houses, and accordingly they acted by break- 
 ing open doors and burning the engine-looms and many of the wares 
 made by them. 
 
 2, In respect of the design itself, which was to burn and destroy 
 
 [10] Fost. 210.
 
 *144 HISTORIA PLACITORUM CORONA. 
 
 not the single engine-looms of this or that particniar person, but 
 engine-looms in general, and that not in one county only, 
 
 [[*1453 hut in sev^eral comities, and so agreeable to Burton's 
 case. 
 The other five jndges were not satisfied, that this was treason 
 
 within the clause of 25 E. 3. against levying of war, nor within the 
 
 statute of 13 Car. 2. for conspiring to levy war. 
 
 1. It was agreed, thai if men assemble together and consult to 
 raise a force inmiediately or directly against the king's persoji, or to 
 restrain or depose him, whether the number of the persons were 
 more or less, or whether armed or unarmed, tho this were not a trea- 
 son within this clause of the statute of 25 E. 3. yet it was treason 
 within the first clause of compassing the king's death, and an overt- 
 act sufficient to make good such an indictment, tho no war was ac- 
 tually levied; and with this accord the resolutions before cited, 
 especiahy that of the insurrection in the north at Farley wood;(*) 
 but no such conspiracy or compassing appears in this case, and so 
 that is not now in question, but we are only upon a point of con- 
 structive or interpretative levying of war. 
 
 2. Here is nothing in this case of any conspiring to do any thing, 
 but what they really and fully effected; they agreed to rise in multi- 
 tudes to burn the looms, and accordingly they did it, but nothing of 
 conspiring against the safety of the king's person, or to arm them- 
 selves; therefore if what they did were not a levying of war against 
 the king within the statute of 25 E. 3. here appears no conspiring 
 to levy such war within the statute of 13 Car. 2. cap. 1. for, for 
 what appears, all was done, which they conspired to do. 
 
 3. It seemed very doubtful to them, whether in the manner of this 
 assembling it was any levying of war, or whether it were more than 
 
 a riot, for in all indictments of this kind for levying af war 
 r*146l it is laid, that they were more guerrino arraiati, and upon 
 
 the evidence, that they were assembled in a posture of war 
 nrmis offensivis <5' de/ensivis, and sometimes particular circum- 
 stances also proved or found, as banners, trumpets, drums, &c. and 
 where they were indicted for conspiring only to levy war, yet there 
 was this circumstance accompanied it, viz. a confederacy to get arms 
 and arm themselves, as in GranVs case, and Burlon^s case. 
 
 4. It seemed very doubtful to them, whether this design to burn 
 engine-looms were such a design, as would make it a levying of wax 
 against the king,*[ll] for it was not like the designs of altering 
 
 (*) Vide supra p. 120. 
 
 * By 12 Geo. 1. cap. '.H. "If any person shall wilfully break any tools used in the 
 •wodlleii manufacture, not having- the consent of the owner, or shall break or enter by 
 force into any liousc or shop by night or by day for such purpose, he shall be adjudged 
 guilty of felony without benefit of clergy. 
 
 [11] By the 7^8 Geo. 4. c. 30. «. 3. it is made felony, punishable with transportation 
 tfr ini[>risonment, to damage or destroy any silk, woolen, linen, or cotton goods, being in 
 the loom or frame, &c. or to destroy or damage any loom, frame, machine, &c. or to 
 enter by forCe into any house, shop, building, &c. with intent to commit any of the said 
 ofFencoH. R. V. Tacey, R. Sf R. C. C. 452. R. v. Hill, id. 483. R. v. Ashton, 2 B. ^ 
 Ad. 750.
 
 niSTORIA PLACITORUM CORONA. *146 
 
 relision, laws, pulling down inclosures generally, as in Biirton^s 
 case, nor to destroy any trade, but only a particular quarrel and 
 grievance between men of the same trade against a particular engine, 
 that they thought a grievance to them, which, tho it was an enor- 
 mous riot, yet it would be difficult to make it treason. Vide statutes 
 S H. 6. cap. 27. 9 H. 6. cnp. 5.(t) 
 
 Many of them therefore concluded, that if Mr. Attorney should 
 think fit to proceed as for a treason, the matter might be specially 
 found and so left to farther advice, or rather that according to the 
 clause of the statute of 25 E. 3. the declarative judgment of the king 
 and both houses of parliament might be had, because it was a new 
 case and materially differed from other cases of like nature formerly 
 resolved. 
 
 Upon the conclusion of this debate we all departed, and Mr. Attor- 
 ney upon consideration of the whole matter, it seems, thought fit to 
 pi-oceed for a riot, and caused many of them to be indicted for riots, 
 for which they were convicted and had great fines set upon them, 
 and were committed in execution and adjudged to stand upon the 
 pillory. 
 
 Touching the laws of treason in Ireland, by the statute of [ 147 j 
 IS H. 6. cap. 3. levying horse or foot upon the king's sub- 
 jects against their will shall be treason ; this they call cessing of sol- 
 diers upon men, and hath been often done by the lieutenants or 
 deputies of Ireland by consent of the council in some cases. 
 
 Among many cumulative treasons charged upon the late earl of 
 Strafford the king's deputy in Ireland, this one thing of cessing of 
 soldiers upon the king's subjects in Ireland was the chief particular 
 treason charged upon him. 
 
 It was insisted upon for the earl's defence, that by the statute of 
 10 H. 7. in Ireland, cap. 22. called Foyninsi's law, all the statutes of 
 England are at once enacted to be observed in Ireland; and there- 
 fore the statute of 25 E. 3. declaring treasons, and the statute of 1 H. 
 4. cap. 10. enacting, that nothing shall be treason but what was with- 
 in that statute, the treasons enacted in Ireland in the time of H. 6. 
 and afterwards before 10 H. 7. were repealed, and consequently this 
 statute of 18 H. 6. cap. 3. 
 
 But that seems not to be so, for the general introduction of the 
 statutes of England being an affirmative law could not be intended 
 to take away those particular statutes, that were made in Ireland for 
 the declaring of treason, as this and that also of the same year, cap. 2. 
 for taking Comericke.{z) 
 
 But surely this was no levying of war within this statute, (a) either 
 in respect -of the matter itself or of the person that did it, he being 
 
 (+) Concerning the riots committed by the Welsh upon the dragmen of Severn, vide 
 infra, p. 151. 
 
 (z) That is, for taking thieves, robbers, or rebels into safe guard. 
 
 (a) Tho this were not levying of war, yet being cessing of soldiers upon the subject, 
 it was treason within the express words of that statute; nor does our author assign any 
 reason, why an act of lord deputy and council is not within tlie penally of thut law. See 
 Camd.Eliz.p.2ld.
 
 147 HISTORTA PLACITORUM CORONJE. 
 
 the king's lieutenant, neither could an act by the lord deputy and 
 council of this nature be construed to be within the penalty of this 
 act, if it were in force ; yet for this and other cumulative treasons he 
 was attainted by act of parliament, but that attainder was very justly 
 repealed by the statute of 14 Car. 2. 
 
 Now I shall draw out some observations and conclusions 
 [ 148 ] from the precedents and instances before given touching this 
 ■' . obscure clause of levying war against the king. 
 
 1. A conspiracy or confederacy to levy war against the king is not 
 a levying of war within this clause of the statute of 25 E. 3. for this 
 clause requires a war actually levied. Co. 1\ C. p. 10. 
 
 And this appears j^/-^/ by those temporary laws, that were made to 
 continue during the king's or queen's life, which made conspiring to 
 levy war with an overt act evidencing such conspiracy to be treason, 
 as the statutes of I S,- 2 Ph. 8,^ M. cap. 10. 13 Eliz. cap. 1. and 13 
 Car. 2. cap. 1. and secondly by the resolution of the judges in the 
 case oi Burton 39 Eliz. cited by my lord Coke, P. C.p. 9, 10.[12] 
 
 2. That yet such a conspiracy or compassing to levy war against 
 the king directly or against his forces, and meeting and consulting for 
 the eflecting of it, whether the number of the conspirators be more 
 or less, or disguised under any other pretence whatsoever, as of re- 
 formation of abuses, casting down inclosures particular or generally, 
 nay of wrestling, football-playing, cock-fighting; yet if it can appear, 
 that they consulted or resolved to raise a power immediately against 
 the king, or the liberty or safety of his person, this congregating of 
 people for this intent, tho no war be actually levied, is an overt-act 
 to maintain an indictment, for compassing the king's death within 
 the first clause of the statute of 25 E. 3. for it is a kind of natural or 
 necessary consequence, that he, that attempts to subdue and conquer 
 the king, cannot intend less than the taking away his life; and indeed 
 it hath been always the miserable consequence of such a conquest, 
 as is witnessed by the miserable tragedies of E. 2. and B. 2. and this 
 was the case of Oldcastle and Essex. 
 
 3. That yet conspiring to levy war, {viz. to do such an act, which 
 if it were accomplished and attained its end would be an actual levy- 
 ing of war) and being accompanied with an overt-act evidencing it, 
 (tho it be not treason within this clause of the act of 25 E. 3.) yet 
 
 was treason during the queen's life by the statute of 13 
 [ 149 ] Eliz. cap. 1. and is treason at this day by the statute of 13 
 Car. 2. cap. 1. during the life of our now sovereign. 
 But then the overt-act (be it speaking, writing, or acting) required 
 by these statutes to evidence the same must be specially laid in the 
 ilidictment, and proved upon the evidence : thus in Grant's case and 
 JJnrlon's case the conspiring to fetch arms at the houses therein 
 mentioned Was an overt-act proving this conspiracy to levy war. 
 
 4. That a levying of war with all the circumstances imaginable io 
 
 [12] And the Act of 3G Geo. 3. c. 7. whicli was to continue in force during the king's 
 life.
 
 niSTORIA PLACITORUM CORONA. 149 
 
 eive it that denotinnation, as cum vexiUis explicating cum mnliitu^ 
 dine i^enlium armatarum &," modo guerrino arraiaC, yet if it be 
 upon a mere private quarrel between private, tho great persons, or 
 to throw down the inclosures of such a manor or park, where the 
 party tho without title claims a common, or upon dispute concerning 
 the propriety of liberties or franchises, this, tho it be in the manner 
 of it a levying of war, yet it is not a levying of war against the king, 
 ttio bloodshed or burning of houses ensue in that attempt, but is a 
 great riot, for which the oftenders ought to be fined and imprison- 
 ed ;[13] and if any be killed by the rioters in the riot, it may be 
 murder in the assailant. 
 
 This was the case of the earls of Gloucester and Hereford, anno 
 20 £. 1. tho before the statute of 25 E. 3. and the several great riots 
 above-mentioned, to which we may add Rot. Pari. 50 E. 3. n. 140, 
 164. 11 H. 4. n. 36, 57. 13 ^. 4. n. 14. IS H. 6. n. 30. 
 
 5. An actual levying of war therefore against tlie king to make a 
 treason, for which the offender may be indicted upon this clause of 
 the statute for levying of war against the king, consists of two princi- 
 pal parts or ingredients, viz. 1. It must be a levying of war. 2. It 
 must be a levying of war against the king. 
 
 6. What shall be said a levying of war is partly a question of fact, 
 for it is not every unlawful or riotous assembly of many persons to 
 do an unlawful act, tho de facto they commit the act they intend, that 
 makes a levying of war, for then every riot would be trea- 
 son, and all the acts against riotous and unlawful assem- (] 150 ~\ 
 blies, as 13 ^. 4. cap. 7. 2 H. 5. cap. 8. 8 H. 6. cap. 14. and 
 
 many more(6) had been vain and needless; but it must be such an 
 assembly as carries with it specieni belli, as if they ride or march 
 vexillis explicatis, or if they be formed into companies, or furnished 
 with military officers, or if they are armed with military weapons, 
 as swords, guns, bills, halberds, pikes, and are so circumstanced, that 
 it may be reasonably concluded they are in a posture of war, whicli 
 circumstances are so various, that it is hard to define them all par- 
 ticularly. 
 
 Only the general expression in all the indictments of this nature, 
 that I have seen, are more guerrino arraiati, and sometimes other 
 particulars added as the fact will bear, as cum vexillis explicatis, 
 cum armis defensivis 4* offensivis, cum tympanis Sf tuhis: but 
 altho it be a question of fact, whether war be levied or conspired to 
 be levied, which depends upon evidence, yet some overt-act nuist be 
 shewn in the indictment, upon which the court may judge ; and this 
 is usually modo guerrino arraiati, ov armati, ox conspirmg to get 
 arms to arm themselves. 
 
 And tlierefore in the cases of Burton and Grant before-men- 
 tioned, who were indicted and convicted upon the statute of 13 Eliz. 
 
 (6) See 3 <^ 4 Edw. VI. cap. 5. 1 Mar. cap. 12. 1 Geo. I. cap. 5. 
 [13] Post. 210. Havok. c. 17. s. 25.
 
 ]50 HISTORIA PLACITORUM CORONiE. 
 
 cap. 1. for conspiring to levy war for pulling down inclosnres, &c. 
 tiiere is not only a conspiracy to do (he thing, but also to gain arms 
 and weapons at the lord Norri&'s house, and elsewhere to arm them- 
 selves lor that attempt. 
 
 And the reason hereof seems to be, because, when an assembly of 
 people thus arm themselves, it is a plain evidence, that they mean to 
 defend themselves, and make good their attempts by a military force, 
 and to resist and subdue all power, that shall be used to suppress 
 them; and besides, the very use of weapons by such an assembly 
 without the king's licence, unless in some lawful and special cases, 
 carries a terror with it, and a presumption of warlike force^ and 
 therefore under a distinct and special restraint by the sta- 
 [ 151 ] tute of Wtstminst. 2.(c) and the statute(fi^) of 7 E. 1. de 
 defensione portandi arma. 
 
 7. Whether the bare assembling of an enormous multitude for 
 doing of these unlawful acts without any weapons, or being tnore 
 giierrino arraiati, especially in case of interpretative or construc- 
 tive levying of war, be a sufficient overt-act to make a levying of 
 war within this act, especially if they commit some of these acts 
 themselves, is very considerable and seems to me doubtful. 1. Be- 
 cause I have not known any such case ruled. 2. Because the acts 
 of 3 & 4 Ed. 6. cap. 5. and 1 Mar. cap. 12. (which must be intended 
 of such unarmed assemblies) makes it in some cases felony, in some 
 cases only misdemeanor. 3, Because it is very difficult to determine 
 what that number must be, that must make treason, and less than 
 which must be only a riot ; this therefore should be well considered, 
 and the direction of the statute of 25 E. 3. to expect the declaration 
 of parliament in like cases is a safe direct-ion, and so much the 
 rather, because the statutes of E. 6. and queen Mary seem to look 
 the other way,(f') to which may be added the great riots committed 
 by the foresters and Welsh upon the dragmen of Severn, hewing all 
 their boats to pieces, and drowning the bargemen in a warlike pos- 
 ture. Rot. Pari. 8 H. 6. n. 30, 45. 9 H. 6. n. 37. upon which the 
 statute of 9 H. 6. cap. 5. was made : I forbear therefore any opinion 
 herein. 
 
 S. But whether the assembly were greater or less, or armed or 
 not armed, yet if the design were directly against the king, as to do 
 him bodily harm, to imprison, to restrain him, or to offer any force 
 or violence to him, it will be treason within the first clause of com- 
 passing the king's death, and this assembling and consulting or 
 practising together to this purpose, tho of but two or three, will be 
 an overt-act to prove it; therefore all the question will be 
 [ 152 3 only touching interpretative or constructive levying of war, 
 whereof hereafter. 
 
 (c) I don't find any tliinp to tliis purpose in tlic statute of Westminst. 2. so suppose 
 the btiitutc here meant is llic statute of Nortliamplun 2 E. 3. caj). 3. wliercby it is pro- 
 hiliitcd that any one briiiQ; forrc in aflVay of the people, or go armed by night or by day. 
 See Co. J'. C. p. 158 Sf ] t;(). F. N. li. p. 552. 
 
 (d) Or rallier jjroelumalion ; see the beginnihg of this chapter, 
 (c) As docs also 1 Geo. I. cap. 5.
 
 HISTORIA PLACITORUM CORONiE. 152 
 
 9. If there be war levied as is above declared, viz. an assembly 
 more !^uerri?io arrciiati, and so in the posture of war for any trea- 
 sonable attempt ; this is helium levatiim, tho not helium percussurn : 
 and thus far touching the levying of war, as in relation to the man- 
 ner of it. 
 
 10. But besides the circumstances requisite to denominate a levy- 
 ing of war in respect to the manner of it, there is also requisite to 
 make a treason witliin this clause, that it be a levying of war against 
 the king, which is the scope, end and termination thereof, for, as 
 hath been said, there may be a levying of war between private per- 
 sons upon private quarrels, which is not a levying of war against 
 the king, and so not treason within this clause of this act. 
 
 11. A levying of war against the king therefore is of two kinds, 
 either expressly and directly, or by way of interpretation, construc- 
 tion or exposition of this act : the former is, when a war is levied 
 against the person of the king, or against his general, or army by 
 him appointed, or to do the king any bodily harm, or to imprison 
 him, or to restrain him of his liberty, or to get him into their power, 
 or to enforce him to put away his ministers, or to depose him; many 
 instances of this kind may be given, such as was in truth the riding 
 of the earl of Essex into London armed with swords and pistols, 
 his solliciting of the citizens to go with him to court to remove from 
 the queen her ministers and counsellors, his fortifying of his house 
 against the queen's officers, which were in truth a levying of war, 
 tho his indictment was upon the first clause of compassing the queen's 
 death, which was more clearly included within these actions. 
 
 12. Constructive or interpretative levying of war is not so much 
 against the king's person, as against his government: if men as- 
 semble together 97iore guet-rino to kill one of his majesty's privy 
 council, this hath been ruled to be levying of war against the king. 
 P. 16 Car. 1. Cro. 583. Betisted's case before cited, and accord- 
 ingly was the resolution of the house of lords 17 B. 2. Talbot's case 
 above-mentioned. 
 
 So in the case mentioned by my lord Coke in the time of 
 H. 8. Co. P. C. p. 10. levying war against the statute of riSS"] 
 L(ibotirers[l4'\ and to itihance servants wages was a levy- 
 ing of war against the king; and altho levying of war to demolish 
 some pari icular inclosures is not a levying of war against the king, 
 Co. P. C.p. 9. yet if it be to alter religion established by law, or to 
 go from town to town generally to cast down inclosures, or to (\e- 
 liver generally out of prison persons lawfully imprisoned, this hath 
 been held to be levying of war against the king within this act, and 
 the conspiring to levy war for tliose purposes treason within that 
 clause of the act of 13 Eliz. cap. 1. as was resolved in Barton's 
 case and Grant's case above-mentioned ; and the like resolution 
 
 [14] Hatch, c. 17. s. 25. Fosf. 211. Lord Georfie Gordon's case, 21. CobhetCs St. Tr. 
 485. Douirl. 590. 4 lil. Com. bl. 
 
 VOL. I. — IS
 
 153 HISTORIA PLACITORUM CORONA. 
 
 was in the case of the apprentices that assembled more guerrino to 
 pull down bawdy-houses. 
 
 It is considerable how these resolutions stand with the judgment 
 of parliament in 3 & 4 Ed. G. cap. 12. which makes special provi- 
 sions to make assemblies above twelve to alter the laws and statutes 
 of tlie kingdom, or the religion established by law, or if above forty- 
 assemble for pulling down inclosures, burning of houses, or stacks of 
 corn, treason, if they departed not to their homes witliin an hour 
 after proclamation, or after proclamation put any of these designs in 
 practice, which is nevertheless reduced to felony within clergy by the 
 statute of 1 Mar. sess. 2. cap. 12. Th^se oifenses being the same 
 with those adjudged treason in Burfon's case and some others be- 
 fore cited, why was it thought necessary for an act of parliament 3 
 S,' 4 Ed. 6. to make it treason under certain qualifications, and why 
 reduced to felony within clergy by the statute of 1 Mar. cap. 12. and 
 the statute of 3 ^ 4 ^. 6. repealed? It seems that altho the unlaw- 
 ful ends of these assemblies thus punished by 3 4' 4 Ed. 6. and 1 
 3'Iar. were much the same with those of Burlon and Grant and 
 others, that were adjudged treason, yet the difterence between the 
 cases stood not in that, but in the manner of their assembly; those 
 that w-ere adjudged treasons in Burton's and Grant's case were, 
 because it was a conspiracy to arm themselves and levy a war more 
 guerrino. 
 
 But those, that were thus heightened to treason by 3 8; A 
 r 154 ] E. 6. and reduced to felony by 1 Mar. were not intended of 
 such, as were more giiei'inno arraiati, dov a levying of war, 
 tho their multitudes were often great, and tho they they did put in 
 lire the things they conspired to effect, and so were but great riots 
 and not levying war within this clause of 25 E. 3. and therefore 
 those acts inflicted a new and farther punishment on them. 
 
 III. Efi son realme : hitherto it hath been said what is a levying 
 of war ; we are now to consider the place. En son realme. 
 
 The realm of England comprehends the narrow seas, and there- 
 fore if a war be levied upon those seas, as if any of the king's sub- 
 jects hostily invade any of the king's ships, (which are so many 
 royal castles) this is a levying of war within his realm, for the nar- 
 row seas are of the ligeance of the crown of England : vide Seldeni 
 Mare clansum. 
 
 And this may be tried in the county next adjacent to the coast by 
 an indictment taken by the jurors for that county before special com- 
 missioners o{ oyer and terminer, de quo vide infra, ^\\& in tlie chap- 
 ter of piracy : vide 5 R. 2. Trial 54. 
 
 It is true, before the statute of 28 H. 8. cap. 15. those treasons 
 were usually inijuircd and tried by special connihssion, wherein the 
 admiral and his lieutenant were named, as likewise other felonies 
 conmiitted upon the sea. 
 
 lint divers instances were in the time of E. 3. whereby such 
 oflenses upon the sea were punished as treason or felony in the king's 
 bench. 40 ^Iss. 25. A Norman captain of a ship robs the king's
 
 HISTORIA PLACITORUM CORONiE. 154 
 
 subjects upon the sea, he being taken was hanged as a felon, but the 
 English that assisted him were drawn and hanged as traitors ; and 
 by the statute of 2S H. 8. cap. 15. there is a direction of a special 
 commission to try them in such counties or places as shall be assign- 
 ed by such commission according to the method of trials of such 
 offenses at the common law, but before that statute they might be 
 tried by special commission at the common law, and according to 
 the course of the common law ; but of this alibi in tractatu de 
 ^dmiruUtale. 
 
 For treasons and other capital offenses in Scotland there 
 is a provision made by the statute of 4 Jac. cap. 1 and 7 Jac. [ 155 ]] 
 cap. 1. 
 
 Ireland, tho part of the dominions of the crown of England, yet 
 is no part of the realm of England, nor infra quatuor mar la, as 
 hath been ruled temp. E. 1. Morrice Howard'' s case : the like is to 
 be said for Scotland even while it was under the power of the crown 
 of England, as it was in sometimes of E. 1. and some part of the 
 time of E. 3. S Rich. 2. Continual claim 13. 
 
 For Ireland hath the same laws for treason that England, tho it 
 hath some more ; yet for a levying war, or other treason in Ireland 
 the offender may be tried here in England by the statute of 35 H. Q. 
 cap. 2. for treasons done out of the realm, as was resolved in the 
 case of 0-Rork, H. 33. Eliz.{*) and after that in Sir John Perrot's 
 case,(/) Co. P. C.p. 11. 7 Co. Rep. Calvin's case, 23. a. 
 
 In the case of the lord Macguire{g) an Irish peer, who was in- 
 dicted in Middlesex for high treason for levying war again the king 
 in Ireland, he pleaded to the indictment, that he was one of the peers 
 and lords of parliament in Ireland, and demanded judgment, if he 
 should be arraigned in England for a treason committed in Ireland, 
 whereby he should lose the benefit of trial by his peers; but it was 
 resolved, 1. That for a treason in Ireland a man may be tried here 
 in England by the statute of 35 H. 8. for it is a treason committed 
 out of the realm. 2. That altho Macguire, if tried in Ireland for 
 his treason, should have had his trial by his peers, as one of the 
 lords in parliament, which he cannot have here, but must be tried 
 by a common jury, yet that altered not the case; he was therefore 
 put upon his trial by a Middlesex jury, and was convicted and 
 had judgment, and was executed. H. 20 Car. 1. B. R. so that 
 the opinion 20 Eliz. Dy. 360. b. was ruled no law : vide Co. 
 Lift. 261. 
 
 And the same that is said of Ireland may be said in all 
 particulars of the isle o{ Man, Jersey, Guernsey, Surk, and [ 156 ] 
 ^Ilderney, which are parcel of the dominions of the crown 
 of England, but not within the realm of England as to this purpose 
 concerning treason ; yet they have special laws of their own appli- 
 cable to criminals and jurisdiction for their trials : as touching treason 
 conmiitted in fVales before the statute of 26 H. S. cap. 6. no treason, 
 
 ( * ) Camd. Eliz. p. 458. 
 
 (/) See his trial in Stale Tr. Vol. I. p. 181. (£•) State Tr. Vol. I. p. 928.
 
 156 HISTORIA PLACITORUM CORONA. 
 
 murder, or felony committed in fFa/es was inquirable or triable be- 
 fore commissioners of o?/er and teinniner, or in the king's bench in 
 England, but before justices or commissioners assigned by the king 
 in those counties of Wales where the fact was committed. P. 2 H. 4. 
 Rot. 18. Salop'': ^'■Johannes Kynaston indictatus fuit quod ipse con- 
 sentiens fuit ad falsam & proditiosam insurrectionem Oweyn Glyn- 
 dour & aliorum fVallicoriirn, & sciens de toto proposito eorundem, 
 qui proditiose combussernnt villas de Glyndour Dyiiby, &c. & quod, 
 proditiose misit Johannem iilium sunm bene armatum & arraiatum 
 pro guerra & IVillielmum Hunte sagittarium ad prsedictum Oweyn 
 & exercitum JVallicorum, &c. dicit quod prsedictaB villse, in quibus 
 supponitur proditiones pra3dictas factas fuisse, sunt infra terrani 
 fValllae & extra corpus com' Salop' & legem terras Ans^lisa, unde non 
 intendit quod dominus rex de proditionibus prgedictis in hoc casu 
 ipsum impetire velit, sen ipsum ponere velit inde responsurum, & 
 quia plenarie & certitudinaliter testificatum est, quod proedictge villiB 
 sunt infra terram Wallix & extra corpus comitates Salop' & legem 
 terra3 Angliae, & Thomas Covele attornatus ipsius regis coram ipso 
 rege inde examinatus hoc non dedicit, & sic justiciarii ad inquiren- 
 dum de proditionibus prsedictis infra IValliam factis virtute com- 
 missionis pra3dictse inquirere minime potuerunt nee proditiones prae- 
 dicias sic in terra /^Fa/Z/c-e fact a3 per legem terrse ./^//^//a? triari nee 
 terminari possunt, consideratum est, quod quoad prasdictas pro- 
 ditiones praidictus Johannes Kynaston eat inde quietus, &c." But 
 it is true by the statute of 26 H. 8. cap. 6. counterfeiting of coin, 
 washing,clipping or minishing of the same, felonies, murders, wilful 
 burnings of houses, manslaugliters, robberies, burglaries, rapes, and 
 accessaries of the same and other oifenses feloniously done 
 \_ 157 ] iu Wales,{h) or any lordship marcher may be inquired of, 
 heard and determined before the justices of gaol-delivery 
 and of the peace and every of them in the next adjacent county : this 
 act is confirmed by the great statute of Wales 34 & 35 H. 8. cap. 2-6. 
 which settles the grand sessions and justices thereof, and gives the jus- 
 tices of the grand sessions power to hold all manner of pleas of the 
 crown, and to hear and determine all treasons, felonies, &c. within 
 the precinct of their commissions, as fully as the court of king's bench 
 may do in their places within the realm of England; so that as to 
 those offenses enumerated in the statute of 26 //. 8. the justices of 
 gaol-delivery in the adjacent counties, viz Gloucester, Hereford, Salop 
 and Wigorn, had thereby a concurrent jurisdiction with the justices 
 of the grand session. (/) 
 
 But whether the statute of 26 //. S. extended to treason for com- 
 passing the king's death or levying of war,(/L') or whether the same 
 
 (/() For this act extends to all the anticnt counties of Wales, as well as the lordships 
 marchers; and so it was resolved in Althoc's case for a murder in Pembrokeshire. T. 9 
 Geo. I. B. R. 
 
 (i) 1 Mod. G4, 68. 
 
 {k) It should seem that it did not, and that was one reason of making the statute of 
 32 H. cap. 4. whcrehy all treasons or misprisons of treasons cominitted in Wales may 
 be presented and tried in such shires and hefore such commissioners as the king shall 
 appoint, in like manner as if the facts had been committed in such sliires.
 
 HISTORIA PLACITORUM CORONiE. 157 
 
 remained only triable by the justices of the grand sessions, seems 
 doubtful, and the rather, because that statute is not construed by 
 equity, and therefore it extends not to an appeal of murder in an ad- 
 jacent county, and so it was adjudged Hil. 7 Cur. B. R. Senllrj and 
 Price;{l) but at this day 26 H. S. cup. 6. stands repealed by 1 & 2 
 Ph. & M. cup. 10. as to the trials of treason. (m) 
 
 It is true, that in other criminal causes, that are not capital, as in 
 cases of indictments of riots, they may he removed by certioruri into 
 the king's bench, and when issue is joined they may be tried in the 
 next Eii'j^lish county, T. 16 Juc. Sir John Cureid's case(/i) and 
 divers others, as well as in a q\w minus, whicii is at tlie 
 king's suit : but whether a certioruri lies into Wales upon an f 158 1 
 indictment of treason or felony hath been doubted M. 9 
 Car. B. R. Chedley^s case:(o) it seems a certiorari may issue for a 
 special purpiose, as to quash the indictment for insufficiency or to 
 plead his pardon, but not as to trial of the fact,(/7) hut it shall be 
 Sent down by mittimus according to the statute of 6 H. 8 cap. 6. be- 
 cause it is in a manner essential for felony or treason to be tried in 
 the proper county, unless where a statute particularly enables it, 
 which it did in the case of 26 H. 8. only whilst it was in force, where 
 the indictment as well as the trial is in the adjacent county. 
 
 But certainly IVules is within the kingdom of England,{cj) and 
 therefore not within the statute of 35 H. 8. cap. 2. for trial of foreign 
 treasons. 
 
 If a felony or treason be committed in Durham, a certiorari lies 
 to remove it into the king's bench out of Durham directed to the 
 justices of peace, ojiyer and terminer, or gaol-delivery there; for since 
 the statute of 27 H. 8. cap. 24. they are all made by the king's com- 
 mission, and so the proceedings before them are his own suit, and 
 thus it was done in Ruttabie^s case(r) upon debate; but if the party 
 plead not guilty it shall be sent down thither to be tried, as was done 
 in that case. T. 1653. They o{ Durhum claim a privilege not to be 
 sworn out of the precinct of the county palatine. Vide the statute 
 of 2 H. 5. cap. 5. 9 //. 5. cap. 7. \\ H. 7. cap. 9. for treasons and 
 felonies in Tinda I and Hexamshire.il 5] 
 
 (') Cro. Car. 247. W. Jones 255. 
 
 ('") The I & 2 Ph. Sf M. reducing all trials for treason to the order and course of the 
 common law is a virtual repeal of 26 H. 8. and by the same reason of 32 H. 8. also as to 
 treason. 
 
 in) Cro. Jac. 484. 2 Rol. 28. 1 Rol. Abr. 394. 
 
 (0) Crp. Car. 331. 
 
 (p) But yet it has been done in felony as to the trial of the fact, as in the case of Morris 
 1 Ven. 93, 146. Herbert's case, Latch. 12. 
 
 (7) 2 Rol. 28. (r) Vide infra, p. 467. and Part U.p. 212. 
 
 [15] As to the place at which the accused is to be tried, the Constitution of tlie United 
 Stales, (Art. 3. Sect. 2, c. 3.) provides that the trial sliiill be held in the Slate where the 
 crime shall have been commilled; but, when not committed within any State, the trial 
 shall be at such place or places as Congress may by law have directed. By sect. 2'Jth 
 of the .\ct ofCongrcss of24<A Sept. 1789. Scss. 1. ch. 20. in cases punishable with death, 
 the trial shall be held ia the county where tlie ofFonce was committed, or when that can-
 
 158 HISTORIA PLACITORUM CORONA. 
 
 And thus far concerning treason in levying of war against the 
 king.[l6] 
 
 lict be done without gjreat inconvenience, twelve petit jurors at least shall be summoned 
 from tlicnce. By the 8th. sect. oftlieAct of 30/A April, 1790, if any person shall commit 
 upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any 
 particular State, any offence which if committed within the body of a county, would by 
 the laws of the Uniled States be punishable with death, &,c., the trial shall be in the dis- 
 trict where the offender is apprehended, or into which he may be first brought. See Ex 
 parte Bvllman v.Swartwout, 4 Cranch. 136. Serg, on Cons. 246. 
 
 There seems to have been no regular mode at common law for the trial of treasons 
 conmiilted out of the realm. It is said that if the court remove into a different county 
 from that wherein the indictment was found, the trial must still be by jurors returned 
 from the first county, agreeable to the rules of the common law. 1 East. P. C. 103. 
 
 [16] Levying of war, under the statute of Edw. 3. is either direct, or constructive. 
 Direct, when it is levied against the person of the king ; to dethrone, or imprison him, 
 or to get possession of his person, or to oblige him to alter his measures of government, 
 or to remove evil counsellors, &.C., and this, whether attended with the pomp and cir- 
 cumstance of open war or no. And every conspiracy to levy war for these purposes, 
 though not treason within the clause of levying war, is yet an overt act within the other 
 clause of compassing the king's death. Fost. 210. Ante, 131. Hawk. c. 17. s. 23. Arch. 
 C. P. 463. 1 East, P. C. 66. In case of war levied directly against the king, all per- 
 sons assembled and marching with the rebels are guilty of treason, whether they are 
 aware of the purpose of the assembly, or aid and assist in committing acts of violence 
 or not. R. v. The Earls of Essex and Southampton, Moor, 621 ; unless compelled to. 
 join and continue with them pro tiinore vwrlis. Ante, 139. 3 Ins. 10. Fost. 13. 216. 
 But in the case of a constructive levying of war, those only of the rabble whj actually 
 aid and assist in doing those acts of violence which form the constructive treason are 
 traitors ; the rest are merely rioters. See R. v. Messen<rer et al, Kel, 70. 79. 1 Sid. 338. 
 2 St. Tr. 585. 594. R. v. Green Sf Beddell, O. B. 20 Car. 2. 
 
 Constructive levying of war is levelled, not against the king's person, but against his 
 royal majesty, or government. Ante, 152. Fost. 211. 1 East P. C. 72. This is when 
 an insurrection is raised to reform some national grievance, to alter the established law, 
 or religion, to punish magistrates, to introduce innovations of a public concern, to ob- 
 struct the execution of some general law by an armed force, or for any other purpose 
 which usurps the government in matters of a public and general nature; also, assem- 
 bling together for the purpose of destroying all meeting houses, all bawdy houses, all 
 enclosures, &lc., or to reduce by force the general price of victuals, to enhance the com- 
 mon rate of wages, to expel all foreigners, to release all prisoners, or to reform by num- 
 bers or an armed force any real or imaginary grievance of a public and general nature, 
 in which the insurgents have no peculiar interest. 1 East, P. C. 73. But a rising for 
 tlie purpose of throwing down the enclosures of a particular manor, park, common, &,c., 
 or to remove a local nuisance, to release a particular prisoner, unless imprisoned for 
 treason, or even to oppose the execution of an act of parliament, if it only affect the 
 district of tlic insurgents, as in the case of a turnpike act, is not treason ; nor is a pri- 
 vate quarrel between subject and subject, though they meet in battle array. 1 East, 
 P. C. 76. FoH. 219. 4 Bl. Com. 81. 
 
 The term, levying war, is a technical term, borrowed from the English law, by the 
 framers of the Constitution of the United States, and has the same meaning as when 
 used in the statute 25 Edw. 3. which is to be collected, as well from adjudged cases, as 
 from the writings of approved elementary authors. 2 Burr's Tr. 402. Tr. of Fries, 167. 
 Any insurrection or rising of any body of the people within the United States to attain 
 or effect, by force or violence, any object of a great public nature, or of a public and 
 general concern, is a levying of war against the United States, Tr. of Fries, 196; or op- 
 posing by force of arms an Act of Congress with a view' of defeating its etiicacy, and thus 
 defying the authority of the government; Id. 168. U. S. \. Vigol, 2 Dall.Ml. Any 
 combination to subvert by force the government of the United States, violently to dis- 
 nicnibcr the Union, to compel a change in the a<iministration, to coerce the repeal or 
 adoption of a general law, is a conspiracy to levy war ; and if the conspiracy be carried 
 into effect by tiie actual employment of force, by the embodying and assembling of men 
 for the purpose of executing the treasonable design which was previously conceived, it 
 amounts to levying of war. And it has been held that arms are not essential to levying
 
 HISTORIA PLACITORUM CORON.^. 158 
 
 of war, provided the force assembled be sufficient to attain, or perhaps to justify attempt- 
 ing the object without them. 2 Burr's Tr. 421. 4 Cranch. 26. 1 Paine, C. C. R. 271. 
 Tr. of Fries, 197. An insurrection, the object of which is to suppress an office of excise, 
 established under a law of the United States, and to compel the resignation of the excise 
 officer, and marcliing with a party to the house of such officer in arms, marshalled and 
 arrayed, and committing acts of violence and outrage there, with a view to render void 
 an Act of Congress, or to prevent its execution, by force or intimidation, is a levying of 
 war against the United States. U. S. v. Vigol, 2 Dall. 346. U. S. v. Mitchell, 2 id. 355. 
 The travelling of individuals, either separately or in bodies, to tiie place of rendezvous ia 
 pursuance of the conspiracy to levy war, but not in military form, would not, it seems, 
 constitute levying of war; but the meeting of particular bodies, and marching in a mili- 
 tary form, or embodying in that form in the first instance, would be sufficient to consti- 
 tute it. U. S. V. Burr, 4 Cranch, 485. To make an assemblage treasonable, it must be 
 in force and in a warlike posture ; it must be in a condition to make war, and with such 
 appearance of force as would justify the opinion, that they met for that purpose; other- 
 wise, an assemblage, be the design ever so treasonable, is not treason by levying war. 
 It is not indispensably requisite that such an assembly sh.ould have arms, nor that hostili- 
 ties should have commenced by engaging the military force of the United Stales, or that 
 force or violence should be applied ; except, perhaps, where the design is, not to overturn 
 thegovernment, but to resist the execution of a law; for then the judges of the United States 
 seem to have required force. But when a body of men are assembled for the purpose of 
 making war against the government, and arc in a condition to make that war, the assem- 
 blage is an act of levying war. So, if men be enlisted, and march prepared for battle, or 
 in a condition for action, it is an overt act of levying war, though they do not come to 
 battle or action. So, cruising under a commission from an enemy, in a warlike form, and 
 in a condition to assail those of wliom the cruiser is in quest. U. S. v. Burr, 4 Cranch, 415. 
 487. And if a territory of the United States were to be revolutionized, though only as a 
 means for an expedition against a foreign power, the act would be treason. 1 Burr's Tr. 
 15. It was the opinion of the Court in the trial of Fries, {pp. 197. 403.) that force is ne- 
 cessary to complete the crime of levying war ; though the quantum of force is immaterial. 
 Bgt the case before tlie Court was a levying of war, by resisting the execution of an Act 
 of Congress. 
 
 The assembling of bodies of men, armed and arrayed in a warlike manner for pur- 
 poses only of a private nature, is not treason; although the judges and other peace 
 officers should he insulted or resisted. Tr. of Fries, 197. 1 Paine, C. C. R. 265. 
 With regard to the persons who are to be considered as levying war. All those who 
 perform' tlie various and essential military parts of prosecuting the war, which must 
 be assigned to different persons, may with correctness and accuracy be said to levy 
 war. 2 Burr's Tr. 403. If war be actually levied, that is, if a body of men be actually 
 assembled for the purpose of effecting by force a treasonable object, all those who per- 
 form any part, however minute or however remote from the scene of action, and who 
 arc actually leagued in the general conspiracy, are to be considered as traitors. Ex 
 parte Bollinan tSf Swarlwout, 4 Cranchr, 126. If an army should be actually raised 
 tor the avowed purpose of carrying on an open war against the United States and sub- 
 verting their government, the point must be weighed very deliberately, before a judge 
 would, venture to decide that an overt act of levying war had not been committed by a 
 commissary of purchases, or by a recruiting officer holding a commission in the rebel 
 service, who, though never in tlie camp, executed the particular duty assigned to him. 
 Per Marshall, C. J 2 Burr's Tr. 402. The true criterion to determine whether acts 
 conimiitcd are treason, or a less offence, is the quo animo or the intention with which 
 the j)cople assembled. When the intention is universal or general, as to effect some 
 object of a general public nature, it will be treason; and cannot be considered, con- 
 strued, or reduced to a riot. Per Chase, J., Tr. of Fries, 197. See also Serg. an the 
 Const. 367. Ruwle on the Const. 139. Davis' Virg. C. L. 54. 
 
 Levying war, in the Constitution of the United States, seems to comprehend only, 
 what in the English books, is called coni^tructive Icvj'ing of war. Direct levying of war 
 being aimed at Uie person of the king, the authorities which come within that branch of 
 treapun, are of course, inapplicable here; for instance, a conspiracy to levy war, if 
 direct, is an overt act of compassing the king's death ; but if constructive, is no treason 
 at all. Again, in case of constructive levying of war, persons joining with rebels, not 
 being pri\y to their intent at the time, if they commit no act of force, or be not aiding 
 or iiR»i-<ting the rest, their being present is no presumption of guilt. R. v. Green cf 
 Beddell, at the Old Bailey, 20 Car. 2.; but if it be a direct levying, they arc all traitors.
 
 158 HISTORIA PLACITORUM CORONA. 
 
 R. V. The Earl of Essex et al. Moor, 621. And the English cases of constructive levy, 
 ing of war have been always cited in the American courts and admitted by the judges 
 as authorities. Judge Chase, in the TV. of Fries, p. 180, said, that the court would ad- 
 mit of quotations wliich rei'erred to what constituted constructive levying of war against 
 the king of Great Britain in liis regal capacity; or in other words, of levying war 
 against his government, but not against his person. He begged the attorney to read 
 only tliose parts of the cases wliich referred to what could be treason in the Unitpd 
 States; and nothing which related to compassing the king's death. See the arguments 
 in this case, of Messrs. Dallas (91) and Jiawle (161.) Davis'' Virg. Criin. Law, 56. 
 Jiawle on Const,, lil. 
 
 [159] CHAPTER XV. 
 
 CONCERNING TREASON IN ADHERING TO THE KING's ENEMIES WITHIN 
 THE LAND OR WITHOUT. 
 
 The words of the statute of 25 E. 3. go on, viz. Ou soit aidant al 
 enemies nostre dit seigneur le roy en son royalme donant a eux ayd 
 ou comfort en son royalme ou per aiiliors. 
 
 I. Therefore we shall inquire what sliall be said enemies of the 
 king: those that raise war against the king may be of two kinds, 
 subjectsor foreigners: the former are not properly enemies but rebels 
 or traitors, the latter are those, that come properly under the name 
 of enemies. 
 
 This gives us occasion to consider somewhat of the nature of war 
 and peace. 
 
 The power of making war or peace is inter jura siimmi imperii, 
 and in England is lodged singly in the king,[l] tho it ever succeeds 
 best wlien done by parliamentary advice. 
 
 Peace is of two kinds, viz. 1. Positive or contracted. 2. Such a 
 peace, as is only a negation or absence of war: that peace, which I 
 call positive, is such as ariseth by contracts, capitulations, leagues, or 
 truces between princes or states, that have y«ra s7tmTni imperii, and 
 is of two kinds: 1. Temporary, which is properly a truce, which is a 
 cessation from war already begun, and then the term being elapsed 
 the princes or states are ipso facto in the former state of war, unless 
 it be protracted by new capitulations, or be otherwise provided in 
 the instrument or contract of the truce. 3. Perpetual, si7ie termino 
 or indefinite, which regularly continues according to the tenor or 
 conditions of the agreement, until some new war be raised between 
 the princes or states upon some emergent injury supposed to be done 
 by the one party or the other; and this is properly called a league 
 foidns, and makes the princes and states confoederati, and tho this 
 may be variously diversifiod according to the capitulations, 
 ri60] conditions and (jualifications of such leagues, yet they are 
 ordinarily of these kinds: 1. Leagues oli'ensive and defen- 
 sive, which oblige the [)rinces not only to mutual defense, but also to 
 
 [I] See 1 Ul. Com. 157. 1 KenCa Com. 51.
 
 HISTORIA PLACITORUM CORONA. 160 
 
 be assisting to each other in their mihtary aggresses upon others, and 
 makes the enemies of one in effect the common enemies of both. 
 2. Defensive, but not offensive, obliging each to succour and defend 
 the other in cases of invasion or war by other princes. 3. Leagues 
 of simple amity, whereby the one contracts hot to invade, injure, or 
 ofiend the other, which regularly includes also liberty of mutual com- 
 merce and trade, and safeguard of merchants and traders in cither's 
 dominions, tho this may be diversified according to such contracts as 
 are made in such leagues; and therefore in the league between king 
 James of England and the king of Spain there was a tacit excep- 
 tion on the part of the Spaniard by the wary penning of the articles, 
 whereby the freedom of our trade into the western plantations of the 
 king oi Spain hath been supposed by the Spaniard to be restrained. 
 
 2. A peace, which is only a negation or absence of war, is that 
 which I call a negative peace, because it is only an absence or nega- 
 tion of war, there intervening no league nor articles of peace, nor yet 
 any denunciation of war, for it is regularly true, iibi bellum non est^ 
 pax est, tho neither prince is under any capitulation or contract; for 
 there are divers princes in the world, that never capitulated one with 
 another, and yet there is no state of war between them ; and there- 
 fore the war by the Spaniards upon the Indians, tho under pretense 
 of religion, without any just provocation hath been held injurious 
 and an unjnst aggression, tho there intervened no former articles of 
 peace between them. 
 
 War was anliently of two kinds, helium solemne vel 7ion solemne: 
 a solemn war among the Romans had many circumstances attending 
 it,(o) and was not presently undertaken upon an injury received 
 without these solemn circumstances, 1. Clarigatio(()) or 
 demanding reparation for the injuries received. 2. That [161] 
 being not done there followed indiction or denunciation of 
 war. 3. Dilation or a space of thirty-three days before actual hos- 
 tility was used; but most times necessity and politic considerations 
 both among them and other nations did dispense with these solemni- 
 ties, which were found oftentimes too cumbersome and inconvenient, 
 especially where the delays might occasion surprizal or irreparable 
 damage to the commonwealth, as where the adverse party made 
 preparations, which, if not suddenly repressed, might prove more 
 dangerous and irresistible. 
 
 But these solemn denunciations of war had place only in offensive 
 or invasive wars, and even then had many exceptions. 
 
 1. If a war be actually between two princes or states, and a tem- 
 poraiy truce be made as for a year or two, that term being elapsed 
 they are in a state of war without any denunciation, for they are in 
 the former condition, wherein they were before the truce made. 
 
 (a) See the manner of it described by Dioni/s. Hal. Lib. II. Ans-el. Lib. XVI. cap. 4. 
 and Liv. Lib. I. § 32. whereby it appears, that the thirty-three days of dilation intervened 
 between the demanding; reparation and the indiction. 
 
 (i) See Plin. Lib. XXII. cap. 2. 
 VOL. I. — 19
 
 161 HISTORIA PLACITORUM CORONiE. 
 
 2. In case a foreign prince in peace violate that peace and becomes 
 the aggressor, or invades the other, tho without any denunciation, 
 the prince that is upon his defense was not bound, neither was it 
 necessary for him to make a solemn denunciation or proclamation of 
 war, for this solemnity of denunciation was thought only requisite 
 on the part of the aggressor. 
 
 3, If after reparation of injuries sought, instead of reparation of 
 the former, new are committed by the adverse prince, as killing of 
 an embassador, contemptuous rejection &f all reparation or mediation 
 touching it, great provisions of hostility, or the like, there, this denun- 
 ciation or dilation was not requisite in the aggressor; but when all 
 is done, supreme princes or states take themselves to be judges of 
 public injuries, and of the manner, means and seasons for their repa- 
 rations, and what they judge safest and most for their advantage is 
 most commonly done in these cases, and they seldom want fair 
 declarations to justify themselves therein. 
 
 And therefore whether these handsome methods be ob- 
 r 162]] served or not, yet if de facto there be a war between princes, 
 they and their subjects are in a state of hostility, and they 
 are in the condition of enemies {hostes) to each other; but now for 
 the most pai^t these antient solemnities are antiquated, I come there- 
 fore to the practice of our own country and modern arms, and what 
 we may observe from our own books, history, and monuments. 
 
 We may observe in the wars we have had with foreign countries, 
 that they have been of two kinds, viz. special and gene-ral : special 
 kinds of war are that, which we usually call marque or reprisal, and 
 these again of two kinds, 1. Particular, granted to some particular 
 persons upon particular occasions to right themselves, for which vide 
 statute 4 H. 5. cap. 7. but this is not the proper place to treat touch- 
 ing it. 2. General marque or reprisal, which tho it hath the effect of 
 a war, yet it is not a regular war, and it differs in these two instances : 
 
 1. Regularly it is not lawful for any person by aggression to take the 
 ship or goods of the adverse party, unless he hath a commission from 
 the king, the admiral, or those that are specially appointed thereunto. 
 
 2. It doth not make the two nations in a perfect state of hostility 
 between tiiem, tho they mutually take one from another, as enemies, 
 and many times in process of time these general reprisals grow into a 
 very formed war: and this was the condition of the war between us 
 and the Dutch 22 February anno 1664. the fust beginning whereof 
 was l)y that act of council, which instituted only a kind of universal 
 reprisal, and there were particular reasons of slate for it; but in process 
 of time it grew into a very war, and that without any war solemnly 
 denounced; and therefore by the statute of 17 Car. 2. cap. 5. Dole- 
 nian and others, that were in Holland, were declared to have trai- 
 torously adhered to the king's enemies, and were attainted of treason, 
 unless they rendered tliemselves by a day certain, and all others, that 
 served the states of the united provinces during the continuance of 
 the war, soldiers or seamen, by sea or land, and not returning by a 
 time certain, were attainted of treason; and this had all the effects
 
 niSTORIA PLACITORUM CORONA. 163 
 
 of war and hostility: the aoods of the English taken by the Dutch 
 and brought z;z/ra;;ra?5/r/m the property was wholly changed, and 
 tho retaken again, should not be restored again to the first owner, 
 according as iu captures by enemies, 7 E. 4. 14. 22 E. 3. 16. and 
 so it was practised during that war. 
 
 A general war is of two kinds: 1. Bellum solemnit^r denuntia- 
 ium, or helium non solemnittr de nun tia turn; the former sort of 
 war is, when war iS' solemnly declared or proclaimed by our king 
 against another prince or state ;[2] thus after the pacification be- 
 tween the king and the Dutch at Breda, upon new injuries done to 
 iVs by the Dutch the king by his printed declaration 1671. declared 
 war against them; and this is the most formal solemnity of a war, 
 that is now in use. 
 
 A war that is non solemnitcr denuntiaium is, when two nations 
 slip suddenly into a war without any solemnity, and this ordinarily 
 happeneth among us; the first Dutch war was a real war, and yet 
 it began barely upon general letters of marque: again, if a foreign 
 prince invades our coasts, or sets upon the king's navy at sea, here- 
 upon a real, tho not solemn war may and hath formerly arisen, and 
 therefore to prove a nation to be in enmity to England, or to prove 
 a person to be an alien enemy, there is no necessity of showing any 
 war proclaimed, but it may be averred, and so put upon trial by the 
 country, whether there was a war or not; and therefore P. 31 Eliz. 
 in justice Owen^s reports,(c) in an action of debt the defendant plead- 
 ed, that the plaintiff was an alien born in Gaunt under the obedi- 
 ence of the king of Spain, enemy of the queen, the plea was ruled 
 good, tho he shewed not, that any war was proclaimed between the 
 two realms; and according is the pleading 7 E. 4. 13, Rasters En- 
 tries, Trespass per a lien, (d) 
 
 And ni very deed there was a state of war between the crowns of 
 England and Spain, and the Spaniards were actual enemies, espe- 
 cially after the attempt of invasion in 88. by the Spanish Armadaj 
 and yet there was no war declared or proclaimed between the two 
 crowns,as appears by Camden sith anno 31.(e) ibidem p. 
 404. 8f ibidem p. 466. (/) so that a state of war may be f 164 3 
 between two kingdoms without any proclamation or indic- 
 tion thereof or other matter of record to prove it. 
 
 And therefore in the case in question touching treason it shall upon 
 the trial be inquired by the jury, whether the person, to whom the 
 party indicted adhered, were an enemy or not, and in order to that, 
 whether there were a war between the king of England and that 
 other prince, whereunto the party adheres, this is purely a question 
 of fact and triable by the jury, [3] and accordingly is the book 19 
 
 (c) Owen, 4,5. ((/) Rast. Entr. p. 605. d. 252. 6. 
 
 (e) Viz. 1588. (/; Sub anno 1592. 
 
 [2] See Anstey's Cons, of Engl. 316. Grot. L. 3. c. 3. s. 11. 
 
 [3] The fact ol the persons adhered to being enemies, may be proved b)' the produc- 
 tion nf tlie gnzctte containing the proclamation, if war were formally declared ; or public 
 notoriety is sufficient evidence of it. Fast, 219.
 
 164 HISTORIA PLACITORUM CORONA. 
 
 E. 4. 6. and the reason is plain, because it may fall out, that tho 
 there were a league between the king of England and a foreign 
 prince, yet the war may be begun by the foreign prince ; again, sup- 
 pose we, that the king of England and the king of France be in 
 league, and no breach thereof between the two kings, yet if a subject 
 born of the king of France makes war upQU the king of England^ 
 a subject of the king of England adhering to him is a traitor within 
 this law, and yet the Frenchinan, that made the war, is not a traitor 
 but an enemy, and shall be dealt with as an enemy by martial law, 
 if taken :[4] this was the case of the duke oi Norfolk adhering to the 
 lord Herise a subject of the king of Scots in amity with queen Eliza- 
 beth, that made an actual invasion upon England without the king's 
 commission. M 13 4- 14 Eliz. Co. P. C. p. l\. Camd. Eliz. sub 
 anno I51\,{g) 14 Eliz. p. 175. and the case of Perkin fVarbeck a. 
 Frenchman, 7 Co. Rep. Calvin'' s case. (A) 6 Dy. 145. a. S'her ley's 
 case ;{i) so that an enemy extends farther than a king or state in en- 
 mity, namely an alien coming into England in hostility. 
 
 II. In the next place I shall consider what shall be said a person 
 adhering, and also what shall be adhering. 
 
 If a foreign prince be in actual war against the king of England, 
 any subject of that prince under his protection is presunied to be 
 adhering to him, but he is not a person within this act, for 
 \_ 165 3 if he betaken, he shall be dealt with as an enemy, viz. he 
 shall be ransomed, and his goods within this realm seised to 
 the used of the king. When king John was devested of the duchy 
 of Normandy by the king of France, and thereupon the Normans 
 forsook the aUigeance of the king of England, which was due to 
 him, as duke of Norviandy , all the lands of the Normans in Eng-. 
 land were seised into the king's hands, and thence grew first the 
 escheat de terris Normannoruni mentioned prserogaliva regis{k) 
 cap. 12. and the style of such forfeiture was usually, quia recessit h, 
 sei'vitio nostra 8,- adhsesit inimicis nostris in Normannia, Clans. 
 6 John. m. 19. jjro Eustachia uxore Lurce fiV Johannis, Claus'. 
 S John. m. 5. pro JIbbate Cluniacensi: see the reason thereof before 
 cap. 10. they were ad fidem utriusque regis. 
 
 If there be war between the king of England and the king of 
 France, those Englishmen, that live in i^r««ce before the war, and 
 continue there after, are not* simply upon that account adherents to 
 the king's enemies, unless they actually assist him in his wars, or at 
 least refuse to return upon privy seal, or upon proclamation and 
 notice thereof into England; and this refusal, tho it is an evidence 
 of adherence, seems not to be simply in itself an adherence: this 
 appears plainly by the statute of Magna Chartu, cap. 30. 
 
 If a subject of a foreign princa hath lived here in England under 
 
 (g) And also snh anno X^^l'i.in principio. - (//) 7 Co. &, b. 
 
 (i) 7 Co. Calvin's case, 6. a. {k) U E.2. 
 
 [4] Judge Tucker douljts whether tliis would be treason within the Constitution ot'tlie 
 United Slates. 4 Tuck. Bl. Com. Apdx. 33.
 
 HISTORIA PLACITORUM CORONA. 165 
 
 the protection of the Idng of England, and so continues after a war 
 proclaimed, and partakes of all the l)enefits of a suhject, and yet 
 secretly practiseth witli the king of France, and assists him before 
 he hath left this kinsdom, or openly renounced his subjection to the 
 crown o( England, i\\\s man seems to be an adherent within this 
 act, and commits treason thereby :[5] tamen qusere, vide Dy. 144. a 
 SAeriei/'s case ; and the like law seems to be of an enemy coming 
 hither and staying here under the king's letters of safe conduct: 
 qusere, vide statute 18 H. 6. cap. 4. 20 H. 6. cap. 1. 
 
 If there be a war between the king of England and France, and 
 then a temporary truce is made, and within the time of that truce 
 an Englishman goes into France, and stays there and re- 
 turns before the truce is expired, this is not an adherence to [ 166 J 
 an enemy within this statute, Clans. 7 E. 3. part 1. m. 9. 
 pro Johanne Poynter, who had an amoveas manus cum exitibus, 
 his lauds having been seised for that cause: but this record implies, 
 that if during his stay (it was in Scotland) he had confederated or 
 conspired with the enemy or assisted them in order to their further 
 hostility, this might have been an adherence: 7iota, the reason, 
 " Quia prsedictus Johannes tempore treugarum inter patrem nos- 
 trum Ss' Robertum de Bruys ivil in Scotiam per prxceptum Andreas 
 de Harcla ad pictandum qnandam imaginem, quo tempore bene 
 licuit unicuique de Anglia intrare in Scotiam per licentiam <§• 
 literas de conductu custodis Marchiae, 4* quod idem Johannes 
 habuit tales literas Andreas de Harcla, 4' ibidern talith^ vioram, 
 fecit per unum annum, absque eo, quud aliquo tempore Scotis prse- 
 dictis fuit adhserens, <§• quod idem Johannes rediit in Angliam 
 durantibus treugis prcedictis, Si' semper hactenus fuit ad pacem 
 nostram (§• patris nostri.'' Nota, this ifliidrew Harcla having been 
 created earl of Carlisle was by an extrajudicial military sentence 
 first degraded, and then had judgment of high treason given against 
 him. H. \S E. 2. Rot. 34 in dor so rex. 
 
 If the king of England and the king of France be in 
 amity, yet if a subject of the king of England solicits by [] 167 ] 
 letters the king of France to invade this realm, this is high 
 treason : it was the case of cardinal Poole, who wrote a book to that 
 purpose to Charles the emperor. Co. P. C. p. 14. It is certainly an 
 overt-act to prove treason in compassing the king's death, but it 
 seems not an overt-act to convict him of adhering to the king's 
 enemies, for at the time of this act done the emperor was not an 
 enemy. Co. P. C. p. 14. 
 
 If an Englishman during war between the king of England and 
 France be taken by the French, and there swear fealty to the king of 
 France, \{'\i be done voluntarily, it is adhering to the king's enemies; 
 but if it be done for fear of his life, and that he returns, as soon as 
 he might, to the alligeance of the crown oi England, this is 
 not an adherence to the king's enemies within this act. [ 168 ^ 
 Claus. 7 E. 2,. part 1. m. 15. John Culwin's land being 
 
 [5] R. V. De la MoUe, 21 St. Tr. G87.
 
 168 HISTORIA PLACITORUM CORONA. 
 
 seised upon this account there was ouster le main cum exitibus, "Quia 
 compertum est per inquisirionem, &c. quod Johannes ad fidetn & 
 pacem nostram extitit, qiiod-que idem Johannes captus i'uit de guerra 
 per Scotos inimicos noslros, & in prisona in Scotici per dictos inimi- 
 cos nostros, & pro vita sua salvanda ad fidem dictornm Scotorum per 
 dimidiimi annum extitit, quodque idem Johannes ^^osiedi in Jingliam, 
 rediit, & ad fidem & pacem nostram a tempore prsedicto hactenus 
 extitit ;" tho this was before "^S E. 3. yet the instance is useful, be- 
 cause adhering to the king's enemies was then treason. 
 
 If a captain or other officer, that hath the custody of any of the 
 king's castles or garrisons, shall treacherously by combination with 
 the king's enemies, or by bribery or for reward deliver them up, this 
 is adherence to the king's enemies. This was the case of William 
 TVeston for delivering up the castle of Oughtreivicke, and John de 
 Gomeneys for delivering up the castle oi Jirdes in France, hoih 
 which were impeached by the commons, and had judgment of the 
 lords in parliament, Rot. Par. 1 R. 2. n. 40. namely William Wes- 
 ton to be drawn and hanged, but execution was respited, que le roy 
 n^est uncore enforme del manner de cest judgement : Gomeney^ s 
 judgment was thus, Les seigneurs in plein parlement vous adjudgent 
 a la mort, & pur ceo qu'estes gentlchome & banneret & aves serve le 
 aiel le roy en ses guerres, & n'estes lige home nostre seigneur le roy, 
 vous seres decoUe sans autre justyce auer, but execution was re- 
 spited. (m) 
 
 And note, tho the charge were treason, and possibly the proofs 
 might probably amoimt to it, and Walsingham sub anno 1 R. 2. 
 tells us it was done by treason ; yet the reason expressed in the 
 judgment against Weston is only, que surrendists le dit castle de 
 Oughtrewicke al enemies nostre seigneur le roy avant dits sans nul 
 duresse ou defalt de victualls contre vous ligeance & emprise : and 
 the like reason is exprest in the judgment against Gomeneys, Vous 
 emprists a sauement garder sans les surrendy a nully, &c. 
 [ 169 ] & ore vous Johan sans nul duresce ou defalt de victuals ou 
 de artillery ou autres choses necessaries pur le defence de 
 dits ville & castle de t/irde sans commandment nostre seigneur le roy 
 malement I'auets delivers & surrendres al enemies nostre seigneur le 
 roy per vostre defalt demesne contre tout plain de droit & reason, & 
 encountre vostre emprises suisdits, &c. 
 
 The truth is, if it were delivered up by bribery or treachery, it 
 might be treason, but if delivered up upon cowardice or imprudence 
 wiil)out any treachery, tho it were an oifense against the laws of 
 war, and the party subject to a sentence of death by martial law, as 
 it once happened in a case of the like nature in the late -times of 
 trouble, (n) yet it is not treason by the common law, unless it was 
 done by treachery; but tho this sentence was given in terrorem, yet 
 it was not executed : it seems to be a kind of military sentence, tho' 
 
 (m) See tlicse cases Stale Tr. Vol. I. f. 7!).'). 
 
 (n) This was the case of Col. Fienncs, parliament g'overnor of Bristol for cowardly 
 surrendering the same to the king's forces. Sue Slate Tr. Vol. I. p. 745.
 
 HISTORIA PLACITORUM CORONA. 169 
 
 given in parliament, like unto that of the baron Graystock governor 
 o( Berivick,{o) who travelled into France without the king's com- 
 mandment, and left the care of, the garrison to Robert de Ogle a 
 valiant knight, who used all imaginable courage in defense thereof, 
 but it was lost in the absence of the baron of Graystock, who was 
 thereupon sentenced to death, because Ite had undertaken that charge, 
 and yet went from it without the king's command, and in his absence 
 it was lost : this also seems rather a sentence of council of war, than 
 a judgment of high treason; and thus far touching the treason of 
 adhering to the king's enemies within the land and without. 
 
 Touching the trial of foreign treason, viz. adhering to the king's 
 enemies, as also for compassing the king's death without the king- 
 dom at this day, the statutes of 35 H. 8. cap. 2. hath sufficiently pro- 
 vided for n.(p.) P. 13. Eh'z. Dyer, 298, 300. Story's case; 
 but at common law he might have been indicted in any [ 170 ] 
 county of Englatid, and especially where the offender's 
 lands lie, if he have any. 5 B. 2. Trial 54. 
 
 And it seems, if the adhering to the king's enemies were upon the 
 narrow seas, this is an adherence to the king's enemies within the 
 realm, and tho it be triable by a special commission at this day- 
 grounded upon the statute of 28 H. 8. yet at common law it might 
 have been indicted and tried in any adjacent county by a special 
 commission of oyer and terminer, for the narrow seas are within the 
 king's alligeance, and part of the realm of England. 6 R. 3. Protec- 
 tion AQ. Co. Lit. 260. [6] 
 
 (o) See this case State Tr. Vol. I. p. 797. 
 
 (p) Tliis statute gives power to try such treasons in the king's bench or by commis- 
 sioners in any county appointed by the commission, and continues in force notwithstand- 
 ing 1^-2 Fh. Sf Mnr. cap. 10. which reduces the methods of trial for treason to the 
 course of the common law, because it is not introduclive of a new law, but only settles a 
 point, that was before doubtful at common law ; and it was accordingly so resolved ia 
 Storie''s case, Dyer 298. b. Co. F. C. p. 24. 
 
 [6] The following have been laid down as overt acts of adhering to the king's enemies. 
 Every assistance given by the king's subjects to his enemies, unless gi,ven from a well 
 grounded apprehension of immediate death in case of a refusal, Fost. 216. Hav;k. c. 17. 
 s.^28;-to join the king's enemies in acts of hostility against his allies. Fust. 210. R. v. 
 r aughan, Salk.G35 ; to join tlie enemy's forces, although no acts of hostility be committed 
 by them either against the king or his allies, Fos«. 218. Salk. 634. 5 St. Tr. 17 ; to raise 
 troops for the enemy, R. v. Harding. 2 Ventr. 316 ; to deliver up the king's castles, forts, 
 or ships of war to the enemy through treachery, or in combination with them, Fost. 219. 
 3 Inst. 10. ante, 168; to detain the king's castles, &c. if done in confederacy with the 
 enemy, Fosi. 219; to send money, arms, intelligence, or the like, to the king's enemies, 
 rost. 217, although such money, intelligence, t^c. be intercepted and never reach them. 
 R. v. Gt€gg,-10 St. Tr. Appdx. 77. Fost. 198. 217. R. v. Hensey, Burr. 642. R. v. Lord 
 Frrston, 4 St. Tr. 45.5. R. v. Stone, 6 T. R. 527. 
 
 Lvcry species of aid and comfort, in the words of the statute, which when given to a 
 rebel within the realm, would make the person gUilty of levying war, if given to an ene- 
 my, whether within or without the realm, will make the party guilty of adhering to the 
 king's enemies. 1 East, P. C. 78. Refusing personal assistance to the king, eitiicr against 
 rebels or an invading enemy, is not an adherence within the statute, though a high mis- 
 demeanor. 1 East, P. C. 8U. Continuing in an enemy's country, not of itself an adhe- 
 rence; unless the party voluntarily swears fealty to the enemy, or actually assists them
 
 170 HISTORIA PLACITORUM CORONA. 
 
 in the war, or unless he refuses to return home upon privy seal, or proclamation, or notice 
 thereof; tiiough Sucti refusal is only evidence of an adhering. 1 East, P, C. 81. It is no 
 treas^on to relieve a rebel out of the realm, id. 11. 
 
 The words '' adhering to their enemies, giving them aid and comfort," in the Constitu- 
 tion of tlie United States, having been taken from the 25 Edw. 3. must receive, it is con. 
 ceived, the same constructioa which is given to them in that statute. 2 Burros Tr. 402. 
 In 1778 and 1781, tiicre were trials for treason in Pennsylvania,\\\ adhering to the ene- 
 mies of the State and of the United States. 1 Dall. 33. 89. 2 id. 86. The United Stales v. 
 Pryor, 3 W. C. C. R. 234, and The People v, lyynch et al. 11 Johns. 549, are the only two 
 cases tiiat have happened, since tiie framing of the Constitution, of tliis species of treason. 
 The former was an indictment for treason in adhering to "the enemy, charging the' 
 defendant, amongst other things, with going from the British squadron to the State cf 
 .Delaware, with intention to procure provisions for the squadron. It was held that the 
 going from the squadron to the shore for the purpose of peaceably procuring provisions 
 for the enemy, did not amount to an act of treason ; as this act rested in intention only, 
 vviiich is not punishable by our laws. Aliler, if a person has carried provisions towards 
 the enemy, with intent to supply him, though that intention should be defeated. If the 
 intention of the defendant had been to procure provisions for the enemy, by uniting with 
 him in hostilities against the citizens of the United States, his progressing towards the 
 shore would have heen an overt aqt of adhering to the enemy, though no other act was 
 committed. In The People v. Lynch, the defendants were acquitted, on the ground that 
 the offence of adhering and giving aid and comfort to the public enemies of the United 
 States, is not treason against the people of the State of New York. See 4 Tucker's Bl. 
 Com, Apdx. 32. 
 
 CHAPTER XVI. ^ 
 
 CONCERNING TREASON IN COUNTERFEITING THE GREAT SEAL OR 
 
 PRIVV SEAL. 
 
 First, I shall upon this article consider how the common law stood 
 before this statute, and what kind of offense this was antiently. and 
 how punished. Seco)idly, I shaU consider how the law hath been 
 taken touching this otfense since the statute, and how punished. 
 
 I. ThQ great seal of England is the great instrument,'whereby 
 the king dispenseth the great acts of his government and the adminis-^ 
 tration of justice ; under this seal the great commissions to his 
 justices and others are passed ; original writs and mandates, and 
 those processes that issue out of chancery, all the king's grants and 
 charters of lands, liberties, franchises, honours, pardons are passed 
 under this seal.[l] 
 
 There is or should be always a tnemorandum made upoil 
 [ 171 ] the close rolls of the breaking of the old seal and making 
 and delivering of the new; and by the very delivery of this 
 seal the oilice of keeper of the great seal is constituted, and most 
 ordinarily is to the same person, that is lord chancellor: sometimes 
 the custody of the great seal is in one person, and the office of Idrd 
 chancellor in another; but always a memorandum of the delivery 
 thereof entered upon the close rolls. The great seal consists ordina- 
 rily of two impressions, the one the very great seal itself with the 
 
 [1] 2 Bl Com. 305. 346.
 
 HISTQRIA PLACITORUM CORONA.. 171 
 
 king's effigies instamped on it, the other is commonly called pes 
 sigilli, and sometimes in our old books called k large, which is the 
 impression of the king's arms in the figure of a target, which is used 
 in matters of smaller moment as certificates, which are usually- 
 pleaded sub pede sigilli. 
 
 Antiently, when the king travelled into Normandy, France, or 
 other foreign kingdoms upon occasion of war or the Hke, there were 
 two great "seals, one went along with the king, the other was left 
 with the ctistos regni, or sometimes with the chancellor, if he went 
 not along with the king, for the dispatch of the affairs of the king- 
 dom, and then the king upon his return sometimes redelivered the 
 old seal and took in the new, Clans. 20 E. 3. part 2. m. 26. dors. 
 Clans. 19 E. 3. part 2. m. 23 4- 10. dors. Claus. 20 E. 2,. part 2. 
 m. IS. dors. Sf'frequentissime alibi in dorse clausorum. 
 
 The privy seal is ordinarily a warrant for the passing of things 
 under the great seal, sometimes a warrant to issue treasure, to make 
 allowances, &c. vide 11 Co. Rep. 92. the earl of Devonshire's case; 
 and this seahis ordinarily in the custody of the lord keeper of the 
 privy seal or commissioners thereunto appointed. 
 
 Besides these seals of greater moment there are other seals of the 
 king, as the privy signet, [2^ the particular seals of the several courts, 
 that of the king^s bench and common pleas in custody of the chief 
 justices of either court, or their clerks appointed for that purpose, the 
 seal of the exchequer in the custody of the chancellor of the exche- 
 quer, the seal of the duchy of Lancaster in the custody of 
 the chancellor of the duchy, the seal of the county palatine [ 172 j] 
 of Lancaster in the custody of the chancellor of the county- 
 palatine, which are sometimes in the same person, the seals of county 
 palatine of Chester, of the several justices of assise, oyer and terminer 
 and gaol-delivery, the king's seal of statutes and recognizances, the 
 seal of the cocket ; and for the most part these seals are delivered by 
 the king's order signified sometimes by his privy signet, sometimes 
 by his secretaries, but antiently the most of them were delivered by 
 the king in person to the several persons, that had the custody there- 
 of, and a viemorandum made thereof upon the back of the close 
 roll. Claus. 43. E. 3. m. IS. dors. 
 
 The antient manner of delivery of the seal for statutes merchant, 
 and probably for other seals of like nature was by the king in per- 
 son as before, or by a close writ and memorandum under the great 
 seal., T. \% E. \. it is commanded, that for the future it should be 
 delivered under the seal of the chancellor of the exchequer. 
 
 The manner antiently of delivering the judicial seals of the king's 
 bench and common pleas was by the king or chancellor to the chief 
 justices respectively, and in like manner the judicial seal of the ex- 
 chequer to the chancellor of the exchequer ; these were ordinarily 
 
 [2] For the nature of the signet and privy seals, see the case Re KicktW Patent, 
 1 riiiU. Ch. Rep. 36. 
 
 VOL. 1.-^20
 
 172 HISTORIA PLACITORUM CORONiE. 
 
 ill two pieces, Claus. 43 E. 3. m. 18. dors. The profits of the seals 
 belonged to the king, except the seventh penny, which is the fee ,of 
 either chief justice ;(a) and when the king farmed out the profits of 
 
 the seal of either court, sometimes one piece remained with 
 [173] the chief justice or his deputy, the other piece remained 
 
 with the farmer or his deputy: these profits of the seals of 
 the courts of the king's bencli and common pleas were let for 1000/. 
 per a?imwi{b) by the king. M. 18 E. 3. EoL 35. Eex. P. 20 E. 3. 
 Eut. 87. T. 22 E. 3. Eat. 115. M. 23 E. 3. EoL 31. coram rege.{c) 
 
 (a) The antient fee to the cliief justice was one penny for every writ, as appears from 
 two of the records here quoted by our author, viz. 20 E. 3. Rot. 87. 22 E. 3. Rot. 115. 
 tlie first of these is a grant to Walter of Yarmouth of the profits of the seals for ten 
 years, in consideration tliat the said Walter should pay to the clerk of the hanaper for the 
 king's use 250 marcs every year, and should likewise discharge a debt of the king's of 
 2000Z. by the yearly payment of 200Z. the said Walter to be allowed every year cent 
 solcls for his expenses in sealing writs; all writs ad sectam regis, Sfc. to pay no fees, Et 
 que les justices preignent »« denier dii brief per lour sealx en manere come ad este use 
 en temps passe. 
 
 Tlie latter is a grant of the king (upon his having resumed the seals on account of 
 some misdemeanor committed by Walter of Yannouih) to John de Padebury and Henry 
 de SulihuU, reddendo inde regi de claro per annum ducentas & quater viginli marcas 
 per manus clerici hanaperii, writs ad sectam regis, &c. to pay no tees, & quod justitiarii 
 nostri in placeis illis percipiant iiniim denarium de breyi pro sigillis suis, prout ibidem 
 hactenus est usitatum: it should seem therefore, as if the person employed by our author 
 to consult the record mistook the word vn in the first grant for a numeral vii, and that 
 this was the occasion of his making the seventh penny to be the fee of the cliief justice. 
 
 (//) These profits were not let for above tliree or four hundred pounds per annum, as 
 appears not only from tlie above-mentioned cases, (the highest of which is 200/. and 250 
 ma.rks per annum, which is no more than 366/. 13s. 4^/.) but also from the 18 E. 3. Rot, 
 35. where the king signifies by writ 20 Oclob. to his justices, that he had granted to 
 Matthew Canaceon and his assigns toturii proficuum ad se de sigillis omnium breviurn 
 judicialium de banco suo & banco communi exeuntium pcrtinens, usque ad terininum 
 decern annorum, in valorem trescentarum librarum per annum, de quibus ipsi solvent ad 
 opus regis custodi hanaperii cancellaria; quolibet dictorum decern annorum centum libras 
 de exilibus breviurn prsedictorum, tfc rescrvabunt penes se totum proficuum residuum de ■ 
 brevibus supradictis durante dicto termino in recompcnsalionem decern [duo] milliurtf 
 librarum stcrlingorum, de quibus prfedictus Matlheus in debitis, in quibus rex certis per^ 
 sonis in ducatu Aquitanie tenebatur, assumpsit rcgem acquictare & exonerare ; ita 
 semper quod brevia ad sectam & pro cominodo regis per visum & testimonium illorum, 
 qui pro rege prosequu*tur ac brevia pro hominibus de curiis regis, &, pauperibus homi- 
 nibus facta Si faeienda absque aliquo inde solvendo dcliberentur, prout hactenus in can- 
 cellaria fieri consuevit. Et sciendum quod eodem 20 die Oclob. Rohcitus de Sadyug- 
 ton Cancellar' domini regis liberavil Willielino Scot [capitali justitiario] apud Westm^ 
 quoddarn sigilluin domini regis pro brevibus prajdictis in banco domini regis sigillandis, 
 cnjus nnam i);irlcm idem Wiliielutus Scot liberavit cuidam Rogero dc Merlawe, deputato 
 dicti Mattlici Cuuaceon jurato, aliani vcio partem ejusdem sigilli penes so ipsum reti- 
 nendo ; Et dictum est eidem Rogero, quod ollicio prscdieto l)cnc & fiilcliter intendat 
 secundum formam & conditioneni in brevi pra;dicto contentas pericqlo quod incuinbit, &-C. 
 
 Allho the consideration is here said to be the discharging of a debt of ten thousand 
 pounds, (which probably led our author to tliink the jjrofits were let at lOOOl. per annum, 
 so that in ten years time that debt might be discharged) yet the annual produce of tlie 
 seals being no more than 300/. one hundred ^hereof was to be paid yearly for the king's 
 use, it seems to me [iretty plain, that the king's debt, which he undertook to ])ay, conid 
 be only two and not ten thousand pounds ; what strengtlicus this observation is, that tlii? 
 indentures of agreement being in French, it was very easy to mistake deux for dix. 
 
 (r) This was a grant of the seals of the king's bench and common pleas to Anthony 
 Buclie for seven years in recouipensationem se/ilingentarum marcarum (due to him on an 
 annuity formerly granted) at the rate of 200/. jxr annum for the two first years of the 
 said term, and 200 marks per annum for the five remaining years, the said Anthony to
 
 HISTORIA PLACITORUM CORONA. 173 
 
 Many times the justices issued process under their own seals unto 
 the sheriffs : this was complained of inter petittiones par- 
 liamenti 12 E. 3. n. 6. by the chancellor of the exchequer [ 174 3 
 and clerk of the hanaper, as a derogation to the king's profit, 
 and contrary to the duty of the sheriff, who, by his oath, is bound to 
 receive no writs, bat under the king's seal; the answer is, Soit briefe 
 mand' a justic' de common banc contenarit I'effect de petition, & 
 quils pur lour advisement facent tiel remedy en lour place, come ils 
 verront, qe soit a faire a profit du roy. 
 
 And it seems most usual, that since that time judicial process not 
 only in those greater courts, but in most other courts issued under 
 the king's seals thereunto deputed, yet justices of assise and gaol- 
 delivery sometimes -make their precaff)ts under their own seals: vide 
 Judicial Register, 34, 35, 41, 43, 73, 84. vide pur ceo Rot. Pari. 
 25 E. 3. 71. 25. a petition that judicial process out of the king's bench 
 and common pleas might issue under the seal of the chief justices, 
 as is used in eyre, assises, <5' oyer 8^' terminer, but denied. 
 
 But to return to the business of the great and privy seal. 
 
 The great seal which Matthew Paris{d) sub anno 1250. well 
 calls {clavis regni) hath been with great care and solemnity kept and 
 used, and therefore antiently, when there was any change made of 
 the great seal, there was not only a viemarandum made thereof //i 
 dorso chiusortim cancellarise, and a public notification thereof in the 
 court of chancery, but public proclamation was made thereof. Claus. 
 1 E. 3. part 2 m. 11. dorso. 
 
 Yet in cases of speed and necessity, and sometimes for distinc- 
 tion's sake the king used a private seal for such occasions, which 
 were to be passed under the great seal. 
 
 King John died, his son king Henry III. being but about ten years 
 old, from the beginning of his reign until 3 H. 3. all grants passed 
 Under the seal of the earl marshal, that was his protector or guardian, 
 but in the king's name, viz. In cujus rei testimonium has literas 
 nostras sigillo comitis mariscalli rectoris nostri & regni nostri sigil- 
 latas, quia nondum sigillum habuiraus, vobis mittimus, teste Wil-' 
 lie/mo comite mariscallo. This seal he continued till the third year 
 of his reign, Claus. 3 H. 3. m. 14. hie incepit sigillum 
 regis currere: and in the same third year, viz. Fat. 3 U. [ 175 J 
 3. m. 6. there was a provision made in parliament for the 
 discrimination of thosg charters, that passed during his minority and 
 after his full age, in these words: Henricus dei gratia, S^-c. Sciatis 
 quod provisum est per commune consilium regni nostri, quod nullce 
 carta, nulla} literae patentes de confirmatione, alienatione, venditione 
 vel donatione, seu de aliqua re, quse cedere possit in perpetuitatem, 
 sigillcntur magno sigillo nostro usque ad astatemnostramcompletam. 
 Teste, 4'c." and after the setting down of divers witnesses are these 
 
 pay to tlie clerk of the hanaper for the king's use one [two] hundred marks per annum 
 for the two first years, and one hundred marks per annum for the five remaining years; 
 and the king tliereupon sends his writ de admittendo praedictum Antonium vel ejus 
 attorn' ad oliicium prffidiclutn modo debito faciendum; and he was admitted accordingly. 
 (</)/). 783.
 
 ]75 HISTORIA PLACITORUM CORONA. 
 
 words, " Provisum est etiam per commune consilium regni nostri & 
 coram omnibus praedictis, quod si aliqute cartse velaliqufe literse paten- 
 tes factae secundum aliquam pi'Ecdictarum formarum sigillata3 iuvenian- 
 tur praidicto sigiilo, irritee habeantur & inanes, festibus praedictis." 
 
 It appears Clause 20. E. 2. m. 3. dor-'i. in tlie beginning of that 
 miserable tragedy, that the 26th of October 20 E. 3. the king flying 
 from his wife and son, who was afterwards king, a great number of 
 lords and others chose Edward the king's eldest son to be custom 
 regni, supposing the king to be out of the kingdom; at that time the 
 chancellor, together with the great seal were with the king, and the 
 new custos regni ea, qua3 juris fuerent, sub sigiilo suo privato in cus- 
 todia Aom\m Robert i de JVyvill c\ex'\Q.\ sui existent', eo quod aliud 
 sigillum pro dicto regimine ad tunc non habuit,exercere incepit post- 
 modum vero 20 die Novcmb. proxime sequent', captis inimicis prse- 
 dictis & dicto rege in regmim revertente, upon a messuage sent to the 
 king for the seal the king thereupon sent t)ie great seal to his wife 
 and son, ut non solum ea, qua; pro jure & pace essent facienda, sed 
 etiam qua3 gratise forent, fieri facerent; the seal was brought to them 
 2Q Novemb. and the morrow being the feast of St. Andrew it was 
 opened by the queen and her son, and delivered to the bishop of 
 Norwic/i: and it is to be observed, that a parliament was summoned 
 between the 26th of October and the 26th of November in the name 
 of the king, but to be held before the queen and the cnstos regni in 
 gtiindena sctJicti Jindrese, which summons must needs be 
 \_ 176 ] under his own private seal ; but the 3d of Becember the 
 great seal being then in their power it was prorogued unto 
 the morrow oi Epiphany: the first summons is recited in tJie writ 
 oi prorogation, but it is not entered of record, for it was a hasty con- 
 fused business, neither had the rolls of the chancery in their hands to 
 make any entry of it; and if they had had them, yet it would have 
 been irregular, and not have amended the matter: all that I shall 
 farther add concerning these two instances is, that neither the.seat 
 of William earl Marshal used by Henry III. nor the private se^l 
 of prince Edward were great seals within this statute, whereof the 
 counterfeiting might be high treason. 
 
 When the king dies, tho the office of keeper of the great seal 
 expires, as well as all commissions to sheriffs and justices, yet the 
 great seal of the last king continues the great seal of England, till 
 another be made and delivered. 
 
 King Edward III. began his reign the 25th o{ January, he made 
 the bishop of Ely his chancellor the 2Sth o( January, it was not pos- 
 sible a new seal could be made in tliat time, and besides the seal was 
 not altered till the 3d of October eodem anno, as appears by the pro- 
 clamation thereof, Claii.%. 1. E. 3. part 2. m,. 1 1. dors, so that all that 
 ■while the old seal with the old inscription stood ; the method of which 
 alteration was thus: The king by his proclamation bearing iestt 
 3 Octob. anno 1. directed to all the chief sheriffs of England,s[gmfyr 
 ing, that he had made a new great seal, and that it was to take place 
 from the fourth day of that month of October, sends them the impres- 
 sion of the new seal in wax, commands them to publish it, and that
 
 HISTORIA PLACITORUM CORONA. 176 
 
 after the fourth day of October they should give faith to it, and receive 
 no writs but under the new seal after .that day. 
 
 The fourth day of October being Simday the bishop o{ Ely chan- 
 cellor produceth the ne\y seal, declares the king's pleasure, that it 
 should be from thenceforth used ; the Monday after the old seal is 
 broke, prxcipiente rege, and the pieces delivered to the Spigurnel.(f) 
 
 Again, king Henry V. died 30 ^Ingusti anno sui c/ecimo, 
 a parliament was summoned by writ bearing teste 29 Sep- [ 177 3 
 temb. anno prinio H. 6, to be held die lunx ante festnm 
 Martini, a commission issued to the duke of Gloucester bearing 
 teste 6 Novemb. 1 H. 6. ad inchoanduni parliamentiim, 4-c. and the 
 bishop of Durham chancellor to Henry V, delivered up the seal to 
 the king 28 Septemb. The new seal with the new inscription was 
 in that parliament ordered to be made, the bishop of Dur/iam was 
 made chancellor by commission underthe great seal dated 16 Novemb. 
 the new seal was not made till some time after, therefore the old seal 
 of Henry V. was used in the summons of the parliament and all the 
 transactions till the new seal was delivered: indeed when Edward 
 IV. assumed the crown, the seal of Henry VI. was not used, for it 
 could not be had, and if it could, yet Henry VI. being declared an 
 usurper, there was no reason {ov Edward IV. to give any counte- 
 nance to that usurpation by using of his seal, who was declared an 
 usurper and attainted of treason. [3] 
 
 So that (except the last case of an usurper) till a new great seal be 
 made, the old seal, being delivered to the keeper and used and em- 
 ployed as the great seal, is the great seal of Englancl within this 
 statute, notwithstanding the variance in the \x\scn\){'\on, port rait lire, 
 and other substantials from the state of the present governor. 
 
 But then, what shall we say of the old seal, when the new seal is 
 made and delivered of record to the keeper, and the old seal broken? 
 To this I say, 1. It was once the great seal of England, and there- 
 fore the counterfeiting of that seal and applying it to an instrument 
 of that date, wherein the old seal stood, or to an instrument without 
 date, is high treason; nay, if in the time of Edward IV. a man should 
 counterfeit the great seal of Henry VI. and apply it to a patent or 
 other instrument of his time, it had been high treason, tho Henry VI. 
 were an usurper, and his seal in the time of Edward IV. of no value. 
 9i?.4.(/) 
 
 But what if in the case before instanced in, after the 4th 
 of October 1 £. 3. a man had forged a grant by king Ed- [ 178] 
 ward Ill.(^) bearing teste 2 E. 3. when the old seal was out 
 
 (c) 'The'Spigurnel was an officer, whose place was to seal the king's writs. Camhd. 
 Remains, p. 13fi. 
 
 (/) This is BagoVs case, 9 iJ. 4. 1 b. where it is said by the counsel, " That a m;in 
 shall be arraigned in the time of E. 4. for treason done against H. 6, in compassing his 
 death, .t'c." 
 
 ig) This must be understood under the old seal. 
 
 [3] For an accourit of the difficulties the parliament got into, when Lord Keeper Lit. 
 tlelon carried oft' the great seal to the king at York, see 3 vol. Lord CampbeWs Lives of 
 the Chancellors, p. 1. et seq^; 2 Hallam's Cons. His. 222.
 
 178 HISTORIA PLACITORUM CORONA. 
 
 of date, or in the time of Edward W . had forged a grant by Edward 
 IV. and counterfeited the seal of Henry VI. thereunto ; this seems 
 not to be a counterfeiting of "the great seal o( England, if the differ- 
 ence appear very legible and conspicuous, for at the time, whereunto 
 it rehites, there was no such great seal in being; but if the difference 
 between the seals be such as be not evident to the view of every 
 man's eye, it may be more doubtful ; sed vide de hoc infra. 
 
 Thi,s statute speaks only of the great seal, and privy seal, and 
 therefore no other seals were within this statute. 
 
 But by the statute of 1 Mar. sess. 2 cap. 6. " If any do falsely 
 forge or counterfeit the queen's sign manual, privy signet or privy 
 seal, every such offense shall be high treason, and the offenders 
 herein, their counsellors, procurers, aiders and abettors being convict 
 according to the course of law shall be adjudged traitors against the 
 queen, her heirs and successors." But now what shall be said con- 
 cerning these other seals above-mentioned, as the seals for the writs 
 of the courts of king's bench, common pleas, and exchequer, the seal 
 for statute-merchant, &c. 
 
 By the old law, it seems that counterfeiting any of the king's seals, 
 wherewith writs were sealed, was petit treason, tho it came under 
 the name of crimen falsi. •Glanvil, ih^i wrote in Henry II. 's time, 
 Lib. XIV. cff/7. 7v " Distinguendum est, utrum fuit carta regia an 
 privata, quia si carta regia, tunc i^. qui super hoc convincatur (scili- 
 cet de falsificatione) condemnandus est tanquam de crimine Isesas 
 majestatis ; si vero fuerit carta privata, tunc cum convicto mitius 
 agendum es]^ sicut in ceteris minoribus criminibus falsi, in quorum 
 judiciis consistit eorum condemnatio in membrorum solummodo 
 amissione, pro regia tamen voluntate." Bracton, that wrote in the 
 time of Henry III. Lib. III. cap. 3. de crimine Ixsse majestatis, § 2. 
 "Est & aliud genus criminis ra3S3e majestatis, quod inter gra- 
 r 179 1 viora numeratur, quia ultimum inducitsupplicium & mortis 
 occasionem, scilicet crimen falsi in quadam sui specie & quod 
 tangit coronam ipsius regis, ut si aliquis accusatus fuerit vel convict us, 
 quod sigillum domini regis falsaverit consignando inde cartas vel 
 brevia, vel si cartas confecerit & brevia&signa apposuerit adulterina, 
 quo casu si quis inde inveniatur culpabilis vel seisitus, sivvarrantum 
 non habuerit, pro voluntate regis judicium sustinebit, &, si warran- 
 tum halnierit & warrantizaverit, liberabitur & tenebitur warrantus:" 
 Ftfta, that wrote in the time of E. 1. Lib. I. cap. 22. de crimine 
 falsi, tells us, "■ Crimen falsi dicitur, cum quis accusatus fuerit, quod 
 sigillum regis, veil appellatus, quod sigillum domini sui, de cujns 
 familia fuerit, falsaverit & brevia inde consignaverit, vel cartam ali- 
 quam vel literani ad exha^redationem domini vel alterius damnum 
 sic sigillaverit,.in quibus casibus si quis inde convictus fuerit, detrac- 
 tari meruit & suspendi. § 3. Item crimen falsi dicitur, cum quis 
 illiritus, cui non fucirit ad hoc data authoritas,_ de sigillo regis rapto 
 vel invento brevia cartasve consignaverit :" Brilton, that wrote in 
 the time also of E. 1. cap. 4. " Soit inquise de touts ceux, qui ascun' 
 fausin averont fait a nostre scale, come de ceux qui pet engin ont 
 
 I
 
 HISTORIA PLACITORUM CORONA. 179 
 
 nostre seale pendu a ascun charter sauns conge, ou que nostra 
 seale ount emble ou robbe, ou autrement troue eient ensele brefs 
 sauns autre auctorite, and cap. '8. Graund tresou est a fauser nostre 
 seal &c." . ' 
 
 Upon these old books there is no difference made touching the 
 king's seals, but generally the crime of treason was supposed in coun- 
 terleiting any of them, but most certainly the statute of 25 E. 3. 
 extends only to the great and privy seal, as to the point of treason; 
 but then whether that, which was a treason before, remain not still a 
 felony at the common law (for all treasons include felony. 3 H. 7. 10. 
 Co. P. C.p. 15.) is considerable. 
 
 M. 2. H. 4. B. R. Rot. 2. as I take it, Visum est curiae, quod con- 
 trafactio sigilli regis pro recognitionibus non est nisi felonia:(A) but 
 iho they held it not treason, they do not positively affirm it 
 felony since the statute of of 25 E. 3. but only iion est nisi [ 180 ] 
 felonia, viz. that at most it can be only felony. 
 
 P. 6 E. 2. B. Rot. 2. Essex. Johannes de Bosco per cur' est culpa- 
 bilis pro falsilate, eo, quod cepit cultellum suum & calefaciebat eura 
 apud ignem & aperuit breve regis & imposuit aliud fictum, dicit quod 
 est clericus, & traditur ordinario lVestm\{i) Simile P. IS E. 2 B. R. 
 Rot. 25 Rex\k) 
 
 (li) There is no such entry to be found either on the second or seventh roll of the plea 
 or crown-roll of that term, but the words cited by our author are in tlic abstract of the 
 rolls of the king's bench of Mich. 2 H. 4., Rut. 7. but upon what authority is uncertain, 
 being in a ditferent and more modern hand than that of Mr. Agard, who in the reign of 
 Jamis I. abbreviated the king's bench rolls. 
 
 (i) The record of this case is thus, '■'■John de Bosco was arraigned pro falsitate sigilli «& 
 brevis domini regis, eo quod ivit cum brevi [de cancellaria] ad ignem & calefaciebat cul- 
 tellum, & cum illo cultello ceram dicti brevis findebat, and amoto illo brevi imposuit aiiud 
 breve [this was a Supersedeas to the sheriff of Essex] & illud in eadem cera inclusit & tra- ■ 
 didit ^ervienti sno illud breve vicecomiti Essex deferendum, qui quidem serviens in prse- 
 seutia pr!EdictiJ(;/(« n/i!S dc Bosco liberavit eidem vicecomiti falsum breve prtedictum : Dicit 
 quod clericus est:" upon which he tvas claimed by the abbot of Westminster his ordi- 
 nary ; " Sed ut sciatur pro quali eidem ordinario liberari debeat," a jury ex officio pass 
 upon him, who find him guilty " de prsedicta falsitate, findendo cum cultello suo prtedicto 
 ceram prEdictam &- imponendo falsum breve prsEdictum, sicut ci superius imponiiur: 
 Ideo inde ad judicium, &c. & interim committitur maresch', Sfc." There is no judg- 
 ment entered upon the roll; so that from this record, which is not in usual form, it is 
 doubtful whether he had his clergy or not, tho from a jury passing upon him ex officio it 
 is most probable he had; but yet it should seem from the case of Geoffrey de Huntijnton 
 S( Richard de Clijntbn, which was but six years afterwards, as if this offense was not so 
 much as felony; they were charged " pro contrafactione sigilli regis & cartre sub sigillo 
 regis sic conlrafacto," which was found in their custody; afterwards they plead the 
 king's pardon •" pro omnibus feloniis & transgressionibus, &, quia inspecta carta proedicta, 
 qu(E dicitur esse contrafacta, compertum est quod carta non est de forma in cancellaria 
 regis usilata, in?pceta etiam cera ejusdem cartsE suspectJE compertum est, quod cera ilia 
 impressa est sigillo regis cancellar', sed prius apposita fuit cuidam alteri literse regi? 
 |)ateiiti, quod ciliiis did potest transgressio, quam contrafactio. Et dominus rex per- 
 doiiavileis sectam pacis sua>, quae ad ipsum pertinet, de onmimodis feloniis & transgres- 
 
 sionibus, iStc. jam per tres annos in prisona regis steterint oceasione pra?dicta &, non 
 
 aHa causa, dictum est quod deliberet cos, &c. &. ipsi cant inde quieti, &e. Et carta 
 
 illacanoollutur in cur." Mirh. 11 E.2 B. R. Rot. 156. Heref. from hence it appears that 
 the judgment alterwards in Leake's case 4 Jac. 1. was agreeable to the antient resolu- 
 tions. 
 
 {k) This is the case of Philip Burden, but is by no means similar to that of John de 
 Bosco, ioi this was a direct actual counterfeiting of the great seal: vide infra in notis.
 
 181 HISTORIA PLACITORUM CORONA. 
 
 It appears not, whether it were a writ under the great seal 
 r 181 ] or a judicial writ of some court, but whether it were the one 
 or the other, it seems to be capital, for he had the benefit 
 of clergy, which in those times was allowable in some cases of trea- 
 son ; so that it seems a counterfeiting of any of the king's seals was 
 felony at common law, but whether it so continues, notwithstanding 
 the statute of 25 E. 3. hath degraded jt from treason, unless it be the 
 great Or privy seal, shall be farther examined. 
 
 II. Having thus considered the seals, it remains to consider what 
 shall be said a counterfeiting of the great or privy seal. [4] 
 
 A conspiracy or compassing to counterfeit the great or privy seal 
 is not a counterfeiting nor treason within this act, for it must be an 
 actual counterfeiting. Co. P. C.p. 15. 
 
 A taking the great seal off from a true patent and clapping it on a 
 forged patent in former times hath been held high treason ; in 40 
 ^ss. 33. it is plainly held to be high treason, (tho my lord Coke{l) 
 saith otherwise) for the woman, that did it, could not be let to main- 
 prise, which if it had been only a great misprision, she had been bail- 
 able upon that indictment.(m) 
 
 • 2 H. 25. which is entered H. 2. H. 4. B. R. Rot. 16. Midd. Cle- 
 ment Petitson^s case, the taking off the true seal from one patent 
 and fixing it to a forged patent is adjudged high treason; yet the 
 judgment is only quod distrahatur 4' suspendatur, which is the 
 judgment in petit treason. 
 
 This case and the reporting of it is disliked by my lord Coke P. C. 
 p. I5.;{n) but Stanf. PL C. p. 3. seems to agree with this resolution. 
 
 See also another case to this purpose for counterfeiting the privy seal, Rot. part. Q. E.'H. 
 part. 2. m. 18. '' John de Redynpes was arraigned and tried coram senescallo & mares- 
 callo hospitii domini regis pro contrafactionc privati sigilli domini re^is, & pro quibus- 
 dam litteris prisdlcto sigillo controfactis [contrafacto] consignalis cum co inventis," and 
 being found guilty had judgment, "Quod pro pra;dicta seducione [seditione] sit dctrac- 
 ' tus, (fc pro manuopcre cum sigillo prcedicto postea suspensus.". Vide Rylcifs Flacita 
 Parluinenturia, p. 542 — 545. 
 
 (/) Co. P. C.p. 115. 
 
 (m) This argument of our author is very far from being conclusive, for by the statute 
 o{ Westtn. 1. cap. 15. where the offense is open and manifest (which for what ajjpoars 
 was tlic case here) the ofiender is not bailable, altho it were only a misprision. 2 Co. 
 insM88, 189. 
 
 (n) And well it might be, for that case appears by the record to have been thus: 
 ^^ Clement I'eijlenyn was indicted, quod contraiccit magimm sigillum domini regis failso 
 & malitiose &, proditoiic, & cum dicto sigillo sic contrafacto quasdam liieras, quro pre- 
 sent' pra;dict' sunt consul', sigill'. he jjleads not guilty, the jury find, quod quoad con- 
 Iratactioncm sigilli prajdicti idem Clemens in nullo est culpabilis, sed dicuut, quod idem 
 Clemens falso &, dcccptoric dfe. in deceptionem populi de assensu aliorum de covinq. sua 
 
 [4] Neither the Congress of the United States, nor the legislature of the Common- 
 wealth have as yet declared the bare counterfeiting the public seal of the federal or state 
 government, to be an offence, of itself But if such seal were used in the counterfeiting 
 or forging any certificate, indent, or other public security, to which a. seal was by law 
 necessary to be nflixcd, it might bring the offence under the laws which respect coun- 
 terfeits and forgeries. Act of (congress, April .30, 17!)(). ch. 19. set.t. 14. L(iws of Virg. 
 1794. ch. 13.'}. sict. 3. 4 Ttickrr''s lU. Com. 83. Several of the States have passed laws 
 against counterfeiting the seals of the Stale, courts, &,c.
 
 HISTORIA PLACITORUM CORONA. 182 
 
 But the later authorities are against it, and that it is only a great 
 misprision and offense, but not high treason, no nor yet felony, as it 
 seems by the book hereafter cited. 
 
 37 //. S. B. Treason 3. A chaplain taking a goOd seal off from an. 
 old patent, and fixing it to a forged dispensation of non-residence no 
 treason, but only a great misprision punishable by fine and imprison- 
 ment. 
 
 H. 4 Jac. cited by lord Coke, P. C. p. 16. Leakeys case, who joined 
 two parchments together with glew so close, that it could not be dis- 
 cerned, and put a label through both, and on the one a true patent 
 granted, which passed the seal, and then afterwards upon the other 
 parchment wrote a forged patent, then he cut off the true patent and 
 published the other as a true patent; this was ruled by the advice of 
 all the judges, 1. That this was no counterfeiting of the great seal, 
 nor treason within this act. 2. But if it had been a counterfeiting of 
 the seal, he might have been generally indicted of treason for coun- 
 terfeiting the great seal, but it was ruled to be a great misprision ot 
 offense, but not high treason ; and with this opinion agrees my lord 
 Cuke, and it is the safer and later opinion and fit to be followed. 
 
 If the patentee of the king, of lands under the great seal, faze the 
 name of one of the manors and make it another name, this 
 is not counterfeiting of the seal nor treason within this sta- [ 183 ] 
 tute, but a great oflense or misprision, for which the abbot of 
 Bnier was sentenced before the king and his council, and the abbot 
 delivered up the charter to be cancelled. Claus. 42 E. 3. m. 8. dors. 
 Co. P. C. p. 16. 
 
 If the chancellor or keeper affix the great seal to a charter without 
 warraut, tho this be a misdemeanor in him, it is not treason within 
 this statute, tho Britton and Fleta uhi supra make it treason at 
 common law ; and altho it should be supposed treason at common 
 law, but not comprised within the statute, yet it is not now felony; 
 therefore the rule taken 3 H. 7. 10. that those treasons at common 
 law, which are not within the declaration of 25 E. 3, yet remain 
 'felony, is not true, as might be made appear by many instances. 
 
 scribi fecit, & finxit literas illas pendi fecit sigillum magnum domini regis, quod antea 
 pendebat super aliam magnain patentam domini regis. Si. sigillum dominii regis praedic- 
 tura subtiliter &l private consui fecit super literas falsas prsedictas, & illas falsas literas 
 una cum sigiUo domini regis prcedicto in diversis partibus regni AngliiB tanquam veras 
 literas pateiitcs, prout eapdem litcrce faciunt mentionem, usus est & exercebat in decep- 
 tioiiem domini regis & populi sui ; propter quod pro eo, quod curia non avisatur, quale 
 judicium praidictus Clemens in hac parte subire debeat, remittitur prisonao marescli' : 
 Afterwards in the Easter term next following, viso indictamento necnon veredicto prse- 
 dictis videtur curiiE liic, quod fal-sse literjE prsedictfe sic in deceptionem domini regis & 
 populi sui facta; & sigillatag, una cum usu &- exercitio earundem, alta proditio sunt, con- 
 sideratum est, quod praedictus Clemens Feyteni/n distrahatur &. suspendatur." This 
 mvst be owned to be a very extraordinary case, for as lord Coke justly observes, whatever 
 offcQso this were, yet this judgment ought not to have been given upon this verdict, for 
 the jury had ex))ressly acquitted him oT the offense charged in the iudictment ; not to 
 mention, that it is directly contrary to the case above-mentioned of Geoffrey de Hunlyn. 
 <on; there is likewise another irregularity in this case, that tho the otFcnse was commit- 
 ted after the 25 E. 3. and is laid to be done proditorie, yet it is not laid to be contra for- 
 mam tiatud, as since that statute all treasons ought to be. 
 , VOL. I. — 21
 
 18^ HISTORIA PLACITORUM CORONA. 
 
 And upon the same account it seems, that ahho, by Fletn and 
 Britton, if a man find casually the great seal, and seal a. forged 
 charter, this was treason at common law ; yet it is neither felony" nor 
 treason at this day, for here is no counterfeiting of the great seal, it 
 .is therefore only a great misdemeanor, Co. P. C.p. 16. 
 
 And altho it seems, by tlie old books above cited, that counterfeit- 
 ing of the judicial seal of the king used for writs was then treason, 
 yet very lately in the king's bench it was ruled to be no felony at 
 this day, but only a great misdemeanor punishable by fine and- 
 imprisonment, or by standing in the pillory, or both, so that the book 
 of 3 H. 7. is not in all points agreeable to law, for many things were 
 treason before 25 E. 3. which are thereby declared not to be treason, 
 and yet remain' not felony at this day ;' and the like for counterfeiting 
 the seal of a statute merchant. 
 
 If a man grave the sculpture of the great seal without warrant 
 from the king, but never use it or apply it to seal any thing, this 
 seems to be no counterfeiting of the great seal, tho it be with design 
 and preparatory to such an attempt; for tho in truth the instrument 
 itself be the seal, as appears by the usual expression sigillo meo 
 sigillaf, and by the frequent proclamations de sigillo amisso, when 
 either the king or a subject lost his seal casually, yet it seems not a 
 seal within this statute till an impression made in wax in 
 r 184 3 testimony of sonie writing, no more than the forging of a 
 stamp for money is a counterfeiting of money, unless it be 
 used, tho in both cases it is a great misdemeanor and a great evi- 
 dence to prove the offense committed, if any other circumstances 
 concur to prove it done. 
 
 M. 16 Jac. B. R. One counterfeited the draught of a patent to 
 himself and others to compound with alehouse-keepers and usurers 
 touching their offenses, and coiuiterfeited the privy signet to warrant 
 the passing of the other commission so by him drawn, and collected 
 divers sums of money thereby, and for counterfeiting the privy signet 
 he was indicted of high treason upon the statute of 1 Mar. It was 
 resolved, 1. That the counterfeiting of the great seal, privy seal, sign 
 manual, or privy signet is at this day high treason. 2. That the 
 adding of the crown in the counterfeit signet, which was not in the 
 true, and the omission of some words in the inscription, .which were 
 in the true signet, and the inserting other words, which werp not in 
 the true, (which was done purposely, that there might be a difference 
 between the true signet and the counterfeit) alters not the case, bat 
 it is high treason, for the fixing of the counterfeit signet, and thereby 
 obtaining the great'seal to his feigned patent, and thereby publishing 
 it to be true, and collecting sums of money by it make it treason} 
 the offender had judgment to be drawn, hanged and quartered.(o}'' 
 
 So that it should seem, that tho there might be so great a disparity 
 between the true and counterfeit signet, that the bare affixiifg of sucl^ 
 a seal might not be a counterfeiting within the statute ; yet if it were 
 
 (o) This case is reported in 2 Rol, Rep. 50. by the name oi Robinson's case. 
 
 J
 
 HISTORIA PLACITORUM CORONiE. 184 
 
 so like, that it deceived the officers of the great seal, and was used 
 to tlmt purpose, and attained its effect, viz. the affixing- of the great 
 seal to (he forged commission, it was a sufficient counterfeiting to 
 bring him within this law of 1 Mar. 
 
 The like inutatis mutandis may be applied to the great or privy 
 seal. 
 
 If a man counterfeit the stamp of the great seal, and 
 deliver it to B. to use, B. being ignorant that it is a counter- [ 1S5 ] 
 feit stamp, but thinking it true, seals a writ or commission, 
 this seems not to be treason in B. because he did it not proditori^y 
 but it seems to be treason in the deliverer, if he delivered it to that 
 purpose, for he did it proditorih, but the other not. 
 
 III. I come in the last place to consider the judgment in the case 
 of counterfeiting of the seal, whether it be only to be drawn and 
 hanged, as in the case of counterfeiting money, or to be drawn, 
 hanged, beheaded, ^'C. as in the case of compassing the king's death, 
 levying of war, or adhering to the king's enemies. 
 
 It seems that at the common law this offense was felony or treason 
 at the king's election ; if the indictment ran only felon ice it was only 
 felony, '\i proditori^ it was treason. (;>) 
 
 But altho it were proditoril and so applied to treason, it was not 
 a treason of so deep a die, as that of compassing the king's death, 
 adhering to the king's enemies, ^r levying war, which strikes at the 
 head, and therefore in comparison thereof it was a kind of petit 
 treason. 
 
 Clans. 6 Johan. M. 12. doi^s. " Scias quod dedimus Jldsed^o, Essex 
 clerico nostro pro servito sno omnia terras, tenementa & jura, quae 
 fuerunt JVilliehni de Siriibby, cujus terrae & tenementa sunt eschaeta 
 nostra per feloniam, quam fecit de falsificatione figilli nostri." Et 
 nota the king had the escheat, yet the offense was styled felony. 
 
 At the parliament 18 E. 1. Co. P. C. p. 16. Clergy was allowed 
 to a man convict pro falsificatione sigilti regis, deliberatur ordi- 
 nario,{q) but in tali casti non admittenda est purgatio ; 
 and yet in these greater cases of treason of levying war or [ 186 ] 
 compassing the king's death clergy was not allowed at com- 
 mon law. T. 21 E. 3. B. R. Rot. 23. Rex.{r) 
 
 (p) Co. P. C. p. 15. 
 
 (9) This is confirmed by Philip Burton's case, (P. 18 E.2. B. R. Rot. 25. Rex South') 
 who together with Richard de Bourne was indicted Quod nequiter & seditiose contra- 
 fecit figillum de metallo ad modum inagrii figilli regis, de quo quidem figillo contratacto 
 diversa brcvia quarnplurima eonsignavit; he pleads quod clericus est, the jury find him 
 • guilty de feloniu Sf seditione prccdicfis ei imposilis, and lie was thereupon delivered to 
 his ordinary, tanquam clericus convictus, from hence it appears that at common law 
 clergy was allowed in cases of treason, where it was not inmicdiately against the king's 
 person. 
 
 (r) That case was thus, Peter de Thorpe son of John de Thorpe was indicted, and 
 afterwards outlawed anno 18 E. 3. pro diversis feloniis 6f seditionibus, viz. going to 
 little Yarmouth and Gorleston cum tribus vexillis exteusis in modum guerrcc, breaking 
 open houses there, feloniously taking away goods there, &fc. and also five ships, " Quae 
 pra;parat8B crant de victualibus &. aliis necessariis eundi cum domino rcge in guerra fua, 
 &.C. Altcrwards coram regc ([Uiesitum est a prajfato Pelro, si quid pro so habeat vel 
 diccre scial, quare ad executioncm judicii de eo super utlagaria praidicta procedi non 
 dcbeat, &,c. Qui dicit, quod clericus est &. membrura sacra) ecclesia?, &,c. Et quiBsitum
 
 186 HISTORIA PLACITORUM CORONiE. 
 
 M. 1. E. 3. Charter de Pardon I3.(f) A man arraigned for 
 counterfeiting the king's seal pleaded a charter of pardon of all felo- 
 nies, arjd it was allowed ; yet there it is agreed, that the judgment 
 for such an ofjense is, that he shall be drawn and hanged, but such a 
 pardon will not serve in such a case since the statute of 25 E. 3. 
 
 Trin. 10 E. 2. Rot. 132. B. R. Bucks. " Boberius Legat k 
 Johannes Salecok per ballivos coram rege ducti ad respondendum 
 domino regi de hoc, quod ipsi cum aliis ignotis in pleno mercato 
 villse de Olneye, cum quadam falsa commissione & ficta cum quodam 
 sigillo regis controfacto signata, quam ballivi in curia regis hie por- 
 rexerunt, asserentes, illam super eos inveniri die, quo attachiati 
 fuerunt & dicentes, quod virtute illius commissionis prisas fecerunt 
 ad opus domini regis, usque ad summam sexaginta besliarum, de 
 quibus quatuor bestir inventae fuerunt in eorum possessione & cum 
 eis hie ductse ; they both plead not guilty ; the jury find John Sale- 
 cok guilty de falsitatibus & feloniis praedictis, judgment given against 
 him pro falsitatesigilli regis & commissione praedictis quod detrahatur 
 & pro furtiva abduclione prasdictarum besliarum suspendatur." 
 
 Nota, an arraignment of treason without indictment upon 
 r 187 ] the 7nainouer[t) found upon them: vide P. 21 E. 3. B. R. 
 Rot. 46. Midd'' Rex. 
 
 According to the old books above-mentioned, Fleta, ^-c. ubi 
 st(pra,dis(rohi debet &; siispendi ; and so it was practised in the 
 case of 2 H. 4. above-mentioned, where the judgment is only (//■?- 
 Irahi Sf suspendi. 
 
 And it may be reasonably argued, that as in the case of counter- 
 feiting the king's coin, which was a treason at common law, tho it 
 be so declared by the statute of 25 E. 3. yet the judgment, that wa^ 
 at common law, which was only to be drawn and hanged, is not 
 altered by that statute. M. 10 Car. B. R. iMorgan's case ;(«/) so in 
 case of counterfeiting the seal ; but at this day the law is generally 
 held, that for counterfeiting of the great or privy seal, or of the privy 
 signet or sign manual, the judgment is to be hanged, beheaded and 
 quartered, as in other high treasons, and so was the judgment in the 
 case of 16 Jac. above-mentioned; and it is safest to follow the modern 
 practice in judgments of high treason, tho I think it no error, if the 
 judgment be only guod distrahatur (5* snspendatur according to 
 the antient precedents, because the judgment is still capital, and tho 
 it be less, than the highest judgment in treason, yet it is still included 
 in it.[5] 
 
 est scepius ab eo, si qnid aliud velit dicere pro responsione in rctardationem judicii, &c. 
 Qui dicit, ut prius, &i, niliil aliud rcspondet, &-c. Et inspcctis indictamentis praedictis, 
 &i, etiam recordo &- j)rocessu utiagar' pricdictre; manifestiE compcrtuin est in cisdem,quod 
 utlagar' prtedicta nuper arliculo sedilionis proniulgatur, in quo casu prtedictus Petrus 
 privilegio cicricali gaudere non potest secundum legem & consactudinem regni, &c. 
 Ideo idem I'elrus distrahatur & suspendatur, &,c." 
 
 (s) 1 E. 3. 23. b. - 
 
 • (/) See for this kind of arraignment, 7 H. 4. 43. b. S. P. C. 148. c. 2 Co. Instit. 188. 
 
 (u) Cro. Car. 383. 
 
 [5] The Statutes of treason relating to the great seal, privy seal, privy signet, sign 
 manuul, &c. have all been repealed by the H Geo. 4. ^T 1 Will. 4. c. 66. s. 2. by which
 
 HISTORIA PLACITORUM CORON.^. 187 
 
 it is enacted, " That if any person shall forge, or counterfeit, or shall utter, knowing the 
 same to be forged, or counterfeited, the great seal of the united kingdom, his majesty's 
 privy seal, any privy signet of his majesty, his majesty's royal sigft manuel, any of his 
 majesty's seals appointed by the twenty-fourth article of the union, to be kept, used, and 
 continued in Scotland, tiie great seal of Ireland, every such offender shall be guilty of 
 high treason, and shall suffer death accordingly; provided always, that nothing contained 
 in an act passed in the seventh year of the reign of King \¥illia?n the Third, entitled, 
 ■' An act for regulating of trials incases of treason and misprision of treason,' or in 
 an act passed in the seventh year of the reign of Queen ylnJie, entitled, ' An act for 
 improving the union of the two kingdoms,' shall extend to any indictment, or to any 
 proceedings thereupon, for any of the treasons herein before mentioned." 
 
 The 7 Will. 4. <^ 1 Vict. c. 84. s. 1. after reciting the enactments of the 11 Geo. 4. Sf 
 1 Will. 4. c. 66. enacts, " That if any person shall after the commencement of this act, 
 be convicted of any of the offences herein before mentioned, such person shall not suffer 
 death, or have sentence of death awarded against him for the same, but shall be liable 
 at the discretion of the court, to be transported beyond the seas for life, or for any term 
 not less than seven years, or to be imprisoned for any term not exceeding four years 
 nor less tlian two years." 
 
 CHAPTER XVII.[l] [ 188 ] 
 
 CONCERNING HIGH TREASON IN COUNTERFEITING THE KING's COIN, 
 AND IN THE FIR.ST PLACE TOUCHING THE HISTORY OF THE C0IN[2] 
 AND COINAGE OF ENGLAND. 
 
 The legitimation of money and the giving it its denominated value 
 is justly reckoned ijiter jura majestuf is, and in England it is one 
 special part of \he king's prerogative. 
 
 [1] The law as it is written in the ensuing chapters, which treat of treasons relating 
 to the coin, has undergone very great alterations by a late Act of Parliament. Milder 
 and more suitable punishments have been attached to these offences, and the guilt of 
 treason has in every instance, been taken away from them. They now range under the 
 heads of felony and misdemeanor; which seems to be the proper classification; and the 
 one adopted by the old law writers, in whose treatises they always rank as a species of 
 \\i& crimen falsi. See 4 Bl. Com. 88. But there still remains a great deal of curious and 
 useful information untouched by the provisions of this Act. The statute alluded to is 
 the 2 Will. 4. c. 34. which repeals wholly or in part the undermentioned statutes relating 
 to the coin. 
 
 {Statutes wholly repealed.) Stat, de Moneta vulgo. 21 Edw. 1. Stats. 4. 5. Sf 6. 27 Edw. 
 1. Stat. 1. 9 Edw. 3. Stat. 2. 17 Edw. 3. 25 Edw. 3. Stat. 5. c. 12. Sf 13. 3 Hen. 5 
 Stat. 2. c. 6. Sf 7. 19 Hen. 7. c. 5. 5 t^ 6 Edw. 6. c. 19. 1 Mar. Stat. 2. c. 6. 1 P. ^ M. 
 c. 11. 5 Eliz. c. 11. 14 Eliz. c. 3. 18 Eliz. c. 1. 8. Sf 9. Will. 3. c. 26. 9. Sf 10. Will. 3. 
 c. 21. 1 Ann. Stat. 1. c. 9. 15 Geo. 2. c. 28. 11 Geo. 3. c. 40. 13 Geo. 3. c. 71. 7 Geo. 4. 
 c. 9. 
 
 (Statvteg partially repealed.) 18 Edw. 3. Stat. 1. 25 Edw. 3. Stat. 5. e. 2. (the famous 
 statute of treasons: repealed as far as regards the coin) 27 Edw. 3. Stat. 2. c. 14. 6 Sf 
 
 7 Will. 3. c. 17. 7 Ann. c. 24. 7 Ann. c. 25. 37 Geo. 3. c. 126. 56 Geo. 3. c. 68. 3 Geo. 4. 
 c. 114. 
 
 It repeals the following Scotch Acts relating to the coin. 6 Pari. Jac. 2. 5 Pari. Jac. 3. 
 
 8 Pari. Jac. 3. 7 Pari. Jac. 5. 7 Pari. Jac. 5. 9 Pari. Mary. 1 Pari. Jac. 6. 1 Pari. 
 Will. 
 
 And also these Irish Acts. 3 Edw. 4. c. 3. 28 Eliz. c. 6. 8 Ann. 6. 23 Sf 24 Geo. 3. 
 c. 50. 26 Geo. 3. c. 39. 
 
 The principal provisions of the 2 Will. 4. will be found in their appropriate places 
 throughout these pages. 
 
 [2] Coin, in French, signifieth a corner, and from thence hath its name, because in 
 ancient times money was square as it is in some countries to this day. 1 Ins. 207.
 
 188 HISTORIA PLACITORUM CORONiE. 
 
 Before I enter into the particulars concerning money I will give a 
 history or narrative of the various states and conditions and changes 
 of money in the several ages of this kingdom, and then shall descend 
 to some more particular observations, which will be useful in this 
 business. [3] 
 
 Money is the common measure of all commerce almost through 
 the world; it consists principally of three parts; 1. The material^ 
 whereof it is made. 2. The denomination or extrinsic value. 3. The 
 impression or stamp. 
 
 I. The material in England is either pure silver, or pure gold, 
 whereof possibly some money was antiently made here in England, 
 or else silver or gold mixed with an allay, which was usually and is 
 hitherto a small proportion of copper. 
 
 The standard of the money of England, that hath for many ages 
 obtained, is that, which is commonly called Sterling{a) gold or Sler- 
 ling silver, for tho the denomination o{ Sterling was at first applied 
 to the coin of silver and to that coin, which was the penny 
 \_ 189 ] commonly called Slerlingus, yet use huth made it af)plica- 
 ble not only to all kind of English coin of silver, but also to 
 coin of gold, and this is called the standard of coin. 
 
 But before this can.be well understood, we must make some 
 digression touching the measures applicable to these materials. 
 
 In silver the measure or weights applicable thereunto are princi- 
 pally these: 
 
 1. The pound, which being not averdupois, but troy weight, con- 
 sists of twelve ounces. 
 
 2. The ounce consisting of twenty penny weight. 
 
 3. The penny, or Sterling, consisting of thirty-two grains of wheat 
 taken out of the middle of the ear. 
 
 This is the old compositiomensurariiniseii\ed in the time o{ E. \.{b) 
 viz., quud denarius Jlnglix, qui denominatur Sterlingus rotundus, 
 sine tonsura ponderabit triginta duo grana frumenti medio spicse, & 
 viginti denarii faciunt unciam, & duodecim uncise faciunt libram, & 
 octo librEG faciunt gallonem, & octo gallones busselum.(c) 
 
 Arid it is to be remembered, that at that time a penny did really 
 weigh the twentieth part of an ounce of silver, and twenty pennies 
 did really weigh an ounce of silver, and two hundred and forty pence 
 
 (n) Some imafrinc tliis word to come from the town of Sterling in Scotland, where 
 they protend tlic purest money was formerly made; otlicrs that it is derived from the 
 Sdxou word Stcore, which signifies rule or standard; others that it was taken from some 
 Flemish workmen, wlio in the reign of I\in<r Juhn were invited over to reduce the money 
 to its proper finentjss; the [)e()ple of tiiat country hv'm^ generally called Easterlin<rs. 
 
 (h) An old liiger hf)ok of the ahbey of St. Edmiiiidslmry, says the affair was thus 
 settled in,.'} /:.'. J. I)y George liucklei/ then mayor of London and master of the n)int; and 
 in the '28 E. 1. an indented trial- piece of the o-oodness of old Sterling was lodged in the 
 cxcliefjucr, and every pound weight troy of such silver was to be shorn at twenty shil- 
 lings and three pence. See TinduVs note on Raimi's history, suhjine Ed. 1. 
 
 ('■) Vide statute 31 E. 1.2 Co. Instil. 577. 
 
 [3] 1 Bl. Com. 27G. 1 East, P. C. 147. Smith's Wealth of Nations, Book I. ch. 11.
 
 HISTORIA PLACITORUM CORONA. 189 
 
 (lid really amount to a pound weight troy, and to twenty shillings, 
 which made a pound of silver coin. 
 
 And ahho at this time the coin is raised, and therefore varies from 
 what it was at that time, yet to this day twenty shillings in silver is 
 called a pound, and the measure of an ounce is by twenty penny 
 weights according to the old proportion ; but indeed the grain is 
 changed,(*) for whereas thirty [twoj grains of corn then made an 
 ounce, [a penny weight,] yet because the weight of corn is not al- 
 ways uniform, and tlie number of thirty [two] was not so 
 ready and easy for computation : the penny weight is now [ 190 ] 
 divided into twenty-four equal parts; which are commonly 
 in the business of the mint called grains. 
 
 But touching the measure of gold, there is some difference in re- 
 lation to coin from that of silver, for we are told by the libei^ ruber 
 scaccariiy in that large tract concerning money, that the pound of 
 gold consists of twenty-four carets, every caret weighing half an 
 ounce of silver, and every caret consisting of four grains; and con- 
 sequently every grain of gold would weigh sixty of those grains, 
 which we call grains of silver, viz. the artificial grains, whereof 
 twenty-four made the penny weight.(^) 
 
 Now the Sterling standard was antiently, as it seems, somewhat 
 diti'erent from the standard as it is at this clay, and for some hundred 
 of years before; for from the 46th year of Edward III. and for 
 some time before until this day, the standard of Sterling silver hath 
 been and is this, viz., every pound of Sterling silver hath eleven 
 ounces two-penny weight of fine silver, and eighteen penny weight 
 of copper, which makes the allay of Sterling; tut because there 
 cannot be so exact an observation of the proportion, a half-penny 
 weight of copper over or under is allowed for the remedy, which is 
 the cause that Sir Johyi Davis in the case of mixt monies„/o/. 24 b. 
 saith, that eighteen shillings and five pence halfpenny argenti puris- 
 simi continentur in quutibet libra, <§* quselibet libra de Sterling 
 money avoit 18 d. ob. de allay de coper, 4* nient pluis. 
 
 But before that tmie it appears by the red book in the exchequer, 
 (which was written before 46 E. 3. and after 23 E. 3.) the standard 
 of Sterling silver consisted of eleven ounces four penny weight of 
 fine silver, and. sixteen penny weight of copper, so that then the 
 standard was purer; and possibly by what follows it may appear, 
 that in the time of Henry II. the standard was purer than that, for 
 then there was allowed only twelve-pence upon the pound of silver 
 dcalbare Jir7natn,(e) which possibly might be to reduce it to fine 
 silver, but this is obscure; de hoc postea. 
 
 The standard of Sterling gold in the latter end of E. 3.(/) [ 191 ] 
 was, that a p^und of Sterling gold consisted of twenty- 
 
 (*) There bein^, as I appreliend, two or three mistakes in this paragraph, I was not 
 ■willing to vary froni the original MS., but have inserted in brackets what I think was 
 intended. 
 
 [d) If 1 caret=4 grains=^ ounce=10 penny weight, then J caret = l grain=2.J penny 
 weight==60 grains of silver. 
 
 ie) Mat. Pari^, 747. (/) See TindaVs note on Rapiu's iiistory, sub fine Ed. 3.
 
 191 HISTORIA PLACITORUM CORONA. 
 
 three carets, three grains and a half of pure gold, and a half grain 
 of allay of copper, and thus I think it continues to this day; and by 
 this we may understand the statute of 17 E. 4. cap. 1. and 4 H. 7. 
 cap. 2. by the former it is provided, that no goldsmith sell any gold 
 under the fineness of eighteen carets, nor silver under the allay of 
 Stei'ling; by the latter, that all silver, that shall be fined or parted, 
 be made so fine, that it may bear twelve penny weight of allay in a 
 pound weight, and yet be so good or better than Slerling.[4'] 
 
 And this is the dignity of the coin of England, that it hath been 
 generally of the allay of Sterling, (except some small interruptions, 
 whereof hereafter) and according to this it was enacted 25 E. 3. cap. 
 13. that the money of gold or silver, which now runneth, shall not. 
 be impaired in weight or allay, but as soon as a good way may be 
 found, the same be put into the antient state, as in the Slerling made 
 upon the petition of the commons. Rot. Par. 25 E. 3. n. 32. 
 
 II, As to the second essential of coin it is the denominated or 
 extrinsic value, which is and of right ought to be given by tiie king, 
 as his unquestionable prerogative, (^) and that is seen in these par- 
 ticulars. 
 
 1. In the first institution of any coin within this kingdom lie, and 
 he alone sets the weight, the allay, the denominated value of all 
 coin;[5] this is done commonly by indenture between the king and 
 the master of the mint; de quo postea. 
 
 (g) Flo. Com. 3i6, 
 
 [4] By the 9th Sect, of the Act of Congress of April 2, 1792, ch. 16, it is enacted, 
 That there shall be from time to time struck and coined at the mint, coins of gold, silver, 
 and copper of the following denominations, values, and descriptions, viz.: Eagles — each 
 to be of the value of ten dollars or units, and to contain two hundred and forty-seven 
 grains and four-eighths of a gram of pure, or two hundred and seventy grains of standard 
 gold. Half Eagles — each to be of the value of five dollars, and to contain one hundred 
 and twen(y-three grains and six-eigiiths of a grain of pure, or one hundred and thirty- 
 five grains of standard gold. Quarter Eagles — 'each to be of the value of two dollars 
 and a half dollar, and to contain sixty-one grains and seven-eighths of a grain of pure, 
 or sixty-seven grains and four-eightlis of a grain of standard gold. Dollars or Units — 
 each to be of the value of a Spanish milled dollar as the same is now current, and to 
 contain tlirce hundred and seventy-one grains and four-sixteenth parts of a grain of 
 pure, or four hundred and sixteen grains of standard silver. Half Dollars — each to 
 be of half the value of tiie dollar or unit, and to contain one hundred and eighty-five 
 grains and ten-sixteenth parts of a grain of pure, or two hundred and eight grains of 
 standard silver. Quarter Dollars — each to be of one-fourth tiic value of the dollar or 
 unit, and to contain ninety-two grains and thirteen-sixteenth parts of a grain of pure, or 
 one hundred and four grains of standard silver. Dismes — each to be of the value of one- 
 tenth of the dollar or unit, and to contain tiiirty-seven grains and two-sixtccnth parts "of 
 a grain of pure, or forty-one grains and tliree-filtli parts of a grain of standard silver.' 
 Half Dismes — each to be of the value of one-twentieth of tlie dollar, and to contain 
 eighteen grains and nine-sixteenth parts of a grain of pure, or twenty grains and four- 
 fifth parts of a grain of standard silver. Cents — each to be of the value of one- 
 hundredth part of a dollar, and to contain eleven penny weights of copper. Half 
 Cents — each to be of liic value of half a cent, and to contain five penny weights and 
 half a penny weight of cop[)cr. 
 
 [5] The power to coin money, regulate the value thereof, and of foreign coin, is con- 
 ferred on Congress by the Constitution, Art. I Sect. 8. And it is exclusive in Congress, 
 the States being expressly prohibited '(jlr^. 1. (See*. 10.) from coining money; though
 
 HISTORIA PLACITORUM CORONA. 191 
 
 And tho by special charter or usage clivers prelates and monas- 
 teries in England had a certain number of stamps for the coinage of 
 money, as the abbot of St. Edmundsbiiry, Cluiis. 32 H. 3. m. 15. 
 dors, the archbishop of York, Claus. 5. E. 3. part. 1. m. 19. and 
 likewise the archbishop of Canterbury, the bishop o{ Durham, the 
 bishop of Chichester, kc- de quihus vide, statute 14 (§• 15 //. S. cap. 
 12. yet they iiad only the prolit of the coinage, and the residence of 
 some coiners at their cities, but they had not the power of instituting 
 either the allay, the denomination, or the stamp; the stamps 
 were usually sent them by the treasurer and barons of the [ 192 ] 
 exchequer by the king's command under his great seal, and 
 tlie masters or chief officers imployed therein were sworn to the king 
 for tlie juBt execution of their places.[6] Claus. 5. E. 3. part. 1. m. 
 10. 8,' 19. 
 
 But those mints have been long disused, tho it should seem by the 
 statute of 14 H. S. cap. 12. above-mentioned, that the several statutes 
 made against exchange of money, other than at the king's exchanges, 
 were not intended to prejudice these particular franchises of coinage. 
 
 2. He may by his proclamation legitimate foreign coin, [7] and 
 make it current money of this kingdom according to the value im- 
 posed by such proclamation; but the counterfeiting of such money 
 was not treason, till the statute -of 1 Mar. cop. 6. made it so,[S] nor 
 the clipping, washing, impairing thereof was not treason till 5 Eliz. 
 
 they ejfcrcise the authority of establishing a circulation of bank paper as a currency. 
 Congress have enacted a number of laws, which will be referred to, regulating the mint, 
 the domestic and foreign coin, and the offences relating to them. 
 
 •[6] The Acts establishing and regulatingthe mint of the United States, and for regulat- 
 ing coins, are the following : An Act establisliing a mint and regulating the coins of the 
 United Stales, Ajnil 2, 1792. cA. IG. An Act regulating foreign coins, and for other 
 purposes, February 9, 1793. ch. 5. An Act in alteration of the Act establishing a mint 
 and regulating the coins of the United Slates, March 3, 1794. eft. 4. An Act supple- 
 mentary to an Act entitled, "an Act to establish a mint and regulating the coins of the 
 United States," March 3, 1795. ch. 47. An Act respecting the mint. May 27, 1796, 
 cA. 33. An Act respecting the mint, April 24, 1800. ch. 34. An Act concerning the 
 mint, March 3, 1801. ch. 21. An Act to prolong the continuance of the mint at Fhila. 
 delphia, January 14, 1818. ch. 4. An Act further to prolongtlie continuance of the mint 
 at Philadelphia, March 3, 1823, ch. 42. An Act to continue the mint at the city of 
 Philadelphia, and for other purposes, May 19, 1828. cA. 67. An Act concerning the 
 gold coins of the United Stales, and for other purposes, June 28, 1831. ch. 95. An Act 
 to establish branches of the mint of the United States, March 3, 1835. ch. 37. An Act 
 Bupplementary to an Act entitled, "an Act establishing a mmt, and regulating the coins 
 of the United States," January 18, 1837. ch. 3. An Act to amend an Act entitled, an 
 Act to establish branches of the mint of the United States, February ]3, 1837. ch. 14. 
 An Act amendatory of an Act establishing the brunch mint at Danlonega, Georgia, and 
 defining the duties of the assayer and coiner, Februari/ 27, 1843. ch. 46. 
 
 [7] Under the confederation, the continental Congress had delegated to them, |' the 
 sole and exclusive right and power of regulating the alloy and value of coin struck by 
 their own authority, or by tllat of the States." By this grant there was no jjower given 
 to reguhite the value of foreign coin ; a defect which is supplied by the Constitution, 
 Art. 1. Sect, 8. Story on the Const. 16. 
 
 [8 1 By the 37 Geo. 3. c. 126. counteffeiting foreign gold or silver, is made felony, and 
 puniiilied with transp rtation for seven years. 
 
 VOL. I.— 22
 
 192 HISTORY PLACITORUM CORONA. 
 
 cap. 11. and 18 EUz. cap. 1. but all these statutes allow the power of 
 legitimation thereof to the king by proclamation. (//) 
 
 3, He may inhanse the external denomination of any coin already 
 established by his proclamation, and thus it hath been gradually done 
 almost in all ages, as will appear by what follows in this chapter; 
 this is sometimes called imbasing of coin and sometimes inhansing 
 it ; and it is both, it is an inhansing of coin in respect of the intrinsic 
 value or denomination, but an imbasing in regard of the extrinsic 
 value ; as for instance, when in the lime of E. 4. a noble was raised 
 to a higher rate by twenty pence; vide 9. E. 4. 49. 
 
 4. He may by his prerogative imbase the species or material of 
 the coin, and yet keep it up in the same denominated or extrinsic, 
 value as before, namely to mix the species of money with an allay 
 below the standard of Sterling; this is the case of mixt monies in 
 Sir John Davis^s reports, where the case was this. 
 
 ^^pril, 43 Eliz. Brett bought wares of one Gilbert di xneu 
 r 193 ~\ chant in London, and became bound to him in 200/. condi- 
 tioned for the payment of one hundred pound Sterling cnx- 
 rent and lawful money oi England in September following at Dub- 
 lin in Ireland: 24 May,4o Eliz. the queen sent into Ireland cexi^m 
 mixt money from the tower of London with the usual stamp and 
 inscription, and declared by her proclamation, that it should be law- 
 ful and current money of Ireland, viz. a shilling for a shilling, and six- 
 pence for six-pence, and that accordingly it should pass in payment, 
 and none to refuse, and declared that from the 10th oi July next all 
 other money should be decried and esteemed only as bullion and not 
 current money. Upon the day of payment Brett tendered the 100/. 
 in this mixt money, and resolved upon great consideration, that this 
 lender was good, the place of payment being in Ireland, and the day 
 of payment happening after the proclamation made; that altho this 
 ■were not in truth Sterling, but of a baser allay, nor a money current 
 in England by the proclamation, yet the payment being to be made 
 in Ireland, it was, as to that purpose, current money of England; 
 but if the day had been passed before the proclamation, then he 
 must have answered the value, as it was when payment was to 
 have been made. Sir Jo lui Davis's reports, ca^e de mixt moneys. (i) 
 h is true, that the imbasing of money in point of allay hath not 
 been very usually practised in England, and it would be a dis- 
 honour to the nation, if it sliould, neitlier is it safe to be attempted 
 without parliamentary advice; but surely if we respect the riglit of 
 the thing, it is within the king's power to do it; for tho the statute 
 of 25 E. 3, cap. 13. above-mentioned be against it, yet the statute 
 doth not absolutely forbid it; and altho by Poyning's law 10 ^H. 7. 
 
 (Ji) See also 8^ 9 M''. 3. cap. 25. and 7 Ann. cap. 25. .whereby it is high treason 
 knowinfrly to make, mend, buy, .sell, or have in possession any mould or press for coining, 
 or to convey such instruments out of the king's mint, or mark on the edges any coin 
 current, or to counterfeit, or colour or gild any coin resembling the current coin of tlic 
 kingdom. And sec 15 Geo. 2. ch. 2d. 
 
 (i) Davis Rep. lb. /
 
 HISTORIA PLACITGRUM CORONA. 193 
 
 all the precedent stalnies in Ens^land are of force in Ireland, yet 
 that resoUition was given as above. 
 
 My lord Coke in his comment of Jlrticuli super cartas, cap. 20. 
 seems to imply, that the alteration of money in weight or allay may 
 not be, withotU act of parliament, and for that purpose cites 
 the Mirror of Jastices,(A^) Ordein fuU, qe mil roy de ce [ 194 ] 
 reame ne poit chafi,^er sa money ne impayre, 7ie amender, 
 ne autre money /aire, qe de ore ou de argent sans assent de touts 
 ses counties; and the act of 25 E, 3. cap. 13. the statute of 9 H. 5. 
 sess. 2. cap. 6. that all money of gold and silver shall be as good 
 weight and allay as is now made at the Tower: the parliament-roll 
 of 17 E. 3. n. 15.(1) which was an accord in parliament for the 
 present amendment and increase of coin de fayre une mony des 
 bones Esterlinges en Engleterre du poys «§• allay del aunt lent Ester- 
 linges, qe avera son course in Engleterre enter les graunts 4' com- 
 mons de la terre, which should not be exported ; and if those of 
 Flanders would make money of as good an allay as Esterlinges, 
 that it should be current between merchant and merchant here, and 
 and others that would receive it, which was a temporary provision 
 for the increase of money. 
 
 All that a man can conclude upon these is, that it is neither safe 
 nor honourable for the king to imbase his coin below Sterling: if it 
 be at any time done, it is fit to be done by assent of parliament, but 
 certainly all that it concludes is, that fieri non debuit, but factum 
 valet., and this appears,[9] 
 
 1. By that resolution in the case of mixt monies, which, tho it 
 were but by way of advice and in Ireland, is of great weiglit, espe- 
 cially if we consider the consonancy thereof to the practice in Ire- 
 land, which tho it hath the same law of 25 E. 3. in force there, yet 
 generally their coin current there was of a baser allay than Ster- 
 ling, even before the proclamation of 43 Eliz. 
 
 2. By the usual inhansing of the coin in point of value and de- 
 nomination here, which tho it be not absolutely an imbasement of 
 the coin in the species, yet it hath very near the same effect. 
 
 3. By the attempts that have been made to restrain the change of 
 coin without consent of parliament. Among those many provisions 
 by the lords ordeiners,"5 E. 2. n. 30. that much abridged the king's 
 power, this was one, pur ceo qe a touts les foys qe le change de 
 mony se fait en royalme, tout le people est grandment 
 grievez in molts des manners, nous ordeinams, qe quant [ 195 J 
 mestier serra & le roye voile exchange faire, qil la foce par 
 common councell de son baronage & ceo en parlement. 
 
 But these ordinances, and this among the rest was repealed in par- 
 liament E. 2. and never revived again. 
 
 (A-) Cap. 1. §. 3. (Z) See Co. P. C. p. 93. 
 
 [9] The kmg's prerogative does not extend to the debasing or enhancing the value of 
 the coin, below or above the sterling value. 1 Bl. Cum. 278. 1 East, P. C. 148.
 
 195 HISTORIA PLACITORUM CORONA. 
 
 Eot. Par. 20 E. 3. n. 17. "Item qe les recevers des payments 
 nostre seigneur le roy recenent de people en cliescun place auxi bien 
 or come argent al prise assise desicom le people est arte de eel re- 
 ceiver pur payment, & qe la change de mony de or ne dargent ne se 
 face sans assen de parlement. Ro'. Quant aprimer point de c'article 
 soyt tenus ; quant a les changes fair soit Particle monstre a nostra 
 seigneur le roy, «&. as graunts qe sont perdervers lui, qils ent or- 
 deignent & dient lour volunte." 
 
 King Henry VIII. imbased the coin of this kingdom in point of 
 allay, and so it continued during the residue of his reign, and during 
 the reigns of Edward VI. and queen Mary, in so much that the 
 penny had not above a half-penny of intrinsic value; but queen 
 Elizabeth among the rest of her excellent methods of government, 
 did by little and little rectify this detestable imbasement of coin: 
 
 1. By prohibiting exportation, and melting down of good silver. 
 
 2. By reducing the brass money to its intrinsic value. 3. By making 
 a good allowance (to her own loss) of the base money brought into 
 the mint. 4. By stamping of new money of just allay of Sterling: 
 Camd. Eliz. sub anno 1560. p. 48. 
 
 While I wrote this a proclamation hath issued, dated 16'^?/^. 
 1672, whereby copper coin of half-pence and farthings near the in- 
 trinsic value is proclaimed in these words: "We do by this our 
 royal proclamation declare, publish and authorize the said half- 
 pence and farthings of copper so coined, and to be coined, to be cur- 
 rent money, and that the same from and after the 16th of Jing. 
 shall pass and be received in all payments, bargains, and exchanges 
 to be made between our subjects, which shall be under the value of 
 six-pence, and not otherwise nor in any other manner;"[10] how 
 far this makes it current money, videbimus infra. 
 
 And thus far touching the power of denomination, or set- 
 [ 196 ] ting the extrinsic value upon coin; the manner how this is 
 done will be shewn hereafter. 
 
 III. The third essential in coin is the stamp or impression, for tho 
 it may- be possible, as Mr. Stowe says, that in antient time money 
 passed in England without a stamp or impression, yet I never read 
 any such thing since tlie conquest, for that, which is frequently called 
 blank money, was not money without impression, but white money 
 or pure silver, or at least Sterling silver coined, for otherwise it had 
 jiot been an apt measure for commerce : the stamps or impressions, 
 of current money were heretofore delivered to tlie master of the 
 mint from the exchequer, but of later times they are delivered by 
 the secretary sometimes with, sometimes without the indenture of 
 coinage: now touching the manner of the legitimation of coin Jii 
 England, it is sometimes by proclamation, but always by indenture 
 between the king and the master of the mint. 
 
 [10] This seems to have boon the first instance of the introduction of copper coin into 
 he general currency of England. See 1 East. P. C. 148.
 
 HISTORIA PLACITORUM CORONA. 196 
 
 And therefore where Sir John- Davis in the case vbi S7ipra{m) 
 makes these six things as essentials to the legitimation of coin, 
 1. Weight. 2. Fineness. 3. Impression. 4. Denomination. 5. Autho- 
 rity of the prince. 6. Proclamation. The last is not always neces- 
 sary to the legitimation of coin, for theVe is scarce any king'^ reign, 
 but that there are various stamps or impressions of money, which 
 were never proclaimed, and therefore if upon an indictment of clip- 
 ping or counterfeiting the king's coin it he questioned, whether it be 
 the king's coin or no upon the evidence, there is not a necessity of 
 proof thereof by a proclamation, but it is a meer question of fact, 
 which nuist be left upon the jury by circumstances of fact to find, 
 whether it be the king's money; for tho there misht be possibly pro- 
 clamation of some new coins in the beginning of the king's reigns, 
 yet it would be impossible to prove them in the antient coins of 
 Edward VI. queen Mary, queen Elizabeth, S^-c. but if necessary to 
 be supposed, they may be presumed, ex diuturnilate temporis ; the 
 most therefore that can be expected is to produce the 
 ot^cers of the mint or their indenture to prove a coin cur- [ 197 ] 
 rent, if it be not otherwise commonly known. 
 
 But proclamation is necessary in these cases following, 
 1. A proclamation with proclamation-writ under the great seal is 
 necessary to legitimate and make current foreign coin, [11] and with- 
 out the proclamation it is neither current coin of this kingdom, nor 
 
 (m) 19 h. 
 
 [11] The Acts relating to foreign coin, are An Act to provide more effectually for the 
 collection of the duties imposed by law on goods, wares, and merchandize, imported into 
 the United Stales, and on the tonnage of vessels, August 4, 17!iO. ch. 35. sect. 40. An 
 Act relative to the rix dollars of Denmurk, March 3, 1791. ch. 19. An Act regulating 
 foreign coins, and for other purposes, February 9, 1793. ch. 5. An Act supplementary 
 to an Act regulating foreign coins, and for other purposes, February 1, 1798. ch. ll. 
 An Act to regulate the collection of duties on imports and tonnage, March 2, 1799. 
 ch. 22. sect. 61. An Act to suspend in part the Act entitled, " An Act regulating foreign 
 coins, and for other purposes," April 30, 1802. ch. 38. An Act regulating the currency 
 of foreign coins in the United Stales, April 10, 1806. ch. 22. An Act regulating the 
 currency within the United States of the gold coins of Great Britain, France, Portugal, 
 and iSpotn, and crowns oi' France and five franc pieces, April 29, 1816. ch. 139. An 
 Act to continue in force an Act regulating the currency witliin the United States of the 
 gold coins of Great Britain, France, Portugal, and Spain, and crowns of France, and 
 five franc pieces, March 3, 1819. ch. 96. An Act to continue in force an Act entitled, 
 "An Act regulating the currency within the United States of the gold coins of Great 
 Britain, France, Portugal, and Spain, and crowns of France, and five franc pieces," 
 March 3, 1821. ch. 52. An Act to continue in force an Act entitled, " An Act regulating 
 the currency within the United States of the gold coins of Great Britain, France, Par. 
 tugal, and Spain, and the crowns of France, and five franc pieces," March 3, 1 823. ch. 49. 
 An Act regulating the value of certain foreign silver coins within the United Stales, 
 June 25, 1834. ch. 71. An Act regulating the value of certain foreign gold coins within 
 iiie United Slates, June 28, 183i. ch.^G. An Act supplementary to an Act entitled, 
 An Act establishing a mint and regulating the coins of the United States, January 18, 
 1837. ch. 3. sect. 8. An Act regulating the currency of foreign gold and silver coins in 
 the United States, March 3, 1843. c^. 69. An Act to fix the value of certain foreign 
 monies of accoutit in compensation at the custom house, March 3, 1843. ch. 92. For 
 fne rales of estimating foreign coins and currencies, see the Act to regulate tlie collec- 
 tion of duties on imports and tonnage, 2 March, 1799. sect. 61.
 
 197 HISTORIA PLACITORUM CORONA. 
 
 • 
 
 is the counterfeiting, clipping or diminishing thereof treason with'in 
 the statute of 1 Mar. or 5 or IS Eliz. for the words in these statutes 
 [and by proclitmation allowed and suffered to be current here) 
 refers only to foreign coin, not to the coin of this kingdom; but tho 
 it be not proclaimed, it is misprision of treason to counterf«it[12] it- 
 lay the statute of 14 Eliz. cap. 1. 
 
 - The reason is especially because by the statute of 17 R. 2. cap. 1. 
 no foreign coin of gold or silver are to run in any manner of pay- 
 ment within this realm, but are to be brought as bullion to the mint 
 to be turned into English coin. [13] 
 
 2. A proclamation under the great seal is necessary to legitimate ' 
 base coin or mixt below the standard of Sterlmg, and for the dis- 
 pensing within the statute of 25 E. 3. cap. 13, and 4 H. 5. cap. 6. 
 and with application to, that case the opinion of ^ir John Davis^s 
 report touching the necessity of a proclamation seems to be good in 
 law. 
 
 3. A proclamation under the great seal is necessary, when any 
 coin already in being is inhansed to a higher denomination or ex- 
 tritisic value; as when the twenty shillings piece of gold was raised 
 to twenty-two sliillings, because it was once current money under 
 another denomination; thus it was done upon the inhansing of 
 twenty shillings and ten shillings pieces by king James. 
 
 4. A proclamation is necessary when any money, that is current 
 in usage or payment, is decried; thus it was done in the case of 43 
 Eliz. for the Slerlins^ money in Ireland before mentioned; and thus 
 it was done by the Pollards and Crocards tempore E. 1. {n) Dy. 83. 
 and by the several base monies mentioned in Jirticuli de tnonetd, 
 
 namely the money with the mitre and with the lyons, which 
 [ 198 ] it seems were minted in England, besides the other foreign 
 money therein mentioned. (o) 
 
 5. Altho in the case of money newly coined by the king's autho- 
 rity in ^«o-/ri?^(/ a proclamation is not absolutely neces.sary to the 
 legitimation thereof or making it current, yet to incluce a contempt 
 upon such as refuse to take it in payment such proclamations havA. 
 not been altogether unusual, and by the red book of the exchequer 
 seems necessary for that purpose; for how can men reasonably 
 know at first, whether this be the king's coin without some sucli 
 public notification, where long use and custom hath not made the 
 stamp or coin familiarly known to those, that are to receive it: vide 
 proclamations for money newly made principally upon this account, 
 Claus. IS E. 3. part 1. m. 28 4' 12. dors. Claus. IS E. 3. part 2. 
 
 (n) D'lvis 21. h. Sec the nolo in Rapin's hist, suh fine Ed. 1. 
 
 (tt) And tlius it waH lately done in tlie cu.se of tiie broad pieces of twenty-five shillings 
 and twcuty-threc shillings. 
 
 [12] It is a misdenieanor, by tlie 43 Geo. 3. c. 139, to counterfeit foreign coin not 
 current by procinmation, but resembling copper or mixed metal coin of a foreign state. 
 [n]lEast,r.C.Wd.
 
 HISTORIA PLACITORUM CORONA. 198 
 
 m. \^. dors. Claus. 19 E. S. part 1. m. 23 5' pari 2. m. 15. dor a. 
 Claus. 20 E. 2,. part 2. m. 20. dors, and 25 E. 3. m. 14. dors. But 
 yet the money is the lawful money of England, aiid he that coun- 
 terfeits it is within the law of 25 E. 3. for treason, tho there be no 
 such proclamation : vide Libr. Ruhr. Scaccarii, fol. 259. « Impri- 
 mis oportet ut omnem monetam prsecedat constructio allaii, viz. 
 ponderisque & numeri ipsius monetas distincie & apte continens 
 moderamen, deinde inchoanda est & perficienda ex edicto aut licentia 
 principis speciali, & publicanda per proclamationem prasconis ipsius 
 principis publice, ut mos exigit faciendum, & tunc usui apta erit : ita 
 ut ex tunc non sit impune a quoquam de populo recusanda. Qui- 
 ctmque autem clam vel aperte vel paliim absque licentia principis 
 cujuscunque monetae contrafactionem attemptasse convictus fuerit, 
 corporaliter plecti solet." 
 
 And now I shall give a brief history of the variation of the coin of 
 England. 
 
 It appears by all the antient monuments, that I have seen, that the 
 use of coin or money was antient and long before the conquest. (/?) 
 
 It is true tliat Gervasius Tilburiensis, who wrote the 
 black book of the exchequer in the time of Henry II. com- [ 199 ] 
 monly called magister <§• discipiihis, Lib. I. cap. a cjidbus 
 8}' ad quid instituta fuit argcnli purgatio, says, that in the times 
 ^f king William I. IVilliam II. and Henry I. the antient farms of 
 the king's demesnes were answered in cattle, corn, and other provi- 
 sions in specie, because it saved the king the trouble of purveyors, 
 and money was scarce among the people, and yet the reservations of 
 their rents were in money, viz. so many pounds numero, or so many 
 pounds hlanc; de quibus infra. 
 
 And to make an equation between the provisions, that were 
 answered in kind, and the rents that were reserved, there were cer- 
 tain rates or prices agreed upon almost all such provisions, as for 
 wheat for one liundred men per diem twelve pence, for a fat ox 
 twelve pence, &c. which it seems were delivered to the sheriff and 
 by him answered to the king in money or kind, as it was agreed. 
 
 But those farm rents, that were reserved out of the cities, boroughs, 
 franchises, &c. because they had not provisions in kind were answered 
 in money according to their reservations. 
 
 In the time of Henry I. this answering of farms by provisions 
 ceased, and the tenants paid their money according to the letter of 
 their reservations; the king was weary of receiving, and the farmers 
 weary of paying their rents in victuals and provisions, but money 
 still was in use as the common instrument of commerce and valua- 
 tion. 
 
 In the troublesome time of king Stephen we are told by Roger 
 Hoveden sub anno 1149. Omnes potentes tarn episcopi, quam 
 comities S,' barones siiam faciebant monetam, which occasioned a 
 
 (p) Tliat money was coined here in the time of the Saxons is sufficiently plain, but it 
 h very doubltVil whether the Britons ever coined any; in Casar's time they used only 
 iron-rings, or piccee of brass; Casar, Com. de B. G.'lib. 5, m. 12.
 
 199 HISTORIA PLACITORUM CORONA. 
 
 great confusion and corruption in money and commerce :(y) Henry 
 II. coming to the crown reformed this usurpation and abuse, novam 
 fecit monetam, qiise sola accept a erat fy recepta in regno ;[7') and 
 thus it hath hitherto obtained, only some particular corpora- 
 r 200 ] tions ecclesiastical, as bishops and abbots had special privi- 
 leges granted to them to have mints,(,y) some one stamp, 
 some two, some more, which yet were sent to them from the king's 
 exchequer, and their officers sworn to the king to deal faithfully in 
 their offices. 
 
 Yet after this king's time, especially in the beginning of king' 
 John's time, there was a great uncertainty and disorder both in the 
 weight and allay of coin; for Clans. 7 Johanyi, rn. 24. Sciatis quod 
 recipimus per manum Petri de Ely, S^c. trecentas libras numero, 
 quae ponderuhant quingentas libras 47s. Sd. and in the same roll, 
 m. 25. recipimus de Thesauro per manus Petri de Ely, 1725/. & 
 11,9. Qd. numero, quw ponderabant 1556/. 17*. Qd. which holds no 
 proportion with the former. 
 
 Henry III. had a troublesome reign, and ra'alefactors abounded, 
 especially in relation to the clipping of money; in his thirty-second 
 year he made new money, and ordained ne quis denarius, nisi 
 legiiimi ponderis Sj- circular is for mm uteretur, dipt money not to 
 be received but perforated, and divers offenders were hanged. Mat. 
 Paris sub anno 1248 ;(/) but we have not the just standard of 
 weight of his money. 
 
 In the time of Edward I. we know what the weight and allay of 
 his current money was, namely the allay was Sterling, twenty shil- 
 Hngs made a pound weight troy, and twenty pence an ounce, so that 
 the pound of Sterling slUerm^de. two himdred forty Sterling pence. 
 
 There were other base monies in his time, as namely, those that 
 were decried by \he ^rticuli de monefd, and Pollards nnd Cro- 
 cards; what the value of the latter was I know not, but it appears 
 by Clans. 2d> E. 1. m. 6. quod pro qualibet libra pollar dor um una 
 marca Sterlingorum solvitur ad Scaccarium: they were both 
 decried in the 28 E. l.{u) Vide Dy. SI. This rate oi Sterling cow- 
 tinued during some time of Edward II. 
 
 {q) William of Newbury writes tlius under the reign of king Stephen, Erant in Anglia 
 qundammodo tot rcises vel potius tijranni quot doviini castelloruTn,habente8 singuli ptrcui- 
 suram pioprii numismntis. 
 
 (r) iSee Wilk. Leir.Ucnrij 11. p. 320. where these Words are also jiddcd, ahdicata jam 
 procermn ilia; the truth is, this reformation of the money began to be made towards the 
 Jatlcr end oi' Siephe.n^s reign, for among tlie artieles of pcaec between Stephen and Henry 
 this was one, that the silver coin should be one and the same throughout the liingdoin. 
 Jbid. p. '315. Mat. Paris, p. 13:). 
 
 (s) See a charter of king Julin allowing this privilege to Hubert archbishop o( Canter- 
 bury. Wilk. Leg. Johannis, p. 355. 
 
 (t) p. I'll. 
 
 (w) As appears by the proclamation, Quad J'ollardi Sf Crokardi nan currant in regno 
 AngliiB, Claus. .28 E. 1. m. 12. dors, by which record it also appears, tiiat two Ptillards 
 and cne Sterling were much about the same value; for the words are Licet nnper pro 
 communi vtilitate reirni nnstri dc concilia nostra ordinavimns, quod duo I'ollardi, vcl duo 
 Crokardi currerent in eodein regno pro uno Stcrlingo.
 
 HISTORIA PLACITORUM CORONA. 201 
 
 I have not seen anv indentures of the mint between the 
 time of Edward II. and the 46 Edward\l\{x) and then by [201 ] 
 the indenture of the mint Clans. 46 E. 3. m. 18. a pound of 
 gold made forty-five nobles, each noble six shillings and eight pence, 
 and was to consist of twenty-three carets, three grains and an half of 
 fine gold, the rest allay; the coinage to be four shillings for each 
 pound for the master of the mint, and twelve pence for the king; the 
 pound valued at fifteen pounds, and the merchant upon the return 
 to have out of the Tower fourteen pounds fifteen shillings. 
 
 A pound of silver was to make three hundred pence, and so in 
 that proportion groats, half-pence, and farthings, which was to be of 
 the allay du viel Esterling.viz. eleven ounces two-penny weight of 
 fine silver, and eighteen penny weight of allay; eight pence to be 
 allowed for coinage. 
 
 The next Indenture I find is 3 H. 4. p. 2. m. 9. dors, whereby a 
 farther alteration was made. 
 
 The pound of gold made the same quantity of nobles, and was of 
 the same' allay as before, only upon every pound was allowed three 
 shillings and six pence to the master, and one shilling and six pence 
 to the king for coinage. 
 
 Tlie silver coin of the same fineness, weight and allay, as by the 
 iadenture of 46 E. 3. the coinage eight pence, whereof seven pence 
 to the master, and one penny to the king upon every pound weight. 
 
 Claus. 1 H. 5. m. 35. dors, the allay of gold and silver still the 
 same as before, but some other variance there was. 
 
 The pound of gold was now to make fifty nobles, the value of the 
 whole, pound to be sixteen pounds thirteen shillings and four pence, 
 the coinage five shillings. 
 
 The pound of silver was to make three hundred and sixty 
 pence, the coinage was nine pence to the master, and three- [ 202 ] 
 pence to the king; so that now the pound of silver made 
 thirty shillings Sterling, whiWi began in Rot. Pari. 13 H. A. n. 28. 
 by ordinance of parliament. 
 
 Claus. 9 H. 5. m. 2. dors, the same weight and allay of gold, viz. 
 every pound of gold to make fifty nobles, the coinage to the king 
 three sliillings and six pence, to the master eighteen pence. 
 
 The like as to silver in all points as by the indenture of 1 H. 5. only 
 the master to have nine pence, the king three pence for coinage. 
 
 Claus. 1. H. 6. m. 13 ^-15. The indenture agrees in all things 
 with that of 9 H. 5. 
 
 Clans. 4. E. 4. m. 20. The king by proclamation inhanseth the 
 v^lue of coin, so that the noble of gold, which before was six shillings 
 
 (ar^ But among the records in the Tower there are several indentures to be found 
 within that time, viz. 
 
 Clavs. 18 E. S.p.Q.m. 19. d. 
 Pat. 18 E. 3. p. I. m. 27. 
 Claus. 23 E. 'S. p. I. m. 21. d. 
 Claus. 25. E. 3. m. 15. d. 
 Clans. 29. E. 3. in. 6. d. 
 Claus. 35 E. 3. m. 10. d. 
 VOL. I. — 23
 
 202 HISTORIA PLACITORUM CORONA. 
 
 and eight pence, is now raised to eight shilHngs and four pence, three 
 groats make a shilling, and so do twelve pence, and twenty shilUngs 
 make a pound. 
 
 And afterwards he made new coins according to the standard of 
 gold aforesaid, viz. the nohle of gold eight shillings and four pence, 
 and the pound of silver raised to thirty-seven shillings and six pence ; 
 and now I shall follow John S/owe in his Survey of London, p. 47. 
 
 H. 7. raised the rate of Sterling silver coin to forty pence the 
 ounce. 
 
 18 H. 8. the pound of silver coin was raised to forty shillings. 
 ■ 35 H. 8. the coin of gold was raised to forty shillings the ounce, 
 the coin of silver to four shillings the ounce, and coins of base money 
 of allay'below Sterling were coined, viz. shillings, six-pences, four- 
 pences, two-pences, pennies: these were decried in 5 E. 6. and the 
 shilling reduced to nine-pence, and after to six pence. (y) 
 
 30 Octob. 5 E. 6. Silver sterling coin inl)ansed to five 
 [203] shillings the ounce, and so proportionably ; and coins of fine 
 gold, a whole sovereign was thirty shillings, an angel ten- 
 shillings, and base money to pass as before. 
 
 2 Eliz. The base money was called in and brought to the mint 
 and reduced to Sterling and new coined, and the dross given to re- 
 pair the highways, 
 
 16 Novemb. 2 Jac. By proclamation the new coins of gold and 
 silver then made, together with their impressions, inscriptions, weight, 
 and values were proclaimed; and 23 Novemb. 9 Jac. per proclama- 
 tion the coins of gold are inhansed, r/^r. thirty shillings to thirty-three 
 shillings, twenty shillings to twenty-two shillings, fifteen shillings to 
 sixteen shillings, ten shillings to eleven shillings, five shillings to five 
 shillings and six-pence. 
 
 Upon these variations these things are nevertheless observable, 
 First, That the old Sterling gold is this, that one pound of Sterling 
 gold contains twenty-three carets three, grains and a half of fine gold, 
 the rest to make it up twenty-four carets is of allay of copper. Se- 
 condly, That the old standard oi Sterling silver is, that every pound 
 weight of Sterling silver consist of eleven ounces two penny weight 
 of fine silver, and eighteen penny weight of allay of copper. Thirdly, 
 That this rate of *S'/er//«^gold and silver hath most plainly coiuinued 
 to be the standard of English gold and silver coin, at least from the 
 time o{ Henry III. until this day in jGn^/an^/ without any considera- 
 ble alteration, saving that base money, which was stampt in the time 
 o{ Henry VIII. and then reduced to a lower valuation by Edward 
 VI. and after re-established by Edward VI. to its former value. 
 Fourthly, That, as well in England diS Ireland, there hath been im- 
 basing of the species of money, as appears in these two instances in 
 the time of Henry VIII. and Edward VI. which are yet the only 
 instances that I find of that nature in England. Fifthly, That queen 
 Elizabeth decried by proclamation all tliat base money, which was 
 in use in the time of her father and brother, and ever since that pro- 
 
 (y) Dyer 82.
 
 HISTORIA PLACITORUM CORONiE. 203 
 
 clamation, viz. 2 Eliz. the true old Sterling standard both of gold 
 and silver hath been the only standard of the English current money. 
 Sixthly, That all ho the standard of Stey^ling hath with great 
 constancy obtained in England, yet the denomination or ex- [ 204 ] 
 trinsic or imposed value hath varied according to the plea- 
 sure of the king both as to gold and silver coin, as appears by what 
 goes before ; for in Edward I's time the ounce of Sterling silver was 
 twenty pence, the pound twenty shillings or two hundred and forty 
 pence ; in Edward UVs time the pound of Sterling was three hundred 
 pence; in the time of Henry V. and so downward to Edward W. 
 three hundred and sixty pence, or, which is all one, thirty shillings; 
 in the time of Edward IV. the pound of silver was thirty-seven shil- 
 lings and sixpence; in 35 H. 8. the pound of Sterling silver was 
 forty shillings ; in 5 £. 6, and so down to this day the ounce of silver 
 five shillings or sixty pence, and the pound of Sterling silver three 
 pounds or seven hundred and twenty pence, which in Edward Ps 
 time was only two hundred and forty pence, which now is thrice as 
 much as then it was. Seventhly, That I find rarely any proclama- 
 tion for the setting of the rate of new coin, but only as before, when 
 the denomination of wliat is in being is inhansed, or abated, or re- 
 called ; so that the indenture of the mint and common reputation is 
 that, which must try what is English money. Eighthly, That I 
 never find either in the indentures of the mint or any proclamation 
 the stamp, impression, or inscription described, unless in that of king 
 James, because the stamps are agreed upon between the king and 
 the master of the mint, and delivered to him by the king, or his 
 warrant either of the great seal, privy seal, signet, or secretary 
 of state. 
 
 CHAPTER XVIII. [205] 
 
 CONCERNING THE ADULTERATION OR IMPAIRING OP COIN, AND THE 
 ANTIENT MEANS USED TO REMEDY IT. 
 
 The decays or impairment of coin is either in weight or allay, the 
 former may happen by some abuse of the moniers or minters; or by 
 the subtiliy of clippers, washers and other impairers of coin ; the 
 latter, viz. impairment in allay, can only happen either by the dis- 
 honesty of the moniers or minters, or by the counterfeiting of coin. 
 
 Antiently, all money was paid in number, namely so many pieces 
 made a pound, and this was the common reservation and account of 
 all farms, and the estimating of accounts, vicecumes A. reddit compo- 
 tuni de 100/. numero, or in thesanro 100/. niimero. 
 
 But this did not answer all intentions, for the money that was 
 paid in, might be dipt, or otherwise rendered light, or might be 
 counterfeit, or of base allay. 
 
 For. remedy whereof there was practised these three methods of
 
 205 HISTORIA PLACITORUM CORONA. 
 
 rectifications of payments at the exchequer, that the king might not 
 be deceived, and these were successively used in the excliequefy 
 which we may read Gervafi. Tilb. Lib. I. supra guibus. 
 
 1. Solutio ad sca/am, which it seems was a dish or measure, 
 whereby they measured their money, as well as told it, for that is 
 llie proper signification of scula: but in process of time this was 
 turned into a measure of money, which was an addition of six- 
 pence for every pound, to avoid the trouble of that probation, 
 whereby an hundred pounds mimero amounted to an hundred 
 pounds and fifty shillings ad scalam; and so we have frequently in 
 the old pipe rolls of Henry II., Richard I., king John, &c. in the 
 sauro lOOl, ad scalam. 
 
 2. Solutio ad pensum, which was the answering of every 
 r 206 ] pound of money by weight of a pound weight troy, for ia 
 those times the libra argenti com d^xA or was to answer a 
 pound weight troy, and therefore the payer was to make it good of 
 that weight by answering the full weight; this gave the frequent 
 title of the old pipe-rolls, also in thesauro 100/. ad pensum. 
 
 But altho this solutio ad scalam or ad pensum^ especially both 
 together, did give some help against the defect of coin in weight, as 
 by clipping, washing, or the like, yet it did not help as to adulterate 
 money of baser allay than the standard: Therefore, 
 
 3. There was found out in the time of Henry II. a third trial, 
 namely trial by fire or combustion, and if it were of the just allay 
 it was allowed, if below the allay the payer was to make it good, 
 and hence he was said dealbare Jirmam ; and hence grew quickly a 
 difi'erence between reservations and payments of so much money 
 7^^m^t?/'o, and so much money blafic. 
 
 A reservation of so much money generally was intended of so 
 much niirnero, as if a pound were reserved, it was in effect but 
 twenty shillings in pecuniis numeratis ; but if it were expressly- 
 said so much money blanc, then it was answered in blanc money, 
 but yet with this difference, that if a farm were letten and so much 
 rent generally reserved, it should be intended so much numero, in 
 pecuniis numeratis; but if a franchise or liberty were granted, and 
 so much rent generally reserved without sayiiig blanc or numero, it 
 Was commonly intended blanc, unless expressly said reddendo so 
 much money numero, and therefore in such a case the former was 
 bound dealbare Jirmam, that is, to answer so much as would make 
 his payment to be so much good in fine silver, or very near it at 
 least, Gervus. Tilb. Lib. II. cap. quid sit, quosdam fundqs 
 
 dari blanc, quosdam numero. 
 
 And therefore upon all the antient accounts in the pipe, made by 
 
 the sheriff, we shall find some of his accounts of rents to run mimero, 
 
 some of them to run blanc, viz. Jirma comitatus numero, <§• firma 
 
 comitatus blanc, according to the variety of their reserva- 
 
 ("2071 tions or the things out of which they are reserved; now 
 
 what the proportion was, between so much money blanc
 
 HIST0RIA PLACITORUM CORONiE. 207 
 
 and so much money nurnero in those antient times, or what this 
 blanc money was, is worth the inquiring. 
 
 I have formerly thought that blanc money was nothing else but 
 Sterling, and that dealbare firmam was no more, than to reduce 
 money to the true allay oi Sterling ; but upon consideration I think 
 blanc money was truly so much tine silver without any allay, and 
 that the true allay of Sterling silver or the antient standard was 
 twelve penny weight only of copper to every pound weight of 
 silver; and tlierefore he, that upon his reservation was to pay one 
 hundred pounds of blanc money, was to answer to the king upon 
 every pound of Sterling money one shilling to countervail the value 
 of the allay of copper in every pound weight troy of silver. 
 
 And hence it is, that the farms of most corporations antiently let 
 with liberties, if one hundred pounds per annum were reserved, 
 usually answered one hundred and five pounds, the five pounds 
 being to answer the allay of one of copper in the whole quantity. 
 
 21 H. 3. in compoto comitatus North' ton summa totalis 102/. 3.?. 
 Id. de quo 4/. \is. 4d. blanc, quae sunt extensae ad 4/. 13s.. 9a?. subtra- 
 huntur ad perficiendum corpus comitatus & remanet 97/. 13^. lO^.(a) 
 de quibus respondet de proficuo in magno rotulo. 
 
 Clans. 19 H. 3. p. 1. w. 2. Sciatiis quod pardonavimus dilectse 
 & fideli nostrse J2. comitissa3 Pembroch centum triginta & quinque 
 libras blanc, (\\\^ extensse sunt ad 141/. \5s. 
 
 13 E. 3. m compotu Bedford & Bucks, Nicholaus Basselew IS/. 
 45. 4^. ninnero pro 111. Is. blanc. 
 
 That of 19 H. 3. exactly answers twelve pence per pound, which 
 amounts to six pounds fifteen shillings, and added to one hundred 
 thirty-five pounds make just one hundred forty-one pounds fifteen 
 shillings. 
 
 And the other estimate is very near the same account, bating the 
 difficulty of small fractions, four pounds nine shillings and 
 four pence, with the adding of twelve pence for every pound [ 208 jj 
 to make it Sterling, amounts to about four shillings and six 
 pence, which added to four pounds nine shillings and four pence 
 make four pounds thirteen shillings and ten pence; so the allay of 
 Sterli}ig at that time seems to be twelve pence of copper to every 
 pound of silver. 
 
 The sum therefore is, 1. That blanc ferme ox blanc money was the 
 estimate of money in pure silver without allay, and accordingly it 
 was to be answered, viz. one hundred pounds blanc was to answer 
 one hundred and five pounds numero. 2. That di ferme or sum of 
 money numero was so much Sterling money according to the stand- 
 ard of those times. 3. That the standard of Sterling money in those 
 times was finer than it hath been since the time of Edward I. name- 
 ly Sterling was then eleven ounces eigiit penny weight finer silver, 
 and twelve penny weight of allay. 4. That when at the exchequer 
 they burnt the money to make assay of it, in case twenty shillings 
 
 (a) This should be 97/. 9s. lOd.
 
 208 HISTORIA PLACITORUM CORON.^. 
 
 numej'O were reserved, it sufficed if it held the allay of Sterling, vi^. 
 eleven ounces, eight penny weight of pure silver, and twelve penny 
 weight of allay ; but if it were reserved 6/ffnc, tlien tho good Ster- 
 ling vyas brought to the test, yet it went for less than Sterling by 
 twelve penny weight in every pound, and therefore they were to add 
 five pounds in the hundred to make it up blanc. 5. But when this 
 probation grew troublesome, and Sterling money was well estab- 
 lished, then they, that were to pay one hundred pounds blanc, paid 
 one hundred and five pounds Sterling, as the common estimate of 
 blanc money: it seems that in king John's time the standard of »S7er- 
 ling money was far lower and worse, than at any lime before or 
 after, especially towards the latter end of his reign. 
 
 The borough of f'Fich was antiently from the conquest till 17 Jo- 
 hann. held at the yearly rent of eighty pounds per annum blunc, 
 which was answered by the sheriff in the times of Henry II. and 
 Richard I. 
 
 7 Johann. the king granted the borough of Wich to the town at 
 the farm rent of one hundred pounds Sterling: in the pipe- 
 ~\ 209 ] roll of 24 H. 3. homines de Wico reddunt compotiim de 100/. 
 numero, pro 80/. blanc, which imports these sums to be 
 equal, and afterwards 43 H. 3. homines c?e Wico reddunt compotum 
 deSOl. bhuic, qux sunt extensx ad S-il. and in 17^. 3. this eighty-four 
 pounds was raised to eighty-nine pounds five shillings numero upon 
 the extent, \M\\\c\\ferme of eighty-nine pounds five shillings they have 
 ever since answered; whereby it appears the standard of iS/er///?^ 
 was but low in king John's time, for eighty pounds blanc was in 
 his charter estimated at one hundred pounds Sterling: again it was 
 high in 43 H. 3. viz. after the rate of twelve penny weight of allay 
 in a pound of fine silver; for there, eighty-four pounds Sterling \s 
 rated to be eighty pounds blanc; and in Edward III. the standard 
 was lower, than twelve penny weight of allay, viz. above tweniy- 
 four penny-weight of allay and more in a pound weight of fine 
 silver; but afterwards raised to eighteen peimy weight of allay to- 
 wards the latter end of his reign, which hath hitherto continued as 
 the true standard of Sterling silver. 
 
 These curiosities, tho they be not much in use at this day, yet they 
 are fit to be known for understanding the old rolls.[l] 
 
 [1] By the 2 Will. 3. c. 34. sects. 4. S^ 5. it is felony, with transportation or imprison- 
 ment, to colour, file, alter, or impair the gold or silver coin. See Rose, on Coin. 19. 
 
 By the Act of 21 April, 1806, ch. 49. sect. 3. if any person shall fraudulently and for 
 gain's sake, by any art, way, or means whatsoever, impair, diminish, falsity, scale, or 
 lighten the gold or silver coins, which have been, or which shall hereafter be coined at 
 the mint of the United States; or any foreign gold or silver coins, which are by law made 
 current, or are in actual use and circulation as money within the United States, every per- 
 son so offending shall be deemed guilty of a high misdemeanor, and shall be imprisoned 
 not exceeding two years, and fined not exceeding two thousand dollars. 2 Slats, at 
 Larse. 405. 
 
 By the Act of 3 March, 1825, ch. 65, sect. 24. if any of the gold or silver coins which 
 shall be struck or coined at the mint of the United States, shall be debased or made 
 worse, as to the proportion of fine gold or fine silver therein contained, or shall be of Jess 
 weight or value than the same ought to be, pursuant to the several acts relative thereto,
 
 HISTORIA PLACITORUM CORONA. 209 
 
 through the default or with the connivance of any of the officers or persons who shall be 
 employed at the said mint, for the purpose of profit or gain, or otherwise, witii a fraudu- 
 lent intent, and if any of the said officers or persons shall embezzle any of the metals 
 which shall, at any time, be committed to their charge for the purpose of being coined, 
 or any of tlie coins which shall be struck or coined at the said mint, every such officer, 
 or person who shall commit any, or either of the said offences, shall be deemed guilty 
 of felony, and shall be sentenced to imprisonment and hard labour for a term not less 
 than one year, nor more than ten years, and shall be fined in a sum not exceeding ten 
 thousand dollars. 
 
 By sect. 26. nothihg in this act contained shall be construed to deprive the courts of 
 the individual States, of jurisdiction, under the laws of the several States, over oflences 
 made punishable by this act. 4 id. 122. 
 
 CHAPTER XIX. 
 
 [210] 
 
 CONCERNING THE COUNTERFEITING OF THE KING's COIN WHAT IT IS, 
 WHAT THE PENALTY THEREOF ANTIENTLY, AND WHAT AT THIS DAY. 
 
 Having taken this compass I now descend to the offense itself, where- 
 in I shall consider, 1. What is the coin or money of the i<ing. 2. What 
 a counterfeiting tfiereof. 3. What the punishment before this statute. 
 4. ^yhat the punishment since this statute. 
 
 I. What shall be said the king's money. 
 . The money of a foreign kingdom is not the king's money within 
 this act, and therefore at common law the. counterfeiting thereof was 
 only punishable as a cheat; and now by the statute of 14 E/iz. cap. 3. 
 it is made misprision of treason to counterfeit any foreign coin of gold 
 or silver, tho not made current here by proclamation. [1] 
 
 The money of a foreign kingdom made cnrreiU by proclamation, 
 tho it be now, as to all civil respects, the .proper money of this king- 
 dom, yet, as to the crime of treason, it was not the king's money 
 within this act. 
 
 And therefore a special statute was made,t^/z. 1 Mar. cap. 6. that 
 if any person falsely forge or counterfeit any such kind of coin of 
 gold or silver as is not the proper coin of this realm, and is or shall 
 be current within this realm by the consent of the queen, her heirs 
 or successors, then such offense shall be judged high treason [2] 
 
 This consent cannot be but under the great seal, viz. by proclama- 
 tion and a writ under the great seal annexed thereunto, or some 
 other sufficient notification under the great seal ; and it must be of 
 money of gold or silver, which I take to be a denomination ex 
 majore parte, if it be such a foreign coin as is, for the most part, of 
 gold or silver. 
 
 But even the counterfeiting in copper or brass gilt, or in 
 tin or alchymy, if the exemplar itself be of gold or silver, is [211 ~\ 
 within this act of 1 Mar. cap. 6. 
 
 If the coin of /re/ano'[3J doth not substantially differ in the signa- 
 
 [1] Misdemeanor, by the 43 GfO. 3. c. 13», in the cas^ of copper or mixed metal coin. 
 [2] Felony and transportation for seven years, by the 37 Geo. 3. c. 126. 
 [3] As to the counterfeiting of the coin oi' Ireland, see 1 East, P. C, 150.
 
 211 HISTORIA PLACITORUM CORONA. 
 
 tiire or impression from the coin of England, the counterfeiting of 
 that money here in England seems to be a counterfeiting of the 
 king's coin here in England ; but if the stamp or impression bear 
 no such resemblance, as is easily discernable, then it is considerable, 
 whether it be a counterfeiting of the king's coin here, for Ireland is 
 a distinct kingdom from England, tho part of the dominions of the 
 crown of England. 
 
 Yet it seems that it is treason within the act of 25 E. S, 1. Be- 
 cause the words of the statute ari3 sa monoye, and not specially the 
 money of England, and money coined by the king's authority in 
 Ireland is sa monoye, tho it be not the current money of England. 
 2. Because by the express words of the statute of 25 Eliz. the clip- 
 ping of coin of this realm, or any the dominions thereof, is enacted 
 to be treason ; it is not to be supposed that the parliament would 
 make the clipping of Irish coin treason, unless the counterfeiting 
 thereof were treason ; and with this the resolution of the case of 
 mixt monies in Sir John Davys'' s reports agrees, viz. that the imbased 
 coin stampt for Ireland is lawful money for England within the 
 condition of a bond for payment of money in Ireland.[4'] 
 
 What shall we say concerning the farthings and halfpence of cop- 
 per newly minted in England, and proclaimed as before to be current 
 money, is the counterfeiting thereof treason. 
 
 It is true, in antient proclamations for farthing-tokens it was not 
 usual to be, that it should be current money, but only that it should 
 be used as tokens, and the pimishment of counterfeiters was either 
 in the star-chamber, or by information or indictment, and fine and 
 imprisonment in the king's bench. 
 
 And yet it seems to me, that this proclamation makes it not the 
 king's money within this act of 25 E. 3. 1. Because it is so made 
 only to a special purpose, namely in receipts and payments under 
 sixpence, and not otherwise. 2. Because here is no dispen- 
 [212] sation or non obstante of the statute of 25 E. 3. Again, 
 when by the statute of 25 E. 3. cap. 13. it is enacted, that 
 the money of gold or silver which now runneth shall not be impaired 
 in weight or allay, we can hardly think it ever intended that the 
 copper money should be that money, which should be intended 
 within the act made at tlie same parliament touching treason; but 
 qiisere /«/wew.[5] 
 
 [4] By the act of 3 March, 1825. ch. 65. sect. 21. it is enacted, That if any person or 
 persons shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, 
 iforged, or counterfeited, or willingly aid or assist in falsely making, forging, or counter- 
 feiting any coin in the resemblance or similitude of any copper coin which has bpen or 
 hereatler may be coined at the mint of the United States, or shall pass, utter, publish, or 
 sell, or attempt to, pass, utter, publish, or sell, or bring into tlie United States from any 
 foreign place, with intent to pass, ultcr, publish, or sell as true, any such false, forged, or 
 counterftitcd coin with intent to detraud any body politic or corporate, or any other per. 
 son or persons whatsoever; every person so oflending shall be deemed guilty of felony, 
 and shall on conviction thereof, be punished by fine not exceeding one thousand dollars, 
 and by imprisonment and confinement to hard labour, not exceeding three years. 4 Stats, 
 at Large, 121. 
 
 [5] Sy the 2 Will. 4. c. 34. s, 12. it is made felony, with transportation or imprison-
 
 HISTORIA PLACITORUM CORONA. 212 
 
 If money be decried and varies signally from the stamp and 
 impression in the coin that is commonly allowed, this is not money 
 within this act, for it hath lost its denomination and legitimation by 
 the king's proclamation. (a) 
 
 The money of an usurper bearing his stamp and effigies and 
 inscription, is the king's money in the time of the succeeding rightful 
 king, till it be recalled by proclamation. If, upon the evidence 
 against any counterfeiter of the king's coin, tho it be but of a late 
 coinage or impression, it comes in question whether the coin that is 
 counterfeited were the coin of this kingdom, it is not necessary to 
 produce a proclamation to prove its legitimation for these reasons; 
 
 1. Because where there were proclamations of coin they are for the 
 most part lost: if we should be put to prove a proclamation for the 
 coins of queen Ma?'7/,qneen Elizube/h, where shou\d we find them? 
 
 2. Because in most kings times there are variations of the impres- 
 sions without any proclamation, or so much as a new indenture 
 between the king and the master of the mint. 3. Because there are 
 very few proclamations, except that before-mentioned in king James's 
 time, that express any more than the weight and allay, but the 
 impression or effigies is rarely, if at all, expressed, and so such pro- 
 clamation would import little to ascertain the effigies or stamps ; 
 and for the same reason the indenture of the mint is not absolutely 
 necessary, tho in some cases it may be useful. 4. Because especially 
 in antient coins ex diuttirnitate temporis omnia pncsumuntur rite 
 acta, if proclamation or indenture be necessary, it shall be presumed 
 in length of time, as a licence of appropriation shall be presumed by 
 long continuance, tho not shewn. 
 
 The question therefore, whether the coin that is counter- 
 feited be the coin of this kingdom, is a question of fact, [ 213 "] 
 which upon evidence of common usage, reputation, S,'C. may 
 be found to be Bng/ish coin, tho no proclamation of it extant. 
 
 But it may be of some use in case of newness of coin to produce 
 the indentures, or the officers of the mint, or the stamps here used 
 for the coin, and the like evidence of fact. 
 
 But as to foreign coin legitimated here, it seems necessary to shew 
 the proclamation, together with the proclamation-writ, or a remem- 
 brance thereof; and this is expressly required by the statutes of 5 & 
 IS Elizi for impairing or clipping foreign coin. 
 
 (a) For this reason when the broad pieces were cried down, and the officers of the 
 revenue charged to take them in payment for one year after, it was thoujrlit necessary 
 by a special act of parhament 6 Geo. II. cap. 26. to make the counterfeiting- of them 
 during that year treason. 
 
 ment at the discretion of the Court, 4.0 counterfeit, or knowingly to make or mend, buy 
 or sell, or have in possession any instrument for counterfeiting, or to buy, sell, receive, 
 or put off any counterleit, at a lower value than its denomination imports, of the current 
 copper coin. And to tender, utter, or put off any counterfeit current copper coin know- 
 ing tlie same to be counterfeit, or to be possessed of three or more pieces of counterfeit 
 current copper coin, knowing the same to be counterfeit, and with intent to utter or put 
 off the same, are misdemeanors, and punishable with imprisonment. 
 VOL. I. — 24
 
 213 HISTORIA PLACITORUM CORONA. 
 
 II. I come to the second consideration, what is a counterfeiting 
 witliin this law. 
 
 And before I come to particulars it must be remembered, that the 
 misfeasances concerning coin refer to two sorts of persons; Jirst, to 
 such as are authorized either by their office, or by charter, or by cus- 
 tom to coin money; moneiarii, moneyers, minters; or secondly, 
 those who do counterfeit, or take upon them the stamping of coin 
 ■without such authority, counterfeiters, clippers, washers, Sj-c. 
 
 Touching the former of these 3 H. 7. 10. (Z>) Si ipse, qui facit 
 monetam in Jinglid authoritate regia infra turrim London vel alibi 
 in Jlnglia vel Calicia, iliam facit minus in pondere per dimidium 
 ordinationis antiqui ponderis, &c. vel falso metallo, est proditio, & 
 tamen ipsi, qui illam monetam utterant ligeis domini regis infra 
 Jingliam non sunt proditores nee proditio, sed misprisio. 
 
 J3ut it is not every mistake in weight or allay, that chargeth the 
 moneyers with so high a crime as treason, for the master is charge- 
 able by his indentures to a fine and ransom for some mistakes of this 
 nature; but it must be a wilful gross proditorious doing it, for the 
 indictment runs froditori^y and so it must be proved, for it is difficult 
 for the best artist to make every piece of the precise 
 [ 214 ] weight. 
 
 Touching others that either counterfeit or imbase the 
 coin. 
 
 First, there must be an actual counterfeiting, for a cornpassing, 
 conspiracy or attempt to counterfeit is not treason within this statute 
 without an actual counterfeiting. 
 
 But if many conspire to counterfeit, or counsel or abet it, and one 
 of them doth the fact upon that counselling or conspiracy, it is treason 
 in all, and they may be all indicted for counterfeiting generally within 
 this statute, for in such case in treason all are principals.[6j 
 
 {h) pi. 3. 
 
 [6] But since the late Act of Parliament, only the party who actually counterfeits 
 would be the principal felon, and the otliers accessories before the fact. Archb.CP.Ald. 
 
 " Wliile 1 declare that this doctrine contradicts every idea I had ever entertained on 
 the subject of indictments, (since it admits tliat one case may be stated, and a very dif- 
 ferent case may be proved,) I will acknowledge that it is countenanced by the aulliorities 
 adduced in its support. To counsel -or advise a treasonable assemblage, and to he one 
 of that assemblage, are certainly distinct acts, and therefore ought not to be charged as 
 the same act. Tlie great objection to this mode of proceeding is, that the proof essen- 
 tially varies from the charge in the character and essence of the offence, and in the tes- 
 timony by which the accused is to defend himself. These dicta of Lord ifaZ?, therefore, 
 seem to be repugnant to the declarations we find every where that an overt act must be 
 laid, and must be proved. No case is cited by Hale in support of them, and I am 
 strongly inclined to the opinion, that had the public received his corrected, instead of his 
 original manuscript, they would, if not expunged, have been restrained in their appli- 
 cation to cases of a particular description. Laid down generally, and applied univer- 
 sally to all cases of treason, they are repugnant to the principles for which Hale 
 contends, for which all the elementary writers contend, and from which courts have in 
 no case, eitiier directly reported or referred to in the books, ever departed. These prin- 
 ciples are, that the indictment must give notice of the offence; that the accused is only 
 bound to answer the particular charge which the indictment contains, and that the overt
 
 HISTORIA PLACITORUM CORONiE. 214 
 
 How far a receiver is a principal, videbimus infra Co. Pla. Cor. 
 13S. Bjjer 296. 
 
 If t/2. counterfeits, and by agreement before that counterfeiting B. 
 is to take off and vent tiie counterfeit money, B. is an aider and 
 abetter to such counterfeiting, and consequently a principal traitor 
 within this law ; but if B. knowing that ^. hath counterfeited money, 
 put off this false money for him after the fact, without any such agree- 
 ment precedent to the counterfeiting, he seems to be all one with a 
 receiver of him, because he maintains him. [7] 
 
 U ,/9. counterfeit money, and B. knowing the money to be coun- 
 terfeit vent the same for his own benefit, B. is neither guilty of trea- 
 son nor misprision of treason, but it is only a cheat and. misdemeanor 
 in him punishable by fine and imprisonment. 
 
 But if B. know that ^. counterfeited it, and doth neither receive, 
 maintain, or abet him, but conceals his knowledge, this is misprision 
 of treason ; and with this difference the book of 3 H. 7. above-cited 
 is to be understood, and so it was ruled upon debate at the sessions 
 at Newgate Car. 2. ex libro Bridgman.{c) 
 
 Jl. fashions stamps for the counterfeiting of money, but he is dis- 
 covered and apprehended before he hath actually counterfeited it ; 
 this is no treason within this statute, (of) for tho he hath counterfeited 
 the stamps, yet he hath not counterfeited the money of England.\p\ 
 r </?. counterfeits the king's money, but never vents it; this 
 is a counterfeiting, and treason within this statute, and so it f 215 l 
 hath been ruled Co. P. C. p. 16. [9] 
 
 t,'?. counterfeits the coin of this kingdom or any foreign coin of 
 silver or gold of any foreign kingdom, and this counterfeiting is in 
 another metal, as tin, lead, alchymy, copper gilt or silvered over, yet 
 the former is treason within the statute of 25 E. 3. and the latter 
 within the statute of 1 Mar. If there be a lawful coin of this king- 
 dom, and ^. doth counterfeit it in a considerable measure, but yet 
 with some small variation in the inscription, effigies, or arms, to the 
 intent thereby to evade the statute, yet this is a counterfeiting of the 
 
 (c) Aus. 16 Car. 2. in the case of Richard Oliver, Kel. 33. 
 
 {d) 1 Rich. 3. 1. but it is treason by the statutes of 8 ^ 9 T^'. 3. cap. 25. and 7 Ann. 
 cap. 25. 
 
 act laid, is that particular charge." Per Marshall, C. J., 2 Burr's Tr. 432. See post. 228. 
 1 East, P. C. 127. 
 
 [7] The offender would now be an accessary after the fact, and as such, by sect. 18 
 of the 2 Will. 4. subject to imprisonment for two years; though the proper course would 
 be to proceed against such an ofFeuder for the substantive offence of uttering. Rose, on 
 Coin, 6. 
 
 [8] By Sect. 10, of 2 Will. 4. c. 34, making, mending, or having possession of any 
 coining tools, is felony, with transportation. See the cases in Arch. C. P. 481. 
 
 Having tools for coining in possession, with intent to use them, held to be a misde- 
 meanor at common law. 1 East. P. C. 172. 
 
 [9] It was no offence at common law, to have possession of counterfeit coin with intent 
 to utter it. R. v. Stewart. Russ Sf Ry. 288. R. v. Heath, id. 184. but to procure it with 
 that intent was a misdemeanor. R. v. Fuller, id. 308.
 
 215 HISTORIA PLACITORUM CORONA. 
 
 king's money, and that intent doth unquestionably appear, if he vent 
 it as true:[10] vide siipra de privalo signetto. 16 Jac.{f) 
 
 The clipping, washing, or impairing, <§*c. of foreign coin made cur- 
 rent by proclamation most certainly was not treason by the statute 
 of 25 E. 3. but was made treason de novo by the statute of 5 <§• 18 
 E/iz. 
 
 But whether the clipping, washing, or impairing the proper coin 
 of this realm for lucre or gain were treasons within this statute of 
 25 E. 3. or not, is a question that deserves consideration, which, tho 
 it be now settled by those statutes to be treason, yet it is of moment 
 to be known; if it were and continues treason by the act of 25 E. 3. 
 then the judgment is only to be drawn and hanged ; if it be a new- 
 made treason, then by my lord Cokeys opinion the judgment must be 
 to be hanged, beheaded, and quartered, as in treason for compassing 
 the king's death. Co. P. C. p. 17. 
 
 I will therefore give the history of this business of wasfung, clip- 
 ping, <§'c. ab origiyie, from the time of the statute of 25 E. 3. for the 
 history of former times at common law will be given in the next 
 section. 
 
 It appears by the record of M. 31. E. 3. coram rege rot. 18, 55. 
 
 Bucks, cited by Co. P. C.p. 17. within six years after the statute of 
 
 25 E. 3. that for counterfeiting and resection of the king's 
 
 [ 21 6 ~\ coin tlie abbot of Mussenden was adjudged to be drawn and 
 
 hanged, but not quartered. 
 
 By the statute of 3 H. 5. cap. 6. clipping, washing, and filing of 
 the money of the land is declared to be treason, and the offenders to 
 be traitors, and shall incur the pain of treason; this was made to settle 
 the doubt, and not purely as a new law. 
 
 The petition, upon whicli this act was made, is more fnll than the 
 act, as it is printed, Rot. Pari. 3 H. 5. part 2. n. 40. "Item pryont 
 les commons, qe come devant ces heures grand doubt & awerestee 
 ad este, le quelle le tonsure, loture, filinge, & autre fauxisme de vostre 
 monoy duissent estre adjugge treason ou nient, a cause qe null men- 
 tion ent est fait en le declaration des articles de treason faits en le 
 parlement de vostre tresnoble besaiel Ian de son raigne 25. Plese a 
 vostre royal majestee de ordeiner, declarer, & determiner en cest 
 present parlement par authority dicol, qe ceux, qe tondent, loient, 
 iilent, ou ascun autre fauxisme facent de vostre mony, soient ad^^ 
 jugges traytors, & encurgent le pain de treason, si bien come ceux 
 
 ( / ) Robinson's case, 2 Rol. Rep. 50. 
 
 [10] In a prosecution for passing counterfeit money, the jury should be satisfied that 
 the resemblance of the forged to the genuine piece is such as might deceive a person 
 using ordinary caution. U. S. v. Morrow. 4 W. C. C. R. 733. In R. v. Harris et al. 
 
 1 Leach. 165.it was held that the- coin counterfeited did not bear a sufficient resem- 
 blance to the real coin to make the offence complete. But the 3d sect, of the Act of 
 
 2 Will. 4. c. 34. declares that the offence shall be deemed complete, although the coin 
 piade or counterfeited be not in a fit state to he uttered, or the counterfeiting of it has 
 not been finished or complete. See R. v. Wilson, 1 Leach. 285. R. v. Welsh id. 293. 
 R. V. Varley. 2 W. Bl. 682. 1 East, P. C. 64.
 
 HISTORIA PLACITORUM CORONA. 216 
 
 qe apporfent faux money en Enghterre. sachant la estre faux, & qe 
 cest declaration si bien soy extende al tieis tonsure, loture, & faux- 
 isme faits avant ccs heures come a faire en temps avener. Ro. Quant 
 a le loture, tonsure & fileigne soit il declare pur treason." 
 
 Nota^ A retrospect desired, which was not usual, unless the law 
 had held it treason before. 
 
 By the statuteof 4 //. Leap. IS. counterfeiting or forging of foreign 
 coin current here is enacted to be treason, which before was neither 
 felony nor treason. 
 
 By the statute of 1 E. 6. cup. 12. it is enacted, that there be no 
 other treason nor petty treason, but what was ordained by the statute 
 of 25 E. 3. or by that act; and after certain new treasons enacted 
 there is a proviso, that this act extends not to repeal any act of par- 
 liament concerning the counterfeiting, forging, cHpping, washing or 
 filing any coin of this realm, or any coin of other realms made cur- 
 rent here, or the bringing into the realm any counterfeit coin. 
 
 This proviso was absolutely necessary in relation to the 
 treason in counterfeiting foreign coin contrary to the statute [ 217]] 
 of 4 H. 7. cop. 18. because a new treason, but whether ne- 
 cessary in relation to clipping or impairing the coin of England 
 declared to be treason by the statute of 3 H. 5. may be doubtful upon 
 what herein after follows, but certainly was very fit and convenient 
 to avoid the question. 
 
 By the statute of 1 il/ar. cap. 1. it is enacted, that no offense being 
 by act of parliament or statute made treason, petit treason, or mis- 
 prision of treason, by words, writing, or cyphering, deeds, or other- 
 wise howsoever, shall be adjudged to be high treason, petit treason, 
 or misprision of treason, but only such as be declared and expressed 
 to be treason, petit treason, or misprision of treason in or by the act 
 of parliament of the twenty-fifth year of king Edward III. concern- 
 ing treason, nor any pains, penalty or forfeiture to ensue upon any 
 offender in treason, petit treason, or misprision of treason, than such 
 as are ordained by that statute; and all offenses made felony or prae- 
 munire since 1 H. 8. not being felony or within the statutes of 
 praemunire before, and all articles, (§'c. concerning the same are re- 
 pealed. 
 
 And yet it appears by the statute of 1 <5* 2 Ph. <§' M. cop. 11. that 
 then, notwithstanding the astute of 1 Mar. cap. 1. they did take the 
 impairing as well as forging or counterfeiting the king's coin to re- 
 main treason; for, by that statute of 1 <§• 2 P. <S' M. cap. 11. that 
 makes the importation of foreign counterfeit coin to be high treason, 
 it is provided, that any that shall be accused of the offenses contained 
 in the same statute, or any other offense concerning the impairing, 
 counterfeiting or forging- of any coin current within this kingdom, 
 shall be indicted, arraigned, tried, convicted and attaint by such like 
 evidence, and in such manner and form as hath been used in Ens;- 
 land at any time before the first year of the reign of king Ed- 
 leard VI. 
 
 So that it seems they took impairing of any coin current to be a
 
 217 HISTORIA PLACITORUM CORONA. 
 
 treason in force, but on the other side it may be said, so they took 
 also the forging of any foreign coin current to be treason, when as 
 yet the statute of 4. H. 7. concerning forging of foreign coin 'made 
 current stood repealed by 1 E. 6. but it is plain that no such 
 r 218 ] consequence could be made, for by the statute of 1 Mar. 
 sesfi. 2. cap. 6 forging of foreign coin made current here is 
 enacted to be treason ; so that as to the point of foreign coin made 
 current here, tho the statute of 4 //. 7. cap. 18. stood repealed, yet 
 1 Mar. cap. 6. stood in force at the time of the making of the statute 
 of 1 4' 2 P. <§' M. cap. 11. 
 
 Then ensues the statute of 5 Eiiz. cap. 11. which reciting in ex- 
 press words, that the statute of 3 H. 5. concerning clipping, Sec is 
 repealed by 1 Mar. cap. 1. and the mischief that happens thereby, 
 enacts, "That if, after the first day of Alai/ next, clipping, washing, 
 rounding, or filing for wicked lucre or gain's sake any of the proper 
 monies or coins of this realm or the dominions thereof, or the monies 
 or coins of any other realm allowed and suffered to be current within 
 this realm, or the dominions thereof, or that hereafter at any time 
 shall be lawful monies or coins of this realm or of the dominions 
 thereof, or of any other realm, and by proclamation allowed and 
 suffered to be current here by the queen, her heirs or successors, 
 shall be taken, deemed, and adjndged by virtue of this act to be trea- 
 son, and the offenders, their counsellors, consenters and aiders shall 
 from and after the first day of 3Iai/ be deeemed traitors, and suffer 
 pain of death and forfeit their goods, and forfeit all their lands during 
 their lives only. 
 
 " That all, that by charter have lands or goods of traitors within 
 their liberties, shall have these: a proviso that this act make no cor- 
 ruption of blood or loss of dower." 
 
 And the act of 18 E/iz. cap. 1. declaring that the falsifying, im- 
 pairing, diminishing, scaling, or lightning of money was not within 
 the act of 5 Eliz. which ought to be taken strictly according to the 
 words thereof, and the like offenses not by any equity to receive the 
 like punishments or pains, enacts those offenses to be treason almost 
 iti totidem verbis with that of 5 Eliz. with the like proviso; and note 
 this clause in both statutes, and the offenders being lawfully thereof 
 convict or attainted according to the due order and course of the 
 laws of this realm shall suffer the pain^ of death. 
 
 These acts do, in effect, declare, that this was not treason 
 [ 219 ] within the statute of 25 E. 3. and that the statute of 1 Mar. 
 cap. 1. repealed that declaration that was made in 3 H. 5. 
 and gives the reason, because the law being penal ought to be taken 
 and expounded strictly according to the words, and the like offenses . 
 not by any equity to receive the like punishment, and therefore light- 
 ning or scaling were not within the act of 5 Eliz. and neither within 
 the act of 25 E. 3. against counterfeiting the coin. 
 
 And yet it is observable, that those very judges, which were pre- 
 sent at the making of the statute of 5 Eliz. yet upon a solemn con- 
 sideration in fVright's case, T. 6 Eliz. Bi/er 230. did agree, that
 
 HISTORIA PLACITORUM CORONiE. 219 
 
 the judgment in treason pro tonsurd monetse Anglise is no other but 
 to be drawn and hanged, and accordingly judgment was given in 
 that case ; and upon search of the precedents at Newgale I find, 
 that altho some judgments in case of clipping of money are to be 
 drawn^ hanged, beheaded and quartered ; yet the greater number 
 both of former and latter times have been only to be drawn and 
 hanged(g) according to the judgment in 6 E/iz. 
 
 And therefore my lord Coke, PL Cor. p. 17. tho he agree, that the 
 judgment for counterfeiting the coin of England is only to be hanged 
 and drawn, as it was before the statnte of 25 E. 3. seems neverthe- 
 less to be mistaken, when in the same page he saith, that if any be 
 attainted for diminishing the king's money upon the statutes made 
 in the time of queen Mary or Queen Elizabeth, because it is high 
 treason newly made, the olfender shall have judgment as in the case 
 of high treason, viz. to be drawn, hanged, beheaded, dismembred, 
 quartered, c^-c. for the greater number and better precedents run only 
 to be drawn and hanged : and so it was lately ruled upon great con- 
 sideration in a case in the king's bench, (A) tho perchance it is not 
 error, whether the one judgment or other be given. 
 
 Upon the whole matter therefore it seems to me, 1. That 
 altho it should be admitted, that clipping of the coin of [| 220 1 
 England conXinnedi treason notwithstanding the statute of 
 1 Mar. that yet it is, at this day, treason merely by the statute of 
 5 Eliz. and therefore every indictment, at this day, for clipping or 
 impairing, fyc. must pursue the words of the statutes of 5 <§• 18 Eliz. 
 and conclude contra for mam statiiti; and this, not only in the 
 case of clipping of foreign coin, which certainly was no treason after 
 1 Mar. and before 5 Eliz. but also in relation to the coin of Eng- 
 land; and the reason is, 1. Because this statute hath added a quali- 
 fication to these treasons of clipping or lightning, viz. it must be for 
 hccre's sake, which must be expressly laid in the indictment, but 
 need not have been so laid by the statute of 3 H. 5, for tho, per- 
 chance, it was intended, yet it was not expressed in that statute, 
 neither needed it then to have been in the indictment. 2. Because 
 in express words the statutes of 5 4' -18 Eliz. say, that it shall be 
 treason by virtue of this statute, which is not a bare recital as in the 
 beginning of the statute, that the statute of 3 H. 5. was repealed ; 
 but it is also an express enacting clause, which is in effect exclusive 
 of any other law to make it treason, but this of 5 or IS Eliz. for 
 these words are in both the statutes. 3, Because it extremely alters 
 the consequences of a judgment in treason, for here was no loss of 
 dower, no loss of land but during life, no corruption of blood, so that 
 these statutes did perfectly intend a total new establishment and 
 qualification of this treason. 
 
 2. That altho this be a new law, yet inasmuch as neither at com- 
 mon law, nor after the statute of 25 -E. 3. the treasons or ofl^enses 
 
 (o') Morgan's case, Cro. Car. 383. 
 
 (A) The case of Bellew and Norman, 1 Verir 254. 2 Lev. 98. Raym. 234.
 
 220 HISTORIA PLACITORUM CORONA. 
 
 concerning money had any greater judgment than such as is given 
 in case of petit treason, namely for the man to be drawn and hanged, 
 the woman to be burnt, no higher or other judgment is to be given 
 upon the statutes of the 5th or ISth Eliz. and hence it is, that in the 
 statute of 25 E. 3, though it rank counterfeiting money among high 
 treasons, yet it ahers not the judgment that was at common law; nay 
 tho it be most certain, that the statute of 25 E. 3. as to some points 
 of bringing in foreign money be introductive of a new law, yet inas- 
 much as it concerns money, wherein the highest judgment 
 [ 221 ] at the time of 25 E. 3. was only that of petit treason, it doth 
 not inhanse the judgment higher; and accordingly it was 
 resolved upon great advice and consideration of precedents Car. 2. 
 Banco liegis in the case(z) for cWpp'm^ Ens^lish coin. 
 
 3. That upon any trial of counterfeiting, clipping, washing, <5'C. the 
 coin of England or foreign coin made current, there is no necessity 
 either upon the trial or the indictment of two witnesses, required in 
 other cases by the statutes of 1 E. 6. cap. 12. and 5 E. 6. cap. 11. 
 
 For as to the counterfeiting of money, or so much as was treason 
 for impairing money, by 1 <5' 2 P. <§• M. cap. 11. it is expressly pro- 
 vided, that no other evidence shall be requisite either npon the indict- 
 ment or trial than was before the statute of 1 E. 6. and as to clipping 
 and washing, the very statutes of 5 and IS Eliz. m express terms 
 require only a conviction and attainder accoy^ding to the order and 
 course of the law; and therefore tho the statute of 5 E. 6. cap. 11. 
 enact, that two witnesses or lawful accusers shall be required upon 
 proceeding for any treason, that now be or hereafter shall be. yet 
 that act is thus far derogated by those two acts, that require only an 
 indictment, a conviction and attainder according to the order and 
 course of the law generally; for tho it be held, that the statute of 
 1 Sf- 2 I\ S,' M. cap. 10. that enacts, that all trials of treason shall be 
 according to the course of the common law, doth not take away the 
 necessity of two witnesses upon the indictment, because that is a dis- 
 ti.nct thing from the trial. 14 Eliz. lord Lumley^s case, Di]. 99. Co. 
 P. C.p. 25. yet the words [conviction and attainder after the order 
 and course of the law) mentioned in the statutes of 5 4' IS Eliz. in- 
 clude the indictment as well as the trial, and therefore even without 
 the aid of the statute of \ S,^ 2 P. <§' Al. cap. 11. restores the whole 
 proceeding according to the order of the common law in case of clip- 
 ping br washiijg, as the statute of 1 <§• 2. Ph. Sf Mar. doth in express 
 words in case of counterfeiting. 
 
 And note, upon the statutes of 5 <§• 18 Eliz. tho Irish 
 
 r 222 ] coin be not current in England, when of a baser allay, y^t 
 
 it is the king's coin, and clipping or washing in England 
 
 the coin of Ireland is treason by those acts, for the words are the 
 
 coin of this realm, or dominions thereof, which extends to Ireland. 
 
 4. The fourth thing observable upon these statutes is, that the 
 act of 1 Alar. cap. 1. reducing all treasons to the standard of 25 E.^. 
 
 (i) This I take to be the forecited case oi Bellew and Norman, 1 Fen. 254.
 
 HISTORIA PLACITORUM CORONA. 222 
 
 doth not only repeal treasons, that were newly enacted de novo, but 
 such acts concerning treason as were only declarative, as this of 
 3 ^. 5. among olhers.[l 1] 
 
 [11] The Constitution (^Art. 1. Sect. 8. c. 6.) authorizes Congress to provide for the 
 punishment of counterreitinor the securities and current coin; in pursuance of which, 
 tlie Acts of 21 April, 1806, ch. 49, and 3 March, 1825, ch. 65, were passed. By the 
 20 sect, of the latter, it is enacted, That if any person or persons shall falsely make, 
 forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or 
 willingly aid or assist in falsely making, forging, or counterfeiting any coin, in the re- 
 semblance or similitude of the gold or silver coin which has been, or hereafler may be, 
 coined at the mint of the United States; or in the resemblance or similitude of any 
 foreign gold or silver coin which by law now is, or hereafter may be made current in 
 the Unittd Slates; or shall pass, utter, publish, or sell, or attempt to pass, utter, publisji, 
 or sell, or bring into the United Slates from any foreign place with intent to pass, utter, 
 publish, or sell as true, any such false, forged, or counterlitited coin, knowing the same to 
 be false, forged, or counterfeited, with intent to defi-aud any body politic or corporate, or 
 any other person or persons whatsoever; any person so offending shall be deemed guilty 
 of felony; and shall, on conviction thereof, be punished by fine, not exceeding five thou- 
 sand dollars, and by imprisonment and confinement to hard labour, not exceeding ten 
 years, according to the aggravation of the offence. 
 
 Sect. 26. That nothmg in this Act contained shall be construed to deprive the courts 
 of the i-ndividual States of jurisdiction, under the laws of the several States, over offences 
 made punishable by this Act. 
 
 The State courts having, by permission of this Act, concurrent jurisdiction of these 
 offences, their legislatures have severally passed laws on the subject. But they have 
 hitherto generally fallen under the cognizance of the federal courts. 
 
 It has been held, that a person who takes base pieces of coin which are brought to 
 hira ready made, having tlie impression and appearance of real coin, though of different 
 colour, and brightens them so as to give them the resemblance of real coin, and render 
 them fit for circulation, is guilty of counterfeiting. He completes the offence, and sub- 
 jects thereby, to the penalties of the law, not only himself, but all who acted a part, or 
 were present assisting in the transaction. Rasnick v. Cammonw. 2 Virg. Cas. 356. 
 • Under the Conneclicut statute, aiding in the act of counterfeiting, is within both the 
 letter and reason of the statute, as much as assisting in making the implements. State 
 V. Stetson, Kerby, 52. " - 
 
 An indictment does not lie for forging a Spanish head pistareen, as it is not a coin of 
 Spain made current by law in the United Stales. U. S. v. Gardiner, 10 Peters, 618. 
 
 In an indictment for uttering counterfeit coins, it is sufficient to describe them as 
 " made and counterfeited" to the likeness and similitude of the good, true, and correct 
 money and silver coins curreniiy passing in the State, and commonly called Spanish 
 dollars. Fight v. State, 7 Ham. {Part 1) 180. ^ 
 
 Proof that the defendant had implements for coining in his own house, does not go to 
 establish the fact of the defendant's knowledge that the dollar, for passing which he was 
 indicted, was counterfeit. Slate v. Odel, Const. Rep. 758. 
 
 On an indictment for passing a counterfeit dollar, proof of the admission of the defend- 
 ant, that he had made and passed other counterfeit dollars, is inadmissible. Jd. 
 
 Having a crucible in possession is not having a tool or instrument for counterfeiting 
 within sect. 31. of the Vermont Act against liigh crimes and misdemeanors. Allegation 
 in the indictment that the coins intended to be counterfeited were "current silver coins 
 of this State and of the United Slates," does not satisfy the words of the Act, " which 
 shall be made current by the laws of this, or the United States,^^ and are bad on demur- 
 rer. Slate v. Bowman, 6 Verm. 594. 
 
 On an information for passing a counterfeit coin, knowing it to be counterfeit, tlie 
 prosecutor offered evidence of the prisoner's having in his possession at the same time, 
 an engraved paper, having the appearance of a bank note, but not purportmg to'be signed 
 or. countersigned, for the purpose of showing the knowledge charged in the declaration. 
 It was held inadmissible. Stalker v. State, 9 Cowen, 341. 
 
 In an indictment for passing a counterfeit coin, the possession of instruments for coin-^ 
 ing mny be given in evidence to prove the guilty scienter of the defendant. State v. An. 
 tonio. Const. Rep. 116. ' '■ 
 
 Under the Act of Massachusetts of 1804, c. 121. sect, 6. against having in possessioa 
 VOL. 1.-^25
 
 222 HISTORTA PLACITORUM CORONA. 
 
 IV. The fourth thing that I propounded to consider, is tlie history 
 of the punishment of counterfeiters, 4'C. of coin before the statute of 
 25 E. 3. and how it hath stood since. 
 
 In this kingdom and indeed in all the kingdoms the counterfeiting 
 of the king's money hath been in all Rges crimen lassas ?7t(/Jesl(ilis,{k) 
 tho in many of the old books(/) it comes under the general title of 
 c?;imen falsi. 
 
 But the punishment in its kind and degree hath ahnong w.? very 
 much varied both in relation to the nwnetarii or moneyers, that 
 were intrusted with the making of coin, and others, that took upon 
 them to counterfeit the king's coin : among the laws of king Athel- 
 Stan, I. 19. set down by Brompton, p. S43. Una moneta sit in toto 
 regni imperio, & nullus monetet extra portum, si monitarius reus 
 fuerit, amputeter ei manus, & ponatur supra monetae fabricam, ac- 
 cord Hoveden sub anno 1137. & M. Paris sub anno \\25.{m) 
 
 In the time of Henry I. it is written by Simon Dunelmensis, 
 p. 214: Monetarii totius Jinglise priiicipales deprehensi adulterinos, 
 scilicet non puros ex argento, .fecisse denarios, jussu regis simul 
 JVintonx congregati omnes una die amputatis dextris evir- 
 [223] antur; Et ibidem p. 231. Qui falsos denarios fecerit, 
 oculos et inferiores partes corporis perdet; a/it/ Knighton, 
 p. 2377. H. 1. statuit, ut fures suspenderentur, falsarii oculos & 
 genitalia amitterent, & ut denarii & oboli essent rotundi.(;2) 
 
 Knighton, p. 2463. " Edwurdiis primus tenuit parhamentum 
 apud London, fecit mutari monetam regni, quas illo tempore fuit 
 viliter retonsa & abbreviata, unde populus regni graviter conquere- 
 batur, & rex veritatem inquireus, & comperiens trecentos & plures de 
 illo delicto & felonia publice convicios, quorum quidam fuerunt sus- 
 pensi, quidam distracti & suspensi secundum delicti quantitatem et 
 qualitatem,& ordinavit,quod deinde 5'/er///j^w.y & quadrans deinceps 
 essent rotundi:" so that clipping was then held treason, or at least 
 felony. 
 
 After the statute of 25 E. 3. the punishnient hath been constantly 
 
 {k) By the old Roman law, Qui nummos aureos, argenteos adulteraverit, laverit, con- 
 flaveiit, raserit, corruj)erit, vitiaverit, vnltuve principaiu signatam monetam, praeter 
 adulterinam, reprobaveiit, lionestior in insulam deporlandus, iiumilioraut in metallum 
 damnandus, aut in crucem tollendus; and ichatever degree he was q/", ejus bona fisco 
 vindicaiitur: see Jul. Panli sententias receptas, Lib. V. tit. 12. §. 12. and Lib. V. tit. 25. 
 §. 1. Afterwards bij a law of Cotistnnline, Cudendse pccuiiioe obnoxii majesta(is crimen 
 semmittunt, & quicunque solidoruin adulter poterit reperiri, flammaruin exustionibus 
 maticipetar, Lib, IX. Cjd. til. 24. /. 2. See also Wilkin''s Ligcs Anglo. Sax. p. 59, in 
 notis. 
 
 (I) Bracton, Lib. III. de corona, cap, 3. § 1, Glanvil. Lib. XIV. cap. 7, Flet. Lib. I. 
 cap. 22. 
 
 (w) Leges] Ethelstani, I. 14. Wilk, Leg. Anglo-Sax. p. 59. See also Leges Edgari, 
 I. 8. Coiisiilutiones Etfulredi in Jine. Le^es Cnuti, I. 8. 
 
 (n) Wilk. Leg. Heu,l. p. 304. sab annollOS. p. 308. sub anno 1125. 
 
 ten similar pieces of counterfeit gold or silver coin, it is sufficient if the offender has 
 in iiis possession ten pieces of either kind of coin, tliougli not all of tlie saiiie denomi- 
 nation. Brown v. Comnionw. 8 Mass. 59. 71.
 
 HISTORIA PLACITORUM CORONA. 223 
 
 to be drawn and hanged, because that was the proper judgment of 
 it, before the making of the statate.[12] 
 
 And altho the course hath been in treasons concerning the king's 
 person not to allow the privilege of clergy, yet before 25 E. 3. cap. 
 4. pro cle.ro it had been thought and practised iti antient time to 
 allow the privilege of clergy upon an indictment for counterfeiting 
 money. (o) 
 
 But after that statute clergy was not allowable in the case of 
 counterfeiting money, 19 H. 6. 47 b. Stamf. Pla. Cor. 114 b. yet 
 whereas in cases of treason regularly he that stands mute shall be 
 thereby convicted 15 E. A. 33 a. Stamf. Pla. Cor. 150 a. because 
 not within the statute of IVestmin. 1. cup. 12. (p) yet we have 
 some historical instances, that upon indictment of counterfeiting coin 
 the prisoner standing mute was put to pain fort ^- dure. Knighton 
 tempore R. 2. sub anno 13S9. before Belknap, Skipwith, 
 and others apud Lincoln septern falsarii monetx convicti, f 224 ] 
 gui simul tractifuerunt 4' siispensi, ^- quidam vicarius de 
 Wintringham obmutescens adjudicatus est ad poenam mutorum ; 
 but at this day the law is taken otherwise, and that standing mute 
 amounts to a conviction of the crime. [13] 
 
 And in short at this day in all cases of treason for counterfeiting 
 the coin of this kingdom, or of any the dominions thereof, or of 
 foreign coin made current by proclamation, or for washing, clipping, 
 sealing, impairing, or diminishing the same, tho most of these are 
 
 (o) For clergy was antiently denied only in such treasons, as were immediately 
 against the king's person, and therefore Co. P. C p. 16. clergy was allowed in the 
 case of counterfeiting the great seal. See also the case of Burdon, (P. 18. E. 2. B. R. 
 Rot. 25. Rex. South'ton) who was admitted to his clergy on being convicted of felony 
 and sedition in counterfeiting the great seal ; but in Tliorpt^s case, {T.21 E.S. Rot. 23. 
 Rex.) who was convicted of sedition in levying war, it was adjudged, that he could not 
 be admitted to his clergy: nota la diversite; but the 26 H. 8. cap, 13. takes away clergy 
 in all cases of treason: vide antea in nolis, p. 185 <^* 186. 
 
 {p) 2 Co. Inst. 177. 
 
 [12] The punishments under the Stat. 2 XV. 4. c. 34. are various : transportation, im- 
 prisonment, and fine. When imprisonment, the ID Sect. leaves it to the discretion of the 
 court to sentence the prisoner to hard labour, or solitary confinement. But the 7 W. 4. 
 ^1 P"ic<. c. 9. s. 5. restrain such solitary confinement to a period not exceeding one 
 month at a time, or three months in the space of one year. See Sects. 20 c^T 21 of the 
 Act of Congress of 3 March, 1825, ch. 65, and the 3 Sect, of the Act of 21 April, 1806, 
 cA.49. 
 
 [13] Before the 7. & 8. Geo. 4. c. 28. s. 2, standing mute in cases of high treason 
 amounted to a conviction ; but by that statute, if any person being' arraigned, &c., for 
 treason, &c., shall stand mute of malice, or will not answer directly to the indictment, 
 it shall be lawful for the court, if it shall thiiik fit, to order a plea of not guilty to be 
 entered, and the plea so entered shall have the same effect as if the party liimself had 
 pleaded it. 
 
 By the 30</i Sect, of the Act of Congress of 30th April, 1790, it is enacted. That if 
 any person or persons be indicted of treason against the United States, and shall stand 
 mute or re/"use to plead, &c., the court shall, notwithstanding, proceed to the trial of the • 
 person or persons so standing mute, &c., as if he or they had pleaded not guilty, and 
 render judgment thereon accordingly. 
 
 As to the case of a person deaf and dumb, see 72. v. Pritchard, 1 C. Sf P. 303. Com. v. 
 Hill, 14 Mass. 297.
 
 224 HISTORIA PLACITORUM CORONA. 
 
 made treason by new acts of parlianaent, as 1 Mar. cap. 6. 5 Eliz. cap. 
 11. 18 Eliz. cap. 1. yet the judgment is only for a man to be drawn 
 and hanged, for a woman to be burned, and so (as I said) it was 
 solemnly resolved. 
 
 And the reason is, because the most of these be new treasons 
 made by act of parliament, yet they are all in their matter concern- 
 ing money, wherein the judgment at common law was, as in case of 
 petit treason : and that judgment was not altered by 25 E. 3. iii 
 case of counterfeiting, which is the highest otfense concerning money, 
 and therefore is not to be exceeded by the intent of those statutes, 
 which brought lesser otfenses concerning money, as clipping, into 
 the same rank of offense with counterfeiting, for they are all olfenses 
 in pari materia, and so shall have a parity of judgment. 
 
 See the Stat. 12 Geo. 3. ch.-90. concerning standing mute and refusing to plead. 
 -4 "Blacks. Com. ch. vi. p. 89. 
 
 [ 225 ] CHAPTER XX. 
 
 CONCERNING TREASON IN BRINGING IN FALSE MONEY. 
 
 The next point of treason is, if any man bring in false money into 
 this realm counterfeit to the money of Ens;land, as the money 
 called Liishborough., or other like to the said money of England, 
 knowing the money to be false, to merchandize or niake payment in 
 deceit of our lord the king and of his people. [1] 
 
 Touching this point of treason these things are observable. 
 
 I. That the money in this case must be imported from a foreign 
 nation, for here, it is not the counterfeiting, that is the treason, but 
 the importing: and yet it seems by the general words of the statute 
 of 35 H. 8. cap. 2. the counterfeiting itself, tho out of the king- 
 dom, may be tried in the king's bench, or before special commission- 
 ers, as well as any other treason. 
 
 But at common law the counterfeiting beyond the sea seems not to 
 have been such a treason as could be tried here, as treason in adhe- 
 ring to the king's enemies might have been, and therefore the im- 
 porting was made treason by this act.[2] 
 
 Altho Ireland be within the statute of 35 H. 8. cap. 2. for trial of 
 treason in compassing the king's death or levying of war, as is be- 
 fore observed, and therefore as to that purpose out of the realm of 
 England, yet it hath been held upon the obscure book of 3 H. 7. 10. 
 
 [1] By the 6. sect, of the 2 W. 4. c. 34. it is felony, punishable with transportation or 
 imprisonment, at the discretion of the court, to import into the United Kingdom from be- 
 yond seas any counterfeit coin resembling any of the king's gold or silver coin, knowing 
 the same to be counterfeit. It would seem to be no offence within this Sect, to import 
 from the king's dominions beyond the seas, (1 Hawk. c. 17. s. 87. 1 East, P. C. 175.) 
 because the counterfeiting there is punishable by the laws of England. Arch. C. P. 417. 
 
 [2j See 1 East, P. C. 175.
 
 HISTORIA PLACITORUM CORONiE. 225 
 
 that an importation of counterfeit coin from thence into England 
 is not treason here within that statute, principally because the coun- 
 terfeiting itself is punishable by the statute of 35 E. 3. which is of 
 force in Ireland. Co. P. C.p. 18. And the like reason holds 
 for the Isle of Man. Before this statute there was some [ 226 ] 
 difficulty what this crime should be. 
 
 In the time of king Edward I. there were three great inconve- 
 niences touching coin imported from foreign parts, sometimes they 
 imported true coin oi England, but such as was clipped, sometimes 
 they imported counterfeit coin like the coin oi Engknid, but of a 
 base allay; and most times they imported foreign coin, which yet 
 passed between merchants, and filled the kingdom with bad money 
 to the detriment of trade and the king's coinage. [3] 
 
 And to remedy these inconveniences were those three ordinances 
 made, called Stalntuni de moneld magnum, de monetd peirvuni,^ 
 *drticuli de monetu; by which, searches were ordained of all coin 
 imported, that if any dipt money or any foreign money, other thari 
 of England, Ireland, or Scotland, were taken, it should be pierced 
 and redelivered to the owner, if it were false it should be detained, 
 and the bodies of such as had false or dipt money to be attached, (a) 
 and if suspicious, detained till he produce his warrant; that money 
 be received by weight; and by the second, viz. Stututiim de moneld 
 parvurn, that if any merchant brought in dipt or counterfeit money, 
 for the first offense he should lose the money, for the second he should 
 lose his iijoney and goods, and for the third de corporibiis siiis 8f de 
 omnibus bonis 4' catallis suis nobis totaliter incurratiir; that if 
 they were not merchants, they should pierce the dipt and counterfeit 
 money and send it to the exchange, otherwise in whose hands soever 
 such money should be found, it should be forfeited to the king: and 
 by articuli de monetd the several faulty coins, foreign and others, 
 that had obtained in the kingdom by common use are described and 
 decried. 
 
 By the statute of 9 E. 3. cap. 2. Item, "That no false money or 
 counterfeit Sterling be brought into this realm or elsewhere within 
 our power upon forfeiture of such money." 
 
 By an act or rather an advice. Rot. Pari. 17 E. 3. n. 15. 
 qe nul soit si hardy de porter fausse & malveis monoie en [227] 
 roialme sur peyn de forfeiture de vie & membre. 
 
 Pot. Pari. 20 E. 3. n. 15. A complaint of importation of false 
 money, especially the false money called Lnsheburnes, praying de 
 punir ceux, que sont trovez culpablez d'lapport, ou de le resceit de 
 eux sachant le fauxisme, par judgment come faux monyers. 
 
 Ro'. Quant a cest point de ceux, qe apportent la faux mony deins 
 le realme, & qe le usent per voy de merchander ent sachaiant, le roy 
 vo€t, quils eieut judgment de vie & de membre, come faux monyers, 
 
 («r) See an ordinance to this purpose in tiie reign of king John Wilk. Leg. Anglo-Sax. 
 [3] See tlie Act of Congress of 3 March, 1825, ch. 65. sect. 20, ante, p. 222.
 
 227 HISTORIA PLACITORUM CORONA. 
 
 solonc les leys & cnstomes de realme ; but this was never drawn np 
 into an act: yet Rot. Pari. 21 E. 3. n. 19. the commons desire the 
 penalty may stand according as was ordained in the last parHament, 
 and that it extend as well to the time past as to come^^i'qe mil cfiar- 
 tres de pardon soient grant de dit fanxime 8f treason: they were 
 answered, that the justices should be assigned to enquire of the time 
 past and to come after this act, and to do right, and that pardons be 
 not granted cy legerment. 
 
 By which it appears, that it was never settled to be treason till 20 
 E. 3. and even from that time,tliere was but a faint proceeding ugon 
 that offense. 
 
 But this statute of 25 E. 3. was that, which madeihe final sissttle^ 
 ment in this point. 
 
 But this makes only the apporters themselves, their aiders, abet- 
 tors, and assistants, traitors, not those, that receive it at the second 
 hand; and this stands with reason and is consonant to the statute of 
 moneta before cited, which rendered the merchants offense punish- 
 able at the third time with death, but subjected others only to loss of 
 the money, if not pierced and carried to the exchange. 
 
 II. That it be counterfeit after the similitude of the money of 
 Englaii d, oihexw'xse it is not treason : the bringing in of money coun- 
 terfeit after the similitude of foreign coin made current here by pro- 
 clamation is not treason within this act ; but by the statute of 1 & 2 
 Ph. <§• Mar. cap. 11. it is enacted, "That if any person after Jari. 20 
 next shall bring from the parts beyond the sea into this 
 [| 228 3 realm or into any of the dominions of the same any false 
 and counterfeit coin of money being current within this 
 realm as aforesaid, viz. by the sufferance and consent of the king 
 and queen,) {which extends to the successors) knowing the sAme 
 coin or money to be false and counterfeit, to the intent to utter or 
 make payment of the same, within this realm, or any of the domi- 
 nions of the same, by merchandizing or otherwise, that every such 
 offender, their counsellors, procurers, aiders, and abetters shall be 
 deemed traitors, and forfeit as in case of high treason," 
 
 And by the statute of 14 Eliz. cap. 3. forging of foreign coin not 
 current by proclamation, as well without the realm as within, is 
 made misprision of treason; but that act extends only to the coun- 
 terfeiting, whether within the realm or without, but not to the bare 
 importing ; the instance that is here given is of Lnshboroiighs, which 
 were a base counterfeit coin after the similitude of English coin. 
 
 Other monies both before and after this statute there were, some 
 counterfeit, some dipt, some of baser metal, some foreign, which had 
 their several courses and periods in this realm : Pollards and Cror 
 kards, that obtained some time in Edward I. but were after decried 
 by proclamation 24 E. 1. vide Dy. 81. Other several base coins in 
 the same king's time mentioned in the ordinance of Jirticuli de 
 moneta, black money, which had been formerly current here, recalled 
 by the- statute of 9 E. 3. de moneta, cap. 4. Suskins, Dodkins, and 
 Gaily hall-pence recalled by the statute of 11 H. A. cap. 5. 3 H. 5.
 
 HISTORIA PLACITORUM CORONA. 228 
 
 cap. 1. Scotch money recalled by the statute of 3 H. 5. cap. 1. 
 Biankes recalled by the statute of 2 //. 6. cap. 9. and several penal- 
 .ties, some general, some of felony applied to them ; but these were 
 for the most part out of this statute, and obtained here by conni- 
 vance, till recalled. [4] 
 
 III. The next qualification of this offense is, that the bringer in, 
 must know it. [5] 
 
 IV. The next qualification is, that he must bring it to merchan- 
 dize or make payment thereof in deceit of the king and his people. ^ 
 
 Counterfeiting of the king's coin without uttering of it is 
 treason; clipping, washing, &c. by the statutes of 5 and IS [ 229 ~\ 
 Eliz. is treason, but it must be for gain or profit, and here 
 the importing is not treason, unless it be to merchandize or utter it. 
 
 And hereupon my lord Coke(a) concludes, that he must merchan- 
 dize therewith, or make payment thereof; it is a favourable exposL- 
 jtion, but the statute is not, that if he import and merchandize, hut 
 piir merc/tandizer <§' payment /aire, if it were to that intent, the 
 statute makes it treason. 
 
 And by the statute of 1 & 2 Ph. <§• Mar. cap. 11. touching impor- 
 tation of coin counterfeit of foreign money, it must be to the intent 
 to utter and make payment of the same ; and tho the best trial of an 
 intention is by the act intended when it is done, yet the intent in this 
 case may be tried and found by circumstances of fact, by words, let- 
 ter^, and a thousand evidences besides the bare doing of the fact. 
 
 As in case of those many acts, that prohibit lading of wool, gold, 
 silver, &c. with an intent to transport the same, whereby some are 
 made felony, &c. the intent shall be tried in those cases (being joined 
 with an act) by circumstances, that evidence the intent of that action, 
 for tho bare intentions cannot receive any trial, yet intentions joined 
 with ah overt-act, as here, importation, may be tried and discovered 
 by circumstances. • * 
 
 So that it seems the very importing of counterfeit money pur mer- 
 chandizer, &;c. to the intent to merchandize or make payment there- 
 with, tho no such merchandize or payment be aciually made, is 
 treason by this statute, if the party importing know it to be such, and 
 that as well his intent as his knowledge lies in averment and proof. 
 
 And thus far concerning treasons i'elating to money. 
 
 (o) Co. P. C.p. 18. 
 
 [4] By the 37 Geo. 3. c. 126. s. 3. to bring into the realm any counterfeit coin resem- 
 bling any gold or silver coin of any foreign country, to pass as such foreign coin, know- 
 ing the same to be counterfeit, to the intent to utter the same in any of the king's- 
 dominions, is made felony, with trans^portution. By the 4 sect, tendering in payment 
 such coin is made, lor the first offence, imprisonment for six months — second offence, 
 two years — Uiird offence, felony without benefit of clergy. To have in custody a greater 
 number than five pieces of counterfeit foreign coin, makes the party liable to a penalty of 
 five pounds, by the 6 sect. 
 " [5] 1 East, P. C. 175. Rose, on Coin. 24. Archb. C. P. 477.
 
 230 ^ HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXI. 
 
 CONCERNING HIGH TREASON IN KILLING THE CHANCELLOR, ETC. 
 
 I COME shortly to treat of the last kind of high treason declared by 
 this act. 
 
 Si home tnast chancellor, treasurer, ou justice nostre seigneur le 
 roy del un banck ou del autre, justice in eyre, ou de assises, & touts 
 autre justices assignes de oyer & terminer, esteant en lour place fesant 
 lour office. 
 
 I. This statute extends only to the actual killing of some of these 
 officers, and therefore a conspiring to kill any of these without actual 
 killing of any of them is not treason ; but if any conspire to do the 
 act, and one of the conspirators actually do it, this seems to be- treason 
 in them all, that are abettors or counsellors to do the act, as is before 
 instanced in levying of war, and therefore there is a particular act 
 made 3 H. 7. cap. 14, that make the conspiring the death of a privy 
 counsellor to be felony.(a) 
 
 If a man only strike or wound one of these officers, tho in the exe- 
 cution of his office, this is a great misprision, for which in some cases 
 the offender shall lose his hand, (A) as was once done in the case of 
 my lord chief justice Richardson sitting as justice oi oyer and termi- 
 ner, but it is not treason within this act. 
 
 II. This statute extends to no other officers but those 
 [231 ] above-named, and therefore not to the lord steward, consta- 
 ble, marshal, admiral, or lord of parliament, iho in the exercise 
 of their offices; it may be murder, but not treason. Co. P. C. p. 18. 
 
 A justice of peace, tho there be in the end of his commission of the 
 peace, nee non ad diversa felunias, malefacta audiend' Sf terminand' 
 is not a justice of oyer and terminer within this act, for the justice? 
 of operand termin r nve intended such, as have their commission ac^ 
 audiend' l<c terminand' 4'C. as the principal designation of their office; 
 and thus it is in divers statutes also, that speak generally of justices 
 oi oyer ^\\d^ terminer, {^c) 
 
 But a justice of peace may be also a justice of oyer and terminer 
 by another commission, as many times they are, and then they are 
 
 (a) But this act extends only to such offenders, as are the king-'s sworn servants, whose 
 names are entered in the cheque-roll of the king's liousehold, and who is under tiie state 
 of a lord; and according to lord Goke's npiirinn the conspiracy must be plotted to ho done 
 within tlie king's household. Co. H. C. p. 39. by this statute the otiender was not deprived 
 of the benefit of the clergy; but by 9 Ann. cap. 16, on occasion of Robert Harhy, Esq. 
 (afterwards earl of Oxford) being stabbed by Anlhmy' Guiscard, who was tiicB under 
 examination before a committee of privy council, it was enacted, "'I'hat whoever should 
 unlawfully attempt to kill, or should unlawfully assault, strike or wound a ])rivy coun- 
 sellor in the execution of his office, shall suffer death as a felon without benefit of clergy," 
 
 {h) 3 Co Inst. 140. 
 
 (c) 9 Co. 118. 6, Cro. £/w. 87, 697. .
 
 HISTORIA PLACITORUM CORONA. 231 
 
 within this statute, when they are sitting by virtue of that commis- 
 sion. 
 
 The lord keeper, when there is a lord chancellor also, as there may 
 be both at the same time, seems not to be within this law; but if there 
 be no lord chancellor, then the lord keeper is within this act, for by 
 the statute of 5 Eliz. cap. 18. their office is declared to be the same 
 to all intents and purposes, as if the lord keeper were lord chancellor. 
 
 But the commissioners of the custody of the seal(c^) or for the 
 treasury are not lord chancellor or lord treasurer within this act, and 
 therefore at such times as the treasury hath been in commission those 
 commissioners have not the same power as the lord treasurer, as in 
 cases of writs of error by the statute of 31 E. 3 cap. 12. (e) in the 
 exchequer before the lord chancellor and treasurer, and so for the 
 setting of the prices of wines by the statute of 7 E. 6.(/) neither do 
 they sit as lord treasurer in the exchequer-chamber, as judges of 
 equity. 
 
 It extends not to the chancellor and under treasurer of the 
 exchequer, nor to the chancellor of the county palatine of [232] 
 Lancaster, nor to the lord privy seal, for these are special 
 officers and of a lower rank, than the lord chancellor or treasurer. 
 
 III. The MeVfi^ qualification of this treason is, that it must be este- . 
 ants 671 lour places, fesant lour offices ; wherever the seal is open, 
 whether in the court of chancery or in the chancellor's house, the 
 chancellor or keeper there sealing writs is seants en son place, fesant 
 S071 office. 
 
 And the same law seems to be, if he be hearing of causes in his 
 chamber, for tho antienily the hearing of causes upon English bills 
 was rare, yet use hath sufficiently obtained to give it the style of 
 fesant son office. 
 
 Qusere, touching the lord treasurer's dispatching business in his 
 house, whether this be seant in son place, but sitting in the court of 
 exchequer, or exchequer-chamber, or in the star-chamber, when it 
 stood, had been seant in son place, S,'C. 
 
 . The place for the justices of the several courts are the courts them- 
 selves, where they usually or by adjournment sit for the dispatch of 
 tlie business of their courts. 
 
 And so much shall suffice for this treason also. 
 
 1 Hawk. p. C. 41. 4 Black. Com. c. vi. p. 84. 
 
 (<Z) But it should seem, that now they are within the act, since by 1 W. Sf M. sess. 1. 
 cc/^j 21. their office is declared to be the same, and they to have the same jurisdiction and 
 privileges, as lord chancellor. 
 
 (e) See also 31 Eliz. cap. 1. 
 
 (/) This power is given by 37. H. 8. cap. 23. which statute was revived by the 5 Sf 
 6 Ed. 6. cap. 17, but there is nothingr of it in the 7 E. 6, 
 
 VOL. I. — 26
 
 233 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXII. 
 
 CONCERNING PRINCIPALS AND ACCESSARIES IN TREASON. 
 
 Before I leave the discourse concerning high treason it is necessary 
 to consider, whether or how all are principals in high treason. 
 
 In cases of felony there are two sorts of principals, viz. principals 
 in the first degree, that do the fact, be it in murder or any other 
 felony, and principals in the second degree, that are present aiding 
 and abetting the felony. 
 
 And regularly in felony there are two sorts of accessaries, 1. Ac- 
 cessaries before the fact, which are not present, but yet counselling, 
 connnanding, or abetting the felony, but in manslaughter no such 
 accessaries can be before: and 2. Accessaries after, such as knowing 
 a felony to be done by such a man do y^t receive or maintain him, 
 unless it be a wife receiving her husband ;(<-/) of this hereafter in its 
 due place. 
 
 Now in treason thus far it is agreed of all hands, 1. That there 
 are no accessaries a parte ante., but ail such as counsel, conspire, 
 aid, or abet the committing of any treason, whether present or 
 absent, are all principals. 2. It is likewise agreed of all hands, 
 that in all treasons, except that which concerns counterfeiting the 
 great or privy seal, or money, whosoever knowingly receives, main- 
 tains, or comforts a traitor, is a principal in high treason. Co. P. C, 
 16, 138, and so it is there cited to be resolved in the case of Jlbingtouj 
 who received Garnet, that was one of the conspirators in the powder 
 treason ; that which hath occasioned the doubt hath been the reso- 
 lution in Conyer^s case, Dy. 296. who was indicted, that proditorie 
 receptdsset, Sj-c. Fairfax, salens ipsuryi diversas pecias moyietse ad 
 shnilitudineni monetse Angiiae vocat shillings de /also me- 
 []234] iallo fabricdsse ; upon this he and others were discharged, 
 because it was misprision of treason only, and not treason; 
 but this opinion is contradicted by my lord Coke,Pla. Cor. p 138. 
 and yet it is said by the same author, Paschse 9 Jac. 12 Rep. 81. the 
 receiver of a counterfeiter of the seal or money is no traitor. 
 
 We will see therefore in what cases an act ex post facto will be, 
 treason in relation to the aid of him, that committeth this or any 
 other treason. 
 
 A man is imprisoned for treason, the goaler voluntarily suffers him 
 to escape, this is treason in the goaler. Stamf. PI. Co. 32. 
 
 If a person be arrested for treason, he that rescues him is guilty of 
 treason. [1] 
 
 (a) Vide supra, p. 47. 
 
 [1] By the 23 Sect, of tlie Act of April 30, 1790, it is enacted, That if anv person or 
 persons shall by force set at liberty or rescue any person wiio shall be founa guilty of 
 treason, murder, or any other capital crime, or rescue any person convicted of any of
 
 HISTORIA PLACITORUM CORONiE. 234 
 
 And so if a man be imprisoned for treason, and another prisoner 
 or any other person breaks the prison, and lets out the party im- 
 prisoned for treason, this is treason in the party that breaks the 
 prison. 1 H. 6. 5 Stamf. PL Cor. 32. nay, if a stranger breaks the 
 prison and lets out one there imprisoned for treason ; this is held 
 treason, tho he that breaks the prison knew not that any there was 
 imprisoned for treason; so resolved by ten judges, P. 16. Car. 
 Crake 583. Bens fed's case; but my lord Coke holds that he must 
 be knowing it. Co. Mag. Cart, super statutum de frangentibus 
 prisonam.{b)[2'] 
 
 Rot. Pari. 2 H. 6. n. 18. in schediila. Mortimer was committf^ 
 to the Tower oi London for suspicion of treason ; and 23 Feb. 2 M. 
 6. was indicted, quod per covinam, confoederationem 4* assensum 
 AVilielmi King, S;c. pro diversis denariorum summis eidem Wil- 
 lielmo K\n% per praefatum Johannem Mort'unev p?'omissis, idem Jo- 
 hannes txirrim prxdicf /also S,' proditorik f regit : the indictment 
 was removed into parliament, and John Mortimer likewise brought 
 into the parliament: the commons desired the duke of Gloucester 
 (then commissioned to hold the parliament) that the indictment might 
 be affirmed, and that John Mortimer de prxdictis proditionibus 4' 
 feloniis convincatur : thereupon the duke and lords at the request 
 of the commons affirm the indictment by act of parliament, 
 & quod prgedictus Johannes Mortimer de proditionibns & [ 235 ] 
 feloniis prsedictis convincatur, & quod trahatur per medium 
 civitatis, & super furcas de Tyburne suspendatur, & ad terram pro- 
 jiciatur, & caput ejus amputetur, & interiora sua comburantur, & 
 corpus ejus in qnatuor partes dividatur, & caput ejus ponatur super 
 portam pontis London, &c. & quod bona & catalla, terras & tcne- 
 menta sua, tam in dominico, quam in reversione, domino regi foris- 
 faciat. 
 
 So that it seems, tho the statute of 25 E. 3. speaks not of these 
 offenses, yet they are in a manner incidents, and virtually included 
 within the original ofiense, and therefore these cases of voluntary 
 
 (6) 2 Ce. Inst. 590. 
 
 the said crimes, going to execution or during execution, every person so offending and 
 being thereof convicted, shall suffer death. And if any person shall by force set at 
 liberty or rescue any person who before conviction shall stand committed for any of the 
 capital offences aforesaid ; or if any person or persons shall by force set at liberty or 
 rescue any person committed for, or convicted of any other offence against the United 
 Slates, every person so offending shall, on conviction, be fined not exceeding five hundred 
 dollars, and imprisoned not exceeding one year. 
 
 [2] It is true it was resolved in BensteacVs case, cited here bj' the learned author, (Sir 
 M. Hale,) and at p. 141, but I think not with entire approbation of the rule, that the 
 party breaking prison would have been guilty of treason though he had not known that 
 traitors were there. I am by no means satisfied with this opinion. For the single au- 
 thority upon which this point is said by Hale to have been so ruled doth by no means 
 warrant it. The book expressly stateth it, that the party did know that traitors were 
 there. And Brooke, who abridgeth the case, is express to the same purpose, " sciant que 
 traitors fuerent en ceo.'''' And Coke, citing the same case, layeth a great stress on this 
 circumstance, that the party knew that traitors were there, and conducted them out of 
 prison. Fost. 344.
 
 235 HISTORIA PLACITORUM CORONiE. 
 
 permission to escape, rescue, breach of prison, translate the original 
 offense upon him, that commits it by the common law; and these 
 would be treasons as well in the case of counterfeiting of coin, as 
 other treasons. 
 
 But herein these things are observable, 1. This judgment in Mo7'- 
 timer^s case is not at all now in force, nor binding, for the statute of 
 1 Marix repeals not only enacted treasons, but declared treasons, 
 that were not within 25 E. 3. and 2. That therefore at this day, if 
 one be committed for suspicion of treason, and another break goal to 
 let him out, yet unless the party imprisoned were really a traitor, 
 ifiis is no treason at this day. 3. But if he were really a traitor, then 
 ^leaking of the prison to enlarge him is treason, and a treason of a 
 greater guilt, than a knowing receiver, and then it is treason by vir- 
 tue of the common law, for it is a kind of incident; the like of a 
 receiver of a traitor, or a goaler that sutlers him voluntarily to escape, 
 those are incident treasons by the common law, and virtually inclu- 
 ded in the statute of 25 E. 3. as well as a receiver of a traitor know- 
 ingly. 
 
 The differences therefore seem to be these, which state and recon- 
 cile the whole matter. 
 
 First as for new treasons. If an act of parliament enact a new 
 treason, and that the offender, his counsellors, abetters, and aiders 
 thereunto shall suffer as traitors, this doth not make receivers or com- 
 forters after the fact guilty of treason, for expressum facit cessare ta- 
 citurn; such a clause we shall find in the statute 23 Eliz. 
 \_ 236 ~\ cap. 2. for a new felony(c) 5 Eliz. cap, 1. in a case of a pr'ss- 
 miinire.{d) 
 
 If an offense be made treason in the offender, hi» procurers, coun- 
 sellors, abetters, consenters, (without the word thereAcnto) yet it seems 
 to me for the same reason it doth not make the knowing receivers 
 traitors, unless the words receivers or comforters be also inserted: 
 for the former words import an offense preceding or concomitant to' 
 the act of treason, but- the latter words receivers and comforters are 
 after the offense, and so of another nature : and this difference appears 
 expressly by the statute of 13 Eliz. cap. 2. where abetters, procurers, 
 and counsellors are made guilty of high treason; but receivers and 
 comfortersie) after the fact are only within the statute o{ prsemunire ; 
 the like in 27 Eliz. cap. 2. where the coming of a priest, S)^c. is trea- 
 son, but his receiver, aider, or comforter is felony: so 5 & 6 £^. 6. 
 cap. 11. and 1 Eliz. cap. 5. the offenders, their counsellors, abetters 
 and procurers, and all and every their aiders and comforters know- 
 ing the same extend to knowing receivers. 
 
 The word {aid) is of somewhat a more doubtful extent, yet we 
 shall find in those. statutes and some others the word aid to be applied 
 to an aiding after the offense, and not in it or to it; but it seems to 
 
 (c) The words of this statute are, aiders, procurers, and abetters. 
 
 (d) The words of this statute are more extensive, viz, abetters, procurers, counsellors, 
 aiders, assistants, and comforters. 
 
 (e) The words in this place of tlie statute are, aider Sy comforters, or maintainers.
 
 HISTORIA PLACITORUM CORONiE. 035 
 
 me, that when it is joined only with those that import a consent 
 to the offense, (as procurers, counsellors, aiders, abetters, or coun- 
 sellors, consenters and aiders) as in the statute of 5 Eliz. cap. 11. 
 for clipping, IS Eliz. cap. 1. for impairing 1 Mar. sess. 2 cap. 6. for 
 counterfeiting foreign coin, it must be construed of those that are 
 aiders in the offense, and not bare receivers of the person. 
 
 But in all new treasons, those that rescue him from prison, or suffer 
 him voluntarily to escape being lawfully committed to his custody, 
 tho these are not expressly contained in that new act of treason, yet 
 they are traitors by a necessary construction of law upon the act 
 itself; but if the act, be general, making a man a traitor for 
 such an act without mentioning in what degree his aiders, f 237 1 
 or abetters, comforters, or receivers shall be, it seems proba- 
 ble, that the receiver, knowing it, is thereby virtually made also a 
 traitor; this, I say, seems probable, but most certainly procurers, con- 
 senters, and aiders to the fact are thereby traitors, tho not specially 
 so enacted; this is agreed in Conyer'^s case, By. 296. Co. P. C. 16 
 fy 138. 
 
 Secondly, As touching treasons within the act of 25 E. 3. 
 
 The procuring, counselling, consenting, or abetting such treasons, 
 tho not specially expressed in that statute, is treason within that statute. 
 Co. P. C. cap. 64. p. 138. and so is the receiving of a traitor, or a 
 gaoler's voluntary permitting him to escape, if he were in truth a 
 traitor. 
 
 In case of the knowingly receiving of a person guilty of counter- 
 feiting of coin, or of the great seal, there is diversity of opinion, M. 
 12 (§• 13 Eliz. By. 296. and my lord Coke himself in his 12 Rep. 
 p. 81. 9 Jac. says, that it is not treason, and yet Pla. Cor. cap. 64. p. 138. 
 he holds it treason, tho this latter opinion is the more probable, the 
 former is more merciful. 
 
 But in all other treasons against the king within the statute of 25 E, 
 3. the receiver of a traitor knowingly makes the receiver a traitor; 
 this was Jihin.f^ton^s case for receiving Garret guilty of the powder 
 treason, Co. P. C. p. 138. 
 
 Only this difference is to be observed, he, that being committed 
 for treason breaks prison, may be indicted for breaking of prison, be- 
 fore he be convict of the principal offense, for which he was com- 
 mitted, but not of treason, but it will be only felony by the statute 
 de fran^entibus prisonam, for this statute de frangenlibus prisonam 
 makes it not treason ; and if it did, yet the statute of 25 E. 3. makes 
 it no treason, because not within the same statute, and consequently 
 1 Mar. cap. 1. exempts it from being treason; but he, that rescueth 
 a person imprisoned for treason, or sutlers him voluntarily to escape, 
 stiall not be arraigned for that ofiense, till the principal offender be 
 convict of that offense: for if he be acquitted of the principal ofiense, 
 the gaoler, that suffered the escape, and he that made the 
 rescue shall be discharged ; and the like in felony. Coke Mag. [ 238 ] 
 Car. super stat. defrangentibus prisonarn, p. 592. and tlie 
 reason is, because tho rescuing a person charged with treason, or suf-
 
 238 HISTORIA PLACITORUM CORONA. 
 
 fering him wilfully to escape be a great misdemeanor, yet it is not 
 treason, unless in truth and reality lie were a traitor, for a man may 
 be arrested or imprisoned under a charge of treason, and yet be no 
 traitor. 
 
 And iho the receiver of a traitor, knowing it,, be a principal traitor, 
 and shall not be said an accessary, yet thus much he partakes of an 
 accessary, 1. That his indictment must be special of the receipt, and 
 not generally, that he did the thing, which may be otherwise in case 
 of one, that is a procurer, counsellor, or consenter;[3] thus it was 
 done in Co n]i/e?''s ca.se, Di/. 296. 2. That if he be indicted by a seve- 
 ral indictment, he shall not be tried till the principal be convicted, (/) 
 upon the reason of the goaler and rescuer before given, for the prin- 
 cipal may be acquitted, and then he is discharged of the crime of re- 
 ceipt of him. 3. If he be indicted specially of the receipt in the same 
 indictment with the principal offender, as he may be, yet the jury 
 must first be charged to inquire of the principal offender; and if they 
 find him guilty, then to inquire of the receipt, and if the principal be 
 not guilty, then to acquit both; and accordingly it was ruled in ^r- 
 deii's case.(^)[4] 
 
 For tho, in law, they be both principals in treason, and possibly 
 process of utlary may go against him, that receives, at the same time 
 as against him, that did the fact; and tho the principal appear, process 
 may go on against the other (otherwise in the case of an accessary 
 in felony, Stamf. Plct. Cor. 47.) yet in truth he is thus far an acces- 
 sary, that he cannot be guilty, if the principal be innocent. 
 
 (/) See postea Book II. cap. 28. And therefore the conviction of -lady Alice Lisle, 
 1 Jac. II. was contrary boUi to law and reason, for that Hicks the principal (for barboutr 
 ing whom she was convicted of treason) was not at that time convicted, nor indeed was 
 there any proof that she at that time knew he had been in the rebellion. Slate Tr. Vol, 
 IV. p. 105. 
 
 (g) lAnd.n. 154. >. 109. 
 
 [3] The words " may be otherwise" do not clearly convey the idea that it is univer- 
 sally otherwise. In all cases of a receiver the indictment must be special on the receipt, 
 and not general. The words " may be otherwise in case of a procurer, tfcc." signify 
 that it may be otherwise in all treasons, or that it may be otherwise in some treasons. 
 If it may be otherwise in some treasons, without contradicting the doctrines of Hale 
 himself as well as of other writers, but cannot be otherwise in all treasons without such 
 contradiction, the fair construction is, that Hale used these words in their restricted 
 sense; that he used them in reference to treasons in which a general indictment would 
 lie, not to treasons where a general indictment would not lie, but an overt act of the 
 treason must be charged. Per Marshall, C. J. 2 Burr's Tr. 434. 
 
 [4] Tiie conviction of some person, who has committed the treason, must precede the 
 trial of him who advised or procured it. 2 Burr's Tr. 461. 
 
 But in all acts of approbation, incitement, advice, or procuring, in case of treason in 
 compassing the king's death, the party may be tried before the person who acted upon 
 such incitement; because the bare advising or encouraging such acts, is in itself an 
 overt-act of compassing; and it is immaterial whether the attempt was ever made or 
 not. But in the other treasons in the 25 Edw. 3. if one advise another to commit them, 
 or furnisli him means for that purpose, and tlie fact is committed, the adviser will be a 
 principal traitor; for such advice would have made him an accessary before the fact in 
 felony ; but if the act were not committed, the adviser could not be a traitor. In these 
 cases the treason is of a derivative nature and depends upon the guilt of the agent, the 
 proof of which can only be legally ascertained by his conviction. Fast. 346. 342, 1 East, 
 PL 100. 4 Bl. Com. 35. .
 
 HISTORIA PLACITORUM CORONA. 238 
 
 How far Mortimer^s case agrees with law at this day, vidcbimus 
 infra, 8f vide supra. 
 
 That, which will not make an accessary to felony after 
 the fact, will not make a man'principal in treason; therefore [ 239] 
 sending of a letter for his deliverance, or speaking a good 
 word for him, ^-c. will not be treason. Slum/. PL Cor. 41. b. how 
 far charitable relief will do'\t.,xide infra super staluium 13 Eliz. 
 cap. l.[5] 
 
 [5] The principle that the same acts which make a man an accessary in felony, make 
 him a principal in treason applies, it is presumed, in respect to treason in tlie state of 
 Virginia ; but whether it does in respect to treason against the United States is doubt- 
 ful; because the acts in which treason against the United States shall consist are pre- 
 cisely defined by the federal constitution in terms which seem to exclude all accessorial 
 treasons ; and because, too, the common law, of which this doctrine is a part, is not the 
 law of the United States, though it has been severally adopted by all of them except one. 
 Davis's Virg. Cr. Law, 38. But it was laid down by Judge Chase, in Fries' Trial, 199. 
 that in treason all ibe pa rticepes criininis are principals; that there are no accessaries in 
 this crime. All persons who are present, and countenancing and are ready to afford 
 assistance, if necessary, to those who actually commit any treasonable act, are also prin- 
 cipals. If a number of persons assemble and set out upon a common design, as to resist 
 and prevent by force, the execution of any law, and some of them commit acts of force 
 and violence with intent to oppose the execution of any law, and others are present to aid 
 and assist if necessary, they are all principals. If any man joins and acts with an 
 assembly of people, his intent is alwaj's to be considered and adjudged to be the same as 
 theirs; and the law in this case, judgeth of the intent by the fact. If a number of per- 
 sons combine or conspire to effect a certain purpose, as to oppose by force, the execution 
 of a law, any act of violence done by any one of them, in pursuance of such combination 
 and with intent to effect such object, is in consideration of law, the act of all who are 
 present when such act of violence is committed. If persons collect together to act for 
 one and the same common end, any act done by any one of them, with intent to effectu- 
 ate such common end, is a fact that may be given in evidence against all of them. It 
 appears to the court, says Chief Justice Marshall, (2 Burr's Tr. 405.) that those who 
 perform a part in the prosecution of the war may correctly be said to levy war and to com- 
 mit treason under the constitution. It will be observed that this opinion does not extend 
 to the case of a person who performs no act in the prosecution of the war — who counsels 
 and advises it — or who, being engaged in the conspiracy, fails to perform his part. 
 Whether such persons may be implicated by the doctrine, that whatever would make a 
 man an accessary in felony makes him a principal in treason, or are excluded, because 
 that doctrine is inapplicable to the United States, the constitution having declared that 
 treason shall consist only in levying war, and having made the proof of overt acts neces- 
 sary to conviction, is a question ot vast importance, which it would be proper for the 
 Supreme Court to take a fit occasion to decide ; but which an inferior tribunal would not 
 willingly determine unless the case before them would require it. This doctrine 
 remains still in uncertainty, having never come up before the Supreme Court of the 
 United Slates. See 4 Tucker's Bl. Com. Appdx. 41. 1 East, P. C. 93. 4 Bl. Com. 34. 
 323. Fosl. 341. Hawk. c. 17. s. 39.
 
 239 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXIII. 
 
 CONCERNING FORFEITURES BY TREASON. 
 
 Having gone thro the several treasons declared by this statute, I 
 shall now proceed to what follows in this statute, which is, 1. Touch- 
 ing forfeitures of high treason. [1] 2. Touching declaring of treason 
 by parliament, and under this head shall consider those several de- 
 clarations and new enacted treasons since the statute of 25 E. 3. and 
 how they stand at this day. 
 
 The forfeitures for treason are either goods or lands. 
 
 As to goods: the king's prerogative as to goods forfeit for treason 
 is the same as to forfeitures for felony, only there seems to be some 
 diflerence in relation to grants thereof. 22 Jiss. 49. The king grants 
 to the master of St. Leonard's Omnia bona S^" catalla tenenliuni 
 stioruni fugitivorum, and felonum qualitercunque damnatorum. 
 A tenant of the master's was convict and attaint for killing of the 
 king's messenger, which at that time was held higli treason; it was 
 ruled, that the master shall not have the goods of this person by force >-' 
 of this general grant. 
 
 As to lands this statute of 25 E. 3. goes farther, Et soit a entendus, 
 qe les cases suisnosmes doit estre adjugge treason, qe se extend a 
 nostre seigneur le roy & sa royal majesty, & de tiel manners de trea- 
 sons le forfeiture des eschetes appertenont a nostre seigneur le roy,ci 
 bien de terres & tenements tonus des autres, come de Ini mesme. 
 
 I shall here examine, 1. Of what lands the king shall have 
 r 240 ] the eschete upon attainder of treason, and 2. In what man- 
 ner or degree he shall have those eschetes. 3. Where a 
 subject in point of privilege or franchise shall have these royal 
 eschetes. 
 
 I. As to the first of these, what lands are forfeit to the king by 
 attainder of treason, my lord Coke, PL Cor. p. 19. gives a full ac- 
 count of them, which I shall repeat with some additional observa- 
 tions: 1. At common law the lands entailed were forfeited for trea- 
 son, because it was a fee-simple conditional; but by the statute IV. 2. 
 de donis conditionalibus the forfeiture of lands entailed, even in case 
 of treason, was taken away, and the general words of this statute of 
 25 E. 3. doth not repeal the statute of Westm. 2. 
 
 But some later statutes have given to the king the forfeiture for 
 treason of lands entailed: the statute of 21 jff. 2. cap. 3. did give the 
 forfeiture of lands entailed to the king for the treasons therein men- 
 tioned; but that statute with the whole parliament of 21 li. 2. was 
 repealed by the statute of 1 H. 4. cap. 3. 
 
 [1] The Constitution (Art. 3. Sect. 3.) declares that no attainder of treason shall work 
 corruption of blood, or forfeiture, except during the life of the person attainted. By the 
 24 Sect, of the Act. of 30 April, 1790, it is enacted, That no conviction or judgment, &c. 
 shall work corruption of blood, or any forfeiture of estate.
 
 HISTORIA PLACITORUM CORON.^. 240 
 
 By the statute of 26 H. 8. cap. 13. in fine lands entailed are for- 
 feited by attainder of treason, viz. "All such lands, tenements, and 
 hereditaments, which any such offender shall have of any estate of 
 inheritance in use or possession, by any right, title, or means, within 
 any of the kitig's dominions at the time of any such treason commit- 
 ted, or at any time after, saving to all persons, other than the otren-^- 
 ders, their heirs and successors, and such persons as claim to any of 
 their uses, all such right, title, interest, possession, 4*c. as they might 
 have had if this act had not been made." 
 
 And by the statute of 33 H. 8. cap. 20.(a) "That if any person 
 be attaint of high treason by the course of the common law such, 
 attainder shall be of as good force, as if it had been by parliament; 
 and the king, his heirs and successors, shall have as much benefit by 
 such attainder, as well of uses, rights, entries, conditions, as posses- 
 sions, reversions, remainders and all other things, and shall 
 be deemed in the actual and real possession of the lands, [ 241 J 
 tenements, hereditaments, uses, goods, chatties, and all other 
 things of the offender, which his highness ought to have, if the attain- 
 der had been by authority of parliament, without any olBce or inqui- 
 sition to be found for the same, saving to all persons, (other than the 
 offenders and their heirs and assigns, and other persons claimirig by, 
 from or under them or to their uses after the treason committed) all 
 such right, title, use, possession, entry, reversion, remainder, interest, 
 condition, fees, offices, rents, annuities, commons, leases, and all other 
 commodities, and hereditaments whatsoever, which, they should, 
 might, or ought to have, if this act had not been made." 
 
 And the statute of 5 4* 6 Ed. 6. cap. 11. is to the same effect. 
 
 These statutes as to the forfeiture of lands entailed remain in force, 
 and are not repealed by the statute of 1 Mar. and so it hath been 
 often ruled, and particiilarly by all the judges in the lord Sheffield's 
 case 21 Jac de quo postea. 
 
 And the reason is, because the statute of-1 Mar. cap. 1. enacting, 
 that no treason shall be, but what was enacted by 25 E. 3. and that 
 no pains of death, penalties or forfeitures shall ensue for doing any 
 treason, other than be in the statute of 25 E. 3. these words other 
 than be mentioned in the statute of 25 E. 3. refer to treasons, not 
 to forfeitures or penalties; and therefore tho by the statutes of 2Q 
 and 33 H. 8. new penalties, viz. forfeitures of lands intailed, are 
 introduced, this forfeiture is not repealed, but only new treasons not 
 mentioned in 25 E. 3. so that at this day, if tenant in tail be attaint 
 of treason, the estate-tail is forfeited, and yet this attainder works no 
 corruption of blood as in relation to the heir in tail : vide the lord 
 Lumley's case cited in Doiufy's case, 3 Co. Rep. 10. b. Grandfather 
 tenant in tail, father, and son, the father is attaint of treason and 
 dies, the grandfather dies, the land shall descend to the grandchild, 
 for the father could forfeit nothing, for he had nothing to forfeit; 
 
 (a) See the cause of making this act, 3. Co. Rep. 10. b, 
 VOL. I. — 27
 
 S41 HISTORL\ PLACITORUM CORONA. 
 
 and the statute of 26 H. 8, that gives the forfeiture of tenant in tail, 
 yet corrupts not the. blood by the attainder of the father. 
 
 And therefore it is agreed in the principal case, that if 
 [242] after 26 H. 8. and before 33 //. 8. which vests all in the 
 king without office, if tenant in tail had been attainted of 
 treason, and died in that interval, the land would have descended to 
 his son till office found; but otherwise in case of tenant in fee-simple 
 attainted and dying before office, the freehold is cast upon the king 
 without office, because none could take it else, 
 
 2. The king at common law and by virtue of this statute was 
 entitled to a right of entry, where the party was in merely by dis- 
 seisin or abatement, but not to a right of entry, where the possessor 
 was in by title; but at this day by virtue of the statute of 33 H. 8. 
 above-mentioned the king is entitled to a right of entry iri both cases, 
 and that without office, but then there must be an inquisition or 
 seizure to bring the king into the actual possession ; and if he grant 
 it over before such seizure, the grant must be special, not of the land 
 simply, but of the right to the land, otherwise neither land nor the 
 right of entry passelh; it is so adjudged in Dowfy^s case, 3 Co. Rep. 
 10. b. 
 
 3. If a person committing treason hath at the time of the treason 
 committed a bare right of action touching any lands, or a right to 
 reverse a judgment given against him by writ of error, or a right to 
 bring a formedon, or writ of entry, but hath no right of entry with- 
 out such recovery in such action; this right neither at common law 
 nor by the statute of 33 H. 8. is given to the king by the attainder 
 of treason, 3 Co. Rep. 3. a. marquis of TVinchester^s case, 3. Co. 
 Rep. 10. b. Doivty^s case so adjudged; but yet there have been 
 two great cases resolved, that tread hard upon the heels of this 
 judgment. 
 
 H. 15 Eliz. PL Com. 552. b. Walsins;ham^s case: Wyat tenant 
 in tail of the gift of king Henry VII. the reversion in the crown, 
 made a feoffment in fee, and then was attaint of treason, and died 
 leaving issue, tho the feotfor, against his own feotl'ment, could not 
 claim any right at the time of the treason; yet it was adjudged, 
 1. That there remained in him such a right of the entail, as was 
 
 forfeited to the king. 2. And that the king was in as of 
 \_ 243 ] his reversion, and should not be subject to leases duly made 
 
 by JVyat before his attainder. 
 21. Jac. in Camera Scaccarii Stone and Newman's case, it was 
 adjudged in B. R. and affirmed i)i Catnera Scaccarii by the greater 
 number of justices. Bii^ott tenant in tail general makes a feoff- 
 ment to the use of himself and his heirs; and before the statute of 
 26 or 27 H. 8. commits treason, and is attaint of treason, and dies 
 leavitiij issue inheritable to the entail, then a special statute is made 
 31 //. 8. whereby he was to forfeit all estates and rights; yet it was 
 adjudged, 1. That against his own feoflment the tenant in tail could 
 have no right, and therefore if the case had stood barely so, the 
 right of the entail could not have been forfeited by the attainder.
 
 HISTORIA PLACITORUM CORONA. 043 
 
 2. But when an estate returns to him, that is forfeited by the 
 attainder, tlie king shall hold this estate discharged of the right of 
 the old entail, and that right shall never revive to the issue. 3. That 
 the retrospect of the king's title by the attainder shall over-reach and 
 avoid the remitter, which was wrought in the issue before the king's 
 actual seisin by the attainder or office thereupon. 
 
 But it is to be noted, that if the king makes a gift in tail, saving 
 the reversion to himself, the attainder of treason of such tenant in 
 tail shall not bar his issue, because the statute of 34 H. 8. cap. 20. 
 enacts, " That the heir in tail in such case shall have the lands, any 
 recovery, or any other thing or things hereafter to be had, done, or 
 suffered by or against such tenant in tail to the contrary notwith- 
 standing;" which act coming after 26 H. 8. and 33 H. 8. that gave 
 the forfeiture of lands entailed, is a repeal of those statutes as to this 
 case, and a restitution of the statute de donis condilionulibus in this 
 special case: and therefore, where in Plowden^s Co7Jimenlaries 
 {fJ'\i /sing ham's ca.sc) PFi/af, who was tenant in tail of the gift of 
 the crown, the reversion in the crown, was attaint of treason 1 Mar. 
 he had not forfeited his^ land by virtue of the statutes of 26 or 33 
 H. 8. if there had been no more in the case; but in that case he lost 
 it, because by special act of 1 <§' 2 Fh. <§' 3Iar. that attainder was 
 confirmed, and farther it was enacted, " That he should for- 
 feit all the laflds, tenements, and hereditaments, whereof he f 244 1 
 or any to his use was seized the day of the treason com- 
 mitted, saving the right of all persons other than the person attainted 
 and his heirs, and all claiming under them after the treason com- 
 mitted;" and this act coming after 34 H. 8. cap. 20. repealed that 
 act as to this case, as the act of 34 H. 8. repealed the acts of 26 and 
 33 H. S. as to entails of the gift of the crown, where the reversioa 
 continues in the crown. 
 
 But since all these statutes it is enacted by the statute of 5 <§' 6 Ed. 
 6. cap. 11. "That every offender being lawfully convict of any man- 
 ner of high treason according to the course and custom of the com- 
 mon law shall lose and forfeit to the king's highness, his heirs and 
 successors, all such lands, tenements, and hereditaments, which any 
 such offender or offenders shall have of any estate of inheritance, in 
 his own right, in use, or possession, within this realm of Englandj 
 or elsewhere within the king's dominions at the time of such treason 
 committed, or at any time after:" this act coming after 34 H. 8. 
 makes lands of the gift of the king in tail subject to forfeiture for 
 treasons, as well as other lands entail. 16 Eliz. Dy. 332. h. 
 
 4. At common law the king was not entitled to a condition, that 
 was in the party attainted; but now by the express words of the 
 statute of 33 H. 8. the king is in some cases entitled to a condition 
 of re-entry belonging to the party attainted, viz. not to the land itself 
 but to the benefit of that condition, which might reduce the land into 
 the possession of the party attainted, if he had not been attainted, 
 and now to the benefit of the king : but herein this difierence is to 
 be observed.
 
 244 HISTORIA PLACITORUM CORONA. 
 
 1. If the condition be such, as that the substance of the perforln- 
 ance thereof is not bound up strictly to the person attaint, then such 
 a condition is given to the crown, and he may perform it, as the 
 party himself might have done in case the condition hath a continu- 
 ance. 
 
 7 Co. Bep. W.h. Engle field's case: Sir Francia Engle field con- 
 veyed his lands to the use of himself for life, the remainder 
 [ 245 ] to his nephew and the heirs male of his body, 4'c. with a 
 proviso, Xhvki in as much as he might turn prodigal, and there- 
 fore for a bridle to him, if Sir Francis by himself, or any other dur- 
 ing his life, should deliver or offer to his nephew a ring of gold to 
 the intent to make void the uses, then the uses should cease — Sir 
 Francis is attaint of treason; it was ruled, that the queen in the life- 
 time of Sir Francis may by commission, SfC. tender the ring and 
 make void the uses, for it was not personally annexed to him, but 
 might be performed by the queen. 
 
 This case was judged M. 33 <§' 34 Eliz. but it was not thought 
 safe to rely upon this judgment; but 35 Eliz. cap. 5. there was a 
 special act of parliament reciting the attainder and the conveyance 
 with the provisio: "And it is declared and enacted, that the attainder 
 be confirmed, and that the queen was lawfully entitled to take bene- 
 fit and advantage of that proviso in the same form, as Sir Francis 
 Englefield might have done, and that the said provi^ or condition 
 was well performed by the queen's commission:" But suppose Sir 
 Francis had died before the queen had made the tender, then the 
 condition which was only limited to him during his life, had been 
 determined, and the queen could not have tendered, for the attainder 
 could not lengthen the condition longer than the first limitation; but 
 on the other side, if the condition be appropriated and applied to the 
 person of the party attaint, then such condition is not given to the 
 crown. 
 
 The duke oi NorfoWs case 11 Eliz.{b) cited in Englefield's case 
 to be adjudged and then agreed by the court: the duke conveyed 
 land to uses, provided that if he shall be minded to revoke, and shall 
 signify his mind in writing under his proper hand and seal subscribed 
 by three witnesses, that then the uses should be revoked; it was 
 ruled, that this condition was not given to the crown by his at- 
 tainder. 
 
 2. Car. 1. B. B. Sir William Shelly,{c) made a feoffment to the 
 use of himself for life, the remainder to his first, second, third, 
 J^ 246 ] and other sons in tail, provided, that if Sir Hilliam Shelly 
 at any time during his life give or deliver, or lawfully ten- 
 der to the feoffees or any of them, their heirs or assigns, a gold ring, 
 or a pair of gloves of the price of twelve-pence ipso Willielmo tunc 
 declarante Sf" expressante, that the tender was to the intent to avoid 
 the deed, that then it should be void, and the feofees should stand 
 
 (b) 7 Co. 13, a. 
 
 (c) See this case by the name of Warner and Hardwin in Latch 25,69,102. W. 
 Jones 134.
 
 HISTORIA PLACITORUM CORONA. 246 
 
 seised to the use of Sir William and his heirs; and it was adjudged 
 in the common pleas, tliat this condition was so personal, that it was 
 not given to the khig, but upon a writ of error in B. JR. the court 
 was "divided; Whitlock and Jones, that it was given, Croke and 
 Doderidge, that it was not given to the king, <§• sic stetit. 
 
 In the case of Wheeler and Smi/h,{d) Simon Mayne being pos- 
 sessed of the rectory of Haddenharn for sixty years, in 1613, assigned 
 it over to trustees in trust for himself for life, and afterwards to di- 
 vers other trusts for payment of debts and oiher things, provided 
 nevertheless and upon condition, that if the said Simon iV/c/r/ne shall 
 at the time of his decease have issue of his body, that then and 
 from thenceforth the trustees shall stand possessed for such person 
 and persons, and such estate and estates, as Simon Mayne by his 
 last will and testament shall limit and appoint, and for want of such 
 Hmitation and appointment, in trust for such after-born child ; pro- 
 vided also, that if the said Simon Mayne shall hereafter during his 
 life be minded to make void these present indentures, or any use or 
 trust therein, or to limit new uses, and the same his mind shall de- 
 clare or signify under his hand and seal in the presence of two wit- 
 nesses, then the uses shall cease, and then the trustees shall stand 
 possessed to such uses, as he by such deed or writing, or by his 
 last will and testament in writing shall limit and appoint. Simon 
 Mayne was guilty of the execrable murder of the king, had issue a 
 son, was attainted, and died without making any such will or revo- 
 cation or declaration, and by act of parliament all the estates, which 
 he had or any in trust for him, and all rights, conditions, ^-c. were 
 vested in the crown, who granted this rectory to the duke of Yorkj 
 and by him the same was granted to Sir William Smyth-: 
 it was adjudged in the common pleas, and upon a writ of [247]] 
 error affirmed in the king's bench, P. 23 Car. 2. that Sir 
 William Smyth had no title to this rectory : 1. That this was a per- 
 sonal condition and not given to the king, under his hand and under 
 his proper hand, being all one in sense and appropriate to his person. 
 2. That, if it were given, yet the same expiring by the death of Mayne 
 could not be performed after his death by the king. 3. Admitting it 
 might, yet nothing but the condition was in the king, and not the 
 rectory itself, till the condition performed. 4. That consequently the 
 rectory passed not to the duke of York, because the condition was 
 not performed. 5. Neither the performance of the condition nor the 
 benefit thereof passed to the duke by the general grant of the rectory, 
 but it must have been specially granted, or otherwise nothing passed. 
 6. That here was no estate m trust for Simon Mayne longer than 
 during his life, because the whole residue of the trust was out of 
 him, and was not reducible back to him, but by a strict performance 
 of the condition or power, which was strictly tied to the person of 
 Simon Mayne, and determined by his death, and therefore not given 
 to the crown; but if it had been given to the crown, and might by 
 the crown be transferred to the patentee, yet it seems the patentee 
 id) See this case reported 2 i£e6. 564, 608, 6763, 772. 1 Mod. 16, 38.
 
 247 HISTORIA PLACITORUM CORONiE. 
 
 could not transfer or assign that condition over to another; but this 
 last question was not moved, as I remember, for the resolution of the 
 former points made an end of the case. 
 
 5. At common law the king by attainder of treason was not en- 
 titled to uses or trusts belonging to the party attaint : thus it is recited 
 to be the law by the statute of 27 H. S. cap. 10. and was one of the 
 reasons of the making of that statute for transferring of uses into 
 possession ; and hence it was, that in some general acts touching 
 treason, as that of 21 ^. 2. cap. 3. and in most particular acts of 
 attainder, that were made after that time, there was special provision 
 made, that the parties attaint should forfeit all the lands, whereof 
 they or any other to their use were seized, and in most of those acts 
 provision was also made to save from forfeiture such lands, whereof 
 the persons attaint were seized to the use of any other, as 
 [ 248] may be seen in the acts of attainder: vide Rot. Pari. 1 E. 
 4. w. 18. 3 E. 4. n. 28. 4'C.[2] 
 
 And yet, altho the statute of 27 H. S. cap. 10. had executed uses 
 into possession, so that after that statute all uses were drowned in 
 the land, yet there have succeeded certain equitable interests called 
 trusts, which differ not in substance from uses; nay, by the very 
 statute of 27 H. 8. cap, 10. they come under the same name, viz. 
 uses or trusts. 
 
 And by the statute of 33 H. 8. cap. 20. there is a special clause, 
 that the person attainted shall forfeit all uses, &c. and the saving is 
 to all persons other than the person attainted, and his heirs, and all 
 persons claiming to the use of them or any of them. 
 
 And what other uses there could be at the naaking of the statute 
 of 33 H. 8. but only trusts, such as are now in practice and retained 
 in chancery, I know not, and yet such hath been the opinion of men, 
 or rather their necessity in respect of frequent emergencies in estates 
 and their dispositions thereof, that these trusts since the statute have 
 not only been kept from being executed by the statute of 27 H. 8. 
 but have been held and used quite as other things ditferent from 
 uses, and from all those burdens, with which uses were incumbred 
 by several acts of parliament made before 27 H. 8. 
 
 And therefore //. 55. Eliz. Croke, ?i. 2. B. B. Ridler and Pun- 
 ter,{e) such a trust not within the statute of 3 H. 1. cap. 4. or any 
 other statute of that nature, 
 
 M. 16 Jac. B. B. Croke, n. 23.{f) the king made a lease for 
 years to Sir John Duncomhe of the provision of wines for the king, 
 but in trust for the earl of Somerset, who was afterwards attainted 
 of felony ; by the opinion of all the judges the king shall have this 
 trust, and so if a person outlawed have a bond made to another in 
 trust for iiim, it shall be executed by an information in the exche- 
 quer chamber or chancery; but it was agreed by them all, and so 
 
 (e) Cro Eliz. 291. (/) Cro. Jac. 512. Hob. 214. 
 
 [2] By the 4 & 5 Will. 4. c. 2.3. s. 3. no lands or chaUels vested in any trustee shall be 
 forltit to the king by the attainder of such trustee.
 
 HISTORIA PLACITORUM CORONA. 248 
 
 resolved in i/1bingfon''s case, that a trust, if a freehold, was not for- 
 feited by attainder of treason. 
 
 But iiow this resokition in ^bingtori's case can stand [249"] 
 with the statute of 33 H. 8. I see not, for certainly the 
 uses there mentioned could then be no other than trusts, and 
 therefore the equity or the trust itself in cases of attainder of treason 
 seems forfeited by the statute of 33 //. 8. upon an attainder of cesty 
 qe trust of an inheritance; tho possibly the land itself be not in the 
 kin^. 
 
 But indeed, where the king or a common person is entitled to an 
 eschete by an attainder of felony, there, by the attainder of cesty qe 
 trust in fee-simple the land nor trust doth not come to the king or 
 lord by eschete, for the eschete is only oh defectum tenentis, and in 
 this case the king or lord hath his tenant, as before, namely the 
 feoffee in trust, who is to be attendant for the services to the king or 
 lord, and by the attainder of felony of the feoffee, the lord shall have 
 his eschete of the lands discharged of the trust ;[3] and besides, an 
 attainder of felony is not within the statute of 33 H. 8. cap. 20. and 
 so it was resolved by all the court in the exchequer, Al. 21. Car. 2. 
 wherein the case was thus. (A) 
 
 10 Martii 1 Car. a long lease of the manor oi Bony Tracy came 
 to Sir Ralph Freeman. 
 
 4 Car. 1. The fee-simple thereof was conveyed to Sir George 
 Sands and his heirs in trust for Sir Ralph Freeman. 
 
 July 1633, Sir George having issue two sons. Freeman Sands 
 and George Sands, Sir Ralph Freeman devised part of the m.anor 
 to Freeman Sands and his heirs, and other part thsreof to George 
 the son and his heirs, and devised all the rest of the manor to Free- 
 man Sands and George his brother, and all such other sons as Sir 
 George should have by Jane his wife, and their heirs, and made Sir 
 George Sands and Ralph Freeman executors, and appointed them 
 to convey the term according to these trusts. 
 
 Ralph Freeman the executor refused, Sir George took administra- 
 tion alone to him and his wife cum testarnento aniiexo. 
 
 1635. Freeman Sands died without issue, George being his bro- 
 ther and heir. 
 
 Afterwards Sir George by ./a ??e his wife had issue another 
 Freeman Sands, but no conveyance was executed of the [ 250 "j 
 term or inheritance. 
 
 1655. Freeman Sands murdered his brother George, who dying 
 without issue all that right or trust, that was in George the brother, 
 descended and survived to Freeman. 
 
 7 ^ug. 1655. Freeman the son was attainted of felony. 
 
 22 Nov. 1655. Sir George takes administration to his son George. 
 
 The land being held of the king, as of the manor of East-Green- 
 
 (h) 1 Sid. 403. 
 
 [3] Copyhold estates, in treason, are forfeited to the lord of the manor, not to the 
 crown. Com. Dig. "Coprjhold." {M.) 1. But see 2 Haick. c. 119. s. 7.
 
 250 HISTORIA PLACITORUM CORONA. 
 
 wich, the king's attorney preferred an information against Sir Georsre 
 Sands in the exchequer-chamber to have a conveyance both of the 
 term and inheritance to be executed by Sir George Sands unto the 
 king, being the lord of whom the land was held; but it was una voce 
 resolved, I. That as to the inheritance, tho there were a trust for 
 George the son, and that trust descended unto Freeman the mur- 
 derer, as his brother and heir, and was in him at the time of the 
 death of his brother and at his attainder, as to the greatest part of 
 the lands, and as to the residue of the lands the trust was originally 
 for Freeman Sands, yet in as much as Sir George Sands continued 
 seized of the fee-simple, and so was tenant to the king, tho subject 
 to a trust; yet the trust escheted not to the crown, but Sir George 
 held it discharged of the trust, 2. That the term for years was not 
 extinguished in law by the accession thereof to Sir George, as execu- 
 tor or administrator, tho Sir George had the fee-simple, because it 
 was en autre droit, that he had the term. 3. That if the term for 
 years had been a term in gross in trust for the party attaint, then by 
 the attainder of felony the king had been entitled thereunto, not in 
 point of eschete, but by his prerogative, having bona <§' catallafelo- 
 num. 4. But this term being to attend the inheritance the trust 
 thereof was not like the trust of a chattle in gross, but was to wait 
 upon the inheritance (and otherwise it had been impossible for the 
 greatest part to have descended from George Sands to his brother 
 Freeman Sands, unless it waited upon, the trust of the inheritance) 
 therefore the inheritance remaining in Sir George now dis- 
 r 251 3 charged of the trust by the attainder of Freeman Sands the 
 trust of the term shall also remain in him, for it is a kind of 
 incident or appurtenant to the inheritance. 
 
 And in this case the case of Sir fValter Raleigh was cited, which- 
 was Mich. 7 Jac. in Camera Scaccarii. Sir Waller Raleigh being 
 possessed of a long term for years of the manor of Sherburn, intend- 
 ing to obtain the inheritance assigned this term to his son an infant 
 upon pretense for a trust for his son, but really in trust for himself. 
 
 Sir Walter Raleigh then purchased the inheritance and made a 
 settlement upon his son, but the same was defective, whereby the 
 fee-simple remained in Sir Waller. 
 
 1 Jac. Sir Walter was attainted of treason, and afterwards the 
 king granted all the goods and chattels real and personal of Sir 
 Walter to Shelbury and Smith in trust for Sir Walter's wife and 
 children. 
 
 Sir Walter Raleigh was executed, and upon an information in 
 the exchequer, M. 7 Jac. it is declared and decreed, that the lease 
 was in trust for Sir Walter, and therefore forfeited by his attainder, 
 as well as if it had continued in him, and that it should be cancelled, 
 and not incumber the reversion in fee-simple. 
 
 So that according to this resolution this trust for Sir Walter was 
 not a chattle, for then it had passed to Shelbury and Smith; but it 
 was a kind of appurtenant to the inheritance, and together with it 
 was forfeited by the attainder, the conveyance of the inheritance
 
 HISTORIA PLACITORUM CORONiE. 251 
 
 being defective, and accordingly at this day it is held by those that 
 derived under the patent of king James. 
 
 6. At common law the king by attainder of treason was not 
 entitled to any chatties, that the party had en uulre droit, as exe- 
 cutor, or administrator, or in right of a corporation aggregate. 
 
 But the husband possessed of a term in right of his wife forfeits it 
 by attainder of treason, felony, or out-lawry; but as to lands of 
 inheritance, if the husband be seized in right of his wife, and is 
 attainted of treason, the king hath the freehold during the coverture; 
 and so if tenant for life be attainted of treason, the king 
 hath the freehold during the life of the party attainted ; and [ 252]] 
 so he had before the statute of 26 H. S. by the attainder of 
 tenant in tail. 
 
 Touching forfeitures for treason by a corporation sole, or aggre- 
 gate, somewhat is observable. 
 
 At common law and still to this day in the case of a corporation 
 aggregate, as dean and chapter, mayor and commonalty, where the 
 possessions are in common in the aggregate corporation, nothing was 
 or is forfeited by the attainder of the head of the corporation, as the 
 dean, mayor, ^^c. 
 
 At common law a sole corporation, as an abbot, bishop, dean, 
 prebendary, parson, vicar, by attainder of treason forfeited to the 
 king the profits of their abbey, bishoprick, prebend, during their 
 incumbency; but their successors were not bound by that forfeiture, 
 for tho the profits as they arose belonged to their persons, yet the 
 inheritance was in right of their church, and so not forfeited. 
 
 But by the general words of the statutes of 26 and 33 H. 8. and 
 by the exclusive saving of the rights of others, other than the suc- 
 cessors of the persons attaint, these sole corporations forfeited the 
 inheritance, and their successors were bound by such attainder ; for 
 it is apparent that //, 8. had not only in prospect the dissolution of 
 monasteries, but had a resolution to curb the clergy, who were too 
 obsequious to the pope and his power. 
 
 And therefore there were several attainders of abbots of high 
 treason, whereupon the king seized their possessions, as dissolved 
 thereby, as appears by the statutes of 27 H. 8. cap. 28. and 3\ H. Q. 
 cup. 13. touching monasteries, tho the king rested not barely upon 
 such attainders; but by the statutes of 27 and 31 H. S. their posses- 
 sions are settled in the crown by those acts, and with this agrees the 
 book of Dy. 289. 
 
 And therefore we may observe in the statute of 1 Mar. sess. 2. cap. 
 16. for the attainder of the archbishop of Canterbury a cautious pro- 
 viso was added, that it should not prejudice his successors touching 
 the possessions of his see; this was to avoid the question, that other- 
 wise might have arisen upon the general words of the forfeitures 
 thereby enacted. 
 
 But now by the act of 5 <5' 6 Ed. 6. cap. 11. this matter 
 seems to be settled, for whereas by the statute of 26 //. S. [ 253 ] 
 cap. 12. a person attaint of treason is to forfeit all the lands , 
 
 VOL. I. — 28
 
 253 HISTORIA PLACITORUM CORON^E. 
 
 which he had by any right, title or means, saving the right of others, 
 other than the heirs and successors of the person attaint, which con- 
 fiscated the inheritance of sole corporations attaint of treason, the 
 statute of 5 Sr 6 E. 6. cap. 11, enacts specially^ that persons attaint of 
 treason shall forfeit the lands, which they have of any state of inhe- 
 ritance in tlieir own right, and saves the right of all persons, other 
 than the persons attaint^ and their heirs, which restores and preserves 
 the right of successors, as it was at common law, 
 
 7. By the common law all hereditaments, whether lying in tenure 
 or not, as rents, advowsons, commons, corodies certain, are forfeited 
 to the king by attainder of treason ; but such inheritances, as lie 
 purely in privity, appropriate to the person, are not forfeited neither 
 at common law, nor by any special statute, as a foundership, or corody 
 uncertain, 
 
 8. At the common law by attainder of felony or treason of the 
 husband the wife lost her dower: by the statute of 1 E. 6. cap. 12, 
 no attainder of treason or felony excludes her dower; but by the 
 statute of 5 <^' 6 ^. 6 c. 11. the husband attaint of treason the wife 
 shall lose her dower; and so it stands at this day, except in treasons 
 enacted by particular statutes, where dower is saved to the wife, 
 notwithstanding the attainder of her husband of treason, as upon the 
 statute of 5 Eliz. cap. 11, for clipping money, 18 Eliz. cap. 1, for 
 impairing money, 5 Eliz. cap. 1. refusing the oath of supremacy the 
 second time, and some others. 
 
 And thus far concerning the things forfeited by attainder of trea- 
 son, now, 
 
 II. I shall consider in what kind or degree the king hath these for- 
 feitures of lands, 
 
 1, Altho these be called royal eschetes, yet the king is not in, 
 purely, as by an eschete, for he hath those forfeitures injure coronae 
 of whomsoever the lands be immediately held; yea, tho they are held 
 immediately of the king, he hath them not in point of eschete, but 
 jure coronse or prerogativae regalis. 
 
 47 E. 3. 21 b. A manor is held of the king as of his 
 [ 254 ] honor of D. and the manor eschetes for the felony of the 
 tenant, it is now parcel of the honor, and therefore by the 
 book if the king grant it out again generally, it shall be held of the 
 honor, but if it eschete for treason, it is no parcel of the honor, and 
 if it be granted out generally it shall be held in capite, 6 E. 3, 32. 
 a. accordant adjudge: vide the case of Saffron IValden, Morels 
 Rpp. n. 301. (e) <§• ibidem n. 405, the case of the borough of South- 
 war k.{k) 
 
 2, Where land comes to the crown by attainder of treason all 
 mesne temires of common persons are extinct; but if the king grants 
 it out, he is de jure to revive the former tenure, for which a petition 
 of right lies. 46. E. 3. 19.(/) 
 
 3, If tenant in tail of the gift of the king, the reversion in the 
 
 (i) Mo. 159. {k) Ma. 251. 
 
 (/) I lake it, this should be H. 46 E. 3, Petition 19,
 
 HISTORIA PLACITORUM CORONA. 254 
 
 king, makes a lease for years, and then is attainted of treason, the 
 king shall avoid that lease, for the king is in of his reversion, tho 
 tl:e tenant in tail have issue living: this hard case is so adjudged in 
 Conilnentaries jJustin's case(/«) in fine, and yet if such tenant in 
 tail had, after such lease, bargained atid sold, or levied a fine to the 
 king, he should be bound by such lease as long as there is issue. 
 H. 22 Jac. B. R. Croker and Kelsey.{n) 1 Rep. %Alton Woods 
 case.(o) 
 
 III. The third thing I propounded was the consideration of the 
 eschetes in case of treason to such as have royal franchises, or 
 counties palatine, as Durham, S,'C. 
 
 1. At common law divers lords had by special grant or in right of 
 their counties palatine royal eschetes of the lands held within their 
 franchises of persons attaint of treason against the king. 
 
 Such was the royal franchise of the manor of Wreck in John 
 Darcy's case, 6 E. 3. 31. 6. 
 
 It appears in the parliament-roll 9 E. 2. m. 8. that the bishop of 
 Durham claimed among divers franchises between the waters of 
 Tyne and Tese, and Norhamshire and Bedlingtonshire in the county 
 of Northumberland , the forfeitures of war, namely the lands 
 of those who held lands within that precinct, who adhered [255 3 
 to the enemies of the king. 
 
 And after many debates in parliament 2 E. 3. that liberty was 
 allowed him by the judgment of the king and liis council in parlia- 
 ment. 
 
 Clans. 1 E. 3. part 1. m. 10. and p. 2. m,. 20. the precedents of the 
 allowance of that liberty being produced, viz. that Anthony bishop 
 o{ Durham had the forfeiture of Castrum Bernardi by the forfei- 
 fure oi John de Baliol, the manors of Hert and Hertness by the for- 
 feiture of Robert Bruce, the manor of Gretham, that was Peter of 
 MontforV s ; and, upon the consideration of the several pleadings in 
 those cases, concordatum est per nos & totum concilium nostrum in 
 ultimo parliamento, quod episcopus habeat suam libertatem de hu- 
 jusmodi forisfacturis juxta tenorem & effectum cartae proavi nostri, 
 ideo vobis mandamus, [viz. the custos of these lands) quod de terns 
 & tenementis infra libertatem episcopatCis prsedicti, & in pra3dictis 
 locis de Norhamshire & Bedlingtonshire, in manu nostra & in cus- 
 todia nostra per forisfacturam guerras existentibus manum nostram 
 amoventes vos ulterius de eisdem non intromittatis, and the like par- 
 ticularly after Claus. 1 E. 3. part 2. m. 20. an amoveas mantis for all 
 the lands of Guido de Bello Campo Comes Warwick, §'Z/i de rege te- 
 nuit in capite infra libertatem cpiscojiatus Dunelmensis, and likewise 
 for the manors of Gainsford, Hert, and Hertness in the hands of 
 Roger de Clifford seised for the forfeiture of war of John de Baliol 
 and Robert Bruce; only the patentees not to be put out without an 
 answer. 
 
 So that it is apparent, that at common law the bishop of Durham 
 
 im) Plowd. 560. a. (n) Cro. Jac. 688. 1 R. A. 843. (o) 1 Co. 40. b.
 
 555 HISTORIA PLACITORUM CORONA. 
 
 liad the royal forfeitures of war (which was treason) for such lands 
 as were within his liberty, tho they were formerly held of the king 
 immediately in capite, if they lay within the precinct of his county 
 palatine; and tho by the statute of IE. 6. the said bishopricie was 
 dissolved, yet by the statute of 1 Mar. Pari. 2. cap. 3. that act is re- 
 pealed and the bishoprick with its franchises revived. 
 
 2. Yet farther, tho this act of 25 E. 3. declares, that all such for- 
 feitures belong to the king, yet this act did not derogate from the 
 
 franchise of the bishop of Durham or others, that had that 
 [] 256 ]| royal liberty of forfeitures for treason, because it was in 
 
 effect but a declaration of the common law, or at least an 
 ascertaining of it without prejudice to those, that had these franchises 
 of royal forfeitiu'es, either by charter, or by reason of their county 
 palatine by prescription; and this is agreed by all the judges in the 
 case of the bishop of Durham P. 12. E/iz. Dy. 288. and accordingly 
 Hot. Pari. 1. E. 4. n. 20. 8,' sequentibiis, where by act of parliament 
 a great many noblemen, that were of the party of .^. 6. were upon 
 the coming of E. 4. to the crown attainted and their lands forfeited 
 to the king; and such as were within the county palatine oi Lancas- 
 ter ^xme.xe& to the duchy of Z^ancfirs/er, and the rest lodged in the 
 crown; yet there is a special provision and exception of the latids 
 within the bishoprick o{ Durham, viz. between the waters of Tyne. 
 and Tese, and in the places called Norhamshire and Bedlingtonshire 
 within the county of Northumberland, in which liberty and place 
 the bishop o( Durham and his predecessors of time, whereof there 
 is no memory, have had royal right and forfeiture of war in the right 
 of the cathedral church of .9/. Cuthbert o{ Durham, as by concord 
 in parliament in the time of the progenitors of our lord the king Ed- 
 ward IV. it hath been assented. 
 
 3. Altho by the statute of 26 H. 8. and 33 H. 8. before-mentioned 
 it is enacted, that the king shall have the forfeiture of all lands, Sf-c. 
 of the persons attainted of treason, yet in as much as in those acts 
 there is a saving of the rights of others, the forfeitures for all trea- 
 sons, that were within the statute 25 E. 3. and consequently were 
 treasons at common law, by tenant in fee-simple, are saved to the 
 bishop of Durham, and those that have such royal franchises of for- 
 feiture of treasons; for these stand as they did before, by the opinion 
 of five judges agaitist four. P. 12. Eliz. Dy. 289. in the bishop of 
 Durham'' s case. 
 
 4. But as to the forfeiture for new treasons enacted by any of those 
 statutes the lords of franchises shall not have their franchise; this 
 was agreed by all : but those new treasons that were enacted in the 
 time of H. 8. or before, are all repealed by the statute of 1. Mar. 
 
 cap. 1. 
 [ 257 ] 5. But as to treasons, that stood by the statute of 25 E. 3. 
 
 and therefore not repealed by 1 Mar. cap. 1. yet as to the 
 forfeitures of tenants in tail, or of lands in the right of churches or 
 monasteries, the person that hath jura regalia shall not have them, 
 because the king before the act of 26 //. 8. was not entitled to the
 
 HISTORIA PLACITORUM CORON^E. 057 
 
 forfeitures of those estates; and the statute of 26 H. 8. stands unre- 
 pealed as to the forfeitures for treasons wiihin the statute of 25 E. 3. 
 these are the points resolved in that case of 12 Rliz. 
 
 And therefore it is observable, that in the statutes of 5 EHz. c. 11. 
 whereby cli|)pina^ is made treason, tho the forfeiture of lands is only 
 during the offender's life, and no corruption of blood, nor loss of 
 dower, yet there are special proviso's, that ail persons, which have 
 any lawful grant to hold and enjoy the forfeitures of lands, tene- 
 ments, goods, or chattels of offenders, and men attaint of iiigh trea- 
 son within any manor, lordship, town, parish, hundred, or other pre- 
 cinct within the realm oi England and IVales shall and may at all 
 times have like liberty to take, seize, and enjoy all such forfeitures of 
 lands, tenements, goods, and chattels, as shall come or grow within 
 their liberties by force of the attainder of any person upon any offense 
 made treason by this act, as they might have done by virtue of any 
 grant to them heretofore made. 
 
 I do not find the like clause to my remembrance in any other acts 
 of new treason either in that of 1 Mar. sess. 2. cap. 6. for counterfeit- 
 ing the privy signet or sign manual, or in that of 1 (§• 2 F/i. <§• Mar. 
 cap. 11. for importing foreign counterfeit coin made current by pro- 
 clamation, or in that of 18 Eliz. cap. 1. concerning washitig of coin, 
 nor in any of those temporary acts made for the safeguard of the 
 queen's person, (§'C. so that upon the reason of the resolution of 
 12 Eliz. the patentees of goods or lands of traitors by patents granted 
 before those acts, and particularly the bishop of Durham, Whose 
 claim is by prescription, caiuiot have the goods or lands of persons 
 attainted for those new treasons: vide 13 Eliz. cap. 16, a special 
 provision in the act of attainder of the earl of IVeslmoreland and 
 others for the rebellion in the North, that the queen shall 
 have and hold against the bishop o{ Durham and his sue- [ 258] 
 cessors the lands, tenements, goods and chattels of the per- 
 sons attainted wuhin the county palatine and franchise of the said 
 bishop. 
 
 Nay, I cannot see how the bishop of Durham can either by his 
 antient charters or prescription claim the goods or lands of persons 
 attaint for bringing in counterfeit coin contrary to the statute of 
 25 E. 3. for it seems that that was not treason at common law, as 
 may reasonably appear by what has been before said touching that 
 subject. [3] 
 
 See a learned treatise, intitutled, Considerations on the Law of Forfeitures for High 
 Treason; (supposed to be) written by the Hon. Cha.Yorke, sometime Attorney General to 
 King George III. and atlerwards Lord High Chancellor of Great Britain, per totum. 
 Wilson. 
 
 [3] The clause in the 1 Ann. c.21.and that in the 17 Geo. 2. c. 39. limiting the periods 
 when forfeiture for treason should be abolished, are repealed by the 39 Geo. 3. c. 93. So 
 that forfeiture remains in England as at common law, in the cases of treason and mur- 
 der; in other crimes, no attainder, by the 54 Geo. 3. c. 145. shall extend to the disinherit- 
 ing of any heir. 
 
 See Consider, on the Law of Forfeitures, by Yorke. 2 Hawk. c. 119. 4 Bl. Com. 381. 
 3 Burn's Just. {edit, of 1845.) 106.
 
 258 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXIV. 
 
 CONCERNING DECLARING OF TREASONS BY PARLIAMENT, AND THOSE 
 TREASONS THAT WERE ENACTED OR DECLARED BY PARLIAMENT 
 BETWEEN THE 25 OF E. 3. AND THE 1 MAR. 
 
 Altho the order of the statute leads us to consider of petit treason 
 in the next place, yet because I intend to absolve the whole dis- 
 course of high treason and naisprision of treason, before I descend to 
 crimes of an inferior nature, I shall proceed to a full consideration of 
 the whole matter specially relating to high treason, and so far as the 
 same is not common to other capital offenses: the statute therefore 
 proceeds, ''And because many other like cases of treason may hap- 
 pen in time to come, which a man cannot think nor declare at this 
 present time, it is accorded, that if any other case supposed treason, 
 which is not above specified, doth happen before any justice, the jus- 
 tice shall tarry without going to judgment of the treason, till the cause 
 be shewed and declared before the king and his parliament, 
 |[ 259 ]] whether it ought to be judged treason or other felony; 
 and \{ per case any man of this realm ride armed covertly 
 or secretly with men of arms against any other to slay him or rob 
 him, or take him or detain hiiTi, till he hath made fine or ransom to 
 have his deliverance, it is not the mind of the king or his council, 
 that in such case it shall be judged treason, but shall be judged felony 
 or trespass according to the law of the land of old time used, and ac- 
 cording as the case requireth, (§'c." 
 
 This clause consists of two parts, the former, how treasons not 
 specially declared by this statute shall for the future be settled. 2. It 
 declareth, that a particular offense therein mentioned, that was in 
 truth formerly held to be treason, shall not for the future be taken to 
 be so. 
 
 As to the former of these clauses touching the declaring of trea- 
 sons not declared by this act, I shall pursue the history thereof at 
 large in what follows, only at present I shall subjoin these few ob- 
 servations. 
 
 1. The great wisdom and care of the parliament to keep judges 
 within the bounds and express limits of this act, and not to suffer 
 them to run out upon their own opinions into constructive treasons, 
 iho in cases, that seem to have a parity of reason {like cases of trea- 
 son) but reserves them to the decision of parliament: this is a great 
 security, as well as direction, to judges, and a great safeguard even 
 to this sacred act itself. 
 
 And therefore, as before I observed in the chapter of levying of 
 war, this clause of the statute leaves a weighty memento for judges 
 to be careful, that they be not over hasty in letting m constructive or 
 interpretative treasons, not within the letter of the law, at least in
 
 HISTORIA PLACITORUM CORONA. 259 
 
 such new cases, as have not been formerly expressly resolved and 
 settled by more than one precedent. 
 
 2. That the authoritative decision of these casus omissi is reserv- 
 ed tothe king and his parliament, viz. the king and both his houses 
 of parliament, and the most regular and ordinary way is to do it by 
 a bill declaratively; and therefore aliho we meet with some 
 declarations by the lords house alone in some particular [ 260 ]] 
 cases, as in that of the earl of Northumberland, anno 5 H. 4. 
 and that of Talbot 17 B. 2. tho they be decisions and judgments of 
 great weight, yet they are not authoritative declarations to serve this 
 act of 25 E. 3. but it must be by the king and both houses of parlia- 
 ment. 
 
 As to the latter oi these, it has been formerly discussed in the 
 second chapter. 
 
 This, at common law, was held treason, and the particular reason 
 of the adding thereof in this place was, in effect, to reverse the judg- 
 ment given in B. R. P. 2\ E. 3. Rot. 23. in Sir John Gorbegge's 
 case;(a) and touching this whole matter of riding armed, <5*c. vide 
 qux dicta sunt supra cap. 14. p. 135. (§• seq. 
 
 Only the printed statute varies from the parliament-roll of 25 E. 3. 
 p. 2. n. 17. for whereas it is printed in the late statutes [covertly or 
 secretly) the parliament roll is chivach arme descovert ou secret- 
 ment, and accordingly the old written manuscript statutes are writ- 
 ten thus, chivach arme descovert ou en privy en le realm 4"C., which 
 misprmting possibly hath made some mistakes in judgments given of 
 high treason, as if to ride privily and covertly upon such a private 
 attempt were not treason; but to ride discovert, openly, were treason, 
 when in truth neither in one case or the other it is treason, neither at 
 this day nor at common law, if it be only upon a particular or pri- 
 vate quarrel, as in the case of 20 ^. 1. between the earls of G/ouces/er 
 and Hereford;[b) and this of Gerbegge, tho it were more guerrino <§• 
 vexillis explicatis. 
 
 But now to resume what is before promised, r;/r. touching the first 
 matter, namely treasons not declared by the statute of 25 E. 3. we 
 shall find, that between that statute and 1 Mar. there were treasons 
 enacted or declared of these kinds: 
 
 1. Such as were simply declarative treasons, or so many exposi- 
 tions of the statute of 25. E. 3. 
 
 2. There were new treasons, that were simply enacted, and not 
 declared only that were perpetual in their institution, but repealed by 
 the statute of 1 Marias. 
 
 3. There were new treasons, that seem only temporary or 
 
 fitted to the reigns of those kings, in whose time they were [261 ] 
 made. 
 
 4. There were some treasons, that were perpetual, but more ex- 
 plicite declarations or rather expositions of the statute of 25 E. 3. 
 which yet stand repealed by the statute of 1 Mar. 
 
 (a) Videavlea p. 80^183. 
 
 (6) Supra p. 135. Ryl. piac.parl. p. 11.
 
 261 HISTORIA PLACITORUM CORONA. 
 
 And here 1 must advise the reader to take notice of these cau- 
 tions. 
 
 1. Because the hereafter mentioned statutes are many, and con- 
 sisting of divers clauses, that he rely not barely upon the abstracts 
 thereof here given, because possibly there may be mistakes or omis- 
 sions in those abstracts, but peruse the statutes themselves in the 
 boolfs at large. 
 
 2. That tho generally it be a fair topical argument, that when 
 offenses are made treasons by new and temporary acts, they were not 
 treasons within the statute of 25 E. 3, for if they were, they needed 
 not to have been enacted to be treason by new statutes, as introduc- 
 tive of new laws in such cases; yet that doth not hold universally 
 true, for some things are enacted to be treason by new, yea and 
 temporary laws, which yet were treason by the statute of 25 E. 3. as 
 will appear in the sequel. 
 
 And therefore the statutes of 1 <§- 2 Ph. <S' M. cap. 3. 1 E. 6. cap. 
 12, 23 El.iz. cap. 2. making several offenses felony have this wary 
 clause, the same not being treason vnthin the statute of 25 E. 3. 
 
 And hence it was, that whereas by the statute of 13 Eliz. cap. 1. 
 compassing the queen's death and declaring the same by writing or 
 printing is enacted to be treason during the queen's life, but the 
 delinquent is by that statute to be charged therewith within six 
 months, and Throckmorton was generally indicted for compassing 
 the queen's death, and the overt-act was by making a writing declar- 
 ing convenient landing places for the Spanish forces, and the naming 
 of divers popish gentlemen in writing, who would be assistant to 
 that design, and communicating it to the Spanish embassador, and 
 Throckmorton excepted to the proceeding, because not within six 
 months according to the statute of 13 Eliz. that exception 
 [ 262 ] was overruled, because it was a charge of treason and an 
 overt-act within the statute of 25 E. 3. which hath no such 
 restriction, and thereupon he was convict and executed. Camd. 
 *dnnals sub anno 1584. p. 298. and the like was done upon the like 
 exception in the case of the earl of Arundel; quod vide Camd. 
 Annals sub anno 15S9. /?. 426, 
 
 3. But where an act of parliament made for the safety of the king 
 or queen's person or government enacts any offense to be felony 
 only, or a misdemeanor only punishable by fine and imprisonment, 
 without that wary clause above-mentioned, it is a great evidence 
 and presumption, that the same was not treason before, and a judg- 
 ment of parliament in point, for it can never be thought, that the 
 parliament would in such cases abate the extent of 25 E. 3, or make 
 that less than treason, which was treason by that act. 
 
 I shall as near as I can piu'sue the order above-mentioned, but 
 some intermixtures there will necessarily be of the many particular 
 treasons enacted by some statutes, some of which were within the 
 statute of 25 E. 3, and 1 shall follow those in every succeeding king's 
 reign. 
 
 In the time of king Edward III. I find no declarations of treason 
 after the statute of 25 E. 3.
 
 HISTORIA PLACITORUM CORON^E. 262 
 
 Only I find somewhat like it in the attainder of Thorp chief justice 
 of the king's bench for bribery(c) and other offenses, who was there- 
 upon sentenced to death, before special commissioners(rf) assigned 
 ad jifdicandum secundum voluntatevi regis, in respect of the oath 
 he had made to the king and broken, whereby he had bound himself 
 to that forfeiture, *« ale encountre son serement : it is true he had 
 judgment, but there was no execution ; this judgment and the whole 
 proceeding is entered in patent-roll of 24 E. 3. part 3. m. 3. dors. 
 and was afterwards removed into the lords house in the parliament 
 held in oclabis purijicationis 25 E. 3. which was a year before the 
 parliament held Wednesday in the feast of St. Hillary 25 E. 3. 
 wherein the declaration of treason was made; and in that 
 parliament of octahis purijicationis, n. 10. the judgment [263 3 
 was affirmed good, de puis qe se obligea mesme par son 
 serement a tiel pennance, sil fait al encountre, & connusseit, quil 
 av6it receive douns countre son dit serement: but with this caution 
 for the future to prevent such an arbitrary course of proceeding, 
 & sur ceo y fuit accord par les grants de, mesme le parlement, qe si 
 nul tiel case aueigne desore an evant de nul tiel, que nostre seigneur 
 le roy prigne devers lui des grants, qe lui plerra, & par lour bone 
 ayyse face outre ce qe plese a sa royal seignory ;(e) but this comes 
 not to our purpose concerning treason. 
 
 As to the time of R. 2. it was a fruitful time for declaring and 
 enhansing of treason in parliament. Hot. Pari. 3 R. 2. n. IS. pars 1. 
 the case of Jean Imperiall(f) who was sent as agent from the duke 
 and commonalty of Genoa, and coming hither by the king's safe- 
 conduct was murdered: the inquisition before the coroner was 
 brought into parliament, and in pursuance of this clause of 25 E. 3. 
 it was declared by the king, lords, and commons, to be treason. 
 
 This declaration being by the king and both houses of parliament 
 was a good declaration pursuant to the act of 25 E. 3. but is not of 
 force at this day, 1. Because it was but a particular case, and ex- 
 tended not to any other case, as a binding law but only as a great 
 authority. 2. Because it being not within the express provision of 
 the statute of 25 E. 3. it stands wholly repealed as treason by the 
 statutes of 1 E. 6. and 1 Marix. 
 
 Rot. Pari. 1 R. 2. n. 38. the judgment against Gomeneys and 
 Weston for betraying the king's castles in France mentioned before 
 cap. 15. p. 16S. where Weston had judgment to be drawn and hanged; 
 this judgment was given by the lords at the petition of the commons 
 in parliament, but makes not much in the point of declaration of 
 treason, because,!. If done, as is supposed, by treachery and bribery, 
 
 (c) He was justice of assize in com'' Lincoln, and took bribes of several to stay an exi- 
 gent upon an indictment for felony, that should have issued against them. 
 
 (d) The earls of Arundel, Warwick, Sfc. 
 
 (e) There is likewise a proviso added, that this should not be drawn into precedent; 
 sed solummodo versus eos, qui prcedictum sacramentum fecerunt Sf fregerunt, Sf habent 
 leges Angliae regales ac custodiendum. 
 
 (/) Co. P. C.p. 8. vide supra p. 83. 
 VOL. I. — 29
 
 263 HISTORIA PLACITORUM CORON.S:. 
 
 it was an adherence to the king's enemies. 2. Being a declaration 
 or judgment only by the lords, and not formally by the king, lords 
 and commons, it is not such a declaration of treason, as the 
 [ 264 ] act of 25 E. 3. requires in cases of treason not thereby de- 
 clared. 
 
 Rot. Pari. \\ R. 2. pars 2. per tofum, the great appeal in parlia- 
 ment by the duke of Gloucester and others against the archbishop 
 of York, duke oi Ireland, Tresilian, Uske, Blake, Holt, and others 
 containing divers articles, which surely were not treason within the 
 statute of 25 E. 3. yet had judgment of high treason given against 
 them by the lords in parliament. (i,') 
 
 Upon the impeachment of the commons against Simon Burlsy 
 Beanchamp, and others, many of them had likewise judgment of 
 high treason given against them by the lords in parliament. (*) 
 
 Altho the king did in some kind outwardly agree to these judg- 
 ments, and the commons were active in it, and Rot. Pari. 11 R. 2. 
 pars L n. 50. public thanks were given to tlie king by the lords and 
 commons in full parliament, de ceo, qil lour avoit fait cy plein jus- 
 tice, yet this was no declaration of parliament of treason pursuant to 
 the statute of 25 E. 3. because the king and commons did not consent 
 per rnodum legis declarative, for the judgment was only the lords. 
 2. Because it was but a particular judgment in a particular case, 
 which was not conclusive, when the like cases came before judges. 
 
 This parliament of 11 R. 2. was repealed by the parliament of 
 21 R. 2. and that of 21 R. 2. also repealed, and the parliament of 
 11 R. 2. enacted to be holden according to the purport and effect 
 of the same by the statutes of 1 H. 4. cap. 3 & 4. but this did not 
 alter the statute of 11 /?. 2. and make those judgments, which were 
 given by the lords in 11 7?. 2. of any other value than they were and 
 consequently amounted not to any declaration by parliament, that 
 these which the lords adjudged treasons in 11 ^. 2. were or ought to 
 be so held; and if any such construction might be made upon the 
 confirmation of 1 H. 4. cap. 4. yet the same was repealed by the 
 statute of 1 H. 4. cap. 10. in the same parliament; and if not, yet 
 certainly 1 E. 6. and 1 Mar. have wholly taken away the force of 
 those declarations, as shall be shewed. 
 
 Rot. Pari, n R. 2 n. 20. Talbot^ s case, in conspiring the 
 [[ 265 ] destruction of the dukes of Aquitain and Gloucester the 
 king's uncles, and other great men, Et sur ce firent divers 
 gents lever armies t^* array es a f aire guerre en assembles Sc congre- 
 gations in tres grand ^- horrible numbre: this was declared treason 
 by the lords in parliament, and a proclamation issued to render him- 
 self, or otherwise to be attainted of treason: how far this was treason 
 or not within the statute of 25 E. 3. hath been before considered, but 
 certainly, if it were no treason declared by the particular purviews 
 of 25 E. 3. it is no such authoritative declaration of treason in par- 
 Uament, as this act requires in treasons not declared; and if it were 
 
 ig) See Stale Tr. Vol. I. p. 1. («) Ibid. p. 15.
 
 HISTORIA PLACITORUM CORONiE. 265 
 
 such an authoritative declaration, it binds not now as such, because 
 all treasons are reduced to those expressed in the statute of 25 E. 3. 
 by the statutes of 1 H. 4. cap. 10. 1 E. 6. cap. 12. 1 Mar. cap. 1. and 
 treasons declared, as well as new treasons enacted, are by these 
 statutes set aside, farther than the very declaration of 25 E. 3. ex- 
 tends. 
 
 Bof. Pari. 21 R. 2. quod vide inter statuta 21 R. 2. cap. 2, 3, 4, 
 12. some new statutes of treason were enacted, others were declared; 
 by cap. 2. it is enacted, that the procurers of any new commission 
 like that, (for the obtaining of which the archbishop of Canterbury, 
 4'c. were in that parliament attainted) being convict in parliament 
 should be guilty of high treason: again, c«/?. 3. If any be convict 
 in parliament of the compassing of the king's death, or to depose 
 him, or to render up his homage to him, or of raising war against 
 the king; and cap. 4. The procurers or counsellors to repeal the 
 judgments given in that parliament, if convict in parliament, are 
 guilty of high treason: other treasons were declared, as namely those 
 nine rank answers to the king's questions, which are all recited and 
 afiirmed, and adjudged good and sufficient by the 12th chapter of 
 that parliament; other points were judged, as namely, that the pro- 
 curing of the commission for regulating the miscarriages in govern- 
 ment anno 7 R. 2. and the execution thereof by the archbishop of 
 Canterbury and others was high treason. 
 
 And tho it is true, that some of the points enacted to be 
 treason by the 3d chapter were in truth treasons by the f 266 1 
 statute of 25 E. 3. if here were an overt-act, namely com- 
 passing the death or deposing the king, or levying war, yet these 
 statutes and these declarations by the parliament of 21 R. 2. are 
 ■wholly set aside; and the statute of 25 E. 3 governs the whole mat- 
 ter of high treason, notwithstanding any of theextensions, enactings, 
 or declarations of the parliament of 21 R. 2. or any of the judges 
 therein-mentioned, viz. Belknap, Tresilian, Holt, Fulthorp, Burgly, 
 Thirlinge, Bikhill, and Clapton, for the parliament of 21 J?. 2. is 
 wholly repealed by 1. H. 4. cap. 3. S,- 4. and the parliament of 
 11 R.2. wherein Belknap and Tresilian were judged traitors for 
 delivering those extravagant opinions(A) is revived and affirmed; 
 and also by the statutes of 1 E. 6. and 1 Mar. the treasons enacted 
 or newly declared by the parliaments q>{ \\ Sf 2\ R.2. are repealed. 
 
 And tho those opinions of the judges Tresilian, Thirlinge and 
 the rest had the countenance of the parliament of 21 R. 2. yet they 
 had the discountenance of the parliament of 11 iff. 2. and 1 //. 4. 
 which repealed the parliament of 21 R. 2. and stand at this day 
 unrepealed in their full strength, excepting only such treasons as 
 were newly made, or newly declared by those parliaments: tho the 
 statutes of 1 E. 6. and 1 Mar. have taken away those treasons, 
 which either the statute of 11 ^. 2. or 1 H. 4. had introduced more 
 than were in the statute of 25 E. 3. yet it hath not taken away the 
 
 (A) Co. P. C. p. 22.
 
 266 HISTORIA PLACITORUM CORONA. 
 
 efficacy of the parliaments of 11 7?. 2. and 3 H. 4. as to their decla- 
 rations, that the extrajudicial opinions of those judges were false 
 and erroneous; but in that respect the parliaments of 1 H. 4. and 
 11 7?. 2. are of force, as to the damning of those extravagant and 
 unwarrantable opinions and declarations. 
 
 I come now to the time of Henry IV. wherein I find little: in 
 anno primo in parliament inter Placila Coronse, John Hall wdiS 
 convict before the lords in parliament of the murder of the duke of 
 Gloucester, and judgment given by the \oxAs per assent dn ray, that 
 altho it were only murder, yet the offender should have the judg- 
 ment of high treason, viz. to be drawn, hanged, embovvelled, 
 [ 267 ] his bowels burnt, his head cut off, and quartered, and his 
 head sent to Cnlice, where the murder was committed, 
 which was executed by the marshal accordingly: this was no decla- 
 ration of treason, but a transcendent punishment of the murder of so 
 eminent a person. 
 
 1 H. 4. cap. 10. " It is accorded, that in no time to come any 
 treason be judged otherwise than it was ordained by the statute of 
 king Edward III," Tliis at once swept away all the extravagant 
 treasons introduced in the time of R. 2. either in over much favour 
 of popularity, or over much flattery to prerogative, for they were of 
 both sorts. 
 
 Rot. Pari. 5 H. 4. n. 12. There is a declaration of an acquittal 
 of the earl of Northumberland from treason; quod vide antea 
 cap. 14. p. 136. but I find no declaration nor act of new treason, in 
 the time of H 4. he was as good as his promise by the act of 1 H. 4. 
 cap. 10. for he contented himself with the declaration made by 
 25 E. 3. 
 
 In the time of H 5. 
 
 By the statute of 2 H. 5. cap. 6. " It is ordained and declared 
 that manslanghter, robbery, spoiling, breaking of truce, and safe- 
 conducts, and voluntary receipt, abetment, procurement, concealing, 
 hiring, sustaining, and maintainitig of such persons to be done in 
 time to come by any of the king's subjects within England, Ireland, 
 or PVales, or upon the main sea shall be judged and determined 
 treason done against the king's crown and dignity ; and the conser- 
 vator of the truce to have power by the king's commission and by 
 the commission of the admiral to inquire thereof:" But this statute 
 as to treason is particularly repealed by the statute of 20 H 6. cup. 11. 
 but whether the general statutes of 1 E. 6. cap. 12. 1 Mar. cap. 1. 
 had repealed it as to treasons done upon the sea may be a question, 
 because it hath been ruled, that those statutes extend not as to trials 
 of treason done upon the sea by the statute of 28 H. 8. cap. 1,5. de 
 quo infra. 
 
 The statute of 3 H. 5. cap 6 S,- 7. it is true, is a declarative law, 
 
 that clipping, washing and filing the king's coin is treason within 
 
 the statute of 25 E. 3. and judges of assise and justices of 
 
 [ 268 1 peace have cognisance thereof; but even this declarative
 
 HISTORIA PLACITORUM CORONA. 268 
 
 law is repealed by the statute of 1 Mar. as it is declared in the 
 statute of 5. Eliz. de quo an tea. 
 
 As to the judgment of treason given in Sir John Oldcaslle^s case 
 Rot. Pari. 5 H. 5. par. 1. n. U. tho the judgment be given in par- 
 liament, yet it is barely upon the account of compassing the king's 
 death, and of levying of war, which was expressly within the statute 
 of 25. E. 3. as appears before, cap. 14. p. 142. 
 
 Touching the times of H. 6. 
 
 Rot. Pari. 2. H. 6. n. 18. It appears, that John Mortimer was 
 committed for suspicion of treason against H. 5. and 23 Feb. 2 i/. 6. 
 brake prison, and escaped, for which he was indicted 25 Feb. 2 H. 6. 
 at GuHdhall, London, before commissioners o{ oyer and terminer 
 setting forth the matter, and that prisonam prxdictam, falso 8^- volun- 
 tarie /regit; the record by the king's command was sent into parlia- 
 ment, and by the king's commissioner ad tenendum parliament iim^ 
 and the lords at the request of the commons, it was affirmed a good, 
 indictment, and Mortimer liad judgment to be drawn, hanged, and 
 quartered, and his lands and goods forfeited to the king by the judg- 
 ment of the lieutenant, lords, and commons, by an act made then for 
 that purpose. 
 
 This it is true was an authoritative declaration of treason in this 
 particular case pursuant to the clause of the statute of 25 E. 3. 
 
 But it rested not here, for in the same parliament, n. 60. a general 
 statute passed, "Que si ascun person soite indite, appelle ou prise par 
 suspicion de grand treason and pur cest cause soit commisse & detenus 
 in prison & escape volunterement hors du dit prison, que tiel escape 
 soit adjudge and declare treason, si tiel person ent soit duement attaint 
 selon la ley de terre. Et eient les seigneurs de fee en tiel cas les 
 eschetes and forfeitures de terres & tenements de eux tenus par tiel 
 persons issint attaints, come de ceux, que sont attaints de petit trea- 
 son; Et teigne cest estatute lieu & effect del 20 'our de Octobre dar- 
 rein passe tanque al prochein parliament. 
 
 " Ro'. Soit fait, come est desyre par la petition.". 
 
 This parliament began 20 Oct. 2. H. 6. [ 269 ] 
 
 The tilings observable hereupon are these, 1. That to 
 rescue a person, that is a traitor, out of prison was treason at com- 
 mon law, and so continues at this day within the statute of 25 E. 3. 
 2 Co. Instil, p. 589. and 1 H. 6. 5. b. 2. But if a man committed 
 for treason breaks prison and escapes, this is not treason at common 
 law. ■ 3. Tho it be felony by the statute de frangentibus prisonam, 
 yet it is not made treason by that statute. 4. But if it were treason 
 by that statute, yet it is corrected and made not treason by the statute 
 of 25 E. 3. and 1 H.A. and therefore in this case it was made treason 
 merely by the judgment of parliament, and statute of 2 H. 6, was but 
 temporary and expired by the next parliament. 5. That the judg- 
 ment itself in Mortimer'' s case, tho an authoritative declaration, was 
 not at all binding in other cases for two reasons, 1. Because it is 
 checked and controled as to any such effect by the general act of par- 
 liament of 2 //. 6. which was to continue only to the next parlia-
 
 269 HISTORY PLACITORUM CORONA. 
 
 ment; and 2. Because it was but a particular judgment of parlia- 
 ment in that particular case, to wliich it was particularly applied. 
 
 But howsoever, that question is now put out of question by the 
 general act of 1 Mar. cap. 1. which enervates the force of this judg- 
 ment and declaration; for 1 A/«r. repeals declarative laws of treasons 
 as well as enacting laws, and leaves the judges to judge strictly ac- 
 cording to the statute of 25 E. 3. as if no such judgment had been 
 given in parliament. 2 Co. Instit. p. 589. and therefore it seems 
 strange to me, that the judges took any notice of 2 H. 6. in Bensted's 
 case to ground any opinion ou.{i) 
 
 And therefore, aUho in the late act of attainder of the earl of Straf- 
 ford, there was a proviso added, that it should not be construed, that 
 the treasons therein cFiarged should be a rule for judges to proceed 
 by, in other cases, it seems a cautious but needless proviso, 
 [7 0] because it was a particular judgment, that did not egredi 
 personam, and no general declarative law to serve the 
 statute of 25 E. 3. For there may be collateral reasons not only in 
 policy, but in justice sometimes for a parliament to vary the punish- 
 ment of crimes, in substance the same, when differenced by circum- 
 stances, in several persons. 
 
 8 H. 6. cap. 6. Burning of houses maliciously or wickedly to ex- 
 tort sums of money from those, whom the malefactors spare, is made 
 high treason with a retrospect to the first year of the king's reign, 
 saving to the lords their liberties, as in case of felony. 
 
 Two things are observable upon this act, 1. That had it not been 
 specially provided against, the lords had lost their eschetes by mak- 
 ing it treason. 2. That this act, tho perpetual in its constitution, yet 
 was repealed by 1 Mar. cap. 1. and alter that repeal it remained 
 felony, as it was before, and so continues to this day. 
 
 Rot. Pari. 11 H. %. n. 43. A petition that John Carpenter, who 
 had committed a barbarous murder upon his wife, for wliich he was 
 outlawed and in prison in the king's bench, might for example's sake 
 by authority of parliament be judged a traitor, and that the judges 
 might give judgment against him to be drawn and hanged, saving to 
 the lords their eschetes. Ro'. Pur ceo, quil semble encountre le 
 liberty de seint esglis le roy se avisera. 
 
 20 H. 6. cap. 3. Thecomingof people out of fFa/e* or the marches 
 of the same into the counties adjacent, and taking and driving away 
 cattle, and their abettors and receivers knowing thereof, is made 
 treason against the king, saving to the lords marchers, of whom the 
 offenders, receivers, or abetters held their lands, the forfeiture thereof 
 and of their goods and chatties, when attainted ; this act was to con- 
 ti'nue for six years : nota, the lords had lost their eschetes and for- 
 
 (i) Cro. Car. 563. Janes 455. It was tlie case in 1 //. 6. 5. h. and not the statute of 
 2 //. 6. on vvliicli the jiulfres {rrouiidcd their opinion, altlio as tliat opinion is exprcst in 
 Cro. Car. 583. and KeL 77. viz. that the breaking of a prison, wherein traitors be, is high 
 treason, tho the parties did not know, that there were traitors there, is not warranted by' 
 that case, which is of one, who brake prison, knoiving certain persons to be j^i'isoners in 
 the said prison for treason.
 
 HISTORIA PLACITORUM CORONvE. 270 
 
 feiture of the offenders goods, if it had not been specially provided 
 for, because made treason and a new treason, which was not before, 
 for the lords marchers had not only forfeiture of goods of felons, but 
 royal eschetes and forfeiture of traitors goods for the most 
 part; but that franchise, which was by prescription, could [271 ] 
 not extend to new treasons. 
 
 I find nothing more relating to this matter in the time of Henry 
 VI. 
 
 The impeachment of the duke of Suffolk by the commons for 
 treasons and misdemeanors contained many articles of high treason 
 wiihin the statute of 25 E. 3. namely, adhering to the king's ene- 
 mies; but the whole matter being at last left to the king, he was 
 declared by the king clear of the treasons, and for the rest the king 
 by a kind of composition ordered liim to be banished for five years. 
 Rot. Pari. 28 H. 6 n. 18, 19, 20, S^-c. 
 
 As to the reigns of Edward IV. and Richard III. tho in those 
 great revolutions, that happened in the latter end of Henry VI. the 
 beginning of Edward IV. the time of Richard III. there are many 
 acts of attainder of treason of particular persons, that adhered to 
 either party then contending for the crown, according as the success 
 of war fell to one side or the other, as namely Rot. Pari. 38 H. 6. 
 n. 1. — 36, &,-c. many of the duke of York's party were attainted of 
 treason by act of parliament. Rot. Pari. 1 E. 4. n. 6. — 15, <§'C. the 
 numerous companies of the party of Henry VI. were attainted by 
 parliament; the like was done in the short regress of H. Q. 11 E. 4. 
 in a parliament held in that short resumption of the crown by Henry 
 VI. Again, the like was done in the parliament of 12 E. 4. upoti 
 the regress and re-expulsion of Henry VI. Again, Rot. Pari, 
 1 R. 3. divers persons of great quality, that opposed the pretensions of 
 Richard III. were attainted by act of parliament; and the like was 
 again done in the parliament of 1 H. 7. against the assistants of 
 Richard III. Every new revolution occasioned the attainder by 
 parliament of the most considerable of the adverse party ; yet in all 
 this time I find no general declaration or general enacting of new 
 treasons by parliament. 
 
 I come to the time of Henry VII. 
 
 In this time I find but one new treason, namely the statute of 4 H. 
 7. cap. IS. whereby the counterfeiting of foreign coin made current 
 in this realm is made high treason. . 
 
 But this act was repealed by the statute of 1 E. 6. cap. 12. 
 and 1 Mar. cap. 1. and another act made to the same pur- [ 272 ~\ 
 pose in 1 Mar. sess. 2. cap. 6. 
 
 This wise prince duly considering the various revolutions, that had 
 formerly happened in this kingdom touching the crown especially to 
 the houses of Fork and Lancaster, and that every success of any 
 party presently subjected all that opposed the conqueror, to the pen- 
 alties of treason ; and weighing that, altho by his marriage with 
 the heir of the house of York, he had reasonably well secured his pos- 
 session of the crown, yet otherwise his title, as in his own right, was
 
 272 HISTORIA PLACITORUM CORONA. 
 
 not without some difficulties; he therefore made a law, not to enact 
 treason, but to give some security against it, viz. 11 //. 7. cap. L 
 " That all persons, that attend upon the king and sovereign lord of 
 this land for the time being in his person, and do him true and faith- 
 ful service of alligeance in the same, or be in other places by his 
 commandment in the wars within this land or v/ithout, that for the 
 said deed and true duty of alligeance he or they shall be in no wise 
 convict or attaint of high treason, nor of other otfenses for that cause 
 by act of parliament, or otherwise by any process of law, whereby 
 he or any of them shall now forfeit life, lands, tenements, rents^ pos- 
 sessions, hereditaments, goods, chatties, or any other thing, but be for 
 that service utterly discharged of any vexation, trouble, or loss; and 
 if any act or acts, or other process of law hereafter thereupon for the 
 same happen to be made contrary to this ordinance, that then that 
 act or acts or other process of law whatsoever they be, stand and be 
 utterly void; provided always, that no .person or persons shall take 
 any benefit or advantage by this act, which shall hereafter decline 
 from his or their said alligeance." Upon this act these things are 
 observable. 
 
 1. That this act was not temporary or for the life of king Henri/ 
 VII. but was perpetual, and extended to all succeeding kings and 
 queens of this realm, for it is for attendants upon the king or sove- 
 reign lord of this land for the tirne being. 
 
 2. It is observable, that this act extendeth to a king de 
 [ 273 ] facto, tho not de Jure, for in truth such was Henri/ VII. for 
 his wife was the right heir to the crown, and his regal 
 power was principally by an act of parliament made 1 H. 7. before 
 his intermarriage with his queen, tho both titles were derived to his 
 descendants, viz. Henry VIII. and in default of issue, to his sister, 
 from whom our present sovereign is descended : and this act, tho 
 extended to his successors, which were kings de jure, as well as de 
 facto, yet was made for the security of himself and his servants in 
 the first place, which appeareth more fully also by the preamble. 
 
 3. That tho this act might secure the attendants on the king in his 
 wars against impeachments in an ordinary course of law, and might, 
 as to this purpose, exempt them from the danger of any treason by 
 the statute of 25 E. 3. as adherers to the king's enemies, yet it was 
 a vain provision against future acts of parliament, whose hands 
 could not be bound by a former act from repealing it, or taking away 
 the effect thereof in part or in all. 
 
 It is true, since that time this kingdom hath had no great experi- 
 ence of changes of this nature, nor need to make use of the advan- 
 tage of this statute: it is true queen Mary began her reign 6 July, 
 1553, she was crowned 6 Octob. following, her first session of parlia- 
 ment began 5 Octob. 1553. which was the day before her coronation, 
 and the second session thereof was held by prorogation 24 Octob, 
 1 Mar. 
 
 Upon that 6th of July, which was the day of king Edward^s 
 death, and before queen Mary was actually settled, the lady JanQ
 
 HISTORIA PLACITORUM CORONiE. 273 
 
 Gray set up a title for herself, and continued in some kind of regal 
 power, until the 1st of Jlugust following, and during those twenty- 
 four days the styles of deeds, statutes and other things (and possibly 
 also processes) were made in her name, and a special act was made 
 1 Mar. sess. 2 cap. 4. to make them effectual, and to be pleadable in 
 the style, name, and year of queen Mary ; so that the lady Jane 
 seemed an intruder for about twenty-four days; but the truth is, she 
 was not so much as an usurper, or a queen de facto: and 
 these her assistants in that business, viz. the archbishop of [ 274 ] 
 Canterbury, the duke of Northitmberland, the said lady 
 Jane and divers others were attainted before commissioners of oyer 
 and terminer ; and those attainders confirmed by parliament I Mar. 
 sess. 2. cap. 16. and note in that act of attainder a special proviso, 
 that the possessions of the archbishopriek of Canterbury should not 
 he forfeited by that attainder or act of parliament; possibly they 
 thought that the general words of that act, or at least the statutes of 
 26 H. 8. and 33 H. 8. which gave forfeitures for treason against 
 successors, and were not repealed by 1 Mar. might otherwise have 
 forfeited the lands of the archbishopriek by the attainder of the arch- 
 bisop; but of this supra cap. 23. p. 252. 
 
 4. But what was the meaning of the proviso in that act of 11 H. 
 7. " That no pei-sons shall have the benefit of this act who shall 
 decline from his alligeance," is dark and dubious. 
 
 But these questions never failed to be soon decided on the victor's 
 part by their parliaments, which were always obsequious enough in 
 these matters to the victor, and ready to pass acts of attainders for 
 his safety and their own, against which no security was, nor could 
 be given by this act of 11 //. 7. 
 
 I come now to the reign of Henry VIII. which was a reign 
 wherein acts concerning treason were exceedingly multiplied, and 
 they are of three kinds: 1. Such acts, as constituted or declared 
 treason. 2. Such acts, as concerned the trial of treason. 3, Such 
 as concerned the punishment or forfeiture of treason. 
 
 By the statute of 22 H. 8. cap. 9. Ricfiard Rose for wilful poison- 
 ing of dingers persons is by authority of parliament attainted of high 
 treason, and that he be boiled to death: and by authority of parlia- 
 ment murder by wilful poisoning is made treason for the future, and 
 the offender to be boiled to death, and not to have benefit of the 
 clergy: justices of peace to have power to inquire of this offense, 
 and also of counterfeiting coin of any foreign kingdom, suffered to 
 be current here, the title of lords to eschete of the lands of offenders 
 in poisoning is saved to them (A-) 
 
 This treason is repealed by 1 Mar. cap. 1. and the same [275] 
 remains felony as before. 
 
 By 26 H. cap. 13. " Maliciously to wish, will, or desire by words 
 or writing, or by craft to imagine, invent, practise, or attempt any 
 bodily harm to the king, queen, or their heirs apparent, to deprive 
 
 Qi) Co. P. C. p. 48,
 
 275 HISTORIA PLACITORUM CORONiE. 
 
 them, ov any of them of their dignity, title, or name, or slanderously, 
 or riialicionsly to publish by express writing, or words, that the king 
 our sovereign lord is an heretic, schismatic, tyrant, infidel, or 
 usurper, or rebelliously to detain any of his castles, &c. in this realm, 
 or other his dominions, or rebelliously to detain or keep any of liis 
 ships, ammunition, or artillery, and do not humbly render the said 
 casiles, fortresses, ships, or artillery, to our sovereign lord, his heirs 
 or successors, or such as shall be deputed by them, within six days 
 after they be commanded thereunto by proclamation under the great 
 seat, is enacted to be treason in the offenders, their aiders, counsellors, 
 consenters and abetters: foreign treason to be tried in any connty, 
 where the king shall appoint by commission," 
 
 1. It should seem, that this act was intended to be perpetual, for 
 in it and the subsequent clause of forfeitures it mentions the king, his 
 heirs and successors. 2. Part of this seems to be treason by the sta- 
 tute of 25 E. 3. viz. the practising any bodily harm, if there be an 
 overt-act, and also the rebellious detaining of the king's castles after 
 summons by proclamation; the rest are purely new treasons. 3. But 
 whether it was temporary or perpetual, all treason resting singly, as 
 enacted by authority of this act, is repealed by 1 E. 6. and 1 Mar. 
 and yet the latter clause(/) concerning .forfeiture in relation to all 
 treasons within 25. E. 3. stands unrepealed; de quo vide supra 4' 
 infra. 
 
 By 27 H. 8. cap. 2. counterfeiting privy seal, privy signet, or sign 
 manual is made treason, and the offenders, their counsellors, aiders, 
 and abetters to suffer and forfeit, as in case of treason; this is repealed 
 by 1 Mar. cap. 1. and then re-enacted by 1 Mar. cap. 6. 
 
 By 25H. 8. cap. 22. the divorce between the king and queen 
 [276 3 C'<7//j«r//ie is affirmed by parliament, and also the marriage 
 between him andr^nne Bullen, and the crown with all dig- 
 nities, honours, pre-eminences, prerogatives, authorities, and juris- 
 dictions to the same annext or belonging, is entailed after the king's 
 death to the heirs of his body lawfully begotten, viz. to the first, 
 second, and other sons of the king and of the said queen Jlnne, and 
 to the heirs of their bodies successively; and for want of s«ch issue 
 male, to the heirs male of the king, and the heirs of their several 
 bodies; and for want of such issue, to the lady Elizabeth, their 
 daughter and the heirs of her body, and so to their second, third and 
 other daughters; and for want of such issue, to the king's right heirs. 
 
 " If any by writing, printing, or exterior act maliciously do or 
 procure any thing to the peril of the king's person, or to the disturb- 
 ance of the king's enjoyment of the crown, or to the prejudice or 
 derogation of the marriage between him and queen Anne, or to the 
 peril, slander, or disherison of any of the issues or heirs made by this 
 act inheritable to the crown, it shall be high treason. 
 
 " If any bywords without writing, <5'C. maliciously publish any 
 
 {I) By this laUer clause the offender, S^c. sliall forfeit to the kingf, his heirs and succes- 
 Bors all hinds, tencnicnts, and iicreditaaicnts of any estate of inheritance in use or pos- 
 session, by any right, title, or means.
 
 HISTORIA PLACITORUM CORONA. 276 
 
 thing to the slander of the said marriage between the king and queen 
 Anne, or to the slander or disherison of the issues of the king's body 
 begotten on the said queen Anne, or other heirs inheritable to the 
 crown, by virtue of this act, it shall be misprision of treason :" an 
 oath is appointed to be taken in pursuance hereof, and the refusers 
 are guilty of misprision of treason; provision is made for the custody 
 of the heir of the crown during minority. 
 
 28 H. 8. cap. 7. the last act is repealed, and all intermediate of- 
 fenses against that act in relation to queen Anne or the lady Eliza- 
 beth pardoned; <\\\Q%wAnne and others attainted of treason; the mar- 
 riage between the king and queen Catharine annulled and judged 
 void, and the issues between them to be illegitimate; the marriage 
 between the king and queen ./^«;?e judged void by sentence of divorce 
 of the archbishop; the Same sentence confirmed, and the marriage 
 with queen Anne judged and declared null and void, and tlie issues 
 between them declared illegitimate and excluded from inhe- 
 riting the crown: Levitical degrees settled. Children be- [277] 
 tween the king and queen Jane shall be adjudged the king's 
 lawful children, and inheritable to the crown; the crown entailed to 
 king Henry VIII. and the heirs of his body lawfully begotten, that 
 is to say, to the first, second,.and other sons of the king on the body 
 of queen Jane begotten, and the heirs of their bodies severally; and 
 in default of such issue male, then to the first son and heir male of 
 his body, and so to the second and other sons in tail; and for the 
 want thereof, to the first and other issue female between the king and 
 queen Jane in tail; and for want of such issue, to the king's first and 
 other issue female in tail; and for lack of issue of the king's body, to 
 such person, and in such manner as he shall appoint by his last will 
 or letters patent ; provision against disturbances of the heir of his body 
 so nominated under pain of treason; "And if any shall by words, 
 writing, printing, or other exterior act directly or indirectly do or 
 procure maliciously any thing to the peril of the person of the king, 
 his heirs or successors having the royal estate of the crown, or ma- 
 Uciously or willingly by words, c^-c. give occasion, whereby the king, 
 his heirs or successors might be interrupted of the crown, or for the 
 interruption, repeal or adnullation of this act, or the king's disposal 
 of the crown according to it, or to the slander, disturbance, or dero- 
 gation of the marriage between the king and queen Jane, or any 
 other lawful wife, which he shall hereafter marry, or to the peril, 
 slander, or disherison of any of the issues and heirs of the king limited 
 to be inheritable to the crown, or to whom the king shall by autho- 
 rity of this act dispose it, or that affirm, c^'C. the marriage between 
 the king and queen Catharine, or between the king and queen Anne 
 to be good, or slander the sentences of divorce above said, or publish 
 their issues to be the king's lawful children, or shall attempt to de- 
 prive the king, the queen, or any made inheritable to the crown by 
 this act, or to whom the king by authority of this act shall dispose 
 thereof, of their titles, styles, names, degrees, or royal estate 
 or regal power, or refuse to take an oath to answer such [ 278 ~\ 
 questions, as shall be objected to them upon any clause of
 
 278 HISTORIA PLACITORUM CORON.^. 
 
 this act, or after taking the oath do contemptuously refuse to answer 
 such interrogatories, as shall be objected concerning the same, or 
 shall refuse to take the oath enjoined by this act, they, their aiders, 
 counsellors, maintainers and abetters shall be guilty of treason, and 
 forfeit all their lands, S,'C. and all sanctuary excluded." 
 
 The form of the oath is set down in the act, and power is given to 
 the king by will to dispose of the custody of the king's issue within 
 age. 
 
 It is made treason to disturb such disposal, and also power is given 
 to the king to dispose or give by will, (§'C. to any of his blood any 
 title, style, name, honors, tenements, or hereditaments. 
 
 No/a, This act doubted whether the attempting any thing in par- 
 liament against the marriage of queen Jinne might not bring them 
 in danger of the act of 25 H. 8. and therefore took care both to 
 repeal the act, and to discharge and pardon what had been attempted 
 against it. 
 
 The clause enabling the king to dispose of any honours or lands 
 to those of his blood by will was necessary, for without such an 
 enabling act of parliament the king could not dispose thereof by will, 
 but only by letters patent under the great seal, or for lands parcel 
 of the duchy o{ Lancaster under the seal of the duchy. 
 
 But it seems, that as to the disposal of lands belonging to the 
 crown or duchy by letters patent under these respective seals, the 
 king had power without this act, or the 35 H. 8. cap. 1. to dispose 
 thereof, and to bind his successors. 
 
 And this by reason of the special penning of those acts, which, as 
 I think, did not entail the lands, that the king had in jure coronss 
 or injure diicatus Lancastrise, but only limits the succession of the 
 crown and of the dignities, honors, prerogatives, pre-eminences, 
 authorities, or jurisdictions to the same annext or belonging, which 
 are but so many expressions of the parts or incidents of the regal 
 dignity, and not of the lands or possessions of the crown, but those 
 rested in the crown in fee-simple, as they were before those acts 
 made. 
 
 And hence it is, that in the several acts of 34 H. S. cap. 
 [279 ] 21. 1 £?. 6. cap. 8. 18 Eliz. cap. 2. 35 Eliz. cap. 3. 43 
 Eliz. cap. 1. for confirmation of letters patent, there is no' 
 clause to make them good, notwithstanding the entail of the crown, 
 for it was not needful; but the lands granted by king Henri/ VIII. 
 Ediuard VI. queen Mary., queen Elizabeth, stand eflectual without 
 any such confirmation, and yet the entail of the crown by these acts 
 continued till the death of queen Elizabeth, at which time it was 
 spent, and king James succeeded to the crown as the true heir 
 thereof, without the help of any entail or nomination by Henry VIII. 
 
 And yet after all this the whole scheme was altered by the statute 
 of 35 H. 8. cap. 1. for thereby after recital of the statute of 28 H. 8 
 and that the king had issue by queen Jane prince Edward, and the 
 king had since married the lady Catharine ; It is enacted, "That if 
 the king and prince Edward die without heirs of either of their
 
 HISTORIA PLACITORUM CORONiE. 279 
 
 bodies, the crown shall remain to the lady Mary and the heirs of 
 her body under such conditions, as shall be limited by the king by 
 his letters patent, or his last will; and for want of such issue, or 
 upon breach of such conditions, to the lady Elizabeth and the heirs 
 of her body under such conditions, as shall be limited by the king 
 by his last will or letters patent; and in default of such issue, or 
 upon breach of such conditions, to such persons and ibr such estates, 
 as the king shall limit by his will or letters patent. 
 
 This act repeals the former oath of 28 H. 8. and directs the form 
 of a new oath to be taken for the extirpation of the pope's pretended 
 supremacy,. and limits it to be taken by all that sue livery, have any 
 office of the king's gift, receive orders, take degrees, and by all per- 
 sons whom the king, (§'C. shall appoint, and that it shall be treason in 
 such, who obstinately refuse to take the oath. 
 
 It is also enacted, "That if any person by words, writing, printing, 
 or exterior act maliciously or willingly do or procure any thing 
 directly or indirectly for the repeal, annullation or interruption of this 
 act, or any thing therein contained, or of any thing that shall 
 be done by the king in the limitation of the crown to be [280] 
 made as aforesaid, or to the peril, disherison or slander of 
 any of the issues and heirs of the king being limited by this act to 
 inherit and to be inheritable to the crown, or to the disherison or in- 
 terruption of any person, to whom the crown is by this act, or shall 
 be limited by the king as aforesaid, whereby they may be destroyed 
 or interrupted in body or title of the inheritance of the crown, the 
 same shall be high treason in the offenders, their maintainers, aiders, 
 counsellors, and abetters, saving to all persons, other than the par- 
 ties attainted, their heirs and successors, all rights, S^c. in the lands of 
 the persons attaint." 
 
 And note, that notwithstanding the caution used in the act of 
 28 H. 8. for the pardon of the attempting to repeal the act of 25 H. 8. 
 no such care was thought necessary here for the attempt or procure- 
 ment to alter the law by act of parliament; for as it could not be 
 restrained by a precedent act, so neither was it concerned within the 
 penalty. 
 
 And thus much for those treasons, that related to the succession of 
 the crown, which I have put together, notwithstanding many of them 
 come after those other acts, which I shall hereafter mention. [1] 
 
 [1] Of the statutes of treason passed in the reigfn of Henry 8, Hume says, they were 
 multiplied beyond all former precedent. Even words to the disparagement of the king, 
 queen, or royal issue, were subjected to that penalty; and so little care was taken in 
 framing those rigorous statutes that tiiey contain obvious contradiclions; insomuch that 
 had they been strictly executed, every man without exception must have fallen under the 
 penalty of treason. By one statute, for instance, it was declared treason to assert the 
 validity of the king's marriage, either with Catherine of Arragon, or Anne Bolyn ; by an- 
 other, it was treason to say any thing to the disparagement or slander of the princesses 
 Mary and Elizabelh; and to call them spurious, would no doubt have been construed to 
 their slander. Nor would even a profound silence with regard to these delicate points be 
 able to save a person from such penalties. For by the former statute, whoever refused to 
 answer upon oath to any point contained in that act was subjected to the pains of treason. 
 The king therefore, needed only propose to any one a question with regard to the legality
 
 280 HISTORIA PLACITORUM CORONA. 
 
 By the 28 H. 2. cap. 10. which was the great concluding act against 
 the papal authority, the asserting or maintaining of the papal autho- 
 rity is brought within the statute of prsemttnire, and he that obsti- 
 nately refuseth the taking of the oath of abjuration thereby enacted, 
 is subjected to the penalty of high treason. 
 
 By 28 H. 8. cap. IS. marrying any of the king's children or re- 
 puted children, or his sisters, or aunts of the father's part, or the 
 children of the king's brethren, or sisters without the king's license 
 under his great seal, or deflowering of any of them, is enacted to be 
 treason. 
 
 By 31 H. 8. cap. 8, the king and council's proclamation concern- 
 ing religion or other matters are to be obeyed under such penalties, 
 as they shall think requisite; they, that disobey them and then go 
 beyond sea contemptuously to avoid answering such offense, 
 ["281 ] shall be guilty of treason, <§'c. saving to every person, other 
 than the offenders, their heirs and successors, all right, S,^c. 
 
 By 32 H. 8. cap. 25. the marriage between the king and hdy ^/inne 
 Cleve, which had been dissolved by the sentence of convocation, was 
 confirmed by parliament, with liberty for each party to marry else- 
 where: if any by writing, printing, or exterior act, word, or deed, 
 accept, take, judge, or believe the said marriage to be good, or 
 attempt any thing for the repeal or adnuUation of this act, it shall be 
 high treason in them, their aiders, counsellors, abetters, or maintam- 
 ers, saving the rights of all, other than the oflenders, their heirs and 
 successors; and all persons that have acted against the said marriage 
 are pardoned. 
 
 By 33 H. 8. cap. 21. Queen Catharine Howard was attainted of 
 high treason, and all persons that had acted against her were pardon- 
 ed : any woman, whom the king or his successors shall intend to take 
 to wife, thinking her a pure and clean maid, if she be not so, and 
 shall willingly couple herself in marriage to the king notwithstanding, 
 without discovering it to the king before marriage, shall be guilty of 
 high treason; and if any other know it and reveal it not, it shall be 
 misprision of treason: the queen or prince's wife soUiciting any per- 
 son to have carnal knowledge of her, or any person solliciting the 
 queen or prince's wife to have carnal knowledge of her, is treason in 
 them respectively, their counsellors, aiders and abetters. 
 
 By 35 //. 8. cap. 3. The king's style (Henricus octaviis Dei gratia 
 Angliffi, Francia) & Hiberniec rex,Jidei defensor, 4' in terra ecclesias 
 Anglicaiise & IliberniaB supremum, caput) is united and annexed to 
 the imperial crown of England; and if any shall imagine to deprive 
 the king, queen, prince, or the heirs of the king's body, or any to 
 whom the crown is or shall be limited, of any of their titles, styles, 
 names, degrees, royal estate, or regal power annext to the crown uf 
 
 of cither of his first rnarriagres; if the person was silent, he was a traitor by law; if he an- 
 swered either in the ncg-alivc or in tlic affirmative, he was no less a traitor. So mon- 
 strous were the inconsistencies which arose from the furious passions of the king, and the 
 slavish submission ofliis parliaments. Hisl. Engl. vol. Y.p. G40.
 
 HISTORIA PLACITORUM CORON.^. 281 
 
 England, it shall be high treason, saving the right of all other than 
 the offenders, their heirs and successors. 
 
 And thus far concerning the Several treasons enacted in [ 282] 
 this king's time, all which are nevertheless now abrogated 
 and repealed by 1 E. 6. and 1 Mar. as shall be shewn. 
 
 II. There are several acts of parliament in this king's time, which 
 concern trials of treason, some of which are in force at this day, and 
 not repealed by any statute. 
 
 By 26 H. 8. cap. 6. The treason concerning counterfeiting, wash- 
 ing, clipping and minishing of money current within this realm, as 
 likewise other felonies committed in Wales or the marches thereof, 
 may be heard and determined before justices of goal-delivery in the 
 next English county; but note, this extends not to other treasons, 
 nor, at this day, to clipping or minishing the coin ; for the acts, that 
 made them treason at that time, viz. 3 H. 5. and 4 H. 7. stand now 
 repealed, and the statutes of 5 Eliz. cap. 11. for clipping, and 
 18 E/iz. cap. 1. for minishing the coin, direct it to be tried by the 
 course and order of the law; and so it is also for counterfeiting of 
 foreign coin by the statute of 1 Mar. yea, and as to counterfeiting 
 the coin of this kingdom, or any other offense touching coin, by the 
 statute of 1 <^' 2 F. €>' M. cap. 11. the indictment and trial is directed 
 to be according to the course of the common law; so that as to coin 
 also the statute of 26 H. 8. is now out of doors. 
 
 28 H. 8. cap. 15. For trial of treason committed upon the high 
 sea before the admiral, 8j-c. by commission under the great seal ; this 
 statute. as to trial of treason upon the sea stands unrepealed by 
 1 Mar. and whether as to treasons committed in any rivers, or 
 ports, or creeks within the bodies of counties, it be not repealed by 
 1 4- 2 P. (§• M. cap. 10. or by the statute of 35 H. 8. cap. 2. for trial 
 of foreign treasons, is considerable. 
 
 By 32 H. 8. cap. 4. Treasons and misprisions of treason committed 
 in Wales, ox in other places where the king's writ doth not run, shall 
 be tried before such commissioners of oyer and terminer, as tlie king 
 shall appoint, as if committed in the same counties into which the 
 commission is directed. 
 
 This is repealed by the statute of 1 4' 2 P. ^- M. cap. 10. 
 cited to be so adjudged in H. 14 Eliz.{vi) Co. P. C.p. 24. [283] 
 because it is done within this realm, and so may be tried in 
 Wales. 
 
 33 H. 8. cap. 20. Concerning the proceeding touching the enquiry 
 and trial of treason committed by persons, that become lunatic after 
 the treason committed, without putting them to answer, and touch- 
 ing the execution of persons attainted of treason, and afterwards 
 becoming lunatic, is repealed by the stattUe of 1 4' 2 P. (5* M. cap. 
 10. vide Co. P. C.p. 4 4' 6. both as to the indictment and as to the 
 trial; but the forfeiture of persons attainted of treason, as to old 
 treasons, stands in force. 
 
 (jn) Lord Lumley^s case.
 
 283 HISTORIA PLACITORUM CORONA. 
 
 33 H. 8. cap. 23. Treason or misprision of treason or murder com- 
 mitted by a person examined before three of the council, and found 
 by them guihy, or suspected, may be enquired of, heard and deter- 
 mined before commissioners of oyer and terminer in any county of 
 England to be named by the king, by jurors of the county in such 
 commission : challenge for lack of forty shillings freehold allowed 
 peremptory challenge is ousted in treason or misprision of treason: 
 trial by peers is saved. 
 
 This statute as to the indictment and trial of treason in any 
 foreign county stands repealed by 1 <§• 2 P. Sr M. cap. 10. as was 
 ruled by all the judges of England'm Som ervil I e's case, M. 26 EUz. 
 reported by justice Clench n. 17. (n) against the opinion of Stam- 
 ford, PI. Cor. Lib. II. cap. 26. both as to the indictment and also as 
 to the trial, for Somerville was indicted in the county where the 
 offense was, and by a commission in Middlesex was tried by a jury 
 of the county, where the offense was committed ; but as to murder, 
 it seems to stand unrepealed, and accordingly put in ure; Cramp- 
 ton's jUs{[ce.{o) 
 
 35 //. 8. cap. 2. Treasons, misprisions and concealments of trea- 
 sons committed out of the realm shall be heard and determined by 
 the court of king's bench, and tried by a jury of that county, where 
 the court sits, or before commissioners and in such shire, where the 
 king shall appoint by his commission, by good and lawful 
 [_ 284 2 f^sn of the same shire, as if committed in the same shire: 
 trial of a nobleman by his peers is saved. 
 
 Upon this statute these points have been resolved : 1. That this 
 act is not repealed by 1 E. 6. or 1 S,' 2 P. S,^ M. cap. 10. thus it was 
 resolved in Orurk's case, Co. P. C. p. 24. 2. It extends to a trea- 
 son committed in Ireland, xesoXvadi in Sir John PerroVs case,(/)) 
 Co. P. C.p. 11. 3. It extends to a treason committed in Ireland, 
 by a peer of Ireland, so resolved in 22 Car. 1. in B. R. in Mac- 
 guire's case. (9) 4. The commission in this act mentioned may be 
 signed by the king's sign manual, or the warrant to the chancellor 
 to issue the commission may be signed by the king's sign manual, 
 and either of them is warranted by this statute, so resolved H. 
 36 Eliz. cited Co. Pla. Cor. p. 11. in the case of Patrick Ocullen. 
 5. If an indictment be taken by virtue of this statute in the county 
 of Middlesex, and then the bench is remaved by adjournment into 
 another county, if the prisoner pleads not guilty, it shall be tried by 
 a jury of that county where the indictment is taken, because the 
 words are, that it shall be inquired, heard and determined by 
 good and lawful men of the same county, luhere the said bench 
 shall sit. M. 35 4' 36 EUz. B. R. in the case of Francis Dacres 
 cited Co. PI. Cor. p. 34. but otherwise upon an indictment upon the 
 statute of 5 EUz. cap. 1. for refusing the oath of supremacy. Co. PL 
 Cor. ibidem. {r) 
 
 (n) This is reported 1. And p. 104. {p) State Tr. Vol. I. p. 181. 
 
 (0) p. 22. lord Grevil's case. {q) State Tr. Vol. I. p. 928. 
 
 (r) Tlic case of Edmund Bonner, Bishop of London.
 
 HISTORIA PLACITORUM CORONA. 284 
 
 III. As touching the third point of forfeitures by treason I shall 
 say little more, than what is said before in the preceding chapter con- 
 cerning the forfeiture of tenant in tail. 
 
 Only it seems, that the law was taken upon the statutes of 33 and 
 36 H. 8. before mentioned, that if an abbot or a bishop were attaint- 
 ed of treason, that by force of the general words o{ forfeiting all 
 their lands, tenements and hereditaments they forfeit the lands of 
 their church, tho they had them in autre droit. 
 
 1. Because in the savings of these statutes, yea and in all the new 
 statutes of treason made in the time of Henry VIII. above- 
 mentioned, the saving ywns, saving to all persons other than [ 285 ] 
 the offenders, their heirs and successors such right, ^-c. and 
 
 the exception of successors makes it probable, that they intended, 
 when a sole corporation was attainted of treason, he should forfeit 
 the lands of his church. 
 
 2. Because in the act of attainder of the archbishop of Canter- 
 bury, 1 Mar. cap. 16. there is a special proviso, that it should not 
 extend to the lands which he had in right of his archbishoprick ; but 
 that these should be saved, as if he had not been attainted. 
 
 3. Because by the act of 31 i^. 8. cap. 13. it appears plainly, that 
 the possessions of Monasteries, where the abbots were attainted of 
 treason, came thereby to the crown, tho they are not annexed to the 
 court of augmentations of the king's revenues. 
 
 4. It is clearly admitted by the judges in the case of the Bishop of 
 Durham, By. 289. that by force of the statute of 26 H. 8. the lands 
 of abbeys, &c. came to the crown by the attainder of treason of the 
 abbots, &c. and possibly it was in design at the time of the making 
 of that statute. 
 
 But it is true, that before that statute of 26 H. 8. 1. The lands, 
 which a person had in right of his church, were not forfeited by 
 attainder of treason. 2. That altho the lands of a sole corporation 
 such as were an abbot, prior, bishop, might be forfeited by attainder 
 by the special penning of 26 and 33 H. S. yet the lands of an aggre- 
 gate corporation, as dean and chapter, mayor and commonalty, were 
 not forfeited by the treason of the dean, or mayor, by virtue of those 
 statutes, for the right of the land was in the commonalty and chap- 
 ter, as well as in the dean or mayor, and not in them alone. 3. That 
 at this day the attainder of treason doth not forfeit the lands of a 
 bishop, parson or other sole ecclesiastical corporation: 1. Because 
 the statutes of 1 Eliz.{s) and 13 Eliz. cap. \0.{t) disabling bishops, 
 masters of hospitals, &c. to alien their possessions, disable them to 
 forfeit as well as alien, or otherwise the statute would be illu- 
 sory. 2. By the special penning of the statutes of E. 6. 
 cap. 12. and 1 Mar. whereby it is enacted, that no penal- [ 286 ] 
 ties shall be inflicted for treason, other than such as be by 
 25 E. 3. 
 
 (s) This is not among the printed statutes. 
 (t) Ttiis statute made perpetual by 3 Cur. 1. cap. 4. 
 VOL. I. 30
 
 286 HISTORIA PLACITORUM CORON.E. 
 
 Concerning the forfeiture of lands in a county palatine by the 
 attainder of treason out of a county palatine, or e converso. 
 
 By the statutes of 9 H. 5. cap. 2. 18 ff. 6. cap. 13. 20 H. 6. cap. 2. 
 31 H. 6. cap. 6. outlawries of treason, &c. in the county palatine of 
 Lancaster were not to cause a disability of the person outlawed, nor 
 induce any forfeiture of the lands or goods of the party outlawed 
 lying out of that county ; but by the statute of 33 H. 6. cap. 2. these 
 acts are repealed, and it is ordained, that the indicters in a county 
 palatine (where the indictment supposes any person to be inhabiting 
 out of the county of Lancaster within some other county of the 
 realm) have lands to the yearly value of five pounds in that county, 
 and that upon indictment to be taken out of the county palatine of 
 persons residing there, the indicters shall have a yearly freehold of 
 five pounds, and that no process be made out upon any such indict- 
 ments, till it has been examined by the king's justices, whether the 
 indicters be so qualified. 
 
 J3ut now by the statute of 27 H. 8. cap. 24. all powers in county 
 palatines for making of justices in eyre, of assise, of peace, of goal- 
 delivery, are resumed, and such commissions are to pass under the 
 great seal of England, only in Lancaster they are to be under the 
 usual seal of Lancaster : all processes to be in the king's name under 
 the teste of him, that hath the county palatine; all indictments, ^"c. 
 are to conclude contra pacem regis, and all fines and amerciaments 
 upon officers are resumed: so that now all process of outlawry, 
 attainder, <5'c. in county palatines are of the same efl'ect and induce 
 the san^ie forfeitures, as if the offenses were committed, tried and 
 determined in any other county of England. 
 
 Bnt this alters not the title of the bishop o( Durham or any other, 
 that had royal forfeitures of treasons of lands within their liberty,* 
 or county palatine, for that is a distinct franchise, and not at all 
 touched by the act of resumption, as appears by the case in Dijer{u) 
 before cited, and by what is said in the precedent chapter 
 [| 287 ] touching forfeitures by treason: and thus far for acts touch- 
 ing treason in the time of Henry VIII. 
 
 As touching treasons in the verge 1 shall particularly mention the 
 same hereafter. 
 
 1 come now to the time of king Edward VI. 
 
 1 E. 6. cap. 12. There are these several changes made by these 
 several clauses. 
 
 1. It is enacted, that no act, deed or ofl'ense being by statute made 
 treason or [)etit treason bywords, writing, cyphering, deeds or other- 
 wise whatsoever, shall be deemed or adjudged high treason or petit 
 treasons but only such as be treasons or petit treasons in or by the 
 statute of 25 E. 3. for declaring treasOa, and such ofiences, as here- 
 after by this act are expressed and declared to be treason or petit 
 treason ; and no other penalties to be inflicted upon the offenders in 
 treason or petit treason, but what are ordained by that, or this 
 statute. 
 
 (m) Dyer 289.
 
 HISTORIA PLACITORUM CORONA. 287 
 
 2cl clause repeals the statutes concerning heretics, Lollards, tjie 
 six articles, selling of books of the scriptures, ^-c. ordained in the 
 time of R. 2. H. 5 and H. 8. 
 
 3d clause repeals all felonies made by act of parliament, since 23 
 Jlpril 1 H. 8. that were not felonies before, and all penalties touch- 
 ing the same. 
 
 4th clause repeals the act of 31 H. 8. touching obedience to the 
 king's proclamations, and the statute of 34 H. 8. imposing penalties 
 upon the disobedient. 
 
 5th clause enacts certain new offenses, viz. "If any shall by 
 preaching, express words or sayings athrm and set forth that the 
 king, his heirs or successors, kings of this realm, is not or ought not 
 to be supreme head on earth of the church of England 2ind Ireland 
 immediately under God, or that the bisliop of Rome, or any besides 
 the king for the time being, ought by the laws of God to be supreme 
 head of the same churches, or that the king, his heirs or successors, 
 kings of this realm, ought not to be king of England, France, and 
 Ireland, ox any of them, or do compass by open preaching, express 
 words or sayings to depose or deprive the king, his heirs or suc- 
 cessors kings of this realm, from his royal estate or titles to 
 the same kingdoms, or do openly publish, or say by express [^ 288 ] 
 words or sayings, that any person, other than the king, his 
 heirs or successors kings of this realm, of right ought to be king of 
 the realms aforesaid, or any of them, or to have or enjoy the same 
 or any of them, the offenders, their counsellors, aiders, abettors, pro- 
 curers and comforters, for the first offense shall lose his goods, and 
 suffer imprisonment during the king's pleasure; and if after such 
 conviction he shall commit the same offense again, other than such 
 as be expressed in the statute of 25 E. 3. he shall forfeit to the king 
 the profits of his lands, benefices, and ecclesiastical promotions during 
 his life, and all his goods, and suffer perpetual imprisonment; and 
 for the third offense after a second conviction, he shall be guilty of 
 treason, and suffer and forfeit as a traitor. 
 
 6th clause enacts that, " If any person shall by writing, printing, 
 overt-act or deed, affirm or set forth, that the king of this realm for 
 the time being, is not or ought not to be supreme head on earth of 
 the churches of England and Ireland, or any of them immediately 
 under God, or that the bishop oi Rome or any person, than the king 
 of England for the time being, is or ought to be supreme head on 
 earth of the same churches or any of them, or do compass or ima- 
 gine by writing, printing, overt-deed or act to depose or deprive the 
 king, his heirs or successors from the royal estate or titles of king of 
 England, France and Ireland, or any of them, or by writing, 
 printing, overt-act or deed, do affirm, that any person, other than the 
 king, his heirs and successors, of right ought to be king of the realms 
 of England, France and Ireland, or any of them, then every such 
 offender shall be guilty of treason, and suffer and forfeit, as in case 
 of high treason. 
 
 7th clause enacts, "That this act shall not extend to repeal any
 
 288 HISTORIA PLACITORUM CORONA. 
 
 statutes touching the counterfeiting, clipping, filing or washing the 
 coin current of this kingdom, or importing counterfeit coin, or coun- 
 terfeiting the king's sign manual, privy seal, or privy signet, their 
 abettors, &c. 
 
 8th clause enacts, "That if the persons declared by the act of 35 
 H. 8. to be inheritable to the crown do usurp one upon the 
 [289 ] other, or interrupt the king's possession of the crown, they, 
 their abettors, &c. shall be traitors. 
 
 9th clause takes away clergy from persons found guilty by verdict, 
 confession, or not directly answering or standing mute in cases of 
 murder of malice prepense, of wilful poisoning, house-breaking, any 
 person being in the house and put in fear, robbing in or near the 
 highway, horse-stealing, sacrilege ; but in all other cases of felony 
 clergy allowed, and sanctuary the same as before the 24 April 
 1 ^.8. 
 
 10th clause provides, that all the statutes of H. 8. concerning chal- 
 lenge, or concerning trial of foreign pleas, shall stand in force. 
 
 1 Ith clause declares, that no person already arrested or imprisoned, 
 indicted or convicted, or outlawed for treason, petty treason or mis- 
 prision of treason, shall have any advantage of this act. 
 
 12th clause provides, that wilful killing by poison shall be deemed 
 wilful murder, and the offenders, their aiders, abettors, counsellors or 
 procurers shall suffer, as murderers. 
 
 13th clause enacts, that a lord of parliament in all cases within the 
 benefit of clergy, tho he cannot read, yet shall be delivered as a clerk 
 convict without burning in the hand, or loss of lands, &c. 
 
 14th clause saves the trial by peers for any offenses within this 
 statute. 
 
 15th clause enacts, that clergy be allowed, notwithstanding the 
 offender have been married to a single woman or widow, or to two 
 wives or more. 
 
 16th clause enacts, that notwithstanding attainder of treason, petit 
 treason, misprision of treason, murder or felony, the wife shall have 
 her dower, and saves to all and every person, other than to the 
 offender attained, convict or outlawed, all such right, title, interest, 
 entry, leases, possession, condition, "profit, commodity, and heredita- 
 ments, as they had before or at the time of the attainder, conviction, 
 or outlawry. 
 
 17th clause provides, that the statute of 27 H. 8. for felony in ser- 
 vants stealing the goods of their masters, shall stand in force. 
 
 IStli clause provides, that no person be put to answer for 
 [ 290 ~\ any of the offenses abovesaid concerning treason by preach- 
 ing or words only, unless accused before one of the king's 
 council, justice of assise or peace, &c. within thirty days after the 
 offense committed. 
 
 19ih clause, concealing and keeping secret any high treason shall 
 be misprision of treason, and the offender shall forfeit as iieretofore 
 hath been used in case of misprision of treason.
 
 HISTORIA PLACITORUM CORONiE. 090 
 
 20th clause, calling, writing or printing the French king king of 
 France shall not be adjudged any oftense within this act. 
 
 21st clause provides, that no person shall be indicted, arraigned, 
 condemned or convicted for any offense of treason, petit treason, 
 misprision of treason, or for any words before mentioned, whereby 
 he shall sulfer pains of death, loss of goods, imprisonment, &c. unless 
 the otTender be accused by two sufficient and lawful witnesses, or 
 shall willingly without violence confess the same. 
 
 I have mentioned the clauses of this statute at large, and by their 
 numbers, because there be many things observable thereupon. 
 
 By the first clause of this statute all those numerous treasons and 
 petit treasons, that were enacted or declared at any time since 25 
 E. 3. are wholly taken away, except that of counterfeiting, clipping, 
 washing, or filing of coin, &c. excepted in the 7th clause ; but this 
 doth not mention misprisions of treason, but only declares what mis- 
 prision of treason is, for by taking away the treasons themselves, the 
 misprisions of those treasons must needs cease, as a crime. 
 
 But this act did not extend to alter the trials in case of treason, 
 and therefore notwithstanding this act the statute of 28 H. 8. cap. 15. 
 for treasons at sea, 26 H. 8. cup. 6, for counterfeiting, &c. in Wales. 
 32 H. S. cap. 4. for treasons in Wales, 33 H. 8. cap. 23. for treasons 
 to be tried out of their county, 35 H. 8. cap. 2. for trial of foreign 
 treasons, stood yet in their force, until the statute of 1 <§• 2 P. <§• M. 
 cap. 10. . 
 
 Again, notwithstanding that by some former statutes certain of- 
 fences, which were felony before, as wilful burning of houses 
 and poisoning, were made treason, yet the repeal of those [ 291 l 
 acts that made them treason leaves them nevertheless in the 
 state, wherein they before were, namely felony. 
 
 Again, upon consideration and comparison of the 5lh and 6th 
 clauses these things are observable, namely, 1. The wisdom of the 
 law-makers, that put the very same offenses in words spoken in a 
 lower rank of punishment than the same things written or printed, 
 making the former but a misdemeanor in the first offense, which in 
 printing or writing was treason in the first offense. 2. it is observable 
 upon that fifth clause, that there were some things within the fifth 
 clause, that might be treason or an overt-act of treason within the 
 statute of 25 E. 3. {other than such as be expressed in the statute of 
 25 E. 3.) vide quse supra dicta sunt cap. 13. touching the treason 
 in compassing the king's death. 
 
 It is also observable upon the 11th clause, that when an offense is 
 made treason or felony by an act of parliament, and then those acts 
 are repealed, the offenses committed before such repeal, and the pro- 
 ceedings thereupon are discharged by such repeal, and cannot be pro- 
 ceeded upon after such repeal, unless a special clause in the act of 
 repeal be made enabling such proceeding after the repeal, for offenses 
 committed before the repeal, as there is in this case. 
 
 3 «§• 4 Ed. 6. cup. 5. Tho it primarily concerns riots, yet conse- 
 quently it concerns treason also : tiiereby it is enacted,
 
 291 HISTORIA PLACITORUM CORONA. 
 
 1. " That if any persons to the number of twelve or more assem- 
 bled together shall intend, go about, practise or put in ure with force 
 of arms unlawfully, and of their own authority to kill, take or im- 
 prison any of the king's privy council, or unlawfully to alter or 
 change any laws established by parliament for religion, or any other 
 laws or statutes of this realm, and being commanded by the sheriff, 
 justice of peace, mayor, t^-c. by proclamation in the king's name to 
 repair to their houses, if they shall continue together by the space of 
 one, whole hour after such proclamation, or after that shall willingly 
 in forcible and riotous manner attempt to do or put in ure any of the 
 
 things aforesaid ; this shall be adjudged treason in all the 
 [ 292 2 offenders, their aiders, abetters and procurers." See before 
 
 in chapter XIV. concerning levying of war, liow much of 
 this high treason is within the statute of 25 E. 3. 
 
 2. " That if any persons to the number of twelve or more shall 
 intend, go about, practise or put in ure in manner aforesaid to over- 
 throw, cut, break or dig up pales, hedges, ditches or other inclosure 
 of any park, inclosed grounds, banks of pools or fish-ponds, conduits, 
 conduit-heads, or pipes to the same, which may remain open, or un- 
 lawfully to have common or way in the said park or grounds, or to 
 destroy the deer, warrens of conies, dove-houses, fish, or to pull down 
 houses, mills, bays or barns, or to burn stacks of corn or grain, or to 
 diminish the rents or yearly values of any manors, lands, S,'C. or the 
 price of any victuals, corn or grain, or any other thing usual for the 
 sustenance of man, and being required, as before, shall not depart, 
 but continue an whole hour, or shall after that forcibly attempt to do 
 or put in ure the things aforesaid they shall be adjudged felons with- 
 out benefit of clergy." 
 
 T'lde supra cap. 14. which of these offenses were a levying of war 
 against the king. 
 
 3. " That if any person unlawfully and without authority by ring- 
 ing of bells, sounding of drums, trumpet, horn, or other instrument, 
 by firii]g of beacons, by malicious uttering of words, casting of bills 
 or writings, or by any act whatsoever raise or cause to be assembled 
 any persons to the number of twelve, or above, to the intent that they 
 shall do any of the acts aforesaid, who shall not dissolve their assem- 
 bly upon such proclamation within an hour, or shall con'imit any of 
 the said acts, then they, that raise such assemblies, shall suffer as 
 felons." 
 
 4. " If such assemblies to the number of forty, and above, shall 
 continue together two hours, or shall bring weapons, meat, (§'C. to the 
 persons so assembled, it shall be high treason. 
 
 5. If above the nimibor of two and under twelve attempt such 
 things, Ǥ'C. as abovesaid, they are to suffer imprisonment for a year, 
 and make fine and ransom, with treble damages to persons damni- 
 fied. 
 
 6. In the cases of treason within this act tenant in tail is 
 [ 293 3 to forfeit to the king during life only, and tenant in fee simple 
 to forfeit only as upon attainder of felony.
 
 HISTORIA PLACITORUM CORONA. 293 
 
 7. Power is given to the sheriffs, justices, mayor, ^-c. to raise 
 power, and array them in manner of war against the rioters, to the 
 intent to apprehend the rioters; and if the said rioters do not depart 
 upon proclamation hut continue together, it shall be lawful for the 
 sheriff, 4'C. after such commands to kill the rioters; if after such 
 commandment if fortune any of the riotors be killed upon such ac- 
 count, the sheriff, S,'C. or any assembled by him shall thereof be dis- 
 charged: then follows the punishment of those, who refuse to assist 
 the sheriff, or justice in the repression of riots. 
 
 Movers to such riots are guilty of felony without clergy, and per- 
 sons solicited thereunto not revealing it to suffer three months im- 
 prisonment. 
 
 This act being made in a great measure for the support of the re- 
 formed religion under Edward VI. was as to all points of treason 
 therein contained, repealed by 1 Mcir. cap. 1. but in eflect the very 
 same offenses were enacted felonies within clergy by 1 Alar. sess. 2. 
 cap. 12. which was to continue to the end of the next parliament, 
 and after the death of queen Mary was re-enacted by 1 Eliz. cap. 
 16. to continue during her life, and till the end of the next session 
 after her death, but then expired. 
 
 That which I would observe upon this act is this, how careful 
 they were in this time not to be over-hasty in introducing construc- 
 tive treasons, and to shew how the opinions of the parliaments of 
 Edward VI. queen Mary, queen Elizabeth went, as to the point of 
 constructive treason, and how careful they were not to go far in ex- 
 tending the statute of 25 E. 3. beyond the letter thereof 
 
 As to the point of indenmifying those, that killed the rioters in 
 assistance of the sheriff, it is true, that the killing of rioters barely 
 for continuing together after proclamation required a new law to 
 indemnify it, as in the statute is provided; but if rioters resist the 
 sherifi' in his endeavour to apprehend them, or make head against 
 him, or continue to put in ure their riotous acting, as pull- 
 ing down houses, inclosures, d^'C. if the sheriff, or those that [ 294 '\ 
 come in aid of him, kill any of them, the law and the statute 
 of 2 H. 5. cap. 8. do indemnify them, as shall be hereafter more fully 
 declared. 
 
 By 5 «§• 6 ^. 6. cap.W. "If any person by open preaching, ex- 
 press words or sayings do expressly, directly and advisedly set forth 
 and affirm, that the king, that now is, is an heretic, schismatic, 
 tyrant, infidel, or usurper of the crown, or that any his heirs or suc- 
 cessors, to whom the crown is to come by the statute of 35 H. S. 
 being in lawful possession of the crown, is an heretic, schismatic, 
 tyrant, infidel, or usurper of the crown then such person, his aiders, 
 abettors, procurers, counsellors, and comforters knowing the same, 
 shall for the first offense lose their goods and be imprisoned at the 
 king's will, for the second offense, after conviction for the first, lose 
 the profits of their lands and ecclesiastical benefices during their 
 lives, and be perpetually imprisoned, and for the third offense, after
 
 294 HISTORIA PLACITORUM CORONA. 
 
 the second conviction, be adjudged traitors, and lose tlieir lives, and 
 forfeit as in case of high treason. 
 
 " If any person shall by writing, printing, painting, carving, or 
 graving, directly, expressly and advisedly publish, set forth and 
 affirm, that the king, or any his heirs or successors, 4'c. is an heretic, 
 schismatic, tyrant, infidel, or usurper, it shall be high treason, and he 
 shall forfeit as in case of high treason. 
 
 " If any person or persons rebelliously detain the king's castles, 
 or fortresses, ships, ordinance, artillery or fortifications, and do not 
 render them up to the king, his heirs or successors within six days 
 after proclamation under the great seal, it shall be treason, and the 
 offender, his aiders, 4'C. knowing of the said offenses shall suffer and 
 forfeit as in case of high treason. 
 
 " If any the king's subjects commit treason contrary to this act or 
 any other act in force out of the realm, it shall be inquired and pre- 
 sented by twelve men of any county, which the king by commis- 
 sion shall assign, as if committed within the realm, and the like 
 process thereupon, as if done within the realm, and the 
 [^295] outlawry against an offender inhabiting out of the realm 
 shall be as effectual as if he had been resident within the 
 realm. 
 
 " But if he render himself upon the outlawry within a year, he 
 shall be received to traverse the indictment. (a*) 
 
 " Persons attainted of any treason shall forfeit to the king all their 
 lands of any estate of inheritance in their own right at the time of the 
 treason committed, or at any time after. 
 
 " No proceeding shall be on any the offenses aforesaid committed 
 only by preaching or words, unless the offender be accused thereof 
 within three months before one of the king's council, justice of as- 
 sise, justice of peace being of the quorum, or two justices of peace 
 in the shire where the offense is committed : concealment of any high 
 treason, shall be adjudged only misprision of treason, and the offender 
 to forfeit as in misprision of treason. 
 
 "Provided that no person shall be indicted, arraigned, condemned, 
 convicted or attainted for any of the treasons or offenses aforesaid, 
 or for any other treasons, that now be, or hereafter shall be, which 
 shall be hereafter perpetrated, committed, or done, unless the same 
 offender or offenders be therefore accused by two lawful accusers, 
 which said accusers at the time of the arraignment of the party ac- 
 cused, if they be living, shall be brought in person before the party 
 so accused, and avow and maintain that which they have to say 
 against the said party to prove him guilty of the treasons or offenses 
 
 (x) This clause remains, as our author observes below, unrepealed to tliis day, so that 
 it was great injustice to deny tlie benefit of a trial witliin the year to Sir Thomas Arm- 
 stronir, who was out-lawed, while he was beyond sea, 36 Car. 2. and of this opinion 
 was tlie house of commons by their vole Nov. 1!), l()8!i, when it was resolved, that Sir 
 T/wmas Armstrimfi'' s pica ought to have been admitted according- to the statute of 5 t^ 6 
 E. G. see Slate Tr. Vol. III. //. 8!)G. and accordingly the like plea was allowed io.John- 
 soy, who was indicted for counterfeiting the coin, Mich. 2 Geo. 2, B. R. altho he had broke 
 prison, and was retaken in England.
 
 HISTORIA PLACITORUM CORONA. 295 
 
 contained in ihe bill of indictment laid against the party arraigned, 
 unless the party arraigned shall willingly without violence confess 
 the same: a saving of the right of all, other than the offenders and 
 their heirs, or such as claim to their or any of their use: the wife of 
 the party attainted of these or any other treasons shall be 
 barred of dower of the lands of the party attainted, so long [ 296 ] 
 as the attainder stand in force. "[2] 
 
 Upon this statute many things are observable. 1. That it should 
 seem, that neither the writing of these scandalous words, nor the 
 bare detaining of the king's forts or ships were treason within the 
 statute of.25 E. 3. for if they had been such, this act would not have 
 been made. [3] 2. The second thing observable is the great discrimi- 
 nation, which in this act is made between words and writing, the 
 latter being made treason, the former only misdemeanor in the two 
 first offenses, altho the words be the same in both. 3. That so much 
 of this act, as is introductive of new treason, is repealed by the statute 
 of 1 Mar. cap. 1. but whether those two penalties previous to trea- 
 son in case of words, viz. for the first and second offense, be repealed 
 by any statute, seems doubtful, for those are not treason, 4. But 
 those clauses in this statute, that concern trial of foreign treasons, 
 concerning outlawry of persons beyond the sea, forfeiture of lands of 
 inheritance of the party attainted,, loss of dower by the wife of the 
 party attainted, stand unrepealed to this day; and so it is held by 
 many, that the clause concerning two accusers stands still on foot; 
 de quo vide postea. 
 
 Touching the clause for the forfeiture of the lands of the party at- 
 tainted there are these things considerable, 
 
 1. That by this clause tenant in tail of the gift of the king doth by 
 his attainder forfeit his estate-tail, notwithstanding the statute of 
 34 H. 8. cap. 20. for as that statute coming after 26 S,- 33 H. S. did, 
 as to that case, repeal so much of those acts; so this statute of 5 <§' 6 
 E. 6. coining after 34 H. 8, doth repeal that statute, as to the case of 
 attainder of treason of such donee in tail, 
 
 2, That this act varies much from the penning of the acts of 
 26 and 33 H. 8. for they seemed, as hath been observed, to fasten 
 upon lands in right of a corporation sole, as bishop, abbot, 4'C. but 
 this limits it only to lands in their own right, which possibly, tho 
 an affirmative clause, may correct the extent of the statutes of 
 26 and 33 H. 8. and bind up the forfeiture to lands only in their own 
 right. 
 
 As to the point concerning the two lawful accusers these 
 things will be considerable, 1, Whether it extends in law to [ 297 3 
 new treasons made after this act. 2. Whether by any statute 
 
 [2] " I do not find upon looking- over the State Trials that in crown prosecutions any 
 great regard was paid to the acts of Edw. 6. for near a century after they were passed ; 
 or indeed to the common well known rules of legfal evidence. This every man who will 
 do so much penance as to read over Ihc State Trials during the reigns of queen Eliz. and 
 king James, will find to have been the doctrine and practice of the limes." Fosl. 234. 
 
 [3J See ante, p. 146,
 
 297 HISTORIA PLACITORUM CORONiE. 
 
 this be repealed. 3. Admitting it be not, what shall be said two law- 
 ful ascusers. 4. What a confession. 
 
 I. The statute of 5 S,- 6 E. 6. above-mentioned appoints two law- 
 ful accusers in case of all treason enacted or to be enacted; therefore 
 if a new treason were made by a subsequent act of parhament with- 
 out any clause that directs the indictment or trial in any other man- 
 ner than is appointed by 5 <5' 6 E. by the words of this act there 
 must be two lawful accusers, both upon the trial and indictment. 
 
 But there iiave been great opinions, that tho the words of 5 <5' 6 
 E. 6. extends to treasons that shall be hereafter enacted, yet this 
 clause doth not extend in law to such new treasons, unless special 
 provision be made for the same in the act making such new treason: 
 others have been of a contrary opinion, because it only concerns the 
 manner of proceeding, which may be directed by a precedent act, as 
 upon the statute of IS Eliz. cap. 5. 21 Jac. cap. 4. 
 
 II. But certainly, if there be, by a subsequent statute, any deroga- 
 tory clause from this statute, then there need not be two lawful ac- 
 cusers. 
 
 Therefore upon the statutes of 1 <§• 2 P. <§• M. cap. 11. in treason 
 for counterfeiting the coin current here, or for clipping and impairing 
 of coin (which was then conceived a treason not repealed by 1 Mar. 
 cap. 1.) the evidence and course of proceeding at common law both 
 upon the indictment and trial are restored, and so no necessity of two 
 witnesses; this is agreed on all hands. Co. PL Cur. p. 25. 
 
 Again, tho the treason for clipping or wasliing of coin declared by 
 3 H. 5. cap. 6. were repealed by the statute of 1 Mar. cap. I. as is 
 declared by the preamble of the statutes of 5 Eliz. cap. II. and 18 
 E/iz. cap. 1. and that the same is newly made treason by the statutes 
 of 5 and 18 Eliz. and consequently, were there no more in the case, 
 two witnesses might be requisite by the words of the act of 5 S^ 6 
 Ed. 6. because those are newly made treasons, yet by the pennmg 
 of those statutes of 5 and IS Eliz. it is not necessary,, be- 
 [] 298 ] cause the words in both statutes are being' lawfully con- 
 victed or attainted according to the order and course of 
 the law, which takes in the whole proceeding, as well indictment as 
 trial; for the course of law therein mentioned seems to be intended 
 the common law, and at common law there was no necessity of two 
 witnesses in any case of treason. 
 
 And altho the statute of I 4- 2 P. S,-' M. cap. 11. did take clipping 
 and washing to be continuing treasons, and therein might mistake, 
 yet there being an express clause in that statute, that in those cases 
 the evidences at common law should be restored; this direction might 
 take off the statutes of 1 <^' 5 E. G. as to the two witnesses in those 
 cases, and so have an influence upon the statutes of 5 <^' 18 Eliz. or 
 at least may go far in expounding them to restore the evidence 
 required at common law in those cases. 
 
 But wliether, as to all other treasons, the general clause in the 
 statute of 1 <S- 2 P. S^- M. cap. 10. that all trials hereafter to be 
 awarded or ■made for any treason shall be had and used only
 
 HISTORIA PLACITORUM CORONA. 298 
 
 accordins^ to the due order and course of the common laics of this 
 realm and not otherwise, have taken away the necessity of two 
 witnesses upon the indictment, hath been controverted, (^) for on all 
 hands it is agreed, that it takes away the necessity of two witnesses 
 upon the trial, if there were no more in the case. 
 
 My lord Coke in Pla. Cor. p. 25, 26. delivers his opinion, that two 
 witnesses are necessary upon the indictment in case of all treasons, 
 other than those, that are for counterfeiting, clipping, or impairing 
 the coin, and gives many weighty reasons for it, and cites a resolu- 
 tion in 14 Eliz. lord Lumley's case, and 4 Mar. Bro. Corone, 219. 
 for according to him the indictment is a distinct thing from the trial ; 
 therefore the statute of 1 (§' 2 P. d^* M. cap. 10. extending only to 
 the trial doth not take away the necessity of two witnesses upon 
 the indictment,[3] and accordingly the general opinion hath run thus 
 since. (r) 
 
 But yet much is to be alledged, that the statute of 1 «5' 2 
 P. 4' M. cap. 10. extends as well to reduce the indictment, [ 299 ] 
 as the trial, to the course of the common law. 
 
 1. Because it seems to be the intent of the statute to involve the 
 indictment under the general appellation of the trial, according to 2 
 <§• 3 P. (§• M. By. 132. a. and tho it is true, that 1 P. (^- M. T)y. 99, 
 100. in Thomas's case there were two accusers required, yet that 
 was before the statute of 1 c^- 2 P. 4« M. cap. 10, 
 
 2. Because this statute of 1 4' 2 P. (§• M. cap. 10. in other cases 
 extends as well to the indictment, as the trial; it is agreed, that the 
 statute of 33 H. 8. cap. 23. concerning trial of treason in a foreign 
 county, is wholly repealed by 1 4- 2 P. (§• M. cap. 10. quod vide Co. 
 P. C. p. 27. Dy. 132. whereas, if it should only refer to the^rial, 
 the indictment might still be in a foreign county, and so he might be 
 indicted in a foreign county, and yet must be tried in the proper 
 county: vide accordingly resolved H. 12 Eliz. Dy. 286. h. touching 
 the rebels in the North, vvhere Stamford'^s opinion, Lib. III. cap. 
 26.{a) is denied by all the judges of both benches; again, the statute 
 of 33 //, 8. cap. 20. touching the indictment and trial of lunatics in 
 anj^ county the king shall appoint, is repealed by this act of 1 <^' 2 P. 
 £)' M. cap. 10. as well to the indictment as the trial: vide Jlnders. 
 Rep. n. 154. Jlr den's case. (6) 
 
 3. The indictment is in common speech a part of the trial, or at 
 least a necessary incident to it; and it should be necessary to have 
 two witnesses to the indictment, it would consequently be necessary 
 
 (y) See iiTeZ. 9, 18, 40. 
 
 («) 8tate Tr. Vol. ill. p. 56. the case of lord CastJemoin, Ibid. p. 415. earl of Shafts- 
 bury's case; p. 645. lord RusseVs case, p. 733. colonel Sidney's case. 
 {a) S. P. C. p. 90. (6) 1 And. 105. 
 
 [3] This distinction is entirely without foundation even upon the foot of those statutes 
 (the acts of Edw. 6. j( P. Sf M.) But the present act, (7 Will. 3. c. 3. s. 2.) hath not 
 lett room for that distinction. For it enacteth that, " No person shall be indicted, S^c. 
 but upon the oaths of two lawful witnesses," ^c. Post. 23:2. 1 East, P. C. 128.
 
 299 HISTORIA PLACITORUM CORONA. 
 
 to have them upon the trial also; for by the statute of 5 Sr 6. E. 6. 
 cap. 11. the two witnesses, that are upon the indictment, must avow 
 their testimony in the presence of the party upon his arraignment: 
 and it seems incongruous, that a greater evidence should be required 
 to the indictment, which is only an accusation, than to the trial, (c) 
 where the party is to be convicted; therefore, if the statute of 1 4* 2 
 
 /-*. <^\ M. intended to take it away upon the trial, it cannot 
 [ 300 ] be supposed to continue the necessity of two witnesses upon 
 
 the indictment. 
 
 4. There is also a great authority for this opinion: vide the resolu- 
 tion and reason of the judges in Jlrdeix's case, Jinders. Rep. n. 
 154. (fl(), where they resolved, that they could not be indicted in a 
 foreign country upon the statute of 33 H. 8. 23. because the statute 
 1 (5' 2 P. 4' M. cap. 10, restoreth the common law as well in relation 
 to the indictment as the trial, and the trial includes the indictment; 
 and this was by all the justices and barons so resolved, which case 
 is also reported by justice Clench, n. 17. to be 19 Novem. 26 Eliz. 
 Again ibidem n. 28. " Fuit tenus per les justices, que ou le statute 
 de E. 6. est, que inditement de treson sera per 2 testes, & le statute de 
 reine Mary est, que tresons sey try solonc le common ley, que ore 
 inditements sey solonc le common ley; car inditement est parcel de 
 tryal, car nul tryal poet estre sans inditement, and sic fuit in So7ner- 
 ville''s & Jirden''s case. 
 
 5. It hath been the care of the parliaments since in their acts to 
 make provision for two witnesses in cases of treasons newly made, 
 vide statutes 13 Eliz. cap. 1. 13 Car. 2. cap. 1. so that it was thought, 
 that the statute of 5 4* 6 E. 6. was not of force as to the two witness- 
 es, at least as to treasons newly enacted, otherwise in cases of new 
 treasons they needed not these provisions.(e)[4j 
 
 (c) Lord Coke P. C.p. 25. says the greatest proof is most of all necessary at the time 
 of the indictment, because that is the foundation of all the rest, and is commonly found 
 in the absence of the party accused. 
 
 (d) 1 And. 107. 
 
 (e) If it were only questionable, that was reason sufficient for making such provision 
 Vide supra, p. 261. 
 
 [4] At common law, one witness was sufficient in case of treason as well as on any 
 other capital charge. The two witnesses were first required by the 1 Edw.6. c. 12. and 
 the 5^6 Edw. 6. c. 11. The act of 1 <^ 2 P. Sf M. c. 11. excepts persons accused of 
 treasons relating to the coin. The 7 Will. 3. only extends to treasons working corrup- 
 tion of blood, and expressly excludes tlie counterfeiting the coin, seals, &.c. ; only one 
 witness is required in the trial of these offences. 1 Leuch, C. C. 42. The same provision 
 is contained in the 8 Sf ^ Will. 3. c. 26. s. 7. and 6 Geo. 3. c. 53. s. 3. By the 39 Sf 40 
 Geo. 3. c. 93. and 5 tSf 6 Vict. c. 51. where the overt act alleged is an attempt upon the 
 king's life, the party shall be tried as ifi case of murder. The stat. 7 Will. 3. docs not 
 require that each overt act shall be proved by two witnesses, but only that the treason 
 shall be so proved. It cxjjressly declares tliat there shall be either two witnesses to the 
 same overt act, or one witness to one and anotlicr witness to another overt-act of the 
 same species of treason. Fast. 235. 1 East, P. C. 129. But if several overt acts be 
 proved by different witnesses singly, such overt acts must relate to the same kind of 
 treason, otherwise it is insufficient by the express provision of the statute, which in this 
 respect is only dochirntory of vvhiit was the known rule of law betbre. id. 130. See case 
 of the Regicides, Kel. 9. Lord UtaJJ'ord's case, 3 St. Tr. 204. Sir T. Kaym. 407. The
 
 HISTORIA PLACITORUM CORONA. 300 
 
 And thus the reasons stand on both sides, and the these seem to 
 be stronger, than the former, yet in a case of this moment it is safest 
 to'hold that in practice, which hath least doubt and danger; quod 
 duhitas, nefcceris, especially in cases of life;(y) but upon misprision 
 of treason two witnesses are requisite both upon the indictment and 
 trial. Co. Pla. Cor. p. 24. 
 
 III. The third thing considerable in this clause is, what 
 shall be said two lawful accusers within tliis statute, if it be [ 301 ] 
 of force. 
 
 As to the accusers mentioned in the statute of 5 <^' 6 E. 6. cap. 11. 
 they are no other than the two lawful and sufficient witnesses men- 
 tioned in the statute of 1 E. 6. cap. 12. in fine; this is agreed by my 
 lord Coke, PL Cor. p. 25. 
 
 Now what are lawful witnesses in this casei is considerable; the 
 lawfulness of witnesses must respect either, 1. The persons, or else, 
 2. The testimony of the witnesses. 
 
 1. As in relation to the persons of witnesses, those are said law- 
 ful witnesses, which by the laws of England are allowed to be wit- 
 nesses. 
 
 A feme covert is not a lawful witness against her husband (o-) in 
 
 (/) However since our author wrote this matter is in great measure settled by 7 W. 3. 
 cap. 3. whereby it is enacted, "That in all cases of high treason, whereby any corruption 
 of blood, ^c. no person shall be indicted, tried or attainted, but upon the oaths ot two 
 lawful witnesses to the same treason ; but out of this act are excepted all proceedings in 
 parliament, or proceedings for counterfeiting the king's coin, great seal, privy seal, or 
 signet or sign manual. 
 
 {g) Co. Lit. 6. h. 
 
 necessity of two witnesses to prove the treason extends as well to the finding of the bill 
 of indictment by the grand jury as to the trial itself in open court, by the very words of 
 all the acts, " that no person shall be indicted,'''' Sfc, 3 Ins. 25. Fost. 232. 1 East, F. C. 
 128. If one overt act be proved by one witness in the county in which the trial is had, 
 whicl) gives the grand jury jurisdiction to inquire, another overt act of the same species 
 of treason proved by another witness in a different county will make two witnesses 
 within the stat. 7 Will. 3. Case of Jellius, 1 East, P. C. 130. Guvuii's case, 2 .Si. Tr. 873. 
 Though it requires two witnesses to each treason, yet a collateral fact not tending to the 
 proof of the overt acts, may be proved by one. Fost. 240. 'Vaughan^s case, 5 St. Tr. 38. 
 
 By the Constitution, Art. 3. Sect. 3. No person shall be convicted of treason, unless on 
 the testimony of two witnesses to the same overt-act, or confession in open court. The 
 same provision is to be found in the 1st sect, of the act of 30 April, 1790. The provision 
 in the Constitution, that the two witnesses must be to the same overt act, was in conse- 
 quence of a construction which had prevailed in England, that though t#o witnesses 
 were required to prove an act of treason, yet if one witness proved an act and another 
 witness another act of the same species of treason, it was sufficient; a decision which 
 has always appeared to me contrary to the true intention of the law which made two 
 witnesses necessary. Per Iredell, J. Charge to the Grand Jury, Tr. of Fries, 14. When 
 two witnesses are produced, who prove the overt act laid in the indictment, there might 
 be then evidence drawn from otlier cuunties respecting the intention; this is the opinion 
 of Judge Foster, and it is my opinion, id. 174. Two witnesses are necessary on the 
 indictment as well as upon the trial in court. Id. 14. But it was said by Marshall 
 C. J. (1 Burr''s Tr. 142,) that, though "the Constitution declares that two witnesses 
 are necessary to produce conviction; yet it may not be so strictly and absolutely neces- 
 sary to authorise an indictment." The same proof is not required to commit a person 
 for high treason as would be necessary to convict him on a trial in chief id. 11. Serg. 
 on Const. 375. See also Resp. v. ISlCarty, 2 Ball. 86. Judge Wilson's Works, vol. 2. 
 p. 3G4. Davis's Virg. Cr. Law, 56.
 
 301 HISTORIA PLACITORUM CORONA. 
 
 case of treason, yet in lord Casthhaveii's case(A) upon an indiet- 
 ment for a rape upon his lady by another by her husband's preseiit 
 force, she was received as a witness by the advice of the judges, that 
 assisted at that trial, and upon her evidence he was convicted and 
 executed. 
 
 But a woman is not bound to be sworn or to give evidence 
 against another in case of theft, ^'C. if her husband be concerned, tho 
 it be material against another, and not directly against her husband. 
 Dull. cap. \\\.{i) 
 
 Upon an indictment upon the statute of 3 H. 7. cap. 2. for taking 
 away forceably and marrying a woman, the woman so married may 
 be sworn against her husband, that so marries her, if the force were 
 continuing upon her till the marriage: and thus it was done in the 
 case of lady Fulivood, M. 13 Car. 1. B. R.Croke{k) and accordingly 
 seriatim resolved by all the judges of the king's bench lately in the 
 case of Brown, Trin. 25 Car. 2.{l) for these reasons: 1. Because 
 otherwise the statute would be vain and useless, for possibly all that 
 were present were of the offender's confederacy. 2. The marriage, 
 tho a marriage de facto, yet if it were effected by a contimied act of 
 force, was not a marriage de jure, for it was dissolvible by 
 r 302 1 divorce, unless ratified by a subsequent free cohabitation or 
 consent. But 3dly and principally, because it was fla- 
 grante crimine, for the child was taken away upon the Thursday, 
 married the Friday, and seized by the guardian the next day, before 
 they had lain together, and the force was all that while continuing 
 upon her. 4. There were other witnesses, that proved the first taking 
 away by force against the child's will, tho there were no witnesses 
 to prove the marriage forceable but herself, who expressly swore, 
 that she was married against her will; upon all which circumstances 
 it was ruled, that she should be examined in evidence, and the credi- 
 bility of her testimony left to the jury ; but most were of opinion, that 
 had she lived with him any considerable time, and assented to the 
 marriage by a free cohabitation, she should not have been admitted 
 as a witness against her husband; he was convicted and had judg- 
 ment of death, and was executed. [5] 
 
 Regularly an infant under fourteen years is not to be examined 
 upon his oath as a witness; but yet the condition of his person, as 
 if he be lintelligent, or the nature of the fact may allow an exami- 
 nation of one under that age,(m) as in case of witchcraft an infant 
 
 (//) Hut. 115. Rush. Collect. Vol. II. p. 93-101. State Tr. Vol. I. p. 366. 
 
 (i) N. Edit. cup. 1G4. p. 540. 
 
 {k) Cio. Car. 482, 484, 488, 492. the like was done in the case of Haagen Swendsen, 
 Mich, 1 Ann. B. R. Stale Tr. Vol. V.p. 453. 
 
 (/) 1 Ven. 243. 3 Keb.VJ'S. 
 
 (m) By the laws of Ina a child ten j'ears old was allowed to be a witness in theft. 
 Vide L L. Ina. I. 1. 
 
 [5] As to the competency of luibsand and wife to five evidence for or against each 
 other, see Roscoe; Cr. Ev. (Mr. Sharswood's Edition,) 112.
 
 HISTORIA PLACITORUM CORONiE. 802 
 
 of nine years old has been allowed a witness against his own mother. 
 Dalton.{n) 
 
 And the like may be in a rape of one under ten years upon the 
 statute of IS Eliz. cap. 6. and the hke hath been done in case of bug- 
 gery upon a boy upon the statute of 25 H. 8. cap. 6. 
 
 And surely in some cases one under the age of fourteen years, if 
 otherwise of a competent discretion, may be a witness in a case of 
 treason: vide qnse snpra dixi,p. 26. 
 
 A man concerned in point of interest is not a lawful accuser or 
 witness in many cases, the party to an usurious contract, cannot be 
 a witness to prove an usurious contract, upon an information, if the 
 money be not paid, for he swears to avoid his own debt or 
 security ;(o) but if the money be paid he may be a witness [303'] 
 to prove it, where another informs, for he is to gain nothing. 
 
 And therefore if any man hath the promise of the goods or lands 
 of the party attainted, he is no lawful witness to prove the treason. 
 
 A person outlawed in trespass is nevertheless a lawful witness, but 
 no lawful juryman or indicter in case of felony or treason. Sir Wil- 
 liam fVilhipoPs case.(/?) 
 
 A father or son or adversary in a suit is a witness for or against 
 a person accused of any crime, yet not always a competent jury- 
 man. 
 
 A pariiceps criminis is in some cases a lawful accuser within this 
 statute, in some cases not. 
 
 An approver shall be sworn to his appeal, Stamf. Pla. Cor.;(cf) 
 but it seeins, that he shall not be a witness upon the trial, if the party 
 accused put himself upon his country, because, if he fail in proving 
 the party guilty, he shall be hanged. 
 
 In Sir Percy Cresbi/^s case, P. 19 Jac. Nor/e's Pep. p. 154, placiio 
 676. in Camera Stellald, if two defendants be charged for a crime, 
 one shall not be examined against the other to convict him of an 
 offense, unless the party examined confess himself guilty, and then 
 he shall be admitted. 
 
 9 Dec. 15 Car. 2. at Newgale, Henry Trew was indicted of burg- 
 lary, and by advice of Keeling chief justice, Broivn justice, and 
 IVilde recorder, Perrin that was in goal for two other robberies, and 
 confessed himself to be in this burglary, was sworn as a witness 
 against Trew, but he was not indicted of the burglaries or robberies. 
 Ex libro Bridgman. 
 
 10 Bee. 1662. Tonge, Philips, and others(r) were indicted for 
 treason for compassing the king's death, the question was, whether 
 those, that were parties in the compassing, which were not yet par- 
 doned, nor indicted, might be prodliced as witnesses, namely Biggs 
 and others; and upon conference with all the judges these points 
 were resolved. 
 
 (71) Dalt. Just. N. Edit. p. 541. (7) Lib. II. cap. 56. p. 145. a. 
 
 (0) Co. Lit. 6. h. (r) Keel. 17. State Trials, Vol. 11. p. 488. 
 
 ip) Cro. Car. 134. 147. TV. Jones 198.
 
 304 HISTORIA PLACITORUM CORONA. 
 
 1. That the party to the treason, that confessed it, may be 
 r 304 ] one of the two accusers or witnesses in case of treason, for 
 the statute intended two such witnesses, that were allowable 
 witnesses at common law, and so may a particeps criminis be ad- 
 mitted as a witness, and was admitted to give evidence to the jury; 
 but the jury may, as in other cases, consider of the evidence and 
 credit of the witnesses, but he is sufficient to satisfy the statute. 
 
 2. That the confession before one of the privy council or a justice 
 of the peace being voluntary made without torture is sufficient as to 
 the indictment or trial to satisfy the statute, and it is not necessary, 
 that it be a confession in court; but the confession is sufficient, if 
 made before him that hath power to take an examination. [6] 
 
 3, The king having promised a pardon to Riggs, if he would dis- 
 cover the plot, he performed that part by his discovery; and this was 
 held by all no impediment to his testimony, for the promise was not 
 
 [6] Though the modern cases are contradictory, none of them have followed to its 
 full extent the doctrine of this resolution. On the trial of the rebels in 1746, the judges 
 admitted the confessions of the prisoners to be given in evidence against them upon 
 proof by two witnesses. Fost. 10. Greg^s case, I East. P. C. 134. At a conference pre- 
 paratory to the trial of Francia, in the year 1716, it was agreed that the confession 
 which the acts of Edw. VI. intended to except, was only a confession upon the arraign- 
 ment of the party, which amounts to a conviction; that the design of those acts was 
 merely to prevent any other confession from operating as a conclusion and absolute con- 
 viction ; but that in all cases the confession of a criminal may be given in evidence 
 against him ; and that in case of treason, if such confession be proved by two witnesses, 
 it is proper evidence to be left to a jury. Id. 133. Fost. 241. In Willises case, 8 St. Tr. 
 250. a witness was called to prove what the prisoner said to him touching the share he 
 had in the treason; it was objected that no confession, unless it be made in open court, 
 ought to be admitted; but the judges were clear that such a confession was admissible, 
 and would go in corroboration of other evidence to the overt acts. Though it might be 
 still a disputable point, whether a confession out of court proved by two witnesses, was 
 of itself sufficient to convict. Upon this point Ward, C. B. observed, "a confession 
 shall not supply the want of evidence, tliere must be still two witnesses to the treason. 
 But to say it sliall not be given in evidence, there is no ground for it." And the Sol. 
 Gen. Sir Robert Eyre, admitted that the prisoners should not be convicted on a trial, with- 
 out two lawful witnesses, that was the thing provided for. That it was to exclude a 
 precedent that liad been settled in Tongas case, but it was not designed to exclude all • 
 confessions. That they were evidence at law and always must be so. That tiie design 
 of the act was to exclude confessions from having the force of a conviction, unless it 
 were in a court of record ; and to prevent a confession proved by two witnesses from 
 being a suflicient ground (or a conviction. See Vaughaii's case, 5 St. Tr. 38. Salk. 634. 
 Case of (S/HJ^//, alius May, Fost. 242. In Berwick's case, Fost. 11. Lord C. J. Willie Sf 
 Mr. J. Abnc)/ thought that a confession after the fact proved by two witnesses, was suffi- 
 cient to convict under the 7 Will. 3. Foster, J. doubted; he was clear that it might be 
 given in evidence as a corroborating proof His doubt was, whether it being proved by 
 two witnesses, is a conclusive evidence, or an evidence sufficient of itself to convict with- 
 out otlier proof; since the 7 Will. 3. seems to require two witnesses to overt acts, or a con- 
 fession in open court. The words "open court" are omitted in both of the acts of Edw. 
 VI.; they were inserted in the 7 Will. 3* in order to carry the necessity of two wit- 
 nesses to the overt acts furtlier than the statutes of Edw. VI. were tliought to carry it. 
 Fost. 240. see 1 East, P. C. 131 et seq. 
 
 The Constitution, Art. 3. Sect. 3. and Sect. 1. of the act of 30 April, 1790, require the 
 confession to bo made in open court. It was held in the Tr. of Fries, 171, 176, 206, 
 that the confession of the prisoner, althougli proved by two witnesses, if made out of 
 court, is not of itself sufficient to convict; though it might be received as corroboratory 
 proof of the intent or quo animo; or by way of confirniiition of wiiat has been before 
 sworn to. See Resp. v. Roberts, 1 Dull. 40. Resp. v. McCurty, 2 id. 86.
 
 HISTORIA PLACITORUM CORONA. 304 
 
 applied to witnessing against any other; but two justices(.9) held, that 
 if the king promised a pardon upon condition, that he would witness 
 against any others, and that being acknowledged by Bi<rgs when he 
 he took upon him to give evidence, <5'C. that will make him uncapa- 
 ble to give evidence, because he swears for himself:(/) but in this 
 point the greater number were of a contrary opinion, (z/) ex libro 
 Bridfjrriian verbaiim,and I remember the consultation and resolution 
 accordingly. 
 
 And accordingly at the sessions of Newgate 1672. Mar?/ Price 
 was convicted of treason in clipping the current money of England 
 by the testimony of those, that were participes criminis,{x) namely 
 Throgmorton and others, who brought her broad money upon allow- 
 ance of lOl. per Cent, and carried off the dipt money into their mas- 
 ter's cash. 
 
 The like conviction was in the same year of Hyde and 
 others of robbery upon the highway by one that was a party f 305 1 
 in the robbery, but not indicted. 
 
 But in these and the like cases, 1. The party that is the witness, is 
 never indicted, because that doth much weaken and disparage his 
 testimony, but possibly not wholly take away his testimony. 2, And 
 yet, tho such a party be admissible, as a witness in law, yet the cre- 
 dibility of his testimony is to be left to the jury, and truly it would 
 be hard to take away the life of any person upon such a witness, that 
 swears to save his own, and yet confesseth himself guilty of so great 
 a crime, unless there be also very considerable circumstances, which 
 may give the greater credit to what he swears. 
 
 If./?. B. and C. be indicted of perjury on three several indictments 
 concerning the same matter, ^. pleads not guilty, B. and C. may be 
 examined as witnesses for ./?. for yet they stand unconvicted, altho 
 they are indicted, 19 Car. 1. B. JR. Bilmore's case. 
 
 By the statute of 1 4* 2 P. Sc M. cap. 14. justices of peace ought 
 to examine the party and take informations touching offenses brought 
 before them, and certify them at the next goal-delivery. 
 
 Tho jnstices of peace cannot hear and determine treason by virtue 
 of their commission of the peace, no nor take an indictment of it, yet 
 they may take examinations and informations touching such offense 
 of the party brought before them, and certify them according to that 
 statute; and those informations taken upon oath, as they ought to be, 
 and sworn to, by the justice or his clerk, that took them, to be truly 
 taken, may be read in evidence against the prisoner, if the informant 
 be dead, or not able to travel, and sworn so to be; yea by some opi- 
 nion, if he were bound over and appear not, they may be read, which 
 seems to be questionable. 
 
 (si These were our author and J. Brown. 
 
 it) Vide postea part. 2. cap. 27. 
 
 («) Of this contrary opinion was the court in the case of Christopher Layer, Mich. 
 9 Geo. I. B. R. State Tr. Vol. VI. p. 259. 
 
 (x) But it does not appear in this case, whether they were promised a pardon or note 
 the like resolution was in the case of Joseph Clark for coining 16 Car. 2. see Kel. 33. 
 but in that case the witness had actually obtained a pardon. 
 VOL. I. 31
 
 305 HISTORIA PLACITORUM CORONA. 
 
 And in such case information upon oath taken before justices of 
 the peace of one county may be transmitted before justices of goal- 
 delivery of that county, where the otfense was committed, viz. if the 
 otfender were brought before that justice; qusere tamen^ be- 
 \_ 306 ] cause the offense was out of his jurisdiction; yet vide Bait, 
 cap. 111. jo. 299. accordant. [y) 
 
 He, that hath a remainder expectant upon an estate tail, shall not 
 be allowed as a witness, and so ruled, but a disseisor may be a wit- 
 ness to a deed made to the tenant. 12 Ass. 12. 
 
 Mich. 1652. A commission issued to examine the validity of a 
 marriage supposed to be done by force, and upon that a divorce was 
 had: an indictment was against Welsh, that married the woman, the 
 depositions in the cause of divorce were offered to prove the force, 
 but rejected, because in a suit of another nature and jurisdiction, 
 Welsh's case. 
 
 A man convict of conspiracy, perjury, or forgery is not a lawful 
 witness. Crornpf. de pace regis 127. b. Dalt. cap. lll.(z) but if he 
 be pardoned, it seems he may be a witness. 
 
 And thus far concerning the capacity or incapacity of the wit- 
 nesses. 
 
 2. In relation to the manner of their testimony, the opinion in 
 Dyer of a witness by hearsay 1 Mar. Dy. 99. b. was rejected by all 
 the judges in the lord Lumly^s case, H. 14. Eliz. Co. Pla. Cor. 25. 
 but if it be a hearsay from the offender himself confessing the fact, 
 such a testimony upon hearsay makes a good witness within the 
 statute. 
 
 Tho information upon oath taken before a justice of peace may 
 make a good testimony to be read against the offender in case of 
 felony, where the witness is not able to travel, yet in case of treason, 
 where two witnesses are required, such an examination is not allow- 
 able, for the statute requires, that they be produced upon the arraign- 
 ment in the presence of the prisoner to the end that he may cross 
 examine them. [7] 
 
 iy) N. Edit. cap. 1 64. p. 544. (z) p. 542. 
 
 [7] By the Act of 7 ^ 8 Will. 3. c. 3. s. 8. no evidence shall be admitted or given of 
 any overt act that is not expressly laid in the indictment. This does not prevent overt 
 acts not laid from being- given in evidence, if they be direct proof of any of the overt 
 acts which are laid. R. v. Rookwood, 4 St. Tr. 661. 697. Holt, 683. also, 4 St. Tr. 722. 
 731. 6 id. 282. Fost. 9. 22. 245. R. v. Watson, 2 Stark, n. P. 134. The evidence must 
 be applied to the proof of the principal treason; for the overt act is the charge to which 
 the prisoner must apply his defence. And whether the overt act proved be a sufficient 
 overt act of the principal treason laid in the indictment, is matter of law to be deter- 
 mined by the court. ^4rc^. C. P. 461. If any overt act be proved against the prisoner 
 in the proper county, acts of treason tending to prove such overt act, though done in 
 another county, may be given in evidence. Fost. 9. 22. 4 St. Tr. 627. 655. 6 id. 292. 
 
 8 id. 218. 9 id. 558. 580. 8 mod. 91. 1 East, P. C. 125. Resp. v. Malin, 1 Dull. 35. 
 1 Burros Tr. 48. If tlie treason consist of a conspiracy, any act of the defendant's 
 accomplices, done in furtlierance of the common design, although not laid as an overt 
 act in the indictment, may be given in evidence, provided it be direct proof of an overt 
 act laid. R. v. Hardy, 1 East, P. C. 98. R. v. Stone, 6 T. R. 527. Lord LovaVs case, 
 
 9 St. Tr, 670. When several overt acts are laid, proof of any one of them will main-
 
 HISTORIA PLACITORUM CORONA. 306 
 
 And thus much concerning the statutes in the time of Edward VI. 
 and evidence upon indictments, I shall only add this. 
 
 In civil actions, as trespass against Ji. B. and C. if no evidence be 
 given against any one to prove him guilty, he may be examined on 
 the part of the defendant, and stands as a competent wit- 
 ness ; and I see no reason, why if two or three persons be [ 307 ] 
 indicted, and no evidence given against one or more of them, 
 but that he may be a witness for the other; but otherwise it is, if 
 there be but a colourable evidence against him.(t) 
 
 (t) Our author should here have proceeded to his fourth g'eneral head, and have 
 shown, what would be a confession within this statute of 5 S^ 6 Ed 6. caip. 11. but proba- 
 biy he thought that sufficiently done by the second resolution in Tonge'i case mentioned 
 by him, f. 304. 
 
 CHAPTER XXV. 
 
 CONCERNING TREASONS DECLARED AND ENACTED FROM 1 MAR. TILL 
 THIS DAY, VIZ. 13 CAR. 2. 
 
 I COME to the statutes concerning treason in the times of queen Marr/y 
 queen Elizabeth, and so downwards. 
 
 The first statute in this period is 1 Mar. cap. 1. consisting of three 
 clauses. 
 
 1. "That no act, deed or offense being by act of parliament made 
 treason, petit treason, or misprision of treason, by words, writing, 
 cyphering, deeds, or otherwise whatsoever, shall be taken, had, 
 deemed, or adjudged to be high treason, petit treason, or misprision 
 of treason, but only such, as be declared and expressed to be treason, 
 petit treason, or misprision of treason, in or by the act of parliament 
 of 25 E. 3. touching treason or the declaration of treasons, and none 
 
 tain the count, provided the overt act so proved is a sufficient overt act of the species of 
 treason charged in the indictment. Post. 194. If the evert act be laid with circum- 
 stances not necessary to constitute the act of high treason, tfiey need not be proved, but 
 may be regarded as surplusage. LowicWs case, 4 St. Tr. 72'2. When words of incite- 
 ment have reference to an act, after giving evidence of the words, you may give evi- 
 dence of the act, in order fully to explain them. R. v. Lord George Gordon, Doitgl. 590. 
 The intention may possibly be gathered at the place where the act was committed, or it 
 may not; if not, evidence is admissible to prove it elsewhere. Tr. of Fries, 175. In 
 order to maintain a count for levying war, evidence must be given to prove a war 
 actually levied, and not merely a conspiracy to levy war. 1 Hawk. c. 17. s. 27. The 
 fact that the persons adhered to being enemies, may be proved by the proclamation of 
 war; or public notoriety is sufficient evidence of it. Fost. 219. The time at which the 
 overt acts are alleged to have been committed need not be proved as laid; it is enough 
 if they be proved to have been committed at any time within three years before the 
 finding of the indictment. R, v. Charnocic, Salk. 288. R. v. Lord Balmarino, 9 St. Tr. 
 589. R, V. Townly. Fost. 7. 1 East, P. C. 125. On motion to commit, no evidence of 
 a treasonable intent will be received, till the fact of treason having been committed is 
 first proved; but it is otherwise on the trial of an indictment for treason. 1 Burros 96. 
 469. See 1 East, P. C. 96. 115. Tucker's Bl. Com. Apdx. 41. Fost. 362. Datis' Virg. 
 C. L. 56.
 
 807 HISTORIA PLACITORUM CORONA. 
 
 other, nor that any pains of death, penalties, or forfeitures in any 
 wise ensue or be to any offender or offenders for doing or committing 
 any treason, petit treason, or misprision of treason, other than such 
 
 as be in the said act ordained and provided, any statute made 
 [308]] before or after the said 25th year of Edward III. or any 
 
 declaration or matter to the contrary notwithstanding. 
 
 2. "That no advantage be given by this act to any person arrested 
 or imprisoned for treason, petit treason, or misprision of treason 
 the last day of September last past, or heretofore indicted or out- 
 lawed, or attainted of treason, &;c. or excepted out of the queen's 
 pardon. 
 
 3. " That all offenses made felony, or appointed to be within the 
 case oi jirxmunire by any statute since the first day of the first year 
 of king Henry VIII. (not being felony or within the case oi prsemu- 
 nire before) and all and every branch, article, clause mentioned or 
 declared in the same statutes concerning making of any offense 
 felony, or within the case o{ prseniunire, and all pains and forfeitures 
 concerning the same, or any of them, shall be from henceforth void 
 and repealed." 
 
 This excellent law at one blow laid flat all those numerous trea- 
 sons, misprisions, &c. at any time enacted since 25 E. 3. and all 
 felonies and prxmunires enacted in or after 1 //. 8. 
 
 As touching the first of these. 
 
 1. Hereby all those numerous treasons newly enacted in any for- 
 mer king's time since 25 E. 3. a catalogue of most of which is before 
 given, are wholly taken away. 
 
 2. Hereby all those treasons, that were declared treasons, so far 
 forth as those treasons had their strength from such declarations, and 
 were not really within the statute of 25 E. 3. are wholly taken 
 away, and left purely to be determined according to the statute 
 of 25 E. 3. and so far forth and no farther, than that statute war- 
 ranteth. 
 
 And therefore the declaration of 3 R. 2. touching the killing of an 
 embassador, namely Jo/ui Imperiall, the declaration of 3 H. 5. con- 
 cerning clipping and impairing of coin, the declaration of Moriimer's 
 treason in breaking prison 2 H. 6. and all others of that kind are 
 now wholly put out by this statute, Coke upon the statute de fran- 
 genlihus prisonam,{a) tho it is true, that it appears by 1 8^ 
 [ 309 ] 2 P. (§• M. cap. 11. they thought that clipping and impair- 
 ing of money had remained treason by the declarative law of 
 3 H. 5. but the statute of 5 Eiiz. cap. 11. hath declared the contrary, 
 and put that out of question. 
 
 3. But it repeald not the forfeitures for old treasons, tho those 
 forfeitures were enacted by statutes made after 25 E. 3, and there- 
 fore the forfeiture of estates-tail for treason given by 26 H. 8. con- 
 tinues notwithstanding this statute, Co. P. C. p. 19. and so it was 
 resolved by all the judges of England m the lord Sheffield's case,(*) 
 
 (a) 2 Co. Instil. 590. (*) Palm. 351. W. Jones, 69.
 
 HISTORIA PLACITORUM CORONA. 309 
 
 Stamf. 1S7. b. \2 Eliz. Dy 2S.9. the reason is before given, cap. 23. 
 /?. 241. for the relation of the repealing clause is only to treasons 
 not contained in 25 E. 3. not io forfeitures not contained in 25 E. 3. 
 for indeed 25 E. 3. creates no forfeitures, but only declares what the 
 common law was, and enacts no farther touching forfeitures. 
 
 4. But this act did not meddle with those new laws, that directed 
 special proceedings, trials, S,-c. or other matters of that nature relating 
 to treason, but that was done after by 1 <§• 2 P. 4' M. cap. 10. de quo 
 postea. 
 
 5. The preamble is very considerable, which takes notice of the 
 severity of former statutes, that made words only without other fact, 
 or deed, to be high treason, which was one of the causes of this 
 general repeal. 
 
 Touching the second clause, as is before observed in the precedent 
 chapter, the repeal by 1 Mar. had discharged all offenses committed 
 before that repeal against the statutes repeald, if it had not been 
 specially provided to the contrary by the proviso of this act touching 
 persons formerly indicted. 
 
 Now as to the third clause, it also took away all new felonies 
 made since the first day of the reign of Henri/ VIII. but whether 
 either of these clauses of repeal did take away those previous 
 punishments, which for the first offense was made forfeiture of 
 goods, and the second or third offense made treason, whether, I 
 say, this statute took away those penalties, which were less than 
 felony or treason in the first or second offense, or only those punish- 
 ments which were "made treason or felony, may be a ques- 
 tion ; as for instance, that of 1 E. 6. cap. 12. the 5th clause, [310 J 
 which makes certain offenses by words punishable with for- 
 feiture of goods for first offense, loss of profits of lands for second 
 offense, and treason for the third offense; whether this statute ex- 
 tends to successors, and (tho the penalty of treason for the third 
 offense be repeald by this act) whether the penalties for the first and 
 second offenses be repeald, seems to me doubtful ; I rather think 
 they are not. 
 
 And now this act having laid all former new treasons, felonies, 
 and misprisions flat, and reduced all to the standard of 25 E. 3. the 
 necessity of state and public peace puts the queen and her parlia- 
 ment nevertheless to begin new provisions. 
 
 1 Mar. sess. 2 cap. 6. " If any person shall falsely forge or coun- 
 terfeit any such kind of coin of gold or silver, as is not the proper 
 coin of this realm, and is or shall be current within this realm by the 
 consent of the queen, her heirs or successors, or if atiy person do 
 falsely forge or counterfeit the queen's sign manual, or privy signet, 
 or privy seal, then every such offense shall be adjudged high treason, 
 and the offenders, their counsellors, procurers, aiders and abetters 
 judged traitors against the queen, her heirs and successors, and suffer 
 and forfeit as in high treason." 
 
 Concerning this statute much hath been said before. 
 
 1. It is a perpetual act, and not personal only to the queen, for as
 
 810 HISTORIA PLACITORUM CORONA. 
 
 the word king may include a successor, so the word queen may in- 
 ckide a succeeding king or queen, and that it was so intended here 
 is apparent by the words in the conchision shall be adjudged traitors 
 against the queen, her heirs and successors ; and accordingly it hath 
 been often resolved. 
 
 2. That the foreign coin (the counterfeiting whereof is made trea- 
 son by this act) must be such, as is so made current by proclamation, 
 for by the statute of 17 ^. 2. cap. 1. foreign coin is not to run in 
 payment in England, and therefore there must be an act under the 
 great seal, as all proclamations ought to be, before it can be current 
 within this statute: vide accordant statut. 5 Eliz. cap. 11. and 18 
 EUz. cap. 1. 
 
 3. It must be a counterfeiting of that foreign coin, which 
 fSll ] is stamped in gold or silver, viz. the greatest part gold, or 
 the greatest part silver, for denominatio fit a tnajore parte; 
 therefore if there be a foreign coin of copper, or brass and copper, it 
 is not within this statute, but it is not necessary, that the counterfeit 
 of it must be gold or silver, for if that be copper gilt, or alchymy 
 after the similitude of foreign coin of gold or silver, it is within this 
 act, because the prototype is a coin of gold or silver. 
 
 1 Mar. sess.2. cap. 12. The act against riotous assemblies is the 
 very same in substance with that of 3 <S' 4 E. 6. cap. 5. only changing 
 treason into felony within clergy, and nota bene the power given to 
 suppress such assemblies by force, and indemnifying the suppressors, 
 tho some of the rioters be killed : this act was continued by 1 Eliz. 
 cap. 16. during that queen's life, and till the neit session after, and 
 then expired.(^) 
 
 1 4* 2 P. 4' M. cap. 3. " If any person shall maliciously and of his 
 own imagination speak any false, seditious and slanderous news, 
 rumors, sayings, or tales, of the king or queen, then the person being 
 convict and attainted, as in the act is expressed, shall be set upon the 
 pillory and have both his ears cut off, unless he pay one hundred 
 pounds, and suffer three months imprisonment; and if it be of the 
 reporting of any other, then to stand on the pillory and lose one of 
 his ears, unless he pay one hundred marks within one month after 
 judgment, and suffer one month's imprisonment. 
 
 "And if any shall maliciously devise, write, print, or set forth any 
 writing containing any false matter of slander, reproach, or dishonour 
 to the king or queen, or to the encouraging, stirring or moving of any 
 insurrection or rebellion within this realm or the dominions thereof, 
 or shall procure the same to be written, printed, or set forth (the said 
 offense not being punishable as treason within the statute of 25 E. 3.) 
 the offender shall for the first offense have his right hand stricken off. 
 " The second of any of these offenses after a former con- 
 r 312"] viction is made punishable with loss of goods and perpe- 
 tual imprisonment: justices of assise, ^-c. shall have power 
 
 (b) But a new act to much the same purpose was made, 1 Geo. 1. cap. 5. which is 
 perpetual.
 
 HISTORIA PLACITORUM CORONA. 312 
 
 to hear and determine offenses, 8,-c. and to commit persons suspected 
 withont bail; no person impeachable for words, unless convict within 
 three months after the offense : peers to be tried by their peers." 
 
 Upon this act these things are observable: 1. That the law-makers 
 did not take seditious words to be within the statute of 25 E. 3. for 
 then they would have added the same clause as in the other case, 
 viz. (not beiyig treason ivithin the statute of 25 E. 3.) Again, 
 2. That they did take it, that some seditious writings might be trea- 
 son within the statute of 25 E. 3. for it is an overt-act, as hath been 
 formerly observed.(t) 3. That as some writings exciting insurrec- 
 tion might be treason within the statute of 25 E. 3. so some writings, 
 that might possibly by construction have the same effect, might not 
 be within that statute, for the law-makers cannot be supposed to 
 intend to make any thing, that was treason within the statute of 
 25 E. 3. to be less than treason; and by consequence and consequen- 
 tial illation many things might by a witty advocate be construed and 
 heightened to be to move insurrection and rebellion, which imme- 
 diately, and in their own nature, nor in the intention of the writer, 
 were never so intended; this statute died with the queen, but was 
 revived 1 Eliz. cap. 6. during that queen's life. 
 
 1 4' 2 P. 4' M. cap. 9. " If any by express words or sayings have 
 prayed, or shall pray, that God would shorten the queen's life, or 
 take her out of the way, or any such like malicious prayer amount- 
 ing to the same effect, they, their procurers and abetters shall be 
 adjudged traitors. 
 
 "But as to any the offenses aforesaid perpetrated during that ses- 
 sion of parliament, if the offenders shall show themselves penitent 
 upon their arraignment, no judgment of treason shall be given against 
 them, but a lesser punishment may be inflicted." 
 
 So that they took not this to be a treason within the 
 statute of 25 E. 3. neither is it thought to be a very great [313 3 
 offense, for it is an appeal to God, who we are sure is not 
 moved by such wishes and prayers contrary to his own command, 
 Thou shalt not curse the ruler of thy people, Exod. xxii. 28. 
 
 \ Sc 2 P. 4* M. cap. 10. consisteth of several remarkable clauses. 
 
 1. "If any during the marriage between the king and queen shall 
 imagine to deprive the king from having jointly with the queen the 
 style, honor, and kingly name of the realms and dominions belonging 
 to the queen, or to destroy the king during the matrimony, or to 
 destroy the queen, or the heirs of her body, being kings or queens 
 of this realm, or to levy war within the realm or marches of the 
 same against the king during the marriage, or against the queen or 
 any of her said heirs, kings or queens of this realm, or to depose the 
 queen or the heirs of her body kings or queens of this realm from 
 the imperial crown of this realm, and the said compassings malicious- 
 ly, advisedly and directly shall utter by open preaching, express 
 words or sayings, or if any person by express words shall maliciously, 
 
 (t)i>.112.
 
 313 HISTORIA PLACITORUM CORONA. 
 
 advisedly, and directly declare or publish, that the king during the 
 marriage ought not to have jointly with the queen the style, honor 
 and kingly name of this realm, or that any person, being neither the 
 now king or queen, during the marriage between them ought to have 
 the style, honor and kingly name of this realm, or that the now queen 
 is not, or of right ought not to be queen of this realm, or after her 
 death the heirs of her body, being kings or queens of this realm, 
 ought not so to be or to enjoy the same, or that any person, other 
 than the queen during her life, or after death, other than the heirs of 
 her body, as long as one of the heirs of her body, shall be in life, 
 ought to be queen or king of this realm, then every such offender shall 
 lose to the queen all his goods and chatties, and forfeit the issues of 
 his lands during his life, and have perpetual imprisonment; the 
 second offense after a former conviction shall be treason. 
 
 2. " And if any by writing, printing, overt-act, or deed 
 (]314] shall maliciously, advisedly and directly utter the things 
 aforesaid, then they, their abetters, procurers, counsellors, 
 aiders, and comforters knowing the said offense to be done, and 
 being thereof convicted and attainted by the laws and statutes of 
 this realm, shall be adjudged high traitors, and forfeit their goods, 
 lands and tenements to the queen, her heirs aud successors, as ia 
 case of high treason. 
 
 3. " Provision for the government of the qiieen's children. 
 
 4. " If any person, during the time that the king shall have the 
 ordering of the queen's children, shall compass to destroy the king, 
 or to remove him from the government of the said children, it 
 shall be treason. 
 
 5. " That all trials hereafter to be had, awarded or made for any 
 treason, shall be had and used only according to the due order and 
 course of the common laws of. this realm, and not otherwise, saving 
 to all persons, (other than the offenders and their heirs, and such: 
 persons as claim to any of their uses,) all such rights, titles, interests, 
 possession, leases, 4*c. which they had at the day of the committing 
 of such treasons, or at any time before, as if this act had never been 
 made. 
 
 6. " Concealment of any high treason shall be adjudged only mis- 
 prision of treason, and to forfeit and suffer as in case of misprision 
 notwithstanding this act. 
 
 7. " Trial by peers is saved in treason or misprision of treason. 
 
 8. " None to be impeached for words, unless indicted within six 
 months after the offense. 
 
 9. " Witnesses examined to or deposing any treasons in this act, 
 or at least two of them shall be brought forth before the party 
 arraigned, if he require the same, and say openly in his hearing 
 what they can say against him concerning the treasons in the indict- 
 ment, unless the party arraigned shall willingly confess the same 
 upon his arraignment. 
 
 10. " In all cases of high treason concerning coin current 
 £315 3 within this realm, or counterfeiting the king's or queen's
 
 HISTORIA PLACITORUM CORONA. 315 
 
 signet, privy seal, great seal, or sign manual, such manner of trial, 
 and no other, shall be observed and kept, as heretofore hath been 
 used by the common laws of this realm, any law, statute or other 
 thing to the contrary notwithstanding. 
 
 " The counsellors, procurers, comforters, and abetters for the first 
 offense to suffer as tfie principal in the first offense, and procurers, 
 comforters and abetters for the second offense to forfeit as the princi- 
 pal in the second offense." 
 
 This statute for so much as concerns the forfeiture or punishment 
 inflicted for words, S,^c. and likewise the treasons newly enacted was 
 but temporary, and died when the queen died without issue. 
 
 But there is still observable, 
 
 1. The great distinction, that was used between words and 
 writing; those very things, which written were made in the first 
 offense treason, being only spoken were in the first offense bul mis- 
 demeanor, altho many of the words there mentioned sounded high, 
 as namely that the queen is not or ought not to be queen, but some 
 person else, whereby we may gather the opinion of parliaments in 
 those times, that regularly words, tho of a high nature, were not 
 treason, nor an overt-act of compassing the king's death. 
 
 The second thing observable is, that here are some treasons newly 
 enacted, which yet were treasons within 25 E. 3. as compassing to 
 destroy and depose the queen, and declaring the same by writing or 
 overt-act; and therefore this clause was omitted in the statute of 
 1 E/iz. cap. 6. and left to the statute of 25 E. 3. 
 
 The 3d thing observable herein is, that the queen's husband is 
 not within the act of 25 E. 3. therefore it was necessary to have an 
 act of parliament for the securing of him, who was only the queen's 
 husband. 
 
 4. That tho there was a communication of the regal title to the 
 queen's husband, yet even that could not have been but by act of 
 parliament, and yet no more is communicated, but the 
 title and name, not the authority and rule of a king of [316] 
 Enj^land. 
 
 The fifth clause concerning restoring of trial of treason according 
 to the course of the common law is of great consequence and use, 
 and is perpetual. 
 
 1. By this clause of the statute as to the case of high treason, the 
 statutes of 27 E. 3. cap. 8. 28 E. 3. cap. 13. 8 H. 6. cap. 29. for trial 
 of an alien per medielatem linguse are wholly repealed, and the trial 
 shall be by Englishmen, 1 Mar. Dy. 144. Shirly's case, H. 36 Sliz. 
 Dr. Lopezes case[l] ruled per omnes jiisticiarios. Co. P. C. p. 27. 
 
 2. The trial of a lunatic without issue joined by 33 H. 8. cap. 20. 
 and in a foreign county by 33 H. 8. cap. 23. and for treasons in 
 fVales 26 H. 8. cap. 6, 32 H. S. cap. 4. are all repealed by this statute. 
 Co. P. C.p. 24, 27. 
 
 3. But whether the statute of 1 E. 6. and 5 S,^ 6 E. 6. concerning 
 
 [1] There is an account of Dr. Lopez's treason in Lord Bacon's Works, 2 vol. p. 216.
 
 316 HISTORIA PLACITORUM CORONA. 
 
 two witnesses be hereby repealed vide sitpra p. 29S. only the 9th 
 and 10th clauses of this statute seem' strongly to imply, that this 
 statute intended the repealof it, for otherwise why should that special 
 provision be added in this statute, for at least two of the witnesses 
 formerly examined to repeat their testimony to the prisoner, if he 
 desires it, when the statute of 5 «§• 6 E. 6. had more effectually pro- 
 vided for the same thing. 
 
 4. But the statute of 28 H. 8. cap. 15. concerning the trial of trea- 
 son committed upon the high sea is not repealed, nor the statute of 
 35 H. 8. cop. 2. for trials of treasons out of the realm, because there 
 was no way regularly appointed at common law for the trial of 
 those treasons being done out of the bodies of counties; but it 
 seems the trial of treasons committed in any place in rivers, or parts 
 within the bodies of counties, tho the admiral claimed jurisdiction 
 there, is restored to the common law, where it was originally 
 triable. [2] 
 
 Neither doth the act extend to petit treason, for treason generally 
 spoken is intended of high treason ; therefore the trial, as to that, 
 stands in the same manner, as it was before the making of that act. 
 
 5. Peremptory challenge in case of high treason is restored 
 
 [317 ] by this act, and the statute of .33 H. 8. cap. 23. as to that 
 
 point repeald, vide accordant Co. P. C. p. 27. <§• libros ibi ; 
 
 so that at this day he may challenge thirty-five, viz. under three 
 
 juries peremptorily. Co. P. C. ibidem. 
 
 \ k.2 P. &f M. cap. 11. " Whosoever shall bring from the parts 
 beyond sea into this realm, or into any of the dominions of the 
 same, any false and counterfeit money, being current within this 
 realm by the sufferance and consent of the queen, knowing the same 
 coin to be false and counterfeit, to the intent to utter or make pay- 
 ment with the same within this realm, or any of the dominions of the 
 same, by merchandizing or otherwise, the offenders, their counsel- 
 lors, procurers, aiders and abetters in that behalf, shall be adjudged 
 offenders in high treason, and after lawful conviction shall suffer and 
 forfeit, as in cases of high treason. 
 
 " If any be accused or impeached of any offense within this statute, 
 or of any other offense concerning the impairing, forging, or counter- 
 feiting any coin current within this kingdom, he shall be indicted, 
 arraigned, tried, convicted, or attainted by such like evidence, and 
 in such manner and form, as hath been used and accustomed within 
 this realm before the first year of the reign of Edward VI. any law, 
 statute, Sf'c. to tlie contrary notwithstanding." 
 
 Upon this statute several things are observable. 
 
 1. That the foreign coin in this case must be such, as is made cur- 
 rent in this realm by the consent of the queen, which cannot be 
 without proclamation by writ under the great seal, as hath been 
 before said ;?. 213 & 310. 
 
 2. That the party, that brings it in, must know it to be counterfeit. 
 
 [2J 1 East P. C. 103. [ '
 
 HISTORIA PLACITORUM CORON.^. 317 
 
 . 3. That it must be brought into the king's dominions from some 
 place, that is out of the king's dominions, and therefore the importa- 
 tation out of Ireland is held not to be an importation witliin this 
 statute, for that is within the dominions of this reahn, tho not within 
 the realm. [3] 3 H. 7. 10. Sr vide supra cap. 20. p. 225. Co. P. C. 
 p. 18. 
 
 4. It must be brought with an intent to merchandize or 
 
 make payment within this realm, and this intent maybe [318] 
 tried by circumstances, tho the offender hath not yet actually 
 made payment or merchandize with it: vide antea p. 229. 
 
 5. This is a new law, for the statute of 4 //. 7. cap. 18. whereby 
 it was formerly enacted, is repealed by 1 Mar. cap. 1. 
 
 6. It is a law perpetual, tho it speaks only of coin made current 
 by the consent of the king and queen our sovereign lord and lady, 
 and so it hatli been still taken. 
 
 7. That at this time it was taken, that impairing of the coin cur- 
 rent within this realm was treason as to the proper coin of this realm 
 by force of the declarative law of 3 H. 5. cap. 6. and that this was 
 not repealed by 1 Mar. cap. 1. for there was no other law in force 
 newly enacted for making impairing of the coin treason between 
 1 Mar. cap. 1. and 1 4* 2 P. S; M. cap. 11. but this error is reformed 
 by the declaration of 5 EHz. cap. 11. 
 
 8. That without any difficulty in the case of counterfeiting coin 
 current in this kingdom there is no necessity of two witnesses, neither 
 upon the trial nor upon the indictment, so that questionless, as to 
 this treason, the clause of the statutes of 1 and 5 E. 6. concerning 
 two witnesses is wholly repealed, for the statute saiih, he shall be 
 indicted, S,-'C. the omission of which word in the general clause of 
 1 S,' 2 P. <§• M. cap. 10. which concerns treasons in general, is that 
 which gave the great countenance to that opinion of my lord Coke, 
 that in other treasons there must be two witnesses upon the indict- 
 ment, tho that statute, as to the trial, remitted the course of the com* 
 mon law, 
 
 I come now to the time of queen Elizabeth. 
 
 The statutes, that concern treason, I shall range in three ranks: 
 1. Such as more immediately concern the safety of the queen's per- 
 son. 2. Such as concern the money of the kingdom. 3. Such as 
 concern the safety of the queen's government in relation to papal 
 usurpations and matter of religion. 
 
 I. I begin with the first rank, such as concern more immediately 
 the safety of the queen's person. 
 
 1 Eliz. cap. 5. The statute of 1 <§- 2 P. 8,- M. cap. 10. 
 is recited, and that that statute extended only to queen [319] 
 Mary and the heirs of her body, the very same statute in 
 effect is enacted over again, only with an application thereof to 
 queen Elizabeth, and the heirs of her body, and almost all the 
 same clauses are over again, except that which concerns the trial of 
 
 [3J Arch. C. P. 477.
 
 319 HISTORIA PLACITORUM CORONJi:. 
 
 treason according to the common law, and the clause of compassing 
 to destroy the queen, and manifesting the same by writing or overt- 
 act; two witnesses are required to the indictment and arraignment 
 of the prisoner: this act expired upon the queen's death without 
 issue. 
 
 1 Eliz. cap. 6. The statute of 1 Mar. sess. 2. cap. 3. concerning 
 seditious and false rumours is revived, as in relation to queen Eliza- 
 beth, under the same pains and penalties, as are therein contained, 
 as tho the same act had extended to the heirs and successors of 
 queen 7l/«ry, any doubt to the contrary notwithstanding ; but this 
 was personal to the queen and the heirs of her body, and was re- 
 pealed by 23 Eliz. cap. 2. 
 
 13 Eliz. cap. 1. "If any person during the natural life of the 
 queen siiall, within the realm or without, compass or imagine the 
 death or destruction, or bodily harm tending to death or destruction, 
 maiming or wounding of her person, or to deprive or depose her 
 from the style, honour, or kingly name of the crown of this realm, 
 or of any other realm or dominion belonging to her majesty, or to 
 levy war against her majesty within the realm or without, or to 
 move or stir any foreigners with force to invade this realm, or any 
 other her majesty's dominions being under her obeysance, and such 
 compasses, imaginations, devices, or intentions, or any of them shall 
 maliciously, advisedly, and directly publish, hold opinion, affirm or 
 say by any speech, express words or sayings, that the queen during 
 her hfe is not, or ought not to be queen of this realm of England, 
 and also of France and Ireland, or of any other her majesty's 
 dominions being under her obeysance during her life, or shall by 
 writing, printing, preaching, speech, express words or say- 
 [[320 ] ings, maliciously, advisedly, and directly publish and affirm, 
 that the queen is an heretic, schismatic, tyrant, infidel, or 
 usurper of the crown, every such offense shall be taken, deemed, 
 and declared by authority of this parliament to be high treason ; 
 and the offenders, their abetters, counsellors and procurers, and the 
 aiders and comforters of the same offenders, knowing the same, 
 being indicted, convicted, and attaint according to the usual order 
 and course of the common law, or according to the act of 35 H. 8. 
 for trial of treasons out of the realm, shall be deemed traitors, and 
 suffer and forfeit as traitors. 
 
 2. " If any person of any condition, place, or nation during the 
 queen's life pretend, utter, or publish themselves, or any of them, or 
 any other, than the now queen, to have right to enjoy the crown of 
 England during the now queen's life, or shall during the queen's 
 life usurp the crown, or the royal title, style or dignity of the crown 
 of England, or shall during the queen's life, hold, or affirm, that 
 the now queen hath not right to hold the said crown, realm, style, 
 title, or dignity, or shall not, after demand made on the behalf of the 
 queen, acknowledge effectually, that the now queen is true and right- 
 ful queen of this realm, they shall be disabled during their natural
 
 HISTORIA PLACITORUM CORONiE. 320 
 
 lives only to enjoy the crown by succession after the queen's death, 
 as if such person were naturally dead. 
 
 3. " If any person shall during the queen's Hfe hold or affirm a 
 right, interest or snccesssion to the crown to be in any siich claimer, 
 usurper, or pretender, or not acknowledger after notification by pro- 
 clamation of such claim, usurpation or pretense, such person shall 
 suffer as a traitor. 
 
 4. *' If any shall maintain, that the common laws, not altered by 
 parliament, ought not to direct the right of the crown of England, 
 or that the queen [Elizabel/i] with and by the authority of par- 
 liament is not able to make laws of sufficient force to limit and 
 bind the crown of England, and the descent, limitation, inherit- 
 ance, and government thereof, or that this statute, or any statute to 
 be made by authority of parliament with the queen's royal assent 
 for the limiting of the crown to be justly in the queen's 
 person is not, or ought not to be of sufficient force to bind, F 321 ] 
 limit, restrain, and govern all persons, their rights and 
 
 titles, that in any way might claim an interest, or possibility in ot 
 to the crown of England in possession, remainder, inheritance, suc- 
 cession, or otherwise, every such person so holding, affirming or 
 maintaining during the queen's life shall be judged a high traitor, 
 and every person so holding after the queen's death shall forfeit all 
 his goods and cliattles. 
 
 5. *' If any by writing or printing declare, before the same be de- 
 clared and established by act of parliament, that any particular per- 
 son ought to be right heir to the queen (except the natural issue of 
 her body) or that shall print, set up, or sell such book, for the first 
 offense he shall suffer one year's imprisonment, and forfeit half his 
 goods, and for the second offense it shall be a. praemunire. 
 
 6. " Trial of a peer by his peers is saved. 
 
 7. " Saves the right of all, other than the offenders and their heirs, 
 claiming only as heir to the offender. 
 
 8. " Offender within the queen's dominions shall be indicted with- 
 in six months, and out of the dominions within twelve months. 
 
 9. " No person to be arraigned for any offense within this act, 
 unless it be proved by the testimony, deposition, or oath of two 
 lawful and sufficient witnesses, who shall at the time of the ar- 
 raignment of such person be brought before the party offending 
 face to face, and there declare all they can say against the party 
 arraigned, unless the party arraigned shall without violence confess 
 the same. 
 
 10. " The aider or comforter of such, as shall affirm the queen a 
 schismatic, heretic, tyrant, infidel, or usurper, shall for his first 
 offense, knowing the same to be comnrtlted, incur a praemunire, 
 and for his second oflense, after conviction of the former, shall be a 
 traitor. 
 
 11. " Provided, that giving charitable alms in money, meat, drink, 
 apparel or bedding for snstentation of the body, or health 
 
 of any offender in any offense, made treason ox prxmunire, [ 322 ]
 
 323 HISTORIA PLACITORUM CORONA. 
 
 during the time of his imprisonment, shall not be taken to be any 
 offense." 
 
 Tho this act be antiquated by the death of queen Elizabeth, yet 
 there are (as in other acts of this nature that are expired,) divers 
 matters that are observable for the true understanding of the com- 
 mon law, and therefore I have repeated many acts of this nature at 
 large. 
 
 1. This act doth contain and enact some treasons as new trea- 
 sons, which certainly were treasons by the statute of 25 E. 3. as 
 compassing to destroy or depose the queen, and manifesting the 
 same by writing, printing, or overt-act; but it was thought or at 
 least doubted, that manifesting the same barely by words were not 
 within 25 E. 3. and it appears by the preamble, that this act was 
 made to take away some doubts, as well as to provide new re- 
 medies. 
 
 2. It partly appears by this act, that the bare conspiracy to levy 
 war was not treason by the statute of 25 E. 3. without a war 
 levied, and accordingly it was resolved P. 39 Eliz. Burton's case, 
 Co. P. C.p. 10. and therefore we are to be careful not to apply all 
 convictions of treason in the queen's time, as judgments declarative 
 of the statute of 25 E. 3. de proditionibus, because they were 
 oftentimes indicted upon this statute in the queen's time, and the 
 general conclusion of the indictment contra forman statuti, and 
 sometimes generally contra formam statut. with an abbreviation 
 was applicable to any statute then in force, which was most efiectual 
 to this purpose. 
 
 In Anderson's reports, />ar/. 2. n. 2.{c) it appears that in 37 E/iz. 
 divers apprentices were committed for great riots, divers other ap- 
 prentices conspired to deliver them out of prison, to kill the lord 
 mayor of London, to burn his house, to break open two houses 
 near the Tower, where there were arms for three hundred men, 
 and to furnish themselves; after which divers apprentices threw 
 about libels moving others to join with them and to assemble at 
 Bunhill, where divers to the number of three hundred assembled, 
 where they had a trumpet and a cloke upon a pole instead of a flag, 
 and as they were going towards the mayor's house, they were 
 [ 323 ] met by the sheriffs and swordbearer, against whom the ap- 
 prentices offered resistance. 
 
 It was resolved, that this was treason within the statute of 13 
 Eliz. for it was an intention to levy war, and altho they intended no 
 harm to the person of the queen, yet because it concerned her in her 
 office and authority, and was for such things, which the queen by 
 law and justice ought to do, it was a levying war against the queen, 
 and they were condemned and executed. 
 
 This proceeding was upon this statute, and yet perchance, the cir- 
 cumstances of the case wholly laid together, this might have been 
 
 (c) 2 Anders, p. 4.
 
 HISTORIA PLACITORUM CORONA. 323 
 
 an actual levying of war within the 25 E. 3. but they thought it safer 
 to proceed upon this statute. 
 
 3. That, tho regularly words alone make not an overt-act of com- 
 passing of the queen's death, yet printing or writing may do it. Co. 
 P. C. p. 12, 14, and therefore an act of parliament was requisite to 
 make it an overt-act; yet observe how cautiously it is penned, ma- 
 liciously, advisedly, and directly, <§'C. leaving as little, as possibly 
 may be, to construction. 
 
 4. That defamatory words, tho of a very high nature, do not 
 always make treason; there cannot be more venomous words ordi- 
 narily thought of, than to say, the queen was an heretic, schismatic, 
 tyrant, usurper, yet an act of parliament was necessary to make it 
 treason. 
 
 5. That to make a man a principal in treason by comfort or aid 
 after the offense committed it must be knowingly, and therefore I 
 never thought that opinion of Stamford, fol. 41. 6. to be law, that a 
 receipt of a felon after attainder in the same county made a person 
 accessary without notice, because he is bound at his peril to take no- 
 tice, that he was attainted, for it oftentimes lies as little in the know- 
 ledge of many persons, who are convict or attainted of felony or 
 treason, as whether a man be guilty of it: vide tamen Dyer 355. 
 
 6. That regularly in a new treason the aiding and comforting of 
 the traitors, knowing them to be such, makes a man guilty of trea- 
 son, and therefore here is care by express provision to make the first 
 offense 2. praemunire. 
 
 7. Here is great care to disable the heir to the crown 
 
 from succeeding, if he usurp during the queen's life; but tho [ 324 ] 
 all the care imaginable was there used, yet it hath been held, 
 that by the accession of the crown to the person so disabled, all these 
 disabihties have vanished, z;«fl^e 1 H. 7. 4.:(af) see Mv. Plowden's 
 learned tract touching the right of succession of Mary queen of Scot- 
 land. 
 
 8. Nota concerning the power of the king to limit the crown by 
 consent of parhament. 
 
 9. That they took the statutes of 1 and of 5 <§' 6 E. 6. concerning 
 two witnesses to be determined, or at least not to extend to treasons 
 afterwards enacted, for otherwise there needed not this special care 
 and provision de novo for two witnesses. 
 
 10. Tliat as the aiding or comforting of one, that speaks seditious 
 words, made treason on the second conviction, must be for the second 
 
 {d) The words of that book, are, That the king was a person able and discharged 
 from any attainder eo facto, that he touk upon him the government and the being king; so 
 that it was not the bare accession or descent of the crown, but the being in actual pos- 
 session of the regal government, which was construed to remove all disabilities; this 
 case therefore is no argument that the statute of 13 Eliz, could not bar the right of the 
 Buccessof, and hinder him from succeeding, but only that if notwithstanding he should 
 g:et possession of the government, that possession would purge all disabilities, which is 
 just as much as to say, that he, who can get the power into his hands notwithstanding 
 an attainder or act of parliament to the contrary, will not think himself hound by such 
 attainder or act of parliament.
 
 324 HISTORIA PLACITORUM CORONA. 
 
 offense, after a conviction of the former, so the second offense, tho 
 committed after a former, is not treason, unless it be also committed 
 after a former conviction: the hke method is in forgery upon tiie 
 statute of 5 Ellz. cap. 14. and generally that exposition holds in most 
 cases, where the second offense is subjected to a severer punishment 
 than the former, for it is intended of such offense committed after the 
 conviction of a former, Co. P. C. 172. 
 
 1 1, It is provided that charitable relief shall not make a party guilty 
 of treason ov prse7niinire,ViS an aider or abetter: this was a necessary 
 provision to av.oid question. 
 
 Regularly relief by victuals or clothes of a felon or of a traitor, 
 after lie is in custody or under bail, makes not a man an accessary 
 in felony, nor a principal in treason; but if he help him to 
 [3253 escape, that makes him an accessary in one case and a 
 principal in the other, Dalt. cap. 108. p. 286. ,(e) and with 
 this agrees this proviso in the case of high treason; but nota it ex- 
 tends no farther than during the time of his imprisonment, yet the 
 law is all. one, if he be under bail, for he is in custodid still, for the. 
 bail are in law his keepers, and he, that is delivered to bail in the 
 king's bench, is nevertheless said to be m custodid marescalli. 
 
 14 Eliz. cap. 1. "If any person do within this realm, or else- 
 where unlawfully, and of his own authority compass, imagine, con- 
 spire, practise, or devise by any ways or means with force, or by 
 craft maliciously and rebelliously to take, detain or keep from the 
 queen any of her towers, castles, fortresses or holds, or maliciously 
 and rebelliously take, burn or destroy them, having any of the 
 queen's munition in them, or being appointed to be guarded with 
 soldiers within the queen's dominions, and the same compassing do' 
 advisedly by express words or deeds utter and declare for any the 
 malicious or rebellious intents aforesaid, it shall be adjudged felony 
 in the offenders, their aiders, comforters, counsellers and abetters 
 without clergy. 
 
 " If any shall with force maliciously or rebelliously detain from 
 the queen any of her majesty's castles, towns, fortresses or holds 
 within any of her dominions, or any of her ships, ordinance or 
 artillery, or munition of war, and not render the same within six 
 days after proclamation, or wilfully or maliciously burn or destroy 
 any of her ships, or bar any of her havens, this shall be treason.'! 
 
 This act to continue during the queen's life. 
 
 We may see by this act, that the opinion of the parliament in that 
 time was, that this conspiring to take forts or ships by force or deceit 
 was not treason; but indeed the actual taking them by force was 
 levying of war against the king by the statute of 25 E. 3. 
 
 But if a man detains the king's town, or castle, or ships, and when 
 
 any commissionated by the king demands the same, and it is refused 
 
 to be delivered, and thereupon the king's commissioner 
 
 r 326 ]] raiseth a power, makes an assault, and they within stand 
 
 upon their guard, and repel force with force, this had been 
 
 (e) N. Edit. cap. 161. p. 531.
 
 HISTORIA PLACITORUM CORONA. 326 
 
 treason within the statute of 25 E. 3. for it is a levying war, and so 
 not a bare detaining; quod vide Co. P. C. p. 10. bis in eddem 
 pcis^ind. 
 
 Again, if this detaining the king's castle or fort, or the castle of 
 any other be barely such and without assault, yet if it be in com- 
 pliance with a foreign enemy, or in confederacy with him, this is 
 treason within the act of 25 E. 3. and an overt-act of adhering to 
 the king's ene.mies; that therefore, which this act makes treason in 
 detaining after proclamation, is a simple detaining without the con- 
 currence of the circumstances above-mentioned, which was not trea- 
 son before the making of this act. 
 
 14 Eliz. cap. 2. " If any person shall conspire, imagine, or go 
 about unlawfully and maliciously to set at liberty any person com- 
 mitted by the queen's special command for any treason or suspicion 
 of treason concerning the person of the queen before indictment of 
 the person imprisoned, and such imagination or conspiracy shall set 
 forth, utter or declare by express words, writing, or other matter, it 
 shall be misprision of treasons; but if the party imprisoned be in- 
 dicted of any treason concerning the person of the queen, it shall 
 be felony so to conspire and declare such conspiracy, ut supra. 
 
 '• If it be after attainder or conviction, then such conspiracy so 
 declared as aforesaid shall be high treason:" this act to last during 
 the que€?n's life. 
 
 These things are observable upon this act, 1. Here is no provision 
 against the actual discharge or setting at liberty, neither needed it, 
 for if the party committed had really committed treason, this was 
 treason even within the statute of 25 E. 3. but if it were only a 
 commitment for treason, but no treason committed by the person in 
 custody, such delivery was not treason, as appears before cap. 22. 
 But 2. The conspiracy to do this, tho manifested by open act, was 
 neither treason, misprision of treason, nor felony; neither is it at 
 this day, but only a bare misdemeanor punishable by fine 
 and imprisonment, tho the party imprisoned were indicted, [ 327 ~\ 
 yea attainted. And 3. This act extends only to such trea- 
 sons as concerned immediately the queen's person, not to treasons 
 touching her seal or coin. 
 
 And these are all the acts, that were made in the queen's time 
 touching treasons, which more especially related to the safety of her 
 person, all which expired at her death. 
 
 II. I come to those treasons, which were enacted in the queen's 
 time concerning coin, and they are three. 
 
 5 Eliz. cap. 11. " Makes the filing, washing, rounding, and clip- 
 ping of the coin of this realm, or foreign coin made current by pro- 
 clamation, for lucre or gain, and their counsellors, consenters, and 
 aiders to he high treason by virtue of this act." 
 
 14 Eliz. cap. 3. " Makes the counterfeiting of foreign coin of gold 
 or silver, not current within this realm, misprision of treason in the 
 ofienders, their procurer's, aiders and abetters." 
 
 15 Eliz. cap. 1. *' Makes the impairing, diminishing, falsifying, 
 
 VOL. I. — 32
 
 327 HISTORIA PLACITORUM CORONA. 
 
 sealing or lightning of the coin of this kingdom or foreign coin made 
 current by proclamation for kicre-sake to be high treason in the 
 offenders, their counsellors, consenters and aiders." 
 
 But of these sufficient hath been said before in the business of 
 money, forfeiture and upon the statutes of 1 and 5 S,' Q E. 6. The 
 sum of which is this; 
 
 1. That tlie treasons made by the acts of 5 and 18 E/iz. are new 
 treasons, newly made by virtue of this act, and every body is estop- 
 ped to say the contrary by reason of the special recital and penning 
 of this act, viz. shall be ac/juds^ed treason by virtue of this act. 
 
 2. That the foreign coin, the clipping and impairing whereof is 
 made treason by this act, must be such as is made current by pro- 
 clamation, for it cannot be otherwise current by reason of the prohi- 
 bition of the statute of 17 R. 2 cap. 1. and also, the word proclama- 
 tion in those acts refer to foreign coin so legitimated by proclamation, 
 not to the proper coin of this kingdom, which needs not a proclama- 
 tion to legitimate it. 
 
 3. The trial and whole proceeding is to be according to 
 r 328 3 the course of the law by the express words of these acts and 
 of 1 <§' 2 P. 4' M. cap. 11. and therefore there need not two 
 witnesses required by the acts of 1 and the 5 S,^ 6 E. 6. 
 
 4. Not only the offenders themselves, but the counsellors, consent- 
 ers and aiders are within those acts; but altho regularly in case of 
 any old or new treason made, the comforters and receivers of the 
 offender are impliedly guilty of treason by a kind of necessary con- 
 comitance, yet it seems to me by the special peiming of this act, it 
 extends only to counsellors, aiders and consenters (according to the 
 resolution in Conner's case, Dy. 296.) as to the offenses made trea- 
 son by those acts, tho possibly it may be treason, as to the receiver 
 of a coutUerfeiter within the statute of 25 E. 3. according to my lord 
 Cokeys opinion, Co. P. C. cap. 64. p. 188. for that is an old treason, 
 and no such restriction by express words to counsellors, aiders and 
 assent ers. 
 
 5. The clipping and impairing, that makes treason within these 
 acts, must by the express words of the act he for gain or lucre, and 
 so laid in the indictment. 
 
 6. Counterfeiting of coin not current to bring it within a praemu- 
 nire by the statute of 14 Eliz. cap. 3. nutst be a counterfeiting of 
 such foreign coin, as is of gold or silver, or consists thereof for the 
 greatest part, and extends not to the foreign copper, or leather coin. 
 
 7. No corruption of blood or loss of dower are to be by attainders 
 of these treasons. 
 
 III. Therefore I come to the third sort of statutes made in this 
 queen's time, which relate to the queen's government, and especially 
 in relation to papal usurpation. 
 
 1 Eliz. cap. 3. is an act. of recognition of the queen to be rightful 
 sovereign of this realm, and all acts repugnant thereunto are repeal- 
 ed; and cap. 1. the oath of supremacy is enacted to be taken by the
 
 HISTORIA PLACflTORUM CORONA. 328 
 
 persons therein described : the tenor of which oath followeth in these 
 words, viz. 
 
 "I t/2. B. do utterly testify and declare in my conscience, that the 
 queen's iiighness is the only supreme governor of this realm, 
 and of all other her highness's dominions and countries, as [ 329 ] 
 well in all spiritual or ecclesiastical things or causes, as 
 temporal, and that no foreign prince, person, prelate, state, or po- 
 tentate hath or ought to have any jurisdiction, power, superiority, 
 preeminence or authority, ecclesiastical or spiritual within this realm, 
 and therefore I do utterly renounce and forsake all foreign jurisdic- 
 tions, powers, superiorities and authorities, and do promise, that from 
 henceforth I shall bear faith and true allegiance to the queen's high- 
 ness, her heirs and lawful successors, and to my power shall assist 
 and defend all jurisdictions, privileges, preeminences and authorities 
 granted or belonging to the qu6en's highness, her heirs and succes- 
 sors, or united and annexed to the imperial crown of this realm." So 
 help me God and by the contents of this bool\.(/) 
 
 Every person appointed to take the oath, and refusing, shall lose 
 his offices and benefices, and be disabled to take any office or bene- 
 fice, S,'C. and then proceeds to other penalties upon refusers. 
 
 And by that act it is enacted, "That if any person inhabiting 
 within the queen's dominions shall by writing, printing, teaching, 
 preaching, express words, deed or act advisedly, maliciously, and 
 directly affirm, hold, stand with, set forth, maintain, or defend the 
 authority, preeminence, power or jurisdiction, spiritual or ecclesiasti- 
 cal of any foreign prince, prelate, person, state or potentate whatso- 
 ever, heretofore claimed, used or usurped within this realm, or any 
 dominion or country under the queen's obeysance,or shall advisedly, 
 maliciously, and directly put in ure, or execute any thing for the 
 extolling, advancement, setting forth, maintenance, or defence of any 
 such pretended or usurped jurisdiction, power, preeminence or au- 
 thority, or any part thereof, every person so ofiending, his abetters, 
 aiders, procurers and counsellors, being convicted according to the 
 course of the common law, shall for the first offense forfeit 
 his goods and chatties, and, if not worth twenty pounds, [ 330 J 
 shall also suffer a year's imprisonment, and all his ecclesias- 
 tical benefices and dignities shall be void, and for a se#&nd offense 
 committed after attainder of the first shall be within penalty oi prse- 
 munire, and for the third offense committed after his second convic- 
 tion, it shall be adjudged high treason." 
 
 None to be impeached for words only, unless indicted within a 
 year after the offense committed; and if imprisoned, to be set at 
 liberty, unless indicted within half a year after the offense; trial of a 
 peer by peers. 
 
 None to be indicted, (§'c. without two witnesses, which if living 
 shall be brought face to face before the prisoner upon his arraign- 
 ment, and testify what they can say, if the prisoner require it. 
 
 (/) This oath, and tliis statute so far as relates to the said oath, are abrogated by a 
 W. A- M. cap. 8.
 
 330 HISTORIA PLACITORUM CORONiE. 
 
 Giving of relief, aid or comfort to offenders siiall not be punishable, 
 unless proved by two witnesses, that he had notice of the offence at 
 the time of such relief given. 
 
 5 Eliz. cap. 1. "If any person dwelling, inhabiting, or resiant 
 within the queen's dominions or under her obeysance, shall by writ- 
 ing, cyphering, printing, preaching, deed or act, advisedly and wit- 
 tingly hold, or stand with, to extol, set forth, maintain or defend the 
 authority, jurisdiction, or power of the bishop of jRome, or his see, 
 heretofore claimed, used, or usurped within this realm or any dominion 
 or country under the gueen's obeysance, or by speech, open act or 
 deed advisedly and wittingly attribute any such manner of jurisdic- 
 tion, authority, or preeminence to the said see or bishop of Borne for 
 the time being within this realm or any the queen's dominions, then 
 every such person, their procurers, abetters and counsellors, and also 
 their aiders, comforters and assistants upon the purpose aforesaid, to 
 extol the authority of the bishop of Rome, being lawfully convicted 
 within one year shall incur a prasfmoiire. 
 
 It directs who shall take, and give the oath of supremacy. 
 
 Any person appointed to take this oath by this statute or the 
 
 statute of 1 Eliz. who shall refuse to take the same, being 
 
 r 331 "] thereof lawfully indicted witliin one year, and convict or 
 
 attaint at any time after, shall incur a praemunire, 16 ^. 2. 
 
 Certificate of refusal to be made into the king's bench witliin 
 forty days after refusal; the king's bench may proceed to indict the 
 party refusing within a year by a jury of the same county, where the 
 court sits. 
 
 If any person convict of the offenses within the first clause of the 
 statute shall after conviction thereof do the said offenses or any of 
 them, or if any person appointed to take the oath, do after three 
 months after the first tender refuse to take the same being tendred a 
 second time, the offender shall suffer as in case of high treason. 
 
 Attainder of treason upon this act shall not make corruption of 
 blood, disherit the heir, or forfeit dower. 
 
 Members of the house of commons shall take the said oath, other- 
 wise shall be disabled to sit. 
 
 Temporal lords of parliament shall not be bound to take the bath, 
 nor subject*#o the penalties for ret^ising the same. 
 
 The charitable giving of reasonable alms to an offender without 
 fraud or covin shall not be construed an abetting, counselling, aiding^ 
 assisting, procuring or comforting of an offender within this act: 
 peers indicted shall be tried by peers, as in other cases of treason. 
 
 No person compellible to take the oath upon second tender, but 
 such as have ecclesiastical preferments, or such as have offices in 
 ecclesiastical courts, or such as refuse wilfully to observe the orders 
 established for divine service, or such as- shall deprave the rites jtnd 
 ceremonies of the church of England, or that shall say or hear pri- 
 vate mass. 
 
 Not lawful to kill person attaint m prmmunire. 
 
 No person to be indicted for aiding, assisting, comforting, abetting
 
 HISTORIA PLACITORUM CORONA. 331 
 
 any person for extolling the power of the bishop of Rome, unless 
 accused by such lawful proof, as shall be thought by the jury suffi- 
 cient to prove him guilty of the offence. 
 Tlie things observcible upon tliis act, 
 
 1. Tho the indictment for the refusal of the oath upon the first 
 tender may be in the county, where tlie king's bench sits, yet 
 
 the trial must be by a jury of the county where the refusal [332 ] 
 is, 6 <S- 7 Eliz. Dy. 234." a Bonner'' s case. 
 
 2. If books extolling the pope's jurisdiction be written beyond sea 
 and brought in hither, it was ruled by the advice of all the judges, 
 
 1. The importer, that delivers them out to extol the pope's authority. 
 
 2. He that reads them, and in conference with others allows them to 
 be good, 3. He that hears the contents, and in open speech with 
 otliers commend and afiirm them to be good. 4. He that hath such 
 books in his custody, and secretly conveys them to his friends to the 
 intent to perswade them to be of that opinion. 5. He that prints 
 such books in this realm, and utters them, are within the first clause 
 of this statute against extolling of papal authority; but those that 
 receive and read them without allowing them in cpnference, are not 
 within this act. 
 
 3. An indictment against an aider, ^^c. must be, knowing the prin- 
 cipal to be a maintainer of the jurisdiction of the pope, and contra 
 furmarn statuti only, is not sufficient. Dy. 363. a. 
 
 4. Nota this special clause of giving alms not to make an aider 
 or comforter, if the alms be reasonable, and without covin, tho the 
 offender not imprisoned, nor under bail, seems to be but agreeable to 
 the common law ; vide qnsa supra dicta sunt super statutum 1 3 Eliz. 
 cap. 1. and therefore it seems, even by the common law, if a physi- 
 cian or chirurgeon minister help to an offender sick or wounded tho 
 he know him to be an offender, even in treason, this makes him not 
 a traitor, for it is done upon the account of common humanity, not 
 intuitu critninis vel crirninosi ; but it will be misprision of treason, 
 if he know it, and do not discover him, 
 
 23 Eliz. cap. 1. "All persons' whatsoever, who have or shall have 
 or pretend to have power, or shall any way put in practice to ab- 
 solve, perswade, or withdraw any of the queen's subjects, or any 
 within her dominions from their natural obedience to her majesty, 
 or to withdraw them for that intent from the religion now by her 
 highness's authority established within her highness's dominions to 
 the Rojnish religion, or to move them or any of them to 
 promise any obedience to any pretended authority of the [ 333 ] 
 see of Rome, or of any other prince, state or potentate, to be 
 had or used within her dominions, or shall do any overt-act to that 
 intent or purpose, they shall be adjudged traitors; and the persons 
 who shall be willingly absolved, or withdrawn as aforesaid, or wil- 
 lingly reconciled, or shall promise obedience to any such pretended 
 authority, prince, state, or potentate as aforesaid, they, their pro- 
 curers and counsellors thereunto shall suffer as in case of high treason. 
 
 "Aiders and maintainers of the persons offending, knowing the
 
 333 HISTORIA PLACITORUM CORONA. 
 
 same, or who shall conceal such offense, and not within twenty days 
 disclose the same to some justice of peace, S^-c. shall forfeit as in mis- 
 prision of treason: justices of peace to have cognisance of offenses, 
 except treason and misprision of treason." 
 
 Nola the words [for that intent) run througli the whole clause 
 of disswading from the religion of the church of England: vide 
 postea, statute 3 Jac. cap. 4. 
 
 The religion established within tiie meaning of this act seems to 
 be that book of articles mentioned and enjoined to be assented to by 
 all men taking orders by the statute of 13 Eliz. cap. 12. 
 
 23 Eliz. cap. 2. " Advised and malicious speakers of seditious or 
 scandalous tale of the queen of their own imagination shall for the 
 first offense be set upon the pillory, lose both ears (or at the offend- 
 er's election pay two hundred pounds) and suffer six months impri- 
 sonment. 
 
 " If any shall advisedly and with malicious intent report false, 
 seditious and slanderous news or tales of the queen of the reporting 
 of another, then to be set on the pillory and lose one of his ears 
 (unless he pay two hundred marks) and suffer imprisonment three 
 months: second offense after a first conviction shall be felony without 
 clergy. 
 
 " If any shall within or without the queen's dominions advisedly 
 and with a malicious intent against the queen devise and write, print, 
 or set forth any book or writing, containing any false, sedi- 
 [^ 334 3 tious or scandalous matter against the queen, or to the en- 
 couraging, stirring, or moving any insurrection or rebellion 
 within the realm or dominions thereof; or if any person witliin or 
 without the realm shall advisedly, and with a malicious intent against 
 the queen procure or cause any such book or writing to be written, 
 printed, published or set forth, (the said offense not being punishable 
 by the statute of 25 E. 3. concerning treason, or by any other statute, 
 whereby an offense is made or declared treason) every such offense 
 shall be judged felony without the benefit of clergy. 
 
 " If any person either within or without the queen's dominions 
 shall by erecting a figure, casting nativities, prophecying, witchcraft, 
 conjurations, or other like unlawful means seek to know, and shall 
 set forth by express words, deeds, or writings, how long the queen 
 shall live, or who shall reign after iier, or maliciously utter any direct 
 prophecies to that purpose, or shall maliciously by words, writings or 
 printing wish, will or desire the death or deprivation of the queen, 
 or any thing directly to the same effect, the offender, their aiders, 
 procurers and abetters in or to the said offenses shall suffer as felons 
 without the benefit of clergy." 
 
 Offenses made felony by this act committed by persons out of the 
 realm shall be inquired, heard and determined in the county where 
 the king's bench sits, and limits the proof and manner of proceeding; 
 no corruption of blood, loss of dower, or forfeiture of lands longer 
 than during life. 
 
 Two witnesses required td prove words.
 
 HISTORIA PLACITORUM CORONiE. 334 
 
 The act of 1 4' 2 P. <§' M. and 1 Ellz. concerning scandalous 
 words are repealed: this act to continue only faring the queen's 
 life. 
 
 These things are observable upon this act, 
 
 1, There may be some words or writings, that consequentially may 
 be construed to stir up insurrection, and yet are not within the statute 
 of 25 E. 3. for this statute supposes some may be within it, and some 
 may not. 
 
 2. That casting the king's nativity, how long he shall live, who 
 shall succeed him, or using prophecies to that effect, tho 
 
 done maliciously, or wishing the king's death, was not trea- [ 335 ~\ 
 son within the act of 25 E. 3. or of any statute then in force, 
 tho they are great offenses; for had they been treason, this statute 
 would never have made it only felony, and that only during the 
 queen's life. 
 
 27 Eliz. cap. 1. " If any open invasion or rebellion shall be made 
 within her majesty's dominions, or any act attempted tending to the 
 hurt of her majesty's person by or for any person, that shall or may 
 pretend title to the crown after the queen's death, or if any thing 
 shall be compassed or imagined tending to the hurt of the queen's 
 person by any person or with the privity of any person, that shall or 
 may pretend title to the crown of this realm, then by her majesty's 
 commission twenty-four privy counsellors and lords of parliament at 
 least, with the assistance of such judges of the courts of Westminster^ 
 as the queen shall appoint, or the greater number of them, shall by 
 virtue of this act have authority to examine all and every the offenses 
 aforesaid, and all circumstances thereof, and thereupon to give sen- 
 tence^'br judgment, as upon good proof the matter shall appear unto 
 them; and after such sentence or judgment given, and declaration 
 thereof by her majesty's proclamation under the great seal, all such 
 persons, against whom such judgment or sentence shall be given or 
 published, shall be excluded and disabled to claim or pretend to have 
 any title to the crown of England. 
 
 "And all the queen's subjects may by virtue of this act and her 
 majesty's direction by all possible means pursue to death every sacli 
 wicked person, by whom such invasion or wicked act shall be at- 
 tempted, or other thing compassed or imagined against her majesty's 
 person, and all their aiders, comforters and abetters. 
 
 Provision is made in case the queen should be killed by such at- 
 tempt for prosecution of the offender, and exclusion of the person 
 offending from succession to the crown, 4'C. 
 
 Nota, this extraordinary commission was issued thus by authority 
 of parliament in relation to the queen of Scots, who was by virtue 
 thereof sentenced to death and executed. 
 
 This was but a temporary act, but the precedent of this 
 commission to sentence and give judgment without a trial [ 336 ] 
 by jury, was the first of that nature that I remember to have 
 been issued by parliament. 
 
 21 Eliz. cap. 2. "It shall not be lawful for any Jesuit, seminary
 
 336 HISTORIA PLACITORUM CORONA. 
 
 priest, or other such priest, deacon, or rehgious or ecclesiastical per- 
 son whatsoever being born within this realm or other her highnesses 
 dominions, and made, ordained or professed, or to be made, ordained 
 or professed by any authority or jurisdiction derived, challenged or 
 pretended from the see of Rome by or of what name, title or degree 
 soever the same shall be called or known, to come into, be or remain 
 in any part of this realm, or any of her highness's dominions after 
 the end of forty days, other than in such special cases, and upon sucli 
 special occasions only, and for such time only, as is expressed in this 
 act; and if he do, then every such offense shall be high treason, and 
 every such person as shall wittingly and willingly receive, relieve, 
 comfort, aid, or maintain any such priest, Ǥ'c. being at liberty and 
 out of hold, knowing him to be such, shall be guilty 5f felony with- 
 out clergy. 
 
 " If any of the queen's subjects (not being a Jesuit, seminary 
 priest, deacon, or religious or ecclesiastical person) be brought up in 
 any college or seminary beyond sea, shall not return within six 
 months after proclamation in London, and within two days after his 
 return before tlie bishop of the diocese, or two justices of the peace 
 submit to her majesty's laws, and take the oath of supremacy, then 
 such person, who shall otherwise return into this realm or other thq 
 queen's dominions, shall be adjudged a traitor. 
 
 " Sending relief to any Jesuit, seminary priest, or college of priests 
 or Jesuits beyond the seas, or to one not returning out of such col- 
 lege into England, shall incur sl prsemwiire. 
 
 "Every otfense against this act shall be tried in the king's bench 
 in the county where it sits, or in any other county, where the otfense 
 was committed, or oifender apprehended. 
 
 " Jf a Jesuit, seminary priest, ^■'c. within three days after his arri- 
 val in the queen's dominions submit to some archbishop, 
 [] 337 ] bishop, or justice of peace, and take the oath of supremacy, 
 and by writing under his hand profess to continue obedient 
 to the laws, then he shall not be subject to any penalty. . 
 
 '• Trial of peers in the case of treason, felony, or praemunire to be 
 by peers. ' . 
 
 " Any person knowing such priest to be within the realm contrary 
 to this act, and not discovering it to a justice of peace, Ǥ'c. within 
 tv/elve days, shall be fined and imprisoned during the queen's plea- 
 sure, and a justice of peace to whom such discovery is made, not 
 informing one of the privy council, Sj-c. shall forfeit two hundred 
 marks. 
 
 29 Eiiz. cap. 2. " No attainder of treason that now is, where the 
 party is executed, shall be reversed for error. 
 
 25 Eliz. cap. 2. " A suspected Jesuit or priest refusing to answerr 
 directly upon his examination shall be imprisoned for his contempt, 
 until he shall make direct answer. . . 
 
 And these are all the acts concerning treason in the queen's time, 
 that I reniember, except particular acts of attainder, whereof some 
 are temporal, some perpetual.
 
 HISTORIA PLACITORUM CORONiE. 337 
 
 In the time of king James, besides the particular acts touching 
 the treason of the conspirators of the powder-plot, and the treasons 
 of the lords Cohham and Gray, there are some general clauses 
 touching treason in the statutes of 3 Jac. cap. 4..(^') and 5. and 
 among ihem this special clause which enlarged the statute of 23 Eliz. 
 cup. 1. viz. 
 
 " If any person shall upon or beyond the seas, or in any other 
 place within the dominions of the king, his heirs or successors, put 
 in practice to absolve, perswade or withdraw any of the king's sub- 
 jects from their natural obedience to his majesty, his heirs or suc- 
 cessors, or to reconcile them to the pope or see of Rome, or to move 
 any of them to promise obedience to any pretended authority of the 
 see of Rome, or any other prince, state or potentate, then such per- 
 sons, their procurers, counsellors and aiders, and maintainers 
 knowing the same shall be adjudged traitors, and likewise [ 338 ~\ 
 the persons willingly absolved or withdrawn. 4'C. their aiders, 
 abetters, maintainers, 8;c. knowing the same shall be adjudged traitors, 
 to be indicted and proceeded against in any county where taken, as 
 if the offense were committed in that county. 
 
 This act is much more strictly pen'd against such offenders, than 
 the statute of 23 Eliz. cap. 1, 1. It extends larger as to the place 
 of such offense. 2. The words {to that intent) which bound up 
 the statute of 23 Eliz. more strictly, are here omitted. 3. The dis- 
 junctive clauses in this statute have a greater latitude. 4. It extends 
 to maintainers of the offenders knowing the same. 
 
 Neither do I find any special new act generally touching treason 
 from this time till the 13th year of king Charles II. 
 
 13 Car. 2. cap. 1. 
 
 .1. "If any person after 24 Ju7ie 1661. during the king's life shall 
 within the realm, or without, compass, imagine, invent, devise, or 
 intend death or destruction, or any bodily harm tending to death or 
 destruction, maim, wounding, imprisonment, or restraint of the per- 
 son of the king, or to deprive or depose him from the style, honour, 
 or kingly name of the imperial crown of this realm, or of any other 
 his majesty':? dominions or countries, or to levy war against his 
 majesty within the realm, or without, or to move or stir up any 
 foreigner to invade this realm, or any other his majesty's dominions 
 being under his majesty's obeysance, and such compassings, imagi- 
 nations, inventions, devices, or intentions, or any of them shall ex- 
 press, utter, or declare by any printing, writing, preaching, or mali- 
 cious and advised speaking, being legally convicted thereof upon 
 the oath of two lawful and credible witnesses upon trial, or other- 
 wise convicted or attainted by due course of law, then every such 
 person shall be deemed a traitor, and suffer and forfeit as in cases of 
 high treason. 
 
 "2. If any after 24 June 1661. during his majesty's life shall ma- 
 
 ig) The oath of alligeance appointed hereby, and this statute so far as relates to the 
 said oath, are abrogated by 1 iV. «Sf ill. cap. 8.
 
 338 HISTORIA PLACITORUM CORON.^. 
 
 licionsly and advisedly publish or affirm, that the king is an heretic 
 or papist, or endeavours to introduce popery, or maliciously and ad- 
 visedly by writing or speaking shall express, publish, utter 
 [ 339 ] or declare any words or things to incite the people to hatred 
 or dislike of his majesty or the established government, shall 
 be disabled to enjoy any office or promotion ecclesiastical, civil, or 
 military, or other employment, than that of peerage, and suffer such 
 farther punishment as may be by law inflicted. 
 
 3. "Any that shall maliciously and advisedly affirm the parlia- 
 ment of 3 Nov. 1640. is yet in being, or that there lies obligation 
 upon any by any oath, engagement or covenant to endeavour a 
 change of governmetit in church or state, or that both or either 
 house of parliament have a legislative power without the king, shall 
 incur the penalty of 2. prsemunire 16 R. 2. 
 
 4. No person to be prosecuted for any of, the said offenses, except 
 treason, but by order of the king under his sign manual, or of the 
 council, nor unless prosecuted within six months after the ofiense, 
 and indicted within three months after prosecution. 
 
 5. " None to be indicted, arraigned, convicted, or condemned of 
 any of the said offenses, unless the offender be accused by two law- 
 ful and credible witnesses upon oath, which witnesses upon his 
 arraignment shall be brought in person before the offender face to 
 face and maintain upon oath what they have to say against him, 
 unless the party arraigned shall willingly without violence confess 
 the same. 
 
 6. " This shall not deprive members of parliament of their free 
 debates. 
 
 " Trial by peers : peer convicted disabled to sit in parliament till 
 his majesty pardon him. (A) 
 
 (h) The acts relating to treason and offenses of that nature, which have passed since 
 our author wrote, may be reduced to these three heads; 1. Such as more immediately 
 relate to the king and his government. 2. Such as relate to the coin. 3. Such as relate 
 to the manner of trials and other proceedings. 
 
 1. As to the first, sucli as relate to the king and his government. 
 
 By 9 W. 3 cap. 1. "If any of the king's subjects, who have voluntarily gone into 
 France, or any the French king's dominions in Europe before 1 1 Z>ec. 1688. without 
 licence from the king or queen, or who have at any time during the late war with 
 France born arms in the service of the French king, or who have since the Ibth Febru- 
 ary 1688. been in arms under the command or in the service of the late king James in 
 Europe, shall return into this kingdom of England, or any other the king's dominions 
 without licence from the king under the privy seal, such person shall be adjudged guilty 
 of high treason. Where the offense shall be committed out of the realm, it may be 
 
 tried in any county." 
 r 340 1 Upon tills act these things are observable. 
 
 1. Tliat this act doth enact some treasons, which certainly were so by 25 E.3. 
 as bearing arms in the service of the French king during the war with France, which 
 is plainly an adhering to the king's enenucs ; and tho' 25 E- 3. says adhering to the 
 king''s enemies in the realm, yet it immediately adds giving them aid and comfort in 
 his realm or elsewhere, Co. F. C.p. 11. Vaughan''8 case, 2 Salk. 635. indeed all the trea- 
 sons by this act are compounded of this old treason, altho' they be new in form for the 
 sake of facilitating the proof in some instances, Hil. 2 Ann. Boucher^s case, State Tr, 
 Vol. V. p. 511. 
 
 2. That a pardon under the great seal (after having been in the service of the French 
 king and before returning) of all treasons, Sfc. will not amount to a licence to return,
 
 HISTORIA PLACITORUM CORON.E. 340 
 
 because it is the returning, which is the treason punishable by this act. 3 Ann. Lindsay^s 
 case, State Tr. Vol. V. p. 528. 
 
 3. That a. Scotchman going out of Scotland into France (especially if formerly resi- 
 dent in England) after the time mcntiou'd in the act, and returning into England is 
 within the words and meaning of tlie act, even tho' he had a licence to return into 
 Scotland. Ilnd. 
 
 4. That a person offending against this act by returning into England may be in- 
 dicted in any county where he is taken, altho' it be not the first English county into 
 which he came. Ihid. 
 
 5. That this act is perpetual and extends to the king's successors, altho' the act speak 
 only of the king generally and not of his successors, according to the resolution 12 Co. 
 Rep. lOl). vide-siipra p. 100. 
 
 By 13 <^ 14 iy. 3. cap. 3. " The pretended prince of Wales is attainted of high trea- 
 son, and it is made higli treason for any of the king's subjects by letters, messages or 
 otherwise to hold correspondence with him or any person employed by him, or to remit 
 any money for his use knowing tlie same. And by the 17 Geo. 2. tliis is extended to the 
 pretender's son. Provides that offenses against this act committed out of the realm may 
 be tried in any county. 
 
 ^^By 1 Ann. cap. 17. "It is made high treason to attempt by overt act or deed to de- 
 prive or hinder any person next in succession to the crown (according to the limitation 
 of the crown by 1 \V. Sf M. sess. 2 cap. 2. and 12 W. 3. cap. 2.) from succeeding after the 
 decease of the queen; but this succession has now happily taken place, and thereby put 
 an end to this statute. 
 
 By 3 <Sf 4 Ann. cap. 14. "If any subject, who has voluntarily gone into France since 
 4 May 1702. or into any the French king's dominions in Europe without licence from 
 the queen, or has since the said 4 May born arms in the service of the French king, shall 
 return into England without licence from the queen under her privy seal, he shall be ad. 
 judged guilty of high treason. 
 
 By 4 Atin. cap. 8. " It is made high treason for any one maliciously to affirm by 
 writing or printing, that the pretended prince of Wales, or any other person hath any 
 right to the crown of these realms, other than according to 1 W. Sf M, and 12 1^.3. 
 or that the kings of England are not able by auUiority of parliament to make laws 
 to bind the descent, limitation, inheritance and government of the crown. To declare 
 the same things by preaching, teaching or advised speaking is made a. pramunire. 
 
 This act (which is in the main transcribed from 13 Eliz. cap. 1.) was re-enacted upon 
 occasion ot the union 6 Ann cap. 7. Upon this statute Matthews the printer was con- 
 victed and executed for printing a pamphlet intituled. Vox Fopuli Vox Dei, Octob. 30. 1719. 
 at the Old Baily. 
 
 By 7 Ann. cap. 4. " It is high treason for any officer of the army or soldier by land 
 or sea to hold correspondence with any rebel or enemy to her majesty, or to treat with 
 such rebel or enemy without her majesty's licence. 
 
 By 7 Ann. cap. 21. " Whatever is high treason or misprision of treason in England, 
 (and none else) shall be high treason or misprision of treason in Scotland, 
 
 II. Such as relate to the coin. 
 
 By 8 ^ 9 W. cap. 25. •' Whoever shall knowingly make or mend, or assist in making 
 or mending, or shall buy or sell, or have in his possession any instruments proper for the 
 coinage of money, or convey such instruments out of the king's mint, or shall mark on 
 the edges any coin current or diminished coin of ihe kingdom, or any coun- 
 terfeit coin resembling the coin of the kingdom with letters or other marks f 841 | 
 like to those on the edges, of money coined in the king's mint, or shall colour, 
 gild or case over any coin resembling the current coin of the kingdom, or any round 
 blanks of base metal, SfC. shall be guilty of high treason. No attainder by this act shall 
 work corruption of blood or loss of dower, nor prosecution be for any offense against the 
 same, unless commenced within three months after the offense committed;" this act was 
 but temporary. 
 
 But by 7 Ann. cap. 25. it is made perpetual and the time of prosecution enlarged from 
 three months to six months after the offense committed. 
 
 Other statutes relating to the coin enacted since the edition of this book in 1736, are 
 the 15, 16. Geo. 2. ch. 28. concerning gilding, washing colouring, ifcc. coin; and rewards 
 for convicting oft'enders; and pardon to accomplices informing : — the 11 Geo. 3. ch. 40. 
 concerning counterfeiting halfpence and farthings. — The 13 Geo. 3. ch. 71. concerning 
 what is to be done with false money. — The 14 Geo. 3. ch, 92. concerning weights liar 
 coin.
 
 341 HISTORIA PLACITORUM CORONA. 
 
 III. Such as relate to the manner of trials and other proceedings. 
 
 By 7. IV. 3. cap. 5. " Every person indicted for liigli treason, whereby corruption of 
 blood may be made, shall have a true copy of llie whole indictment, but not the names 
 of the witnesses, delivered to him five days before his trial, paying for it not exceeding 
 five shillings, and shall be admitted to make his defence by counsel, and witnesses on oath, 
 the said counsel not to exceed two, and to be assigned by the court, and to have access 
 to the prisoner at all seasonable times. 
 
 " No person shall be indicted, tried, or attainted but on the oaths of two lawful wit- 
 nesses, which two witnesses must be to the same treason," altho' it be not necessary they 
 should both be to the same overt-act. 
 
 '' No prosecution to be for any such treason unless the party be indicted within three 
 years alter the offense committed, unless it be for a design or attempt to assassinate 
 the king by poison or otherwise. 
 
 " The prisoner shall have a copy of the pannel of the jurors two days before his trial, 
 and shall have like process to compel the appearance of witnesses for him, as is usually 
 granted for witnesses against him. 
 
 "No evidence shall be given of any overt-act not expresly laid in the indictment. 
 
 " No indictment, process, «^c. shall be quashed for mis-writing mis-spelling, false or 
 improper Latin, unless exception be taken in court before any evidence given upon such 
 indictment, nor shall any such mis-writing, 8^c. be cause to stay Judgment after convic- 
 tion, but such judgment may nevertheless be reversed upon writ of error, as before the 
 making tliis act. 
 
 " In the trial of a peer or peeress all peers intitled to vote in parliament shall be sum- , 
 moned twenty days before the trial, and every one so summoned and appearing shall vote 
 at such trial first taking the oaths to the government, ^c. 
 
 "Provided that this act shall not extend to impeachments or other proceedings in par- 
 liament, nor to indictments of high treason, nor any proceedings thereupon for counter-, 
 feiting his majesty's coin, great seal, privy seal, sign manual, or privy signet. 
 
 By 1 Ann. cap. 9. " In any trial for treason or felony the witnesses for the prisoner 
 shall be upon oath. 
 
 By 7 Ann. cap. 21. " After the decease of the present pretender no attainder of trea- 
 son shall work a disherison of the hgir, nor affect any other right, save that of the offen- 
 der for his natural life only, and every person indicted for high treason or misprision of 
 treason shall have a list of the witnesses to be produced against him oh his trial, and of 
 the jury, mentioning the places of their abode, ^c. given to him together with the copy 
 of the indictment ten days before his trial, in the presence of two credible witnesses,[i] 
 
 [1] The following are the different Acts of Parliament concerning treason that have 
 from time to time been passed since the 7th of Queen ylnne, recited in the note above. 
 
 By the 20 Geo. 2. c. 30. persons impeached by the House of Commons of high treason, 
 whereby corruption of blood shall be made, or for misprision thereof, shall be admitted to 
 make their full defence by two counsel, who shall be assigned for that purpose, in like 
 manner as upon indictments and other prosecutions. 
 
 The 30 Geo.S.c 48. alters the judgment in the case of women from burning to hanging. 
 
 By the 36 Geo. 3. c. 7. s. 1. if any person after the day of passing this act, during the 
 life of the king and until the end of the next session of parliament after the demise of the 
 crown, shall within the realm, compass, imagine, invent, devise, or intend deatli or des- 
 truction, or any bodily harm, tending to tiie death or destruction, maim or wounding, 
 imprisonment or restraint of the person of the king his heirs or successors: or to de- 
 prive or depose him or them from the style, honor or kingly name of the imperial crown 
 of this realm, or of any other of his majesty's dominions or countries; or to levy war 
 against his majesty, his heirs and successors, within this realm, in order by force or 
 constraint to compel him or them to change his or their measures or counsels; or in 
 order to put any force or constraint upon, or to intimidate or overawe both houses or 
 either house of parliament; or to move 6r stir any foreigner or stranger with force to 
 invade this realm, orany other his majesty's dominions or countries under the obeisance 
 of his majesty, his heirs and successors. And such compassings, imaginations, inven- 
 tions, devices, or intentions, or any of them, shall express, utter, or declare by publishing 
 any ])rinting or writing, or by any overt 'act or deed being legally convicted thereof 
 upon the oaths of two lawful witnesses upon trial, or othcrwi.se convicted or attainted by 
 due course of law, then every such person shall be deemed, declared, and adjudged to be a 
 traitor, and shall suffer the pains of death, and also lose and forfeit as in cases of high 
 trcaeoa. '
 
 HISTORIA PLACITORUM CORONA. 341 
 
 By the 57 Geo. 3. c. 7. s. 1. the provisions of the last act, which relate to the heirs and 
 successors of tlie king-, are made perpetual. 
 
 The 39 Sf 40 Geo. 3. c. 93. and the 5 <5r 6 Vict, c. 51. take away the ri^ht of the pri- 
 sioner to iiave a copy of the indictment, witli a list of the witnesses and jurors in the cases 
 of high treason in compassing- or imagining the death or destruction or any bodily harm 
 tending to the death or destruction, maiming or wounding of the (jueen, and of misprision 
 of such treason when the overt act alleged in the indictment shall be any attempt to in- 
 jure her person; in which case the prisoner is triable in the same manner, and upon the 
 like evidence, as if charged with murder. 
 
 The 54 Geo. c. 146. alters the judgment in high treason. Seep. 351. 
 
 The 9 Geo. 4. c. 31. s. 2. abolishes petit treason, and makes tliis offence murder.^ 382. 
 
 By the 3 <^ 4 Vict. c. 52. s. 4. it is treason, in some cases for any person to aid in ob- 
 taining a marriage with the queen's issue under the age of eighteen, without consent of 
 parliament. 
 
 The 5^6 Vict. c. 51. s. 2. makes it a high misdemeanor wilfully to discharge or aim 
 fire arms, or to throw any offensive matter or weapon with intent to injure or alarm the 
 queen; with a proviso, that nothing in that act contained shall be deemed to alter in any 
 respect thepunishment which may by law be inflicted upon persons guilty of high trea- 
 son, or misprision of treason. 
 
 The 2 Will. 4. c. 34. the statute relating to the coin. It repeals all other acts touch- 
 ing the coin, the provisions of which it amends and consolidates into one act. See chaps. 
 17, 18, 19, 20. 
 
 The 11 Geo. 4. 1 Will. 4. c. 66. s. 2 ^ 1 Vict. c. 84. s. 1. repeal the statutes of treason 
 relating to the great seal, sign manuel, signet, SfC. to counterfeit these signatures is still 
 treason, though not punishable with death. 
 
 By the 29 seel, of the act of Congress of April 30, 1790, it is enacted. That any person 
 ■who shall be accused and indicted of treason, shall have a copy of the indictment, and a 
 list of the jury, and witnesses to be produced on the trial .'or proving the said indictment, 
 mentioning the names and places of abode of such witnesses and jurors, delivered unto him 
 at least three entire days before he shall be tried for the same ; and in other capital offences, 
 shall have such copy of the indictment and list of the jury two entire days at least, before 
 the trial; and that every person so accused and indicted for any of the crimes aforesaid, 
 shall also be allowed and admitted to make his full defence by counsel learned in the 
 law; and the court before whom such person shall be tried, or some judge thereof shall, 
 and they are hereby authorized and required immediately upon his request to assign to 
 such person such counsel, not exceeding two, as such person shall desire, to whom such 
 counsel shall have free access at all seasonable hours; and every such person or persons 
 accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said 
 defence to make any proof that he or they can produce, by lawful witness or witnesses, 
 and shall have the like process of the court where he or they shall be tried, to compel his 
 or their witnesses to appear at his or their trial, as is usually granted to compel witnesses 
 to appear on the prosecution against them. 
 
 Sect. 30. That if any person or persons be indicted of treason against the United 
 States, and shall stand mute, or refuse to plead, or shall challenge peremptorily above 
 the number of thirty-five of the jury, the Court in any of the cases aforesaid, shall not- 
 yvithstanding proceed to the trial of the person or persons so standing mute or chal- 
 lenging, as if he or they had pleaded not guilty, and render judgment thereon accor- 
 dingly. 
 
 Sect. 31. That the benefit of clergy shall not be used or allowed, upon conviction of 
 any crime, for which by any statute of the United States the punishment is or shall be 
 declared to be death. 
 
 Sect.32. That no person or persons shall be prosecuted, tried or punished for treason 
 or other capital offence aforesaid, wilful murder, or forgery excepted, unless the indict- 
 ment for the same shall be found by a grand jury within three years next after the trea- 
 son or capital offence aforesaid shall be done or committed. Provided, that nothing 
 herein contained shall extend to any .person or persons fleeing from justice. 
 
 Sect. 33. That the manner of inflicting the punishment of death shall be by hanging 
 the person convicted by the neck until dead. 
 
 On the trial of the rebels in 1746, the prisoners had copies of their indictments five 
 days before their arraignment, exclusive of that d:iy and of the days copies were delivered, 
 and also exclusive of the intervening Sunday. Fost. 2.230. See Lord George Gordon's 
 Tr. 21 St. Tr. 648. Dougl. 569. An indictment for treason was found on the 1 1th of Be. 
 eember ; on the 12th, copies of the indictment and of the jury panel were delivered to the
 
 341 HISTORIA PLACITORUM CORONA. 
 
 prisoner, and on the 17th a copy of the list of witnesses was delivered to him. The 
 prisoner was arraigned on the 31st of December and pleaded; and upon the first witness 
 being called for the crown, it was objected that the list of witnesses had not been 
 delivered according to the statute. Upon a case reserved, it was held by nine judges to 
 six, that the delivery of the list was not a good delivei'y in point of law ; but it was also 
 held by a like majority, that the objection came too late after plea pleaded. And it was 
 agreed by all the judges, that if the objection had been taken in due time, the only effect 
 of it would have been a postponement of the trial, to give time for a proper delivery of 
 the list. R. v. Frost,2 Mood. C. C. 140. 9 C. S( P. 129. In the case of the Insurgents, 
 2 Dall. 342. it was held that copies of the caption as well as of the indictment ought to 
 be delivered to the defendant under the Act of Congress. It was also held that the 
 place of abode of the jurors and witnesses should be clearly designated. The object of 
 the law is to enable the party accused to prepare for his defence; and to identify the 
 jurors who try and the witnesses who are to prove, the indictment against him. It is 
 contrary to tlie spirit and intent of such a provision that the whole range of the state or 
 of a county, should be allowed as descriptive of a place of abode. In regard to the place, 
 the court tliought the township in which the jurors and witnesses respectively reside, 
 should be specified ; but the act of Congress does not require a specification of their occu- 
 pations. See Dorr's Tr. 7. 1 East, P. C. 11 1. Steimrrs case, 2 Dall. 335. The 29 sect. 
 of the act of Congress has been construed to mean that, any person charged with a 
 crime in the courts of the United States, has a right before, as well as after the indict- 
 ment to the process of the court to compel the attendance of his witnesses. 1 Burr's 
 Tr. 126, • 
 
 [ 342 ] CHAPTER XXVI. 
 
 CONCERNING THE JUDGMENTS IN HIGH TREASON AND THE PARTICU- 
 LARS RELATING THEREUNTO, AND TO ATTAINDERS. 
 
 This chapter divides itself into these particulars: 1. Touching the 
 person against whom the judgment is to be given. 2. By whom it is 
 to be given. 3. What the form of the judgment is. 4. What the con- 
 sequents thereof are. 
 
 I. Touching the person, against whom a judgment in treason is to 
 be given. 
 
 In antient time, if a man had been slain in open war against the 
 king either in rebellion, or adhering to the king's enemies, the king 
 did de facto take a forfeiture, sometimes by presentment in Eyre^ 
 sometimes by presentment in (he king's bench, and sometimes by 
 inquisition by the eschetor: for this see the whole pleading in the 
 chancery. Clans: 29 E. 3. M. 2. S; 4. for the coheirs of Robert de Ross 
 for the manor of Werk. 
 
 But in all other cases, whether of felony or treason, if the party 
 had died before attainder, tho he were killed in the pursuit, Claus. 
 26 E. 3. m. 29. pro. Ricardo filio Adse Peschall ; and //. 16 A' 1, 
 Rot. 27. coram regc. Sussex, pro SlepJiano Nor i hup' M. 20 4" 21 
 E. 1 Rot. 4 in dors, coram rege pro Johanne de Beking- 
 r 343 3 ham, or tho he died after conviction and before judgment, 
 7 //. 4. 27. a. there ensued neither attainder nor forfeiture 
 of lands. 
 
 But the law was practised antiently, and it seems continuing to 
 this day, if a traitor or a felon rescue iiimself, or will not submit to 
 be arrested and on resistance is slain, upon presentment thereof he
 
 HISTORIA PLACITORUM CORONA. 343 
 
 shall forfeit his gooJs and chatties, 3 E. 3. Corone 290, 312. Co. 
 P. C. p. 227. for if a person be arraigned for felony or treason, tho 
 he be acquired, yet if it be fouijd he fled, he forfeits his goods, and 
 this is but in nature of a presentent oifugam fecit. 
 
 But whether that presentment be traversable, vide Stamf. P. C. 
 Lib. III. cap. 21. 
 
 Yet the former practice by degrees grew out of use, for in 8 E. 3. 
 20. a. the judges would not allow an averment, that a party died 
 in rebellion or adhering to the king's enemies, without a record of 
 his conviction, for it is possible he might be there against his will. 
 
 But now by the statute of 25 E. 3. de proditionibus, which re- 
 quires an attainder by conviction and attainder per gents de lour 
 condition that attainder after death for adhering to the king's ene- 
 mies is ousted. 
 
 And because it might be said, that an inquest before the eschetor 
 might satisfy those words, the statute of 34 E. 3. cap. 12. 
 hath in express terms for the future ousted such attainders f 344 3 
 or convictions after the parties death, at least in other cases 
 than of forfeitures of war, and except forfeitures of old times judged 
 after the parties death by presentment in Eyre, or in the king's 
 bench, as of felons of themselves; and therefore Jack Cade, who 
 was slain in open rebellion, could not be attaint but by act of parlia- 
 ment, and so it is recited in the act of his attainder 29 H. 6. cap. 1. 
 
 Yet after the statute of 34 E. 3. the earl of Salisbury and others, 
 who conspired against Henry IV. and levied war against him, and 
 in their flight were taken, had their heads stricken oft' by those that 
 apprehended them, without any judgment given against them, and 
 after their death judgment of treason was given against them by the 
 king and lords in parliament, Rot. Par. 2 H. 4 n. 30. upon which 
 the heir of the earl of Salisbury brought a petition of error, Rot. 
 Par. 2 H. 5. /;«/'/, 1. m. 13. and assigned for error among other 
 errors, that his ancestor was dead at the time of the judgment given 
 in parliament, but yet the judgment was affirmed; yet afterwards 
 Rot. Par. 9 H. 5. n. 19. to avoid all questions he was restored by 
 act of parliament. 
 
 Again, no man ought to be attainted of treason without being 
 called to make his defense and put to answer, which is called arre- 
 natio or ad rationeni positus. 
 
 Claus. 1 E. 3. part. 1. 7n. 21. dors. Thomas earl of Lancaster 
 was condemned to death, as a traitor by Edward II. at Poniefract, 
 Henry his brother brought a petition of error in the parliament of 
 1 ^. 3, upon that judgment, the record was removed in these words. 
 
 " Placita coronae coram domino Edwardo rege filio domini regis 
 Edwardi tenta in prassentia ipsius domini regis apud Pontem-fractuni 
 die lunse proxime ante festuni aimunciationis beatas Marise virginis 
 anno regni sui quintodecimo. 
 
 *' Cum Thomas comes Lancastriag caplus pro proditionibus, homi- 
 cidiis, incendiis, depredationibus, & aliis diversis feioniis ductus esset 
 coram ipso domino rege, prasentibus Edmundo comite Kani^^
 
 344 HISTORIA PLACITORUM CORONA. 
 
 Johanne comite Richemund\ Aclomaro de Valencia comite Pern- 
 hroch\ Johanne de Warennd com' Surr\ Edmundo com' 
 \_ 345 ] Arundell\ David com' Al^ol, Roberto comite de Jinegos, 
 baronibus & aliis magnatibus regni, dominus rex recordatur, 
 quod idem Thomna homo ligens ipsius domini regis venit apud 
 Burton super Trentam simul cum Humfr^o de Bohiin nuper com' 
 Herep, proditore regis & regni invento cum vexillis explicatis apud 
 Pontem Burgi in bello conlra dominum regern, & ibidem interfecto, 
 & Kogero Damory proditore adjudicafo, & quibusdam aiiis prodito- 
 ribus & inimicis regis & regni cum vexillis explicatis, & ut de guerrS 
 hostiliter resistebat <§• impedivit ipsum dominum regem & homines 
 & familiares suos per tres dies continuos, quo minus pontem dictae 
 villas de Burton transire potuerunt, &c. — Et unde dominus rex, 
 habito respectii ad tanta dicti Thomx comitis facinora, & iniquitates 
 ejus, & ejus maximam ingratitudinem, nullam habnit causam ad 
 aliquam gratiam eidem Thomse comiti de poenis prasdictis super 
 ipsum adjudicatis pardonand' in prsemissis faciend', quia tamen idem 
 Thomas comes de parentela excellenti & nobilissima procreatus est, 
 dominus rex ob reverentiam dictae parentelas remittit de gratia suei 
 speciali praedicto Thomse comit executionem duarum poenarum ad 
 judicatarum, sicut praedictum est, scilicet quod idem Thomas comes 
 non trahatur, neque suspendatur, sed quod .executio tantummodo 
 fiat super ipsum Thomam comitem, quod decapitetur. 
 
 "Thereupon the record being read in praesentia domini regis pro- 
 cerum & magnatum regni & aliorum in hoc parliamento, he assigned 
 these errors: 1. Quod erratum est in hoc, quod cum quicunque homo 
 ligeus domini regis pro seditionibus, homicidiis, robberiis, incendiis & 
 aliis feloniis tempore pacis captus, & in quacunque curia regis ductus 
 fuerit, de hujusmodi seditionibus & aliis feloniis sibi impositis, per 
 legem & consuetudinem regni arrenari debet, & ad responsionem 
 poni, & inde per legem &c. convinci, antequam fuerit morii adjudica- 
 tus; licet prasdictus Thomas comes, homo ligeus praedicti domini regis 
 patris, &c. tempore pacis captus, & coram ipso rege ductus fuit, dictus 
 dominus rex pater, &c. recordabatur ipsum Thomam esse culpabilem 
 de seditionibus and feloniis in praedictis recordo & processu 
 [ 346 ] contentis, absque hoc, quod ipsum inde arrenavit seu ad re- 
 sponsionem posiiit, prout moris est secundum legem, &c. 
 & sic absque arrenamento & responsione idem Thomas erronic^, & 
 contra legem terrjB tempore pacis morti extitit adjudicatus, unde cum 
 notorium sit & manifestum, quod totum tempus, quo impositum fuit 
 eidem comiti pra^dicta mala & facinora in prasdictis recordo & pro- 
 cessu contenta fccisse, & etiain tempus, quo captus fuit, & quo dictus 
 dominus rex pater recordabatur ipsum esse culpabilerii, &c. &, quo 
 morti extitit adjudicatus, fuit tempus pacis, maxime cum per totum 
 tempus praedictum cancellaria & -aliae placeae curiae domini regis 
 apertcu fuerunt, & in quibus lex cuicunque fiebat, prout fieri consue- 
 vit, nee idem dominus rex unquam in tempore illo cum vexillis ex- 
 plicatis equitabat, pruidictus doinimis rex pater, &c. in hujusmodi 
 tempore pacis contra ipsum comitem sic recordari non debuit, nee
 
 HISTORIA PLACITORUM CORONiE. 346 
 
 ipsnm sine arrenamento & responsione morti adjadicasse. Dicit 
 etiam, 2. Qnod erratum est in hoc, quod cum praidictus Thomas 
 comes fuisset unus parium & magnatCun regni, & in Magna Carta de 
 libertatibus Jlnglhe contineatur, quod nuUus liber homo capiatur, 
 imprisonetur, ant disseisietur de lihero tenemenlo suo, vel liberta- 
 tibus^ seu liberis consuetiidinibus stn's, aut ittlagetiir, aut exulet, 
 nee aliquo m.odo destritatitr, nee dominus rex super eum ibit, nee 
 super eum miftet, nisi per legale judicium parium suorum, vel per _ 
 legem terrx, prasdictus Thomas comes per recordum regis, ut prse- 
 dictum est, tempore pacis erronice morti fuit adjudicatus absque 
 arrenamento seu responsione, seu legali judicio parium suorum, con- 
 tra legem, &c. & contra tenorem Magnae Cartse prsedictge: and there- 
 fore, as brother and heir of Thomas, prays that the judgment be 
 annulled, and he restored to his inheritance, & quia inspectis & ple- 
 nius intellectis recordo & processu praedictis, &c. ob errores praedictos 
 & alios in eisdem recordo & processu compertos consideratum est per 
 ipsum dominum regem, proceres, magnates & totam communitatem 
 regni in eodem parliamento, quod prsedictum judicium contra pree- 
 dictum Thomam comitem redditum tanquam erroneum, re- 
 vocetur & adnulletur, & quod praedictus Henricus, ut frater [ 347 ]j 
 & hagres ejusdem Thomse comitis, ad hasreditatem suam 
 petendam & habend' debito processu inde faciend', prout moris est, 
 admittatur, & habeat brevia cancellariae, & quod justic', in quorum 
 placeis dicta recordum & processus irrotulantur, eadem recordum «& 
 processus irritari faciunt & adnullari, &c. P. 15 E. 2. B. R. Rot. 69. 
 &r Pasch. 39 E. 3. Rot. 49. coram Rege. 
 
 This notable record, even before the statute of 25 E. 3. gives us 
 an account of these things: 1. That in time of peace no man ought 
 to be adjudged to death for treason, or any other offense without 
 being arraigned and put to answer. 2. That regularly, when the 
 king's courts are open, it is a time of peace in judgment of law. 
 3. That no man ought to be sentenced to death by the record of the 
 king without his legal \na.\ per pares. 4. That in this particular case 
 the commons, as well as the king and lords, gave judgment of the 
 reversal. 
 
 John Matravers was attainted of treason in the parliament of 
 4 E. 3. n. 3. for the death of the earl of Kent, as hath been before 
 shewn, cap. ll.p. 82. in his absence, Rot. Par. 21 E. 3. n. 65. dors. 
 the same John Matravers sued in parliament to reverse that judg- 
 ment, and assigned for error, qilest adjudge a m.ort in iin parlement 
 tenus a Westminster en /' absence de lui, nient indite, nient arayne, 
 ne appell a respons, countre le ley de realm <§• les usages approves; 
 he did not prevail in that parliament but Rot. Par. 25 E. 3. n. 54 
 4' 55. he had a restitution by the king confirmed in parliament. 
 
 Roger Mortimer eai\ of Alar ch was condemned for treason for the 
 
 death of king Edward II. Rot. Par. 4 E. 3. n. 1. his cousin and heir 
 
 Roger Mortimer, Rot. Par. 28 E. 3. n. 9 <§• 10. brought a petition 
 
 of error upon that judgment, whereupon the record of his attainder 
 
 VOL. I. — 33
 
 347 HISTORIA PLACITORUM CORONA. 
 
 was removed into parliament, and there entred of record, and errors 
 assigned; the judgment of reversal is thereupon given in this form. 
 
 " Les queux record & judgment lues & examine in plein parlement 
 le dit Roger cosin & heyre de dit counte dit & alledge, qe les record & 
 judgment susdit sont erroynes & defective in touts points, & 
 r348 ] nosment en tant come le dil counte estoit myse a mort & dis- 
 herite sans nul accusement &sans estre mesne en judgment, 
 ou en respons,dont il prie,qe les record & judgment avant dits soient 
 revers and adnulls,& sur ceo ove bone deliberation ed avise ed grant 
 leisure per nostra dit seigneur le roy, prelates, prince, & dues, countes, 
 & barons avant dit, il peirt clereraent, qe mesmes les judgment & 
 records sont erroynes & defectives en touts points, par quoi nostredit 
 seigneur le roy & les dits prelates, prince, dues, countes, & barons 
 par ^cord des chivalers des countes & des commons repellent, & 
 anyetitissent, & pur erroyn & irrit adjuggent les records & judgment 
 susdits," and restore Roger the petitioner to the title of earl of March, 
 and to the lands, 4'C. of his grandfather. 
 
 But if the party accused declined his appearance, it is true then, 
 that the law of the land is, that he should be proceeded against to an 
 outlawry, and may thereby be attainted by process of outlawry with- 
 out answer, for he declines it by his own default. 
 
 And sometimes there was a more compendious way, namely, the 
 issuing of a proclamation-writ to appear in a month, two, or three in 
 the court of king's-bench, or that in default thereof the party should 
 be attainted of treason or such other oftense, wherewith he was 
 charged; and this was frequently done by act of parliament in par- 
 ticular cases, not unlike the process enacted in case of an assault upon 
 a member of parliament by the statute of 5 H. 4. cap. 6. and 11 H.Q. 
 cap. 11. 
 
 Sometimes the lords house did make such a direction, as in the case 
 of Talbot, Rot. Par. 17 R. 2. mention'd before,;??. 265. but it could 
 not be effectual to attaint the party upon his default of appearance 
 upon the return of proclamation without act of parliament, or process 
 of outlawry. [1] 
 
 Again, as a man could not be attainted of treason without arraign- 
 
 [1] By Art. 1. Sect. 9. of the Constitution of the United States, no Bill of Attainder, 
 or ex post facto law shall be passed. The same provision may be found in the Consti- 
 tutions of Maine, Vermont, Connecticut, New Jersey, Pennsylvania, Maryland, South Ca- 
 rolina, Mississippi, Alabama, Sf Mickiiran. Before the Articles of Confederation were , 
 ajjrccd to, Congress had recommended to the several States to confiscate, as soon as 
 jniffht be, and to make sale of all the real and personal estates therein, of their inhabi- 
 tants, and otlier i)ersons vvlio had forfeited the same, and the right to protection of their 
 respective States. In consequence of this recommendation, several of the States passed 
 acts to confiscate the estates of persons inimical to the independence and liberties of the 
 United States within such States. 1 />«//. .53. 401. During the revolutionary war, says 
 Mr. Justice Story, bills of attainder were passed to a wide extent; and the evils resulting' 
 therefrom", were supposed, in times of more cool reflection, to have far outweiglied any 
 imagined good. I'he injustice and inifiiiity of such acts, in general, constitute an irre- 
 sistible argument against the existence of the power. In a lice government it would be 
 intolerable; and in the hands of a reigning (action, it might bo, and possibly would be, 
 abused to the ruin and death of the most virtuous citizens. Story on Const. 211. 239.
 
 HISTORIA PLACITORUM CORON.E. 343 
 
 ment, if present, or process of outlawry, if absent, so neither could 
 he be arraigned without an accusation; and this accusation was of 
 three kinds: 1. If he were taken with the mainouer. 2. By way of 
 appeal. 3. By way of indictment. 
 
 1. In antient time, sometimes as well in case of treason, 
 
 as in case of felony a man, that was taken cum maun opere, f 349 1 
 was thereupon arraigned, an instance we have thereof, T. 10. 
 E. 2. Rot. 132. Bucks cited before;;?. 186. 
 
 But this is wholly disused and ousted by the statutes of 5 E. 3. 
 cap. 9. and 25 E. 3. cop. 4. by which statutes none shall be put to 
 answer without indictment or presentment of good and lawful men 
 of the neighbourhood. 
 
 2. By appeal, and this was usual at common law, as appears by 
 Britton, cap. 22. but this kind of proceeding by appeal in the king's 
 ordinary courts in cases of treason hath been long disused, and it 
 seems is wholly taken away by the statutes of 5 and 25 E. 3. above- 
 mentioned.[2] 
 
 But yet notwithstanding that course of appeal continued still in 
 parliament, as appears by several instances, especially in the great 
 appeal of treason by the lords appellants in 11 and 21 ^. 2.,{d) but 
 by the statute of 1 H. 4. cap. 14. all appeals in parliament are wholly 
 taken away, and accordingly upon reference to the judges upon the 
 impeachment made in the lord's house by the earl o{ Bristol against 
 the earl of Clarendon in the present parliament, it was resolved and 
 reported by all the judges.(e) 
 
 But yet that statute hath not taken away impeachments by the 
 house of commons in cases of treason or other misdemeanors, and 
 therefore tho' since 1 H. 4. cap. 14. all appeals of treason by par- 
 ticular persons are taken away, and have been wholly disused, yet 
 impeachments by the commons have been ever since very frequently 
 used, because they are rather in the nature of grand indictments, than 
 appeals. 
 
 3. By way of indictment, this is the regular and legal way of pro- 
 ceeding in case of treason. 
 
 And thus far for the persons against whom judgment of treason 
 may be given, and the manner of deducing them unto judgment. 
 
 II. As touching the persons, by whom judgment of treason may 
 be given; this concerns more especially the jurisdiction of courts: a 
 word touching it, 
 
 1. Justices of peace cannot regularly arraign, try or give 
 judgment in case of treason, unless in such cases, as are by [SSO] 
 special act of parliament committed to their cognizance, as 
 
 (rf) state Tr.Vol. I. p. 4. (e) State Tr. Vol. II. p. 552. 
 
 [2] In 1631 there was a trial by battle awarded in the court of chivalry, on an appeal 
 of treason beyond the seas. Lord Rea v. David Ramsey, Rushworth, vol. 2. part. 2. p. 112. 
 But it is expressly taken away by the 59 Geo. 3. c. 46. which enacts, that it shall thence. 
 forth not be lawful for any person to sue an appeal for treason, murder, felony, or other 
 offence. This act was occasioned by Thornton's case. 1 B. Sf Aid. 405.
 
 350 HISTORIA PLACITORUM CORONA. 
 
 26 H. 8. cap. 6. 5 Eliz. cap. 1.13 Eliz. cap. 2. 23 Eliz. cap. 1. and 
 some others, because their commission extends not to it, yet they may 
 take examinations touching treason in order to the discovery thereof 
 and preservation of the peace. 
 
 2. Justices of or/er and terminer may give- judgment in case of 
 high treason, for it is expressly witliin their commission. 
 
 3. Justices of goal-dehvery may give judgment in case of treason 
 on any person in prison before them, and that is proved by the sta- 
 tute of 1 E. 6. cap. 7. and by the constant practice. 
 
 4. Justices of Nisi prius may give judgment in case of treason by 
 the statute of 14 H. 6. cap. 1. but quxre, whether it be barely by 
 force of that commission, or whether it must be by virtue of some 
 other commission. 
 
 5. Justices of the king's bench in the court of king's bench may 
 give judgment in case of treason, for it is the highest court of ordi- 
 nary justice, especially in criminals. 
 
 6. If a peer be indicted and plead not guilty to his indictment, 
 and is tried by his peers and found guilty, the lord steward com- 
 missionated by the king for that office gives the judgment, and 
 orders execution. 
 
 7. If a peer be tried in parliament by the lords, they usually elect 
 a person to be lord steward to gather up their votes and pronounce 
 the judgment, but for the most part that steward so elected, tho in 
 parliament, is commissionated by the king under his great seal ; but 
 of this more hereafter. 
 
 III. I come to the form of the judgment. 
 
 The judgments in case of treason are of two kinds, viz. the solemn 
 and severe judgment, and the less. 
 
 The solemn or severe judgment against a man convict of high 
 treason is set down, Co. P. C.p. 210. Stamf. Lib. III. cap. 19,(/) 
 1 H. 1. 24. a Stafford's case 4' alibi, " Et super hoc visis & per 
 curiam hie intellectis omnibus & singulis prsemissis consideratum est, 
 1. Quod praedictus R. usque furcas T. trahatur.[3] 2. Ibi- 
 r 351 ]] dem supendatur per collum, & vivus ad terram prosternatur. 
 3. Interiora sua extra Ventrem suum capiantur. 4. Ipsoque 
 vivente(,g-) comburantur, & 5. Caput suum amputelur. 6. Qiiodque 
 corpus suum in quatuor partes dividatur. 7. Et quod caput & quar- 
 teria ilia ponantur, ubi dominus rex ea assignare voluerit.[4] 
 
 (/)p. 182.fl. 
 
 {g) These words are so material, that the judgment was reversed for want of them in 
 the case of Walcot. 35 Cor, 2. Show.^Ca. Pari. 127. 1 Sulk. 632. 
 
 [3] Tiie "drawinjr" in the judsrmcnt for treason, was performed by tying the culprit's 
 feet to the horse's tail and drag^irig- liirn along the ground. Luders. 151. 
 
 [4] By tlie 54 Oeo. 3. c. 14G. untitled, "An act to alter the punishment in certain 
 cases of high treason," after reciting the judgment formerly required by the law in high 
 treason, it is enacted, " 'i'hat in all cases of high treason, in which, as the law now 
 stands, the sentence or judgment ordained by law is as aforesaid, the sentence or judg- 
 ment to he pronounced or awarded, from and after the passing of this act, against any 
 person convicted or adjudged guilty, shall be, that such ])erson shall be drawn on a 
 hurdle to the place of execution, and be there hanged by the neck until such person b&
 
 HISTORIA PLACITORUM CORONA. 351 
 
 The king may and often doth discharge or pardon all the punish- 
 ment, except beheading, and in as much as that is part of this judg- 
 ment, it may be executed by the king's special command, tho the 
 rest be omitted. 
 
 In the case of a woman her judgment is to be drawn and burnt, 
 as well in high treason, as petit treason, and she is neither hanged 
 nor beheaded. [5] 
 
 The less solemn judgment is only to he drawn and hanged, and 
 this is regularly the judgment in case of counterfeiting the coin of 
 this kingdom, for that was the judgment in that case at common 
 law, which was not altered by the statute of 25 E. 3. viz. " Super 
 quo visis, &c. consideratum est, quod B. usque furcas de T. trahatur, 
 & ibidem suspendatur per collum, quousque mortuus fuerit." 
 
 But the judgment in that case also for a woman is to be drawn and 
 burnt, 25 E. 3. 85. h. 
 
 And it seems the same judgment was also for importing counter- 
 feit coin, and yet that was not treason at common law. 
 
 And the same judgment was for counterfeiting the great or privy 
 seal at common law, as may be easily gathered out of Bracton, 
 Lib. III. de Corona, cap. 3. but expressly by Fleta, Lib. I. cap. 22. 
 Crimen falsi dicitur, cum quis accusatus fnerit quod sigillum regis, 
 vel appellatus, quod sigillum domini sui de cujus familia fuerit, faisa- 
 verit, & brevia inde consignaverit, vel cartam aliquam vel literam 
 ad exhacredationem domini vel alterius damnum sic sigillaverit, & 
 -quibns casibus, si quis inde convictus fuerit, detractari meruit & sus- 
 pends 
 
 And accordingly the like judgment hath been given, as in case 
 of petit treason, for counterfeiting the great seal after the 
 statute of 25 E. 3. as appears by 2 H. 4. 25. and the record [ 352 ] 
 is accordingly ;(A) and tho it is true my lord Coke saith, it is 
 a mistake Co. P. C. p. 15. yet I rather think it was a mistake in my 
 lord Coke, and that the judgment may be given either way, viz, dis- 
 
 (Ji) Vide supra in nolis p. 181. 
 
 dead ; and that afterwards the head shall be severed from the body of such person, and 
 the body divided into four quarters, shall be disposed of as his majesty and his suc- 
 cessors shall think fit." 
 
 Sect. 2. enacts, that the kingf, after judgment pronounced may, by warrant under his 
 sign manual, countersigned by one of the principal secretaries of state, declare it to be 
 his pleasure, and may order and direct that such person shall not be drawn, but shall be 
 taken in such manner as in the said warrant shall be expressed, to the place of execu- 
 tion, and that such person shall not be hanged by the neck, but in stead thereof the 
 head shall be there severed from the body of such person whilst alive, and in such war- 
 rant may direct and order how and in what manner the body, head, and quarters of 
 such person shall be disposed of, and it shall be lawful for the sheriff or other person to 
 "whom such warrant shall be directed and whom it shall concern, to carry the same into 
 execution accordingly. 
 
 By the 33d Sect, of the act of Congress of April 30, 1790, the manner of in- 
 flicting the punishment of death shall be by hanging the person convicted by the neck 
 until dead. 
 
 [5] But now by the 30 Geo. 3. c. 48. women are to be drawn to the place of execution 
 and hanged.
 
 352 HISTORIA PLACITORUM CORONA. 
 
 trahalur «§• suspendatur, or distrahatur, suspendalur <§' decapi- 
 tetur. 
 
 Ill the case(/) 16 Jac. for counterfeiting the privy signet, which 
 was made treason by the statute of 1 Mar. cap. 6. the judgment 
 was the great and solemn judgment of drawing, hanging and quar- 
 tering. 
 
 But suppose the judgment were so in case of counterfeiting the 
 seal, great or privy, yet the question is whether the same judgment 
 must be in those new treasons enacted by 1 <5' 2 P. <§• M. cap. 11. 
 for counterfeiting foreign coin made current by proclamation, and 
 also npon the statutes of 5 Eliz. and 18 Eliz. for clipping and wash- 
 ing, whether must they have the solemn judgment to be hanged 
 and quartered, or only the judgment of petit treason to be drawn 
 and hanged. 
 
 And herein by Stamf. Lib. Ill, cap. \9.{k) and Co. P. C. p. 17. 
 the judgment is to be the solemn judgment, and not the judgment to 
 be drawn and hanged, because it is a new treason made by act of 
 parliament, and therefore must have the solemnity of the great judg- 
 ment in case of high treason. 
 
 And surely this is regularly true, and therefore in the case of 
 popish priests, and those other acts of treason newly enacted in the 
 queen's time, the judgment is to be drawn, hanged and quartered; 
 but it seems to me, that the law is otherwise in relation to those new 
 treasons enacted in the time of queen Mary and queen Elizabeth 
 relating to coin, and that in all those cases the judgment at least may 
 be only to be drawn and hanged; and my reasons are, 1, Because 
 they are in co^nata materia falsijicalionis monetve, and therefore 
 tho they are made treason, yet they are within the verge of the crime 
 of falsification of money, and are to be under the same punishment. 
 2. It were unreasonable to think, that the parliament should make 
 the counterfeiting of foreign coin to have a greater kind of punish- 
 ment, than the counterfeiting of the coin of this kingdom, 
 [ 353 ] or that clipping English or foreign coin should have a 
 greater punishment, than counterfeiting of the coin of tliis 
 kingdom. 3. As the statute of 25 E. 3. tho it declares as well coun- 
 terteiting of money as levying of war to be high treason, yet leaves 
 them under the several degrees of punishments proportionable to their 
 nature, and what they had before, so tho these statutes make those 
 to be new treasons, that were not before, yet in as much as the pun- 
 ishments of treasons were not equal, but tliat concerning coin was a 
 punishment of a lower allay, therefore the subject matter of those 
 acts shall govern the degree of their punishment accordiiag to that 
 punishment of treason, that relates to coin. 4. And accordingly in 
 the book of T. 6 Eliz. By. 230. b. it is agreed by the justices, that 
 the punishment pro tonsiird monetve. is only to be drawn and hanged, 
 and upon a strict search into the precedents of Ae^^j^a/e from 5 Eliz. 
 downwards, tho some judgments for clipping be the solemn judg- 
 ments, yet the most and latest are only to be drawn and hanged, and 
 
 (i) Robinson's case, 2 Kol. Rep. 50. (Jc) p. 182. b.
 
 HISTORIA PLACITORUM CORONA. 353 
 
 accordingly it was resolved and done upon great deliberation lately 
 in the king's bench upon the conviction of two Frenchmen for clip- 
 ping of the king's coin.(/) 
 
 But however it seems, that the judgment either of one kind or the 
 other seems not to be erroneous, for hanging and drawing is part of 
 the solemn judgment, and tho either may be perchance warrantable 
 enough, yet certainly the judgment of petit treason in all treasons 
 touching coin is the most warrantable and safe. [6] 
 
 IV. I come to consider of the consequents of a judgment in treason. 
 
 If the judgment be given by him, that hath authority, and it be 
 erroneous, it was at common law reversible by writ of error; only 
 the statute of 29 Eliz. cap. 2. secures all former attainders, where 
 the party is executed, from reversal by writ of error, but meddles 
 not with other attainders, neither doth the statute of 33 H. 8. 
 cap. 20. take away writs of error upon attainder of treason, as hath, 
 been resolved against the opinion of Stamf. P. C. Lib. III. cap. 
 \9.{m) Co. P. C.p. 31. 
 
 But it is true, that the statutes of 26 H. 8. cap. 13. and 
 5 8f Q E. 6. cap. 11, take away from a person outlawed in [ 354 ~\ 
 treason the advantage of reversal of an outlawry, because 
 the party outlawed was out of the realm, but extends not to other 
 offenses. 
 
 The consequents of a judgment in treason are, 1. Corruption of 
 blood of the party attaint. 2. Loss of dower to his wife. 3. For- 
 feiture to the king of all his lands, goods and chatties. 4. Execution, 
 whereof in the next chapter.[7] 
 
 CHAPTER XXVII. 
 
 TOUCHING CORRUPTION OF BLOOD AND RESTITUTIONS THEREOF, LOSS 
 OF DOWER, FORFEITURE OF GOODS, AND EXECUTION. 
 
 The consequence of the judgment in high treason, petit treason, or 
 felony, is corruption of blood of the party attaint ; unless it be in such 
 special treasons or felonies enacted by parliament, wherein it is espe- 
 cially provided, that the attainder thereof shall make no corruption 
 of blood, as upon the statutes of 5 and 18 Eliz. in treason for clip- 
 ping and washing of coin; and upon the statutes of 21 Juc. cap. 2G. 
 for acknowledging a recognizance, S^c. in another's name, 1 Jac. 
 Ctf/7. 11. for bigamy, and many others. • , 
 
 \{l) The cdise oi Bellew and Norman, Raym. 234. 1 Ventr. 254. (jn) p. 182. b. 
 
 ,[6] The 2 Will. 4. c. 34. abolishes the punishment of death in ail cases of offences 
 rekting to the coin. By the 3 sect, the counterfeiting the gold and silver coin is pun- 
 ishcd, at the discretion of tiie court, by transportation for life, or for seven years, or 
 imprisonment not exceeding four years. The subsequent sections provide for the pun- 
 ishment of the several other offences of this nature. 
 
 [7] For the learning relating to the judgment in high treason, see Luders' Tracts, 149. 
 1 East, P. C. 137.
 
 354 HISTORIA PLACITORUM CORONJE. 
 
 If a man be attaint of piracy before commissioners of oyer and ter- 
 miner grounded upon the statute of 28 H. 8. cap, 15. by indictment 
 and verdict of twelve men according to the course of the common 
 law, he forfeits his lands and goods by the statute of 28 H. 8. cup. 15. 
 but this works no corruption of blood, because it is an offense where- 
 of the common law takes no notice, and tho it be enacted, 
 [ 355 3 they shall suffer and forfeit as in case of felony, yet it alters 
 not the offense, Co. P. C. cap. 49. p. 112. vide iamen con- 
 tra Co. Litt. § 145. p. 391. 
 
 If a man be attainted before the admiraKof treason or felony com- 
 mitted upon the sea, or before the constable and marshal for treason 
 or murder committed beyond the sea, according to the course of the 
 civil law, it works no corruption of blood, for tho these offenses 
 within the cognizance of the common law are felonies or treasons, 
 yet the manner of the trial being according to the course of the civil 
 law, the judgment thereupon, tho capital, corrupts not the blood. 
 
 If there be an attainder of treason or felony done upon the sea 
 upon this statute of 28 H. 8. by jury, according to the course of the 
 common law, it seems that the judgment thereupon works a corrup- 
 tion of blood, because the commission itself is under the great seal 
 warranted by act of parliament, and the trial is according to the course 
 of the common law, and therefore the proceeding and judgment 
 thereupon is of the same effect, as an attainder of foreign treason by 
 commission upon the statute of 35 H. 8. cap. 2. or any other attain- 
 der by course of the common law, and with this agrees Co. Litt. 
 § 745. p. 391. nay, I think farther, that if the indictment of piracy 
 before such commissioners upon the statute of 28 H. 8. be formed as 
 an indictment of robbery at common law, viz. vi %■ armis Sffelunic^y 
 ^■c. that he might be thereupon attainted, and the blood corrupted; 
 for whatever any say to the contrary, it is out of question, that piracy 
 upon the statute is robbery, and the offenders have been indicted, 
 convicted, and executed for it in the king's bench, as for a robbery, 
 as I have elsewhere made it evident. 
 
 But indeed, if the indictment before these commissioners run only 
 according to the style of the civil law, viz. piralicl deprxdavit, then 
 the attainder thereupon upon the statute of 28 //. 8. though it gives 
 the forfeiture of lands and goods, corrupts not the blood, and so are 
 those two books of the same author, Co. P. C. cap. 49. and Co. Litt. 
 § 745. to be reconciled, which without this diversity would be con- 
 tradictory: vide H. 13. Car. B. R. Ililliar 6,- Moore. 
 
 By the statute of Westminster 2. de dunis conditionalibus, 
 [ 356 3 if tenant in tail be attaint of felony or treason, there is no 
 corruption of blood wrought as to the issue in tail, because 
 the very blood as well as the land, is entailed, and yet for the advan- 
 tage of the issue there is a corruption of blood, as if the tenant in tail 
 alien with the warranty and assets, and then is attainted, the lien of 
 the warranty is gone, for that lien was not entailed. Litt. § 747. but 
 if the warranty were annexed to the gift in tail, the attainder of the 
 donee doth not destroy the warranty to the issue, for the warranty is 
 entailed.
 
 HISTORIA PLACITORUM CORONA. 356 
 
 The statutes of 26 and 33 H. 8. subject estates-tail to forfeiture by 
 attainder of treason, and so the law stands at this day, notwithstand- 
 in£^ the statutes of 1 E. 6. and 1 Mar. whereof before. [1] 
 
 But yet these acts are not absolutely a repeal of the statute of donis 
 coridilionalihus, lor notwithstanding the forfeiture of the lands en- 
 tailed by the attainder, yet the blood is not corrupted as to the issue 
 in tail. 
 
 And therefore if the son of the donee in tail be attainted of treason 
 in the life of the father, and dies having issue, and then the father 
 dies, the estate shall descend to the grandchild, notwithstanding the 
 father's atiamder; but otherwise it would have been in case of a 
 fee-simj)le. 3 Co. Rep. Dowtie^s case, 10 b. 
 
 In all cases (but only in cases of entails as before) attainder of 
 treason or felony corrupts the blood upward and downward, so that 
 no person that must make his derivation of descent to, or through the 
 parties attaint, can inherit, as if there be grandfather, father, and son, 
 the father is attainted, and dies in the life of the grandfather, the sou 
 cannot inherit the grandfather.(«) 
 
 In cases of collateral descents of lands in fee simple, if there be 
 father and two sons, and the eldest is attainted in the life of the father, 
 and dies without issue in the life of the father, the younger son shall 
 inherit the father, for he needs not mention his elder brother in the 
 conveying of his title; but if the elder son attaint survive the father 
 but a day, and die without issue, the second son cannot in- 
 herit, but the land shall eschete yjro defectu haeredis, for the [ 357 ]] 
 corruption of blood in the elder son surviving the father im- 
 pedes the descent. 31 E. 1. Barr. 315. 
 
 But otherwise it is in case the eldest son had been an alien nee,{or 
 then notwithstanding such son alien were living, the land will des- 
 cend from the father to the youngest son born a denizen. 
 
 If a man hath two sons and then is attaint of treason or felony, the 
 elder son purchaseth land and dies without issue, either in the life- 
 time or after the death of the father, the attainder of the father is no 
 impediment of the descent from the brother to the brother. Sir Philip 
 Hobby's case, Co. Litt. 8. 
 
 And the same law is in case the father were first attaint, and then 
 had issue two sons, the elder purchases lands in fee simple and dies 
 without issue, the younger shall inherit, for tho both derive their 
 blood from the father, yet the descent from the brother to the bro- 
 ther is immediate, and is not impeached by the attainder of the father, 
 this tho made a doubt, Co. Lilt. p. S. yet was agreed generally by 
 the judges in the exchequer-chamber in the case of the earl of Hol- 
 derness.{b) 
 
 ■ (a) Dyer 274. 
 (i) P. 16 Car. 2. reported by the name of Collingwood and Pace, 1 Sid. 193. 1 Yen. 413. 
 
 [1] Tenant in tail attainted of treason by the act of the legislature o? New Jersey of 
 the 11th December, 1778, forfeits his lite estate only. Denn ex dein. Hinchman v. 
 Clark et al. Coxe's Rep. 340.
 
 357 HISTORIA PLACITORUM CORON.^. 
 
 But if there be two brothers, the elder is attaint and have issue, 
 and dies in the hfe of the youns^er^and then the younger die without 
 issue, the lands in fee-simple of the younger shall not descend to the 
 nephew, for the attainder of his father is an impediment to the deri- 
 vation of his descent. 
 
 And accordingly it is, if the son of the person attaint purchases 
 lands and dies without issue, it shall not descend to his uncle, for the 
 attainder of his father corrupted his blood, whereby the bridge is 
 broken between the nephew and uncle, and the one cannot inlierit 
 the other, but the land shall eschete pro defectn hxredis: vide ac- 
 cordant ruled in Courtney\<i case infra Co. P. C. p 241 [2] 
 
 Thus far for corruption of blood. [3] 
 [ 358 ] Touching restitutions in blood they are of two kinds, by 
 pardon, and by act of parliament. 
 
 The king's pardon, tho it doth not restore the blood, yet as to 
 issues born after it hath the etTect of a restitution. 
 
 t/i. hath issue B. a son, and then is attaint of treason or felony, and 
 then is pardoned and purchaseth land in fee simple, and then hath 
 issue C. if i/^. dies, and B. survives, and after dies without issue, yet 
 the land shall eschete pro defeciu hseredis, for the pardon restores 
 not the blood between Ji. and B. that was born before; but if B. had 
 died without issue in the life of .^. and then A. had died, the land 
 should descend to C. because he was not in being while his father's 
 attainder stood in force, but was born after the purging of the crime 
 and punishment by the pardon, Co. Lift. § 747. 
 
 But restitution of blood in its true nature and extent can only be 
 by act of Parliament. 
 
 Restitutions by parliament are of two kinds, one a restitution only 
 in blood, which only removes the corruption thereof, but restores 
 not to the party attaint or his heirs the manors or honours lost by 
 the attainder, unless it specially extend to it; the other is a gene- 
 ral restitution not only in blood, but to the lands, Ǥ'c. of the party 
 attaint. 
 
 A restitution in blood may be special and qualified, but generally 
 a restitution in blood is construed liberally and extensively. 
 
 Jl. hath issue B. a son, and is attaint of treason and dies, B. pur- 
 chaseth land in fee simple, B. by parliament is restored only in 
 blood, and enabled as well as heir to ^. as to all other collateral and 
 lineal ancestors, provided it shall not restore B. to any of the lands of 
 td. forfeited by the attainder, B. dies without issue; it was ruled, that 
 
 [2] At common law the curtsey estate of the husband is not forfeited to the common- 
 wealth by his attainder of treason, committed in the lifetime of the wife and after issue 
 born; but on tiie death of the wife the estate passes to her heir or devisee discharjfcd of 
 the curtsey. I'emberton v. flicks, 1 Ihnn. 1. S. C. 3 Dull. 47!). 4 id. 168. The widow of 
 a man who was banished from the State of South Carolina, and wiiose estate was confis- 
 cated by an act of the Icfrisiature of 1782, for adhering- to the British in tiie course of 
 the revolutionary war, was licld to be entitled to her dower in all his lands. Wills v. Mar- 
 tin, 2 Bay Kep. 20. 
 
 [3] Corruplion of blood is now only peculiar to treason and murder, being abolished in 
 other cases, by the 54 Geo, 3. c. 145.
 
 HISTORIA PLACITORUM CORONA. 358 
 
 the lands of B. shall descend to the sisters of ^^. as aunts and collate- 
 ral heirs oi B. 1, Because the corruption of blood by the attainder is 
 removed by the restitution. 2. Altho the words of the act of resti- 
 tution be to restore B. only as heir to J2. <§«c. yet this doth not only 
 remove the corruption of blood, and restore him and his lineal heirs 
 in blood, but also his collateral lieirs, and removes that im- 
 pediment, which would have hindered the descent to them. [ 359 ] 
 Co. P. C. cap. 106. Cour/ ne J/' s case. 
 
 It appears BoL Pari. 25 E. 3. n. 54, 55. that John Mutravers^ 
 that was attainted of treason in 4 E. 3. obtaind letters patent from 
 the king of restitution in blood, but it was not effectual, and there- 
 fore there is enacted a general restitution as well in blood, as to 
 his land by a charter enacted and confirmed in parliament, namely 
 by the king with the consent of the lords at the petition of the com- 
 mons. 
 
 II. As to the second matter, namely the forfeiture of the wife's 
 dower. 
 
 At common law the husband being attainted of treason or felony 
 the wife should lose her dower, tho it were dower assigned ad ostium 
 ecclesise or ex assen.su pairis, Co. Litt. §.41. p. 2>1. ibidem §. 747. 
 but not upon attainder of misprision of treason; but by the statute 
 of 1 E. 6. cap. 12. and 5 E. 6. cap. 11. tho her husband be attainted 
 of felony or murder, she shall not lose her dower. 
 
 But by attainder of her husband of high treason or petit treason 
 the wife shall lose her dower at this day, unless in case of attainders 
 of such treasons, where by special provision of parliament the wife's 
 dower is saved, as upon the statutes of 5 and IS Eliz. touching coin. 
 
 But if the husband seised in right of the wife hath issue by her, 
 and then the wife commits treason, and is attainted and dies, it seems 
 the husband shall be tenant by the courtesy, otherwise it were, if the 
 treason were committed before issue had: vide Co. Lilt. §. 35. 
 
 III. As to the third thing, namely the forfeitures, that happen by 
 attainder, they are of these kinds, of lands, or of goods and chattels, 
 or of dignities and honours. 
 
 1. As to the forfeiture of lands, generally the lands of all persons 
 attainted of treason belong to the king, but by special privilege they 
 may belong to a subject, as in case of the bishop ol Durham, Sfc. de 
 quo supra p. 254. ^-c. 
 
 If at common law tenant in tail were attainted of treason, or at 
 this day be attainted of felony, tho the inheritance neither eschete 
 nor be forfeited, yet the king hath (tipon office found) the 
 freehold during the life of the tenant in tail, and not barely [360 ]] 
 a pernancy of profits: adjudged T. 29 Eliz. Clenche's rep. 
 Venable^s case, and 3 Leon. n. 236. (c) Co. Litt. §. 747. and the 
 same law it is for tenant of life attaint. 
 •. But an attainder of treason or felony of a copyholder gives the 
 
 (c);>. 185.
 
 360 HISTORIA PLACITORUM CORONA. 
 
 king no forfeiture, but regularly it belongs to the lord, unless special 
 custom be to the contrary. 
 
 By the custom of Kent, if the ancestors be attaint of felony and 
 executed, yet his lands shall not eschete but descend to the heir; 
 but if he be attaint by outlawry, or abjure, they are not priviledged 
 by the custom from eschete. 
 
 But if he be any way attaint of treason, yet the forfeiture thereof 
 belongs to the king notwithstanding that custom. 8 E. 2. Prescrip- 
 tion 50. Lambard^s Ferambidatio Kcnitix, p. 551. 
 
 If the tenant hold lands of a common person, and commit treason 
 and be attaint, yet the forfeiture belongs to the king of common right, 
 as a royal eschete; but if such person commit felony or petit treason 
 and be attaint, the lands eschete to the lord, of whom they were 
 immediately held, only the king shall have the year, day, and waste 
 of the tenement so escheted for felony or petit treason. Stamf. 
 Prserogativa Begis, cap. \Q.{d) 
 
 The commencement of this year and day is neither from the 
 attainder nor from the death of the party attaint, but from the time 
 of the inquisition found, tho the same be not found for many years 
 after the death of the person attaint. 49 E. 3. 11. 
 
 If tenant in tail or for life, or the husband seised in right of his 
 wife be attaint of felony, the king shall have the year, day and waste 
 against the wife, the issue in tail, and him in reversion. Stamf. P. C. 
 Lib. III. cap. 30.(e) 3 E. 3. Coro. 327, but of this more hereafter. 
 
 The relation of the forfeiture or eschete of lands for treason or 
 felony to avoid all mesne incumbrances is to the time of the offense 
 committed. 
 
 t^. and B. joint tenants in fee, ,^. is attaint of treason or felony 
 and dies, the land survives to B. but vet subject to the title 
 [361 ] of the forfeiture. H. 10 Car. Bat/ 342. B. R. Harrison 
 and Walden. 
 
 If a man seised in fee alien, and then be attaint of treason or felony 
 by confession or abjuration upon an indictment supposing the felony 
 committed before the alienation, the alienee may not only falsify the 
 attainder in the point of the time of the felony supposed, but also in 
 the very point of the felony or treason itself, and is not concluded by 
 the confession of the alienor, tho the alienor himself be concluded. 
 49 E. 3. 11. 7 E. 4. 1. Co. P. C. cap. 104.;?. 231. 
 
 But if he be attaint of felony or treason by verdict upon an indict- 
 ment, supposing the offense before the alienation, tho the alienee 
 cannot falsify the attainder by supposing there was no felony com- 
 mitted, yet he may falsify it as to the point of time, viz. he may 
 allege contrary to the indictment, that the felony or treason was com- 
 mitted after the alienaiion, and not before, Co. P. C. ubi supra 
 32 Eliz. Syer's case. 
 
 If a man be indicted of a felony or treason supposed the 1st of 
 Jlpril 24 Car. and in truth it was committed 1 Junii 24 Car. yet he 
 
 {d) See Mag. Chart, ca'p. 22, 2 Co. Inst. 3G. (e) 190 b.
 
 HISTORIA PLACITORUM CORONA. 361 
 
 shall be convicted notwithstanding that variance, for the day is not 
 material; yet in such case for the avoiding of the danger and trouble, 
 that may ensue by tiie relation of such attainder to the day men- 
 tioned in the indictment, it is fit for the jury to find the true day: 
 vide Syer^s case, ubi supra. 
 
 If a man be outlawed upon an indictment of felony or treason, and 
 pending the process he alien the land, yet the king or lord shall have 
 the land, which he held at the time of the felony committed, for the 
 indictment contains the year and day, when it was done, unto which 
 the attainder by outlawry relates. 
 
 But if a man sue an appeal by writ of felony or murder, and pend- 
 ing it the party aliens, and then is outlawed before appearance, the 
 lords eschete is lost, because it relates only to the time of the out- 
 lawry pronounced, in as much as the writ of appeal is general, and 
 contains no certain time of the ofiense committed, cited to be adjudged 
 5 E.e Co. Lilt. § 4./0/. 13 «. 
 
 But it seems, that if the defendant had appeared and the 
 plaintiff" had declared upon his writ, and the defendant had f 362 ] 
 been convict and attaint by verdict or confession, or if the 
 appeal had been by bill, and thereupon the party had been outlawed, 
 iho before appearance, the eschete had related to the time of the fact 
 committed to avoid mesne incumbrances, for in the declaration in the 
 one case, and in the bill in the other case, the year and day of the 
 felony is set forth. 
 
 Touching forfeiture of goods. 
 
 The goods of a person convict of felony or treason, or put in exi- 
 gent for the same, or that fled for these offenses, or that stands mute, 
 are forfeit to the king. 
 
 But the relation of these forfeitures refer not to the time of the 
 oflense committed, nor to the time of the flight, but only to the con- 
 viction or to the time presented, or to the time of the exigent 
 awarded. 
 
 And therefore an alienation made by the felon or traitor, or person 
 flying bond fide and without fraud, mesne between the offense or 
 the flight, and the conviction or presentment of the flight is good, and 
 binds the king, but if fraudulent, then it is avoidable by the statute 
 of 13 EUz. cap. 5. 3 E. 3. Coron. 296. ibidem 344. 
 
 If a man commits a felony and be pursued, and in the flight be 
 killed, whereby he can neither be indicted nor convict, yet if this 
 matter be found by inquisition before the justices in eyre or of oyer 
 and termi7ier, he shall forfeit the goods he had at the time of the 
 flight, and not those only, which were his at the time of the inqui- 
 sition found, for there it must relate to the flight, because the party 
 is dead, and can be no farther proceeded against, 3 E. 3. Coron. 
 '290. 312. 
 
 If a party be acquitted of treason or felony, the jury that acquits 
 him ought to enquire of his flight for it, and if they find he fled, 
 what goods he had, for his goods and chatties are thereby for-
 
 362 HISTORIA PLACITORUM CORONA. 
 
 feited ;(4) but this is but an inquest of office, and therefore is tra- 
 versable by the party : vide Stamf. P. C. Lib. III. cap. 21.(/) 
 
 But upon an inquisition before the coroner of the death of 
 
 [ 363 J a man super visum corporis, tho the party accused be 
 
 acquitted, yet if it be presented, that he fled for it, it is 
 
 doubted whether that inquisition as to the flight be traversable : vide 
 
 Slamf. P. C. Lib. III. cap. 21. 
 
 But on all hands it is agreed, that if the coroner upon the inquest 
 super visum corporis presents one as guilty, and that he fled for it, 
 and the party is arraigned and found not guilty, and also that he did 
 not fly, yet that doth not avoid the first inquisition as to the flight, 
 but the best shall be taken for the king, tho both are in the nature 
 of inquests of office. 22 ^ss. 96. Forfeitures 27. 3 E. 4. Forfeit- 
 ures 35. H. 13 H. 4. Forfeitures 32. 7 Eliz. Dif. 238. b. ' 
 
 A fugam fecit by the principal or accessary before, in murder, if 
 the fact be presented before the coroner, entitles the king to the goods 
 of the offender, for these are within the cognizance of the coroner, 
 but the coroner hath no power to enquire of accessaries after, nor 
 consequently of their flight, and therefore a presentment before the 
 coroner of the flight of an accessary after gives the king no title to 
 the goods. 4 H. 7. 18. 
 
 The usage was always upon a presentment of homicide before the 
 coroner, or of flight for the same, or upon a conviction of felony by 
 the petit jury, or the finding of a flight for the same, to charge the 
 inquest or jury to enquire, what goods and chattels he hath, and 
 where they are, and thereupon to charge the Villata where such 
 goods are with the goods to be answerable to the king : vide 3 E. 3. 
 Corone 296. S,' alibi, vide statute 31 E. 3. cap. 3. 
 
 But tho the goods of an off'ender be not forfeited till the conviction 
 or flight found by inquest, yet whether they may be seised upon the 
 ofl"ense committed, hath been controverted. 
 
 1? It seems clear, ihat at common law if a man had committed 
 felony or treason, or tho possibly he had committed none, yet if he 
 had been indicted or appealed by an approver, the sheriff, coroner, 
 or other officer could not seize and carry away the goods of the offen- 
 der or party accused. 
 
 2. Again, he could not in that case have removed the 
 \_ 364 ~\ goods out of the custody of the offender or party accused, 
 and deliver them over to the constables or to the Villata to 
 answer for them. 13. H. 4. 13. 
 
 3. But if the party were indicted or appealed by an approver, the 
 sheriff, or other officer might make a simple seizure of them, only to 
 inventory and appraise them, and leave them in the custody of the 
 servants or bailiifof the party indicted, in case he would give secu- 
 
 (/) p. 183. h. 
 
 [4] By the 7^8 Cfeo. 4. c. 28. s. 5. it is enacted, that where any person shall be in- 
 dicted for treason or felonv, the jury impaniicicd to try such person shall not be charged 
 to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason 
 or felony.
 
 HISTORIA PLACITORUM CORONA. 364 
 
 rity against their being imbezzled, or in default thereof he might de- 
 hver them to the constable or Villata to be answerable for them, 
 but yet so that the party accused and his family have sufficient out 
 of them for their livelihood and maintenance, (§•) viz. Salvis capto & 
 familise snai necessariisestoveriis suis, & si captns convictus fuerit de 
 felonia unde rettatus est, residuum bonorum ultra estoveriuni illud 
 regi remaneat. Bract. Lib. III. 123. Fleta, Lib. I. cap. 26. 43 E. 3. 
 24. 44 Jiss. 14. Stamf. P. C Lib. III. cap. 32. Co. P. C. 228, 229. 
 
 4. And possibly the same law was, tho he were not indicted or 
 appealed, but de facto had committed a felony, but with this differ- 
 ence, if he had been indicted or appealed by an approver, this kind 
 of seizure might have been niade, whether he conmiitted the felony 
 or not; for in the books of 43 E. 3. and AAJiss. there is no averment, 
 that the felony was committed, but only that he was thus accused 
 of record, and so is the book of 13 H. 4. 13. 
 
 But in case there were no indictment, then it is at the peril of him 
 that seiseth, if he committed not the felony, and therefore it is issu- 
 able. 
 
 Now touching alterations by the statutes after made. 
 
 It seems, that by the statute of 5 E. 3. cap. 9. and the ensuing sta- 
 tutes, whereby it is enacted, that no man's goods shall be seized into 
 (he king's hands without indictment or due process of law, that it 
 was held, that this kind of seizure of the goods of a person accused 
 of felony, tho it be only in custodiam Sf causa rei servandse, hath 
 been held unlawful, if the person were not first indicted, or 
 at least appeald by an approver; and so the books seem to P 365 ] 
 import of 43 E. 3. 24. and 13 ^. 4. 13. and expresly my 
 lord Coke, P. C. cap. 103.;?. 228. 
 
 By the statute of 25 E. 3. cap. 14. where a party is indicted of 
 felony, the process directed by that statute is first a capias, and if he 
 be not found a second capias togetlier with a precept to seize his 
 goods, and if he be not found then, an exigent and the goods to be 
 forfeit. 
 
 And this is more than a simple seizure, such as was before at com- 
 mon law, for if the party came not in,Jiis goods are forfeit upon the 
 award of the exigent; and if he came in, tho his goods be saved, yet 
 there is no direction for delivering his goods upon security; but it 
 s^ems the sheriff is to take them into his custody, and yet out of them 
 must allow sufficient for the sustenance of the prisoner and his family. 
 
 Qiiasre, Whether in the case of such a seizure, a sale for a valuable 
 consideration before conviction and after seizure do not bind the king, 
 as it seems it doth in a case of seizure and delivery to the Villata: 
 vide 8. Co. Rep. 171. Fleetivood\s case. 
 
 This statute extends as well to treason as to felony, and yet it men- 
 tions only felony, and therefore at this day the exigent goes out upon 
 the second Capias returned non inventus, as well in treason, as 
 felony. 
 
 ig) See State Tr. Vol. IV. p. 615. Sir W. Parkin's case.
 
 365 HISTORIA PLACITORUM CORONA. 
 
 By the statute of 1 R. 3. cap. 3. it is enacted, " That neither she- 
 riff, Si'c. nor other person take or seize the goods of any person ar- 
 rested or imprisoned before he be convict of the felony according to 
 the law of England, or before the goods be otherwise lawfully tbr- 
 feited, upon pain of forfeiting the double value of the goods so taken." 
 
 Mr. Stamford thinks this is but an atlirmance of the common law, 
 only that it gives a penalty, but it seems to be somewhat more than 
 so, for this prohibits the seizure of the goods of a party imprisoned, 
 tho he were also indicted, but not yet convicted, where unquestion- 
 ably the connnon law allowed such a seizure, as is before declared, 
 if the party or his friends did not secure the forth-coming of the goods, 
 where the party was indicted. 
 
 But upon this statute these things are considerable. 
 
 1. Whether it extends to treason; it seems it doth, for as 
 r 366 1 all treason is felony and more, so in a statute of this nature 
 for advancing of justice it seems comprised in it, for it is 
 within the reason of the law, and vide Co. P. C. p. 228, tho I know 
 it was otherwise held, or at least doubted in the case of Sir Henri/ 
 Vane, whose rents were stopt in the tenants hands, and no precept 
 was granted for their delivery, tho before conviction, yea and before 
 the indictment, tho after imprisonment 1661. 
 
 2. Whether it extends to a party, that is at large and out of prison, 
 whether indicted or not indicted, and as to that, 1. It seems clearly, 
 that it doth not repeal the statute of 25 E. 3. cap. 14, touching the 
 second Capias with a seizure of goods. But 2. As to other persons, 
 that are at large and not indicted, nor process, as before, made upon 
 their indictment, it seems to me, that if they fly not, there can be no 
 seizure at all made, whether they are indicted or not, for the statute 
 did not intend a greater privilege to a party imprisoned for an offense 
 of this nature, than he that is at large. 3. That if he be at large and 
 fly for it, yet his goods cannot be seized and removed, whether he be 
 indicted or not indicted. 4. That if he be indicted and at large, 5'^et 
 the goods cannot be removed, but only viewed, appraised, and in- 
 ventoried in the house or place, where they lie. 5. That altho the 
 goods may not be removed, because the statute now hath taken 
 away that removal, that was in some cases at common law, yet nei- 
 ther in case of treason nor in case of felony, where the party is at 
 large, is it within the penalty of the statute as to the point of forfei- 
 ture of the double value, for as to that the statute is penal, but it is 
 within the directive and prohibitory part of the statute, which by an 
 equal construction and interpretation prohibits the thing to be prac- 
 tised, and hath altered the law as to the removing of the goods of the 
 party before conviction. 
 
 And yet I know not how it comes to pass, the use of seizing of the 
 
 goods of persons accused of felony, tho imprisoned or not imprisoned, 
 
 hath so far obtained notwithstanding this statute, that it passeth 
 
 for law and common practice as well by constables, sheriffs 
 
 ("3671 and other tho king's oflicers, as by lords of franchises, that 
 
 there is nothing more usual : vide IJallon's Justice 0/ Peace,
 
 HISTORIA PLACITORUM CORONA. 367 
 
 cap. 110.(/i) in affirmation of it, viz. that the officer may still take 
 surety, that the goods be not embezzled, and for want of sureties 
 may seize and praise them, and then deliver them to the town safely 
 to be kept, until the prisoner be convict or acquit, and cites for it 
 Stamf. 192. 8 Rep. 171. and B. Forfeiture 44. 
 
 It seems the opinion therefore of my lord Coke., P. c9cap. 103. 
 hath truly stated the law, at least as it stands upon the statute of 
 1 R. 3. 
 
 1. That before the indictment the goods of any person cannot be 
 searched, inventoried, nor in any sort seized. 
 
 2. That after indictment they cannot be seized and removed, or 
 taken away before conviction or attainder; but then it may be said, 
 to what purpose may they be searched and inventoried after indict- 
 ment, if they may not be removed, but are equally liable to embez- 
 zling as before. 
 
 I think he is not bound to find sureties, neither hath the offiCer at 
 this day any power to remove them in default of sureties, and com- 
 mit them to the vill, but only to inventory them and leave them 
 where he found them, (unless in case of the second Capias, whereof 
 before) for the prisoner or party indicted may sell them bond fide; 
 and if he may do so, the vendee may take them, and the Villata 
 cannot refuse the delivery of them to the vendee, tho the goods had 
 been delivered to them. 
 
 But there is this advantage by the viewing and appraising, that 
 thereby the king is ascertained what the goods are, and may pursue 
 them that take or embezzle them, by information, (if the party hap- 
 pen to be convict) and try the property with them, whether they are 
 really sold, or sold only fraudulently without valuable consideration 
 to prevent the forfeiture, and so forfeited by the statute of 13 Eliz. 
 cap. 5. notwiihstandiug such fraudulent sale. [5] 
 
 IV. Lastly, touching execution of judgments of treason, they are 
 directed by the judgment, whereof before. 
 
 There be nevertheless some things, that accidentally hap- [ 368 "1 
 pen, that suspend or abate the execution. 
 
 1. Reprieves ex arbitrio regis vel judicis, the king may by com- 
 mand or precept under his great or privy seal, privy signet, or sign 
 manual, yea by signification under the hand of the secretary of state, 
 
 Qi) New Edit. cap. 163. p. 538. 
 
 [5] By the Constitution of the United States, Art. 3. Sect. 3. it is provided that, Con- 
 gress shall have power to declare the punishment of treason; but no attainder of treason 
 shall work corruption of blood, or forfeiture, except during the life of the person attaint- 
 ed. The constitutions of Connecticut, Peiinsylvania, Delaware, Tennessee, Ohio, Indi- 
 ona, Illinois, Alabama, Missouri, and Arkansas, contain similar provisions. By «Seci. 24 
 of the Act of Congress o{ April 30, 1790, it is enacted, that no conviction or judgment 
 for any capital or other offences, shall work corruption of blood, or any forteiture of 
 estate. See Hylton v. Brown, 1 l-^'. C. C. R. 343. The doctrine of corruption of blood, 
 says Mr. Rawle, {Cuns. 146.) arises from an odious fiction, founded on a compound of 
 cruelty and avarice, springing from a perversion of the system of tenures, and at vari- 
 ajice with the liberal principles of modern times, and the very elements of justice. 
 
 VOL. i.^ — 34
 
 368 HISTORIA PLACITORUM CORONA. 
 
 or at this day by the subscription of a master of requests, command 
 the reprieve of one condemned of treason or felony. 
 
 And ahho the judge, by whom judgment is given, ought to be 
 very cautious in granting a reprieve of one condemned for treason 
 before him, yet he may, upon due circumstances do it, as well in case 
 of treason, as felony. 
 
 And this reprieve he may grant, and after he hath granted it may 
 command execution after the sessions and adjournment of the com- 
 mission, Dy. 205. • 
 
 There are other reprieves, which are not arbitrary, but quasi de 
 j^ire. 
 
 1. In respect of pregnancy, for tho pregnancy be no plea to delay 
 judgment, yet it is a plea to delay execution, and therefore whenever 
 any judgment in treason or felony is given against a woman, it is the 
 duty of the judge, before he finish his sessions, to demand of her what 
 she can allege why execution should not be made; yea in all cases, 
 where a prisoner attaint is brought into another court, or reprieved 
 to another sessions, he ought not to have any award of execution 
 against him, till he be first demanded, what he can say, why it 
 should not be, for possibly he may have a pardon after judgment. 
 22 j3ss. 71. 
 
 This plea of pregnancy in retardationem exeai/ionis hath these 
 incidents to it: 1, She must be with child of a quick child. 2, If 
 it be' alleged, the judge, before whom it is alleged, must impanel an 
 inquest of women ex officio to enquire of the truth of her allega- 
 tion, viz. whether she be with child of a quick child, and if they 
 find she is, then her execution is to be respited, if not, she is to be 
 executed. 
 
 If it be found by the jury of women, that she is so with child, some 
 have used to command a respite of her execution till a convenient 
 time, for instance a month after her delivery, and then to be 
 [ 369 ] executed ; but this seems irregular, for she may have a par- 
 don to plead, and therefore it is to be respited till another 
 sessions. 12 ^ss. 10. 
 
 If she have once had the benefit of this reprieve and be delivered, 
 and afterwards be with child again with another quick child, she 
 shall not have the benefit of a farther respite of the same judgment 
 for that cause; gnod vide 23 ^.ss. 2 Coran. 188. 22 E. 3, ibidem 253. 
 
 K the jury of women be mistaken in their verdict, and find her 
 quick with child, where in truth she was not at all with child, (as 
 .once it happened at Akshriry,) if the next sessions of goal-delivery, 
 or oyer and lerviiner happen at that distance, that it is impossible by 
 the course of nature, that she could be with child, but she must be 
 delivered mesne between the former sessions and this, as if it were 
 ten months, 4*c, she shall be executed; but if the second sessions hap- 
 pen within such time after the first, that by course of nature she may 
 still continue with child, as if it be within the distance of six months 
 or the like, then she shall continue under the first reprieve till an- 
 other session, nam licet lempus ordinurium vilalis foetus sit post
 
 HIStORIA PLACiTORUM CORON.^. 369 
 
 16. vel IS. septimanas post impregnatam, tamen in quibusdam 
 citiiis contingere potest juxta medicoriim placita. 
 
 If in truth she were not with child with a quick child at the time, 
 when the jury gave their verdict, but became quick after, nay tho 
 she were not at all with child then, but became with child before the 
 time of the second session with a quick child, in my opinion she shall 
 have a second reprieve by reason of pregnancy, for the advantage that 
 she had at first was not really because of pregnancy, but by a mis- 
 take of the jury of women, and therefore in favorern prolis she shall 
 now have it. 
 
 And therefore, as hath been said, in all cases of reprieves for pregr 
 nancy the judge ought to make a new demand, what the prisoner hath 
 to say, wherefore execution should not be awarded, for the first 
 respite being by a kind of matter of record shall not be determined 
 withoiit a new award of execution; and altho clerks of as- 
 sises enter those respites and awards only in a book of [ 370 ~\ 
 Jigenda, yet regularly they are supposed to be entered of 
 record, and these memorials are warrants for such entries, tho de 
 facto it be not usually done. [6] 
 
 Another cause of regular reprieve is, if mesne between the judg- 
 ment and the award of execution the offender become non compos 
 7nentis,{i) the judge in that case may both in case of treason and 
 felony swear a jury to inquire ex officio, whether he be really so, or 
 only feigned or counterfeit; and thereupon if it be found that he be 
 really distracted, must award a reprieve de jure till another sessions, 
 Co. P. C. p. 4. and the statute of 33 H. S. cap. 20. that directed an 
 execution of parties convict of treason notwithstanding insanity inter- 
 vening after judgment is repeald, by 1 4* 2 P. <^' M. de quo supra 
 p. 283. 
 
 Now as to the abating of some parts of the execution in case of 
 high treason, as drawing, hanging, evisceration and quartering, and 
 leaving the offender only to be beheaded, this may be, and usually is 
 by the king's warrant under his great seal, privy seal, yea or his privy 
 signet, or sign manual, as usually is done in case of noblemen or 
 great men falling under that judgment, for one part of the judgment, 
 viz. decollation, and the substance of the whole judgment, ?;<>. the 
 death of the party, is performed. [7] 
 
 (i) See Sir John Hawles^s remarks on the trial of diaries Bateman, Slate Tr. Vol. IV. 
 p. 204. 
 
 [6] The warrant to execute a man in England is nothing more than a marginal note! 
 4 Bl. Com. 403. 
 
 [7J 2 BL Com. 251. 4 id. 380. 388. 1 Burn's Just. 306. ''Attainder:' 1 Chit. Cr. 
 Law. 723.
 
 371 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXVIII. 
 
 TOUCHING THE CRIME OF MISPRISION OP TREASON, AND FELONY, &C. 
 
 Tho the order proposed in the beginning should refer misprision of 
 treason to that series of offenses, that are not capital, yet because 
 this offense hath relation to treason, and may be of use to explain 
 the nature of it, I shall here take it into consideration, referring 
 misprision in its large and comprehensive nature to its proper place. 
 Misprision of treason is of two kinds. 
 
 1. That which is properly such by the'common law. 
 
 2. That wliich is made misprision of treason by act of parliament. 
 Misprision of treason by the common law is, when a person knows 
 
 of treason, tho no party or consenter to it, yet conceals it and doth 
 not reveal it in convenient time. 
 
 Tho' some question was antiently, whether bare concealment of 
 high" treason were treason, yet that is settled by the statute of 5 4' 6 
 E. 6. cap. 11. and 1 4' 2 P. fy M. cap. 10. viz. that concealment or 
 keeping secret of high treason shall be deemed and ta:ken only mis- 
 prision of treason, and the offender therein to suffer and forfeit, as 
 in cases of misprision of treason, as hath heretofore been used: tho 
 in the time of Henry VIII. and Edward VI. some things were made 
 misprision of treason, that were not so formerly, yet by the statute 
 of 1 Mar. cap. 1. it is enacted, that nothing be adjudged to be trea- 
 son, petit treason, or misprision of treason, but what is contained in 
 the statute of 25 E. 3. and altho that act of 25 E. 3. do not make or 
 declare misprision of treason, yet it doth it in effect by declaring and 
 enacting what is treason, which is the matter or subject of 
 ["372 1 misprision of treason, tho the misprision or concealment 
 thereof be a crime, which the common law defines what 
 it is. 
 
 Therefore since the statute of 25 E. 3. is by the statute of 1 Mar. 
 cap. 1. made the standard of treason, it remains to be enquired, 
 what shall be said the concealment of such a treason according to 
 the reason and rule of the common law. 
 
 If a man knew of a treason, by the old'law in Bracton's time he 
 was bound to reveal it to the king or some of his council within two 
 days, r/iiod si ad tempiis dissimulaverit ^' sub/icucrii, quasi con- 
 sentiens, 4* assentiens erit sedtictor domini regis ;{a) but at this 
 day it is but misprision, if he reveals it not as soon as he can to 
 some judge of assise, or it seems to some justice of peace, for tho 
 the crimes of treason or misprision of treason be not within the com- 
 mission of a justice of peace to hear and determine, yet, as it is a 
 breach of the peace, the justices of peace may take information 
 upon oath touching it, and take the examination of the offenders 
 
 (o) Bract. Lib. III. de corona, cap. 3.
 
 HISTORIA PLACITORUxM CORONA. 372 
 
 and imprison them, and bind over witnesses, and transmit these 
 examinations and informations to the next sessions of gaol-delivery 
 or oyer and terminer to be further proceeded npon as is truly- 
 observed by Mr. Dalton,{h) cap. 90. nay, I have known chief jus- 
 tice Rolls affirm, that justices of the peace may take an indictment 
 of treason, tho they cannot determine, viz. as an information or 
 accusation tending to the preservation of the peace. 
 
 But some treasons enacted by some statutes are limited to be heard 
 and determined by them, as appears in some of the statutes before 
 mentioned, p. 350. 
 
 It is said 3 H. 7. 10. Stamf. 38. n. Dalton, cap. 89.,(c) the utter- 
 ing of false money known to be false is misprision of treason ; but 
 it is a mistake; indeed it is a great misprision, but not misprision of 
 treason, unless the utterer know him that counterfeited it, and con- 
 ceal it, this indeed is misprision of treason, but not the 
 uttering of it, for the money is not the traitor, but he that [ 373 ] 
 counterfeited it, and his counterfeiting is the treason. 
 
 As all treasons and declarations of treasons between 25 E. 3. and 
 1 Mar. are repealed by 1 ]\Tar. cap. 1. so consequently" all mispri- 
 sions of any other treason not contained in 25 E. 3. are thereby 
 repealed. Coke P. C. p. 24. hath these words, Misprision of treason 
 is taken for concealment of high treason or petit treason, and onlij 
 of high treason or petit treason specified and expressed in the act 
 of 25 E. 3. and in the margin, that is of such treason high or petit, 
 as is expressed in the act of 25 E. 3. and of no other treason /and 
 accordingly uttering of counterfeit coin was agreed by the court(c^) 
 at Newgate., Jill gust 1661. to be neither treason or misprision of 
 treason within the statute of 25 E. 3. but only punishable with fine 
 and imprisonment; ex libra domini Bridgman manii sua scripto. 
 
 If a subsequent act of parliament after 1 Mar. make a new trea- 
 son, the concealment of such a treason is certainly misprision of trea- 
 son for these reasons, 1. Because misprision of treason is not any 
 substantive crime of itself, but relative to that, which is, or is made 
 treason, and a kind of necessary consequent and result from it, as the 
 shadow follows the substance. 2. And hence it is, that tho the 
 statute of 25 E. 3. does not by express words enact misprision of 
 treason, to be an offense, yet treasons being settled by that act, the 
 statute of 1 Mar. cap. 1. enacts there shall be no misprision of trea- 
 son but what is enacted by the statute of 25 E. 3. for tho that act 
 speaks not of misprision of treason, yet settling those things that are 
 treason, it doth virtually and consequentially make the concealing of 
 'any of them misprision of treas'^n ; but yet farther, when the act of 
 •1 4* 2 P. 4' M. cap. 10. enacts divers new treasons, tho it enacts 
 nothing to make the concealment thereof misprision, yet in the pro- 
 viso abovementioned it takes notice, that concealment of any of these 
 
 (6) New Edit. cap. ]41.p. 460. 
 ' (c) New Edit. cap. 140. p. 452. This last book says it is misprision of treason, but 
 the other two only say it is a misprision, 
 {d) In the case of Richard Oliver, Kel. 33.
 
 373 HISTORIA PLACITORUM CORONA, 
 
 treasons would be at least misprision of treason, and therefore pro- 
 vides that the concealment thereof shall not be adjudged 
 [374] treason, but only misprision of treason, any thing above- 
 mentioned to the contrary thereof notwithstanding; and the 
 like clause is in the abovementioned statute of 5 <§• 6 E. 6. cap. 11. 
 Again, my lord Coke, P.C. cup. 65. p. 139. says, As in case of 
 high f}'eason, tvhethe?' the treason be by the common law or statute, 
 the concealment of it is misprision of treason ; so in case of felony, 
 whether the felony be by the common law or by statute, the con-- 
 cealment of it is misprision of felony; so that certainly, if a felony 
 or a treason be enacted by a new law, the concealment of the former 
 falls under the crime of misprision of felony, and the latter under the 
 crime of misprision of treason, as a consequent of it without any spe-' 
 cial words enacting it to be so. 
 
 All treason is misprision of treason and more, and therefore, he 
 tliat is assisting to a treason, may be indicted of misprision of trea- 
 son, if the kills pkase. Stamf P. C. 37. b. Co. P. C. 36. 2 R. 3. 
 10 b. 
 
 Altho the, statute of 1 S,' 2 P. S,- M. cap. 10. hath as to treasons 
 repealed the statute of 33 //. 8. cap. 23. for trying treasons in one 
 county committed in another, yet it hath not repealed the same 
 statute as to the trial of murder and misprision of treason, which 
 may yet be tried according to the statute of 33 H. 8. cap. 23. 
 
 In case of misprision of treason and misprision of felony, as well 
 as in case of treason or felony, or accessary thereunto a peer of this 
 kingdom shall be tried by peers, but the indictment is to be by a 
 common grand inquest. 2 Co. Inst. 49. 
 
 The judgment in case of misprision of treason is loss of the profits 
 of his lands during his life, forfeiture of goods, and imprisonment 
 during life. 
 
 Ey what hath been said touching misprision of treason v/e may 
 easily collect what is the crime of misprision of felony, namely, that 
 it is the concealing of a felony which a man knows, but never con- 
 sented to, for if he consented, he is either principal or accessary in 
 the felony, and consequently guilty of misprision of felony and more. 
 
 The judgment in case of misprision of felony in case the concealer 
 
 be an officer, as sheriff or bailiff, S^c. is by the statute of 
 
 \_ 375 ~\ PFestminst. 1 cap. 9.(e) imprisonment for a year and ransom 
 
 at the king's pleasure; if by a common person, it is only 
 
 fine and imprisonment. 
 
 And note once for all, that all those acts of parliament, that speak 
 of fines or ransoms at the king's pleasure, are always interpreted of 
 the king's justices : vide Co. Magna Carta super slat. Westtninst. 
 1 cap. 4. in fine{f) <§• saepius alibi. 2 R. 3. 11. a. voluntas regis in 
 curia, not in camerd.' 
 
 And it seems, that misprision of petit treason is not subject to the 
 judgment of misprision of high treason, but only is punishable by fine 
 and imprisonment, as in case of misprision of felony. 
 
 (e) 2 Co. Inst. 172. (/) 2 Co. Inst. 168.
 
 HISTORIA PLACITORUM CORONA. 375 
 
 II. I come to misprisions of treason so enacted by acts of parlia- 
 ment since 1 Mar. cap. 1. for, as before is observed, by that act all 
 misprisions, that by any statnte made after 25 E. 3, are either 
 expressly or consequentially made misprisions of treason, are repealed 
 and set aside. 
 
 All acts of parliament, that after 1 Mar. enacted any thing to be 
 high treason, do consequentially make the concealment thereof to be 
 misprision of treason, tho it do not in express words enact the con- 
 cealment thereof to be misprision of treason, as hath been before 
 shewn, and the like in case of felony. 
 
 And consequently those acts of parliament, which enacted tempo- 
 rary treasons, as the statute of 1 4* 2 P. 4' M. cap. 10, the act of 
 1 Eliz. cap. 5. (^'C. so far forth as they are temporary, the misprisions 
 of such treasons are also temporary, and expire with the act, and 
 where the acts of treason are perpetual, or being but temporary, are 
 made perpetual by some other act of parliament, the misprision of 
 such treasons remains such, as long as the act of parliament making 
 such treason continues, or is continued, as upon the statutes of 5 Eiiz. 
 and 18 Eliz. 1 Mar. touching counterfeiting of foreign coin made 
 current by proclamation, or clipping or washing coin. 
 
 And the like is to be said in all respects of misprision of felony 
 made so by act of parliament. 
 
 But besides these crimes, that are consequentially mispri- 
 sion of treason, some oifenses are made misprision of trea- [376 J 
 son, as a kind of substantive offense, and not consequential 
 upon the making of treason, but particularly enacted. 
 
 Those of that kind, that are perpetual and have continuance, are 
 as follow : 
 
 14 Eiiz. cap. 3. "They that counterfeit foreign coin of gold or 
 silver not permitted to be current in this kingdom, their procurers, 
 aiders, and abetters shall suffer, as in case of misprision of treason. 
 
 And note, that in that act (aiders) are intended of aiders in the fact, 
 not aiders of their persons, as receivers and comforters, for, as hath 
 been observed /?. 236. in some acts of parliament aiders being joined 
 with procurers, counsellors and abetters are intended of those, that 
 are aiding to the fact; but in other acts of parliament, where the 
 word aiders is joined with maintainers and comforters, it is intended 
 of those, that are aiders ex post facto to their persons; see this diifer- 
 ence in the penning of several acts of parliament, for the first part 
 5 Eliz. cap. 11. 18 Eliz. cap. 1. 1 Mar. sess. 2. cap. 6. touching coin, 
 and for the second part this express distinction observed 13 Eliz. 
 cap. 2. touching publishing of bulls of absolution, where the former 
 kind are enacted to be traitors; the second incur a prxmunirc; the 
 like 23 Eliz. cap. 1. 
 
 13 Eliz. cap. 2. "If any bull or absolution, or instrument of re- 
 conciliation to the see oi Rome be offered to any person, or if any 
 person be moved or perswaded to be reconciled, if he conceal the 
 said of!er, motion or perswasion and. doth not discover or signify it 
 by writing or otherwise within six weeks to some of the privy
 
 376 HISTORIA PLACITORUM CORONA. 
 
 council, Sf'C. he shall incur the penalty and forfeiture of misprision 
 of treason, and that no person shall be impeached for misprision of 
 treason or any offense made treason by this act, other tiian sucii as 
 are before declared to be in case of misprision of treason:" noia, had 
 it not been for this cause the concealment generally of any treason 
 within this act had been misprision of treason. [1] 
 
 23 Eliz. cap. 1. "All persons, that shall put in practice to 
 [ 377 ]] absolve or withdraw the subjects of the queen from their 
 obedience, or to that end perswade them from the religion 
 here established, or if any person shall be so absolved, every such 
 person, and their counsellors and procurers thereunto, shall bead- 
 judged guilty of high treason. 
 
 "And all persons, that shall wittingly be aiders and maintainors of 
 such person so offending, or any of them, knowing the same, or 
 which shall conceal any offense aforesaid, and not reveal it within 
 twenty days after his knowledge thereof to some justice of peace, or 
 other higher officer, he shall suffer and forfeit, as in misprision of 
 treason. [2] 
 
 CHAPTER XXIX. 
 
 CONCERNING PETIT TREASON. 
 
 As at common law there was great uncertainty in high treason, so 
 there was in petit treason. 
 
 It is true, that all the petit treasons declared in this statute(«) were 
 petit treasons at common law, as for a servant to kill his master or 
 mistress, 12 ^ss. 30. a woman to kill her husband, as appears 15 E. 2. 
 Corone 383. and the judgment was the same at common law in such 
 cases, as now, and the lands of him, that was attaint of petit treason, 
 escheted to the mesne lord, of whom they were held, 22 Jiss. 49. so 
 that as to these things the act of 25 E. 3. was but an affirmance of 
 the common law. 
 
 But yet there were certain offences, that Were petit treason atcom- 
 
 (o) viz. 25 Edw. 3. 
 
 [1] See 1 East, P. C. 139. 4 Bl. Com. 120. 
 
 [2] It has been enacted by Sect. 2. of the act of Congress of April 30, 1790, that if any 
 person or persons having knowledge of the commission of any ot'the treasons defined by 
 tiiat act, shall conceal and not as soon as may be disclose and make known the same to 
 the President of the United States, or some one of the Judges thereof, or to the President 
 or Governor of a particular State, or some one of the Judges or Justices thereof, such 
 person or persons on conviction shall be adjudged guilty of misprision of treason, and 
 shall be imprisoned not exceeding seven years, and fined not exceeding one thousand 
 dollars. Weidle''s case, 2 Dall. 88. was an indictment for misprision of treason for speak- 
 ing certain words tending to excite resistance to the government of the commonwealth 
 of Pennsylvania. No instance of this offence has occurred against the government of 
 the United States.
 
 HISTORIA PLACITORUM CORONA. 377 
 
 mon law, that are restrained and abrogated by this statute from being 
 petit treason. 
 
 15 E. 2. Corone 383. A woman intending to kill her 
 husband beat him so, that she left him for dead, but yet he [ 378 ] 
 recovered, for this attempt the wife had judgment to be 
 burned. 
 
 Fleta, Lib. I. cap. 22. Britton, cap. 8. If the homager or servant 
 falsify the seal of his lord, or had committed adultery with the lord's 
 wife or daughter,(A) it was petit treason. 
 
 But these are taken away by this act of 25 E. 3. and are reduced 
 only to these three ranks: 
 
 1. The servant killing his master or mistress, 2. The wife killing 
 her husband. 3. The clergyman killing his prelate or superior, to 
 whom he owes faith and obedience. 
 
 All petit treason comes under the name of felony, and a pardon of 
 all felonies, where petit treason is not excepted, at common law par- 
 doned petit treason, and so at this day doth a pardon of murder. 
 
 A man or woman, that commits petit treason, may be indicted of 
 murder, but if all felonies, S^c. are pardoned by act of parliament, 
 wherein there is an exception of murder, it seems that a murder, 
 which is a petit treason also, is discharged and not within the excep- 
 tion, M. 6^-7 Eliz. Dyer. 235.(c) 
 
 The killing of a master or husband is not petit treason, unless it 
 be such a killing, as in case of another person would be murder, and 
 therefore upon an indictment of petit treason for a servant killing his 
 master, if upon the circumstances of the case it appears to be a sud- 
 den falling out, and the servant upon a sudden provocation kills his 
 master, which, in case it had been between other persons, had been 
 only manslaughter, the jury may acquit him of petit treason, and find 
 him guilty of manslaughter; and thus it was once done before me 
 at Dorchester assizes, and another time before justice Windham at 
 Coventry assizes, tho the indictment were for petit treason. 
 
 If a wife conspire to kill her husband, or a servant to kill his mas- 
 ter, and this is done by a stranger in pursuance of that con- 
 spiracy, it is not petit treason in the servant or wife, because [^379 ] 
 the principal is only murder, and the being only accessary, 
 where the principal is but murder, cannot be petit treason; but if the 
 wife and a servant conspire the death of the husband, being his mas- 
 ter, and the servant etiect it in the absence of the wife, it is petit 
 treason in the servant, and she is accessary before to the petit treason, 
 and shall accordingly be indicted and burnt P. 16. Eliz. Dy. 332. a. 
 40 Jiss. 25. 
 
 If the servant and a stranger, or the wife and a stranger conspire 
 to rob the husband or master, and the servant or wife be present and 
 
 (J)) Biitlon adds, or the nurses of Ms children. 
 
 (c) The reason of this is, because petit treason is an offense of another species, 6 Co. 
 Rep. 13. b. but then by the same reason a pardon o( imirde.r does not include a pardon of 
 petit treason, nor can one guilty of jietit treason be indicted of murder. See Rex versus 
 Crispe, State Tri. Vol. VI. p. 224, 225.
 
 379 HISTORIA PLACITORUM CORONA. 
 
 hold the candle, [while the husband or master is killed,*] the stranger 
 is guilty of murder, and the wife or servant guilty of pelit treason as 
 principal, because present, 2 S,^ 3 P. 8,- M. Dy. 128. a. 
 
 So that the statute of 25 E. 3. doth not only extend to the party, 
 that actually commits the offense, but also to those that were procu- 
 rers, aiders or abetters, scilicet, if they be present, they are guiity of 
 petit treason as principals, if absent, yet if the offense in the prmcipal 
 be petit treason, the offense in the accessary before is petit treason, as 
 accessary, as in BroiDn^s case, Dy. 332. a. 
 
 If a wife or a servant intending to poison or kill a stranger, and 
 missing the blow the wife by mistake kills or poisons her husband, or 
 the servant his master, this, that would have been murder, if it had 
 taken etlect against the stranger, becomes petit treason in the death 
 of the husband or master. Plowd. Com. 475. b. Crompt. de pace 
 regis 20. b. and Dolt. cap. d\.{d) so if he shoot at J. *SVand missing 
 him kills his master. Ibid. 
 
 If the wife or servant conspire with a stranger to kill the husband 
 or master, if the wife or servant be in the same house, where the fact 
 is done, tho not in thd* same room, it is petit treason in them, and 
 they are principals in law, because in law adjudged to be present, 
 when in the same house; but if they had been absent, then 
 [ 380 3 they had been only accessaries before the fact to murder. 
 Crompt. de pace regis 21. a. Blechendeii's case. 
 
 If the wife or servant conunand one to beat (he husband or master, 
 and he beat him, whereof he dies, if the wife or servant be in the 
 same house, it is petit treason in the wife or servant as principals, but 
 murder in the stranger. Crumpt. 20. b. Plowd. Com. 475. b. 
 
 For whatsoever will make a man guilty of murder will make a 
 woman guilty of petit treason, if committed upon the husband, or the 
 servant, if committed upon the master. 
 
 Eadem lex mutatis mutandis for an inferior clergyman in relation 
 to his superior. 
 
 But now to descend to particulars. 
 
 I. A servant killing his master. 
 
 Who shall be said a servant or a master. 
 
 If the servant kills his mistress or his master's wife, this is petit 
 treason within this act. 19 H. 6. 47. Plowd. Com. 86. b. Co. P. C. 
 20. 12 JJss. 30. 
 
 If a servant, being gone from his master, kills him upon a grudge, 
 that he conceived against his master, while he was in his service, 
 which he attempted while his servant, but was disappointed, it is 
 petit treason. 33 Jlss. 7. Plowd. Com. 260. a. Co. P. C. 20. 
 
 If a child live with his father as a servant, as if he receive wages 
 from him, or meat and drink for his service, or be bound apprentice 
 to him, and kills his father or mother, this is petit treason at this 
 day.(/) . 
 
 * These words arc not in the MS. but they are in the case cited from Dyer, and the 
 eense plainly re()uires tliem. 
 
 {d) New Edit, cap, 142. p. 462. (/) 1 Mar.Dalison 14.
 
 HISTORIA PLACITORUM CORONA. 380 
 
 But if he receives no wages, nor meat and drink for his service, or 
 be not bound apprentice to him, but only is his son and not his ser- 
 vant, and kills his father, this was petit treason at common law. 
 21 E. 3. 17. b. per Tfinrp;{g) but the better opinion is, that it is not 
 petit treason at this day, because this statute of 25 E. 3. shall not in 
 this case be extended by equity: quod vide Co. P. C. 20. Lamhart 
 Jiistic. 248. Crompt 19. 6., 
 
 II. The wife killing her husband. 
 
 If the husband kill the wife it is murder, not petit treason, [ 381 ] 
 because there is subjection due from the wife to the hus- 
 band, but not ^ converso. 
 
 If the wife be divorced from the husband causa aduUerii vel 
 saevi/iK, she is yet a wife within this law, because this dissolves not 
 the vincuiu7?i matrimonii by our law, for they may cohabit again, 
 but otherwise it is, if they be divorced causa consanguinitatis or 
 prxcontractdsf for then the vinculum is dissolved, they are no more 
 husband and wife. 
 
 If*.'?, be married to B. and during that intermarriage t/?. marries 
 Cf tho C. be, as to some purposes, a wife de facto, yet she is not a 
 wife within this law, for the second marriage was merely void, tho 
 perchance she may, upon circumstances, be a servant within the for- 
 mer clause, if she cohabit with Ji. and he finds her necessaries for 
 her subsistence; tamen quxre. 
 
 III. The clergyman killing his prelate, &;c. 
 
 If a clergyman living and beneficed in tbe diocese o{ Ji. kills the 
 bishop o{ that diocese, it is petit treason; but if he kills the- bishop of 
 the diocese of jB. it is only murder. 
 
 If a clergyman hath a benefice in the diocese of .^. and after, by 
 dispensation takes a benefice in the diocese of B. if he kills the 
 bishop of one diocese or the other, it is petit treason, for he owes and 
 swears upon his institution canonical obedience to the bishop of each 
 diocese. 
 
 If a clergyman beneficed in the diocese o{ A. within the province 
 of C. kills his metropolitan, it seems it is petit treason, tho he be not 
 his immediate superior. 
 
 If a clergyman be ordained by the bishop of A. in ordinem 
 diaconi, sive preshyteri sine titulo, yet it seems if he kills the 
 bishop it is peiit treason, for he professeth canonical obedience upon 
 his ordination. 
 
 , ^ Concerning proceedings in petit treasons. 
 •. In high treason all are principals, but in petit treason there are 
 principals and accessaries, as well before, as after. 
 
 If the principal be only murder, as being committed by a stranger, 
 the accessary cannot be petit treason, tho she be a wife or servant. 
 Dy. 332. Brown's case ubi supra. 
 
 ig) The book says, he was indicted for killing his mere (Iiis mother) but Coke P. C. ■ 
 p. 20. says it is misprinted, and that it should be read maistre, (his master) for mre being 
 abreviated, (as periiaps it was in the MS. of tlje year booko) muy be read either way, tho 
 the last seems the most probable.
 
 382 HISTORIA PLACITORUM CORONA. 
 
 But if the principal be petit treason, as being committed by a 
 wife upon her husband, or by a servant upon his master or mis- 
 tress, if the accessary be of the same relation, viz. a servant or 
 wife, the judgment shall be given against the accessary, as in petit 
 treason; but if the accessary, whether before or after, be a stranger, 
 (ho such stranger be an accessary to petit treason, yet. the judg- 
 ment shall be as in a case of felony ^against the accessary, viz. 
 qiind snspendatttr, for tho he be an accessary to petit treason, which 
 is the principal, yet such accessary being a stranger is not, nor can be 
 guilty of petit treason, because a stranger to the party killed, and 
 neither wife nor servant. 
 
 At common law, and by the statute of 25 E. 3. cap. 4. clergy was 
 allowable in case of petit treason, but not in case of high treason; 
 but now by the statute of 23 //. 8. cap. 1. 1 ^. 6. cap. 12. clergy is ex- 
 cluded from petit treason, as well as murder, and in the same kind. 
 
 If a person arraigned of high treason stands wilfully mute, he shall 
 be convicted as hath been formerly shewn ;[1] but if arraigned of 
 petiftreason, he stand mute, he shall have judgment of {*) peine fort 
 S,' dure. Crompt. 19. h. Co. P. C. 217. 
 
 The judgment of a woman convict of petit treason is to be 
 burnt, (//)[2] but (by Stamf. P. C.fol. 182. b.) in high treason to be 
 drawn and burnt, unless it be in case of coin, and then only to be 
 burnt, as in case of petit treason. 
 
 But the judgment against a man convict of petit treason is to be 
 drawn and hanged, trahatur 8^^ svspendatur per collum. 
 
 Stamford in P. C. 182. tells us, that the execution of drawing is 
 to be upon a hurdle, but 33 tdss. 7. Shard justice commanded, that 
 nothing should be brought, whereupon he should be drawn, mes 
 que sans cley ou autre chose a desouth lui soil tray de chivaux 
 hors de la sale, ou il avoit judgement, tanque a les furc, S^-c. but 
 that severity is disused: he is in such cases drawn upon a hurdle to 
 the place of execution. 
 
 And thus far touching petit treason. [3] 
 
 (*) [Peine fort and dure] but now see the Stat. 12. Geo. 3. cK 20. as to a person, ar- 
 raigned on any indictment, standing- mute. And 3 Burn. Edit. 1776. p. 211. 
 
 (A) The judgment of a woman convict of petit treason (or in case of coin) is all one as 
 in high treason, viz. tohe drawn and burnt. Co. P. C.p. 211. and so is the constant prac- 
 tice. 
 
 [1] Ante, p. 224. [2] Altered by the 30 Geo. 3. c. 48, to hanging. 
 
 [3] By the 9 Geo. 4. c. 31. s. 2, "every offence whicli before the commencement of 
 this act wouUl have amounted to petit treason, shall be deemed to be murder only, and 
 no grciiter offence; and ail persons guilty in respect tliereof, wlietlier as principals or as 
 accessaries, shall bo dealt with, indicted, tried, and punished as principals and accessa- 
 ries in murder." The crime of petit treason seems to be unknown to the jurisprudence 
 of the United.Statcs ; the otFender would in such case bo tried as for any other liind of 
 murder. Davis' V}rg.,C. L. iQ'J.
 
 HISTORIA PLACITORUM CORONA. 383 
 
 CHAPTER XXX. 
 
 CONCERNING HERESY AND APOSTACY, AND THE PUNISHMENT 
 
 THEREOF. 
 
 Under the general name of heresy there hath been in ordinary- 
 speech comprehended three sorts of crimes: 1. ^.^Ipostacy, when a 
 christian did apostatize to Paganism or to Judaism, and the punish- 
 ment hereof, as well by the law of this kingdom, as by the imperial 
 laws, seems to have been by death, namely burning. Bract. Lib. III. 
 de corona, cap. 9. (a) by the imperial law he was subject to loss of 
 goods, Cod. de apostatis, tit. 7. lege 1. but it appears not, whether 
 he. were to suffer death. Ibid. I. 6. unless he solicited others to apos- 
 tacy.(6) 2. Witclicraft, Sortilegium was by the antient laws of 
 England of ecclesiastical cognizance, and upon conviction thereof 
 without abjuration, or relapse after abjuration, was punishable witli 
 death by writ de hxretico comburendo, vide Co. P. C. cap. 6. «§• 
 lihros ibi, Extr^ de hsereticis, cap. 8. §. 5. n. 6. 3* Formal heresy; 
 the old popish canonists define an heretic to be such, qui male sentit 
 vel docet de fide, de corpore Christi, de baptismate, peccatorum con- 
 fessione, matrimonio, vel aliis sacramentis ecclesise, & generaliter, 
 qui de aliquo prasdictorum vel de articulis fidei aliter praedicat, sentit 
 vel doceat, quam docet sancta mater ecclesia: and whereas the 
 antient councils and imperial constitutions grounded thereupon kept 
 the business of heresy within certain bounds and descriptions, as the 
 Manichees, Nestorians, Eufychians, 4'C. quod vide in Codice, Lib. I. 
 tit. 5. de hsereticis, I. 5. in the edict of Theodosius and Valentinian; 
 the papal canonists have by ample and general terms extended 
 heresy so far, and left so much in the discretion of the ordinary to 
 determine it, that there is scarce any the smallest deviation from 
 them, but it may be reduced to heresy according to the 
 great generality, latitude, and extent of their definitions and f 384 ] 
 descriptions, whereof see the gloss of Lindwood in titulo 
 de Hsereticis, cup. 1. Beverendissimse ad verbum declarentur: the 
 definition of Grostead, tho somewhat general, is much more rea- 
 sonable as we have it given by Mr. Fox, Acts <§' Mon. part. 1. p. 420. 
 Est sententia hnrnano sensu electa, palani docta, pertinaciter 
 defensa; but of this more hereafter. 
 
 In this business of heresy, and the punishment thereof, I shall, as 
 near as I can, use this method: 1. I will consider in general who is 
 the judge of heresy according to the common and imperial law. 
 2* Who shall be said an heretic according to tliose laws. 3. What 
 the punishment of an heretic is according to those laws: then I shall 
 consider more specially, viz. 1. What was the method of the con- 
 viction of heresy according to the antient law used in England 
 
 (a) p. 123. h. (b) Then it was capital, Lib. I. Cod. tit. 7. I. 5.
 
 384 HISTORIA PLACITORUM CORONA. 
 
 before the time of Richard II, and Henry IV. And 2, What was 
 the usual punishment of heresy liere m England before the time t)f 
 Richard II. and Henry IV. 3. I shall give an account touching 
 the proceeding against heretics from the beginning of Richard II. to 
 the twenty-fifth year of king Henry VIII. 4. What is the method 
 of proceeding, and how the law touching heresy, heretics, and their 
 punishment from 25 H. 8, until the first year of queen Elizabeth. 
 5. How the law stood from 1 Eliz. to this day touching this matter. 
 
 I. According to the common and imperial law, and generally by 
 other laws in kingdoms and states, where the canon law obtained, 
 the ecclesiastical judge was the judge of heresies, and hereby they 
 obtained a large jurisdiction touching it, so that there was scarce 
 any thing, wherein a man dissented from the doctrine or practice of 
 the Roman church, but they took the liberty to determine heretical, 
 qui a recto tramite, & judicio ecclesise catholicse delectus fuerit 
 deviare, & is qui dubitat de fide catholica, yea even, qui despicit & 
 negligit servare ea, que Romana ecclesia statuit vel servare decreve- 
 rat: vide Zy//?f/!ooo^ de haereticis in cap. Reverendissimse «rf 2^er6i^m 
 declarentur, which left an excessive arbitrary latitude in the eccle- 
 siastical judge, and a great servitude and uncertainty upon men 
 
 subject to their censures: the ecclesiastical judge was either 
 r 385 3 extraordinary, viz. certain inquisitors thereunto deputed by 
 the pope, or ordinary, which was the bishop of the diocese, 
 as appears by Lindwood de hsereticis, cap. finaliter verb, ordinarius 
 in glossa;{*) only for the more solemnity of the business of degra- 
 dation, which accompanied the sentence of heresy upon one in orders 
 before the offender was left to the secular power, there were six, but 
 afterwards three bishops to be present in degradation a sacris ordi- 
 nihus, viz. the episcopal^ Presbyteratns, Diaconatus <§' subdiaco- 
 7ialus, but in minoribus ordinibus there was only required the 
 bishop and his chapter, canonici sive clerici, 6 decretal, cap. 2. after- 
 ward the business of degradation was reduced to one bishop, viz. 
 the ordinary of the place, so far at least as the same respected the 
 ordo Presbytcratus and inferior orders. 
 
 But I do not find, that by the canon or civil law the declaratory 
 sentence of heresy was necessary in a provincial synod, tho in great 
 cases, especially where a priest was to be degraded, it was most com- 
 monly done in a provincial synod, partly for the greater solemnity of 
 the business, and partly because in such synods more bishops and 
 others of the clergy were present; but how the use was in England 
 we shall hereafter see. 
 
 II. As to the second, touching heretics and their discriminations 
 according to the canon law, they may be distinguished into three 
 ranks: 1. Simplex hxreticus. 2. Hserelicus contumax. 3. Hasreticus 
 rela/j.s7is. 
 
 1. A simple heretic was such, as held an heretical opinion, but 
 being convened before tlie ordinary, and the opinion being substan- 
 
 (*) See also Lindwood de hareticis, cap, item quia verb, ordinarii.
 
 HISTORIA PLACITORUM CORONA. 385 
 
 tially declared heretical, and the party convicted thereof, declares his 
 penitence and abjnres his opinion, in this case he was dismissed with- 
 out farther punishment, and this abjuration might be required by the 
 ordinary, and was of two kinds, viz. a special abjuration, whereby 
 he abjured that single heretical opinion, for which he was condemned, 
 or a general abjuration, whereby he renounced all heretical opinions: 
 vide Lindwond de hssrelicis, cap. Reverendissimse verb, nisi resipis- 
 cant & abjuraverint in forma ecclesias consneta: and this ab- 
 juration might be required not only of those, that were de- [ 386 ] 
 tected and convicted of heresy, but even of those, that were 
 graviter suspecti; and if they refused it, they proceeded to sentence 
 them as convict: Extr'' de Hsereticis, cap. ad aboleiidam. 
 
 2. A contumacious heretic was among them of two kinds: 1. Such. 
 as refused to appear before the ordinary, being accused of heresy, 
 and thereupon were duly excommunicate and so continued excom- 
 municate for one year, turn velut hxreticiis condernnetur, and was 
 thereupon delivered or left to the secular power, de hxrelicisy cap. 7. 
 cum conlumacid in 6io, 4'C. 2. Where the party accused of heresy 
 was convict by testimony of his own confession, and refused to repent 
 and abjure, such a one might thereupon be sentenced as an heretic, 
 and delivered over to the secular power, but yet he had this favour 
 or privilege, if even after such sentence he willingly repented and 
 abjured, the ordinary ought to accept thereof, and not deliver him 
 over to the secular power, but he was spared. Lindwood de Hx- 
 reticis, cap. Reverendissimse verb, resipiscant, 4' Extr^ de Hsereticis^ 
 cap. ad abolend. verb, sponte recurrere; but then tlie ordinary might 
 detain him in prison: vide accordant 1 Mar. Br. Heresy. 
 
 3. A relapsed heretic: and herein they distinguish between Jicth 
 relapsus, <^' vert relapsiis: Lindwood de hsereticis cap. item quia, 
 wrb. relapso: 1. The former is where a man is accused of heresy, and 
 is under a great suspicion thereof, but not convicted, only the ordi- 
 nary puts him to abjure, which accordmgly he doth, and afterwards 
 doth entertain, visit, or comfort heretics, such a person by the canon 
 law may be sentenced as an heretic relapsed, and delivered over to 
 the secular power, but yet the ordinary may, as before, detain him in 
 prison without actual delivering of him over to the secular judge to 
 be executed. Lindwood ubi supra, <§• in 6to decretal, cap. S.^rcu- 
 sat' de hsereticis. 2. Vere relapsus is, when a man being convicted 
 of heresy, and abjuring again falls into heresy, if he be thereupon 
 convicted and sentenced, there can be no suspension of the sentence 
 by the ordinary, tho the party repent and conform, but he must be 
 delivered over to the secular power, and the sentence ought 
 
 to be given, and is not by any means to be suspended from [ 387 J 
 execution : (ito de Hsereticis, cap. 4. 
 
 But this relapsing is of two kinds according to the quality of his 
 abjuration: if the abjuration be general of all heresies, if he after fall 
 into any heresy, either that whereof he was formerly accused and 
 convicted, or any other, lie is to be sentenced as a relapsed heretic; 
 but if the abjuration be only special of that heresy whereof he is 
 accused, then he is not to be sentenced, as a relapsed heretic, unless
 
 387 HISTORIA PLACITORUM CORONA. 
 
 he after fall again into the same heresy, which he so specially abjured; 
 but herein there is some difference among the doctors, for some think 
 even after a special abjuration of one particular heresy, if he falls into 
 another heresy, cense fur relapsiis: vide Extr. de Haereticis, cap.Ac- 
 ciisat. § 2, Eum vero in 6/0 S,' Lindwood de hvereticis, cap. Item 
 quia verbo sirapliciter in glossa : but the ordinary may put this out 
 of question, for it seems by the canon law he may at his pleasure in 
 cases of heresy requre a general abjuration, viz. de haeresi generali- 
 ter <5' simpliciter. 
 
 III. Now as to the punishment itself of heresy, especially of those 
 that are either contnmaces ov relapsi : 1. By the civil law; it is 
 true, that the conviction and sentencing of heretics is as well thereby, 
 as by the canon law, left to the ecclesiastical judge, so that without 
 a declaration or sentence of the ecclesiastical judge the civil jurisdic- 
 tion cannot proceed to inflict any punishment, Lindwood de hscreti- 
 cis, cap. Reverendissimge verb, contiscata in glosse tho confiscation 
 of goods of the heretic followed upon his conviction, necessaria 
 tamen est sententia declarativa judicis super ipsa confiscatione, & 
 hsec sententia fieri solummodo debet per judicem ecclesiasticum, & 
 non per judicem saecularem: vide in Glo de hxreticis, cap.. secundam 
 leges. 
 
 But tho the decision and judicial sentence of heresy was belonging 
 only to the ecclesiastical judge, yet the civil constitutions of emperors 
 and princes did institute and enact several penalties, as consequential 
 upon such sentence, such as were confiscation of goods, disherison of 
 heirs, and in some cases death, as we shall see hereafter: quod vide 
 in Codice, Lib. I. tit. 5. de hvcreticis per totam. 
 
 As to the penalty of death ultimum supplicium: it 
 ["388 3 ^'lo'-^'^i seem the antient imperial constitutions made a dif- 
 ference between heresies in relation to that punishment: it 
 appears by the edict of Theodosius Codice, cap. 4. the Manichees 
 and Do7iatists were punished with death, and possibly so were the 
 Nestorians, ibidem cap. 6. and generally all heretics, that seduced 
 the orthodox to rebaptizatioii, ibid. cap. 23. many other heretics 
 were under milder sentences, some were punished with exile, some 
 with extermination from the city, some with pecuniary mulcts, and 
 some with confiscation, which, it seems, was the most usual punish- 
 ment: but it seems that by the constitution of the emperor Frederic, 
 (which yet is not extant) Hodie indistincte illi, qui per judicem eccle- 
 siasticum sunt damnati de haeresi, quales sunt pertinaces & relapsi, 
 qui non petunt misericordiam ante sententiam, sunt damnaudi ad 
 mortem per sa^culares potestates, & per eas debent comburi sen igne 
 cremari. Lindwood de hmreiicis, cap. Reverendissima; ve^^b. pcenas ; 
 and from this constitution of Frederic the course of burning gene- 
 rally all heretics indistinctly, if pertinacious or relapsed, took its rise. 
 
 Now as to the penalties by the canon law, it is true they go no 
 farther than ecclesiastical censiu'es, injunction of penance, excommu- 
 nication, and deprivation of ecclesiastical benefices; but yet they 
 made bold by some of their constitutions to proceed farther, and
 
 HISTORIA PLACITORUM CORONiE. 388 
 
 indeed farther than they had authority; such were among others 
 imprisonment by the ordhiary, and confiscation of goods,(c) but 
 whether they adventured hereupon only in subservience to civil con- 
 stitutions, or whether by their own pretended power, may be doubt- 
 ful; but howsoever, it is so decreed in their canons and constitutions: 
 vide Linchvnod de hsereticisy cap. Reverendissimse verb, confiscata, 
 Sf' ibidem Item quia verb, sententialiter. 
 
 But indeed as to the inflicting of death upon heretics, their canons, 
 go not so far as that ; neither indeed need they, for emperors and 
 princes being induced by them to enact such severe constitutions, 
 they did in effect the business by sentencing the heretic, and 
 then leaving him to the secular power, so that the secular f 389 ] 
 power was only in nature of their executioner; and altho 
 they direct in some cases of treason an intercession to be made to the 
 secular power to spare the life of the offender thus committed over 
 to the secular power, Extr. de verborum significatione cap. Novi- 
 nius, yet we find no such curtesy for heretics, but the princes, that 
 do not effectually proceed according to the utmost of their power to 
 eradicate them, are threatned with excommunication, and accordingly 
 they are required to take an oath to perform it, Extr. de hsereticis, 
 cap. Ad abolendam.(*) 
 
 Therefore as to the punishment of heretics with death, of an here- 
 tic so declared by the bishop, it was left to the secular power with 
 this difference, if the person convicted were a layman, he was imme- 
 diately after his sentence to be delivered to the secular power to be 
 burnt; but if he were a clergyman within the greater or lesser 
 orders, he was first solemnly degraded, beginning with the chiefest 
 order he had, as that of priesthood, and so to the lowest, damnati per 
 ecclesiam judici saeculari relinquentur animadversione debita puni- 
 endi, clericis a suis ordinibus primo degradatis. Extr. de hsereticis, 
 cap. excommunicamus:(t) the solemnity whereof see at large in Qto 
 decretal de poenis cap. Degradatio, Fox's acts afid monuments 
 part \. p. 674. the degradation of William Saivtre. 
 
 This degradation by the latter cannons might be by one bishop, 
 tho formerly it required more. 
 
 •When the sentence was given by the ordinary, and the offender 
 thus left to the secular power, he was delivered over to the lay- 
 officer, and then a mandate or writ issued from the chief magistrate 
 to execute the offender according to the secular law; but of this 
 more particularly hereafter, 
 
 I have been the longer in these particulars, th^t we thereby may 
 observe these two things: 1. How miserable the servitude of chris- 
 tians was under the papal hierarchy, who used 50 arbitrary and un- 
 limited a power to determine what they pleased to be heresy, and 
 
 (c) For in Ennrland before the statute of 2 H. 5. cap. 7., neither lands nor goods were 
 forfeited by a conviction for heresy. 3 Co, Instit. 43. 
 (*) Vide Constit. Frederici, § 6. 
 
 (+) Vide Lindwood de hccreticis, cap. Finaliter verb, sententiet. 
 VOL. I. — 35
 
 390 HISTORIA PLACITORUM CORONA. 
 
 then 0771721 appeUatione postposita subjecting men's lives to their 
 sentence.* 2. How finely they made the secular power their vas- 
 sals in execution of this odious piece of drudgery, as it was managed 
 and practised by them. 
 
 I come now to a closer consideration of heresy, and its punish- 
 ment according to the usage received in Engla7id, and the laws re- 
 lating thereunto, according to the method above propounded. 
 
 1. Therefore how the usage and law obtained concerning this 
 matter in England before the time of Richa7'd II. 
 
 As the romish religion was generally received here in E7igland 
 in this period, so the manner of proceeding touching heresy was 
 much according to the papal decretals and constitutions, whereof a 
 large account is above given. 
 
 The jurisdiction, wherein heresy was proceeded against, was at 
 the common law of two kinds: 1. The convocation of a provincial 
 synod. 2. The diocesan or bishop of the diocese, where the heresy 
 was publi&lied, and the heretic resided. 
 
 .1. As to the former it is without question, that in a convocation 
 of the clergy or provincial synod they might and frequently did 
 here in Engla7id proceed to the sentencing of heretics, and when 
 convicted, left them to the secular power, whereupon the writ of 
 Hssretico combiire7ido might issue, (thus it was done in the case of 
 the apostate Jew, Bract de Corona, Lib. \\\,{d) and the case of 
 Sawtre,{e) 2 H. 4. who was convict in the convocation of Lo7idon,y 
 and then the archbishop, who was prasces conci/ii, pronounced the 
 sentence, degraded the offender, if in orders, and signified the con- 
 viction into chancery, whereupon the writ de hxretico comburendo 
 issued. 
 
 2. As to the power of the bishop or diocesan alone there hath 
 been diversity of opinions ; some have thought, that the bishop of 
 
 the diocese might proceed against heresy by ecclesiastical 
 ("391 ~\ censures, but as to the loss of life the conviction ought to 
 
 be at least in a provincial council, without which the heretic 
 ought not to undergo death by the writ de hairetico comburendo.^ 
 1. For that in the case mentioned by Br acton, Lib. III. de Corond^ 
 the conviction of that heresy, or rather apostacy, whereupon the 
 offender was burnt, was in the provincial council at Oxford. 2. The 
 writ de hseretico cornbnrendo in the register, and F. N. B. recites 
 the conviction to be in a provincial council, and according to it is the 
 opinion of Filzherbert, ibidem fol. 269. and the statute of 2 H. 4.' 
 (hereafter mentioned) giving ))ower to the ordinary finally to sen- 
 tence an heretic, so that death should ensue thereupon, was novx 
 jiirisdiclionis i/i hac parte i7itroductse. Again my lord Coke, 
 
 (*) Oodfridus Coloniensia anno 1234. spealjing of the severity of the pope and th^ 
 emperor Frederic, (the antlior of the constitution afore-mcntioned for buininor heretics) 
 sayn, Kodem die, quo quid uocnsatus est sou juste, scu injustd, niillius appcllationi.s, nul- 
 tius dcfcnsionis relujrio proficientc, damnalur, & llaiiunas crudclitcr iiijicitur. See 
 also Mat. Paris, p. 4-2[). 
 
 {d) Lib. III. cap. 0. fol. 124.0. 
 
 (e) State Tr. Vol. VL Append, p. 2. Foz's Acts and Mon. Vol. I. p. 586. Rymer's Fad. 
 Vol. Vni.p. 178.
 
 HISTORIA PLACITORUM CORONA. 391 
 
 12 Jiep. p. 56, 57. recites this to be the opinion of all the judges in 
 2 Mar. and ii} effect agreed unto 43 Eliz. by Sir John Popham, and 
 others, 5 Rep. Cawdrie's case, p. 23. a. accordant^ and Brooke 
 seems to accord. 1 Mar. Br. Heresy. 
 
 On the other side others have holden, that the diocesan alone by 
 the canon law might convict of heresy, and that thereupon this 
 writ may be issued: 1. This is consonant to the old decretals, and 
 likewise to the provincial constitutions of Arundel, Courtney and 
 Others, that the diocesan alone without the assistance of a provincial 
 council might convict of heresy, and deliver over the offender to the 
 secular power. 2. Again, the statute of 2 H. 4. cap. 15. recites and 
 admits the power of the diocesan in this case, but that by reason of 
 the offender's going from diocese to diocese, and refusing to appear 
 before the ordinary, he was interrupted in his proceeding, and there- 
 upon the statute gives farther remedy. 3. That accordingly it was 
 practised in the time of queen Elizabeth, when all former statutes 
 concerning heresy were repealed, and the case stood as it was at 
 common law, 4. That it was accordingly resolved by Fleming, 
 Ttmfield, Williams and Crake, in 9 Jac.,(f) when Legate wa.s 
 burnt for heresy; arid accordingly my lord Coke, P. C. 
 cap. 5. p. 40. seems to be of the same opinion, (^) and so f 392 ] 
 seems to retract what he had before delivered in his 12th 
 report. 
 
 This business will be further considered in the sequel of this chap- 
 ter, for the present I shall only say thus much. 
 
 1. That the diocesan, as to ecclesiastical censures, may doubtless 
 proceed to sentence heresy. 
 
 2. I think that at common law, and so at this day, (all former 
 statutes being now repealed by 1 Eliz. cap. 1.) if the diocesan con- 
 victs a man of heresy, and either upon his refusal to abjure, or upon 
 a relapse decree him to be delivered over to the secular power, and 
 this be signified under the seal of the ordinary into the chancery, 
 the king might thereupon by special warrant command a writ de 
 hasretico cornhurendo^h) to issue, tho this were a matter that lay in 
 his discretion to grant, suspend, or refuse, as the case might be cir- 
 cumstantiated. 
 
 And what is here said of the diocesan or bishop of the diocese is 
 
 (/) 12 Co. Rpp. 92. 
 . ig) Lord Cuke does not intimate as if he was of this opinion, or had retracted what . 
 hahad (said in his 12th report, and had been solemnly resolved in Cawdrie^s case;) he 
 says indeed, that from the statute of 2 H. 4. may be gathered this conclusion, that the 
 diocesan hath jurisdiction of heresy, and accordingly it was resolved in Legate's case, 
 aind^ that upon a conviction before the ordinary of heresy, the writ de hcsretico com- 
 burendo doth lie; this he mentions as also resolved in Legate''s case, as in truth it was; 
 but to this last resolution he doth not declare any assent, for it is the first only, which he 
 says may be gathered from the act of 2 H. 4. 
 
 (A) Whether this writ lay at common law, or was introduced by the clergy about the 
 time of Henry IV. hath been made matter of question: see State Tr. Vol. II. p. 275. if 
 the common law gave such a writ; it will be difficult to reconcile it with what our au- 
 thor says a little below, that the usual penalty was confiscation and banishment, and that 
 5 R.2. was the first temporal law against heresy, which yet went not so high as death, 
 but only to imprisonment and ecclesiastical censure.
 
 392 HISTORIA PLACITORUM CORONA. 
 
 true als6 of the guardiaji of the spiritualities sede vacanfk, bilt 'till 
 the statute of 2 H. 4. the vicar general, commissary, or official of the 
 diocesan had no cognizance, unless by special commission as an inr 
 quisitor from the pope; and Lindwood gives the reason de hxreticis 
 cap. Item quia turpis verb, ordinarii in glossd, Est enirn causa 
 hsej'esis una de majoribus caitsis, qiix pertinent ad solos episcopos; 
 but the statutes of 2 H. A. cap. 15. 2 H. 5. c(ip. 7. while they were in 
 force, gave the cognizance of heresy, as well to the bishop's commis- 
 sary, as the bishop. . , 
 
 3. But yet I never find before the time of Etchard II. 
 r 393 3 that any man was put to death upon a bare conviction of 
 heresy, tho after a relapse, unless he were sentenced in a 
 provincial council: and the reason seems to me to be this, when the 
 offender was convicted of heresy either thro pertinacity, or after a 
 relapse, and so delivered over to the secular power, the ecclesiastical 
 judge had done his business, and the rest that follows was to be the 
 act of the temporal or civil power, who were never obliged nor 
 thought themselves obliged here in England to take away the life of 
 a person upon so slender an account, as the judgment of a single 
 bishop, (i) nor indeed, unless it were a sentence by the weighty body 
 of a provincial council: vide Bracton, nbi supra. 
 
 For as this kingdom was never obliged by the canons or decretals 
 of popes or of provincial councils, further, than they were admitted, 
 so neither were they bound by the imperial constitutions of the em- 
 peror Frederic or others, who by their edicts inflict death upon all 
 persons censured by the diocesan to be relapsed or contumacious 
 heretics; but herein they did' as the laws and usages of the kingdom, 
 and their own prudence, and the circumstances of the case required 
 or directed. 
 
 But yet I take it, that the conviction before the diocesan alone 
 was a good conviction, and the party might thereupon be left to the 
 secular power, and so burnt by a writ de hxretico comburendo,\{ 
 the king and his council thought fit, tho de facto it was not at all, or 
 at least not usually so done, till the time of Henry IV. unless the 
 conviction and sentence were in a provincial council, for the reason 
 before given. 
 
 Fitzherbert therefore was herein mistaken, and also when he saith, 
 it was to issue only in case of relapse; for a relapse could not be with- 
 out conviction, and if the party were thereby convicted of the heresy, 
 whereof he was accused, and persisted in it 'till after sentence, and 
 refused to abjure, such a contu77iax or pertinax hvereticiis might be 
 proceeded against as a relapsed heretic, and a writ de hseretico com- 
 burendo might thereupon issue, as it seems, for the writ in 
 r394 3 the register being formed upon a relapsed heretic, pursues 
 the case as it finds it, but is not exclusive of the other case 
 of a contumacious heretic, that persists therein before and after the 
 sentence; de quo vide supra; vide accordant 1 Mar. Br. Heresy, I. 
 and 25 H. 8. cap. 14. 
 
 (i) 12 Co, Rep. 56.
 
 HISTORIA PLACITORUM CORON.E. 394 
 
 Touching the penalty of convicts of heresy here in England,! find 
 very rarely death inflicted; before the reign oi Richard II. the usual 
 penalty was confiscation, and seizure of goods; quod vide C/aus. 20. 
 H. 3. 7n. 1 1, dors, touching Ernald de Peregard, who was convict of 
 heresy, and his goods seized to the king's use ; the hke, Clans. 26 H. 
 3. in. 15. pro Stephana Peliter, and as to corporal punishment of 
 such convicts, it was usually in antient time banishment and stigma- 
 tizing, as appears by Ralph de Diceto, sub anno 11 60. in the time of 
 Henry II. and Brampton H. 2. suh anno 1159.,(*) but their convic- 
 tion was in a provincial council held at Oxon prsesente rege, <§• prx" 
 sentibus episcopis. 
 
 But quo jure the forfeiture of goods was then practised, is consid- 
 erable: vide Co. P. C. cap. 5. the forfeiture of goods was introduced 
 by 2 H. 5. and that statute being repealed, ceaseth. 
 
 And in the first temporal law, or pretended law(^) made against 
 such oflenders, viz. 5 R. 2. cap. 5. where, upon certificate by the 
 prelates into the chancery, commissions shall issue to the sheriffs to 
 apprehend and imprison the offender, it is only until they will justify 
 themselves according to the law and reason of holy church, so that it 
 seems the punishment did not hitherto de facto exceed imprisonment 
 and ecclesiastical censures ; and yet it seems that Swinderly and 
 others in the time of Richard II. before the statute of 2 H. 4. were 
 ordered to be executed for heresy: vide Fox part I. p. 5S0, 618. but 
 none by name appear to be executed, ibidem p. 659. but of this here- 
 after, (t) 
 
 As touching the writ de hseretico cofnbiirendo it was no writ 
 of course, nor issued by the chancellor, but by special war- [[ 395 ^ 
 rant from the king upon the certificate of the conviction and 
 sentence made to the king under the seal of the archbishop, if it were 
 in a provincial council. 
 
 And thus far what I find concerning heresy at common law before, 
 the lime of Richard II. 
 
 II. As to the times of Richard II. Henry IV. Henry V. and so to 
 25 Henry VIII. 
 
 The first temporal law, or pretended law against heretics in this 
 kingdom, was 5 R. 2. cap. 5. which did not go so high as death, but 
 only to imprisonment and ecclesiastical censure, as appears by the 
 printed statute; but this was in truth no act of parliament, for the 
 commons never assented; and accordingly Rot. Pari. 6 R. 2. n. 52. 
 the same is declared by the king and parliament, which it is true, 
 
 i; * See also Mat. Paris, p. 1 05. 
 
 . (k) Our author here calls it a pretended law, and lord Colie calls it a supposed act, 
 because the commons never consented to it, for which reason in the next sest^ion of par- 
 liament it was annuld, altho by the prelates means it hath been continually printed, and 
 the act, which annuld the same, hath been from time to time kept from the print. 12 Co, 
 Rep. p. 57. 
 
 (t) It does not appear, that any were ordered to be executed for heresy in this reign, 
 and as to Swinderby, Mr. Fox says, he was declared an heretic, but suffered no great 
 harxn during the lite of king Richard II. and if he was burnt, it was not till after the 
 statute of 2 H. 4. See Fox's Acts and Mon. p. 620.
 
 395 HISTORIA PLACITORUM CORONyE. 
 
 was never printed among the statutes, but is at large recited by Mr. 
 Fox, part \.p, 576. and therefore we find no other punishment du- 
 ring this king's time, but imprisonmentand ecclesiastical censures. 
 
 But in the time of Henry IV. the power of the diocesan was en- 
 \diX2.Qdi, viz. by the statute of 2 H. 4. cap. \5.{l.) viz. the diocesan 
 hath power given him to arrest and imprison persons suspect of he- 
 resy, till purgation or abjuration, and hath also power to fine and 
 imprison persons for those offenses, and estreat the fines; and if a 
 person be convict of heresy before the diocesan and his commissaries, 
 and do refuse to abjure, or having abjured fall into relapse, so that 
 according to the canons he ought to be left to the secular court, 
 whereupon credence shall be given to the diocesan or his commissa- 
 ries, then the sheriff' of the same county shall be personally present 
 at the preferring of the same sentence, when required by the diocesan, 
 and shall receive the person sentenced, and cause him before the 
 people in an high place to be burnt. 
 
 This statute gave in effect the whole power to the dioce- 
 [^ 396 ] san, and upon this account William Saivtre{rn) after sen- 
 tence and degradation in the provincial synod of London 
 was burnt in the beginning of Henry IV. 's usurpation; the whole 
 process and history of whereof is delivered by Mr. Fox in his acts 
 and monuments, part 1. p. 674, 675. and yet it is observable, this- 
 was not done barely by the order of the diocesan,(n) but a special 
 writ de hseretica comburendo issued to the mayor and sheriffs of 
 London to perform the same, which writ is there mentioned verba- 
 tim, and is the very same, which is recited by F. N. B./ol.269. and 
 was the warrant for the burning of William Sawtre. 
 
 Now touching this matter we are to observe, that the parliament 
 of 2. H. 4. began the 20th diViy o{ January in octabis Hilarii, it con- 
 tinued till the 10th of March following, JVilliam Sawtre, having the 
 year before been convicted for heresy before the bishop of Norwich, 
 was upon the 22d and 24th of Febr. 2 H. 4. (which was sitting the 
 parliament) in the provincial comicil held in St. PauPs, London, con- 
 victed and sentenced, as a relapsed heretic, and an heretic to be pu- 
 nished; this was done in the provincial council before Thomas Jirun- 
 clel, archbishop of Canterbury, as appears by the acts of the registry 
 of Canterbury collected by Mr. Fox, part I. p. 673, 674, 675. upon 
 the 26th of Febr. the writ de hseretico comburendo was formed and 
 
 (I) This statute was afterwards repeal'd by 25 //. 8. cap. 14. 
 
 (m) He was a parisli-pricst, first of St. Margaret oi Lynn in the county of Noi'fulk, and 
 afterwards of St. Sythc's churcli in Sythe-lane, London, and was the first, who appears to 
 have been executed for formal heresy in England. " 
 
 (n) Nor could it be so done, because lie was not sentenced by virtue of the act of H. 4. 
 which extended only to eonvietions before the diocesan or iiis commissary, wliereasiStfJO- 
 tre was convicted before the convocation; and even on a conviction before the diocesan 
 the sheriff" had no power to burn the party convict without a writ, unless he was preseat 
 at the pronounciiijj the sentence, see Slate Tr. Vol. VI. Append, p. I. besides, as our 
 author observes helow, this act did not pass till after Sawtre was sentenced, so that how 
 it can be said, that it was upon account of this act that Sawtre was burnt, 1 know not, 
 except it be with regard to the cncourojreunent the elerpy might take from the prospect 
 of its passing for anticipating the exercise of such a cruel (tlio to them desirable) powet.
 
 HISTORIA, PLACITORUM CORONA. 396 
 
 made by the advice of the lords temporal in parliament, which writ 
 bears teste 26 Fcbj\ 2 H. 4. "per ipsinn rc^em Sc consilium in par- 
 liament o,?i\\(l isetnered.verbatijn in the parliament-roll 2 H. 
 4. n. 29. and is the very same with that in Filzh. N. R. [397] 
 before-mentioned, and agrees verhalim ysi\\\\ it; and upon 
 this writ Saivtre was burnt, being first solemnly degraded. 
 
 This conviction, sentence, and writ, iho after the commencement 
 of the the parliament, was before the end of that parliament, and con- 
 sequently before the statute of 2 H. 4, cap. 15. passed, which passed 
 not till the last day of the parliament, viz. 10 Martii; so that at that 
 time the offender could not be executed but by a writ de hxretico 
 comburendo, for the diocesan had not power by his own immediate 
 warrant to command execution, till that passed, which passed not, 
 till after the definitive sentence. 
 
 In this parliament there was a petition of the clergy against here- 
 tics which was the foundation of the statute of 2 H. 4. cap. 15. and 
 was granted by the king de consensu magnatnm S,' aliorum proce- 
 rum regni in prsesenti parliamento existentium, with some addi- 
 tional clauses, which were also drawn up into the act of 2 H. 4. 
 cap. 15. but in that answer no consent of the commons appears, and 
 yet the act was drawn up, and proclaimed, and, as it is now printed, 
 is recited to be at the petition of the prelates, clergy and commons of 
 the realm in parliament, and the enacting clause is by the king by 
 the assent of the states and other discreet men of the realm being in 
 the said parliament: this is observed by Mr. Fox in h\s Jlcts and 
 Monuments, part 1. p. 773. whereupon he concludes, that this was 
 no act of parliament, but an act of the king and clergy like that of 
 5 B. 2. before-mentioned, which was declared void, because the com- 
 mons never assented, as is before observed. 
 
 But the truth is, the commons did assent to this act, tho their assent 
 be not expressed in the parliament-roll as it is entered, as appears in 
 the speech of the speaker of the commons to the king the last day of 
 the parliament, Rot. Part. 2 H. 4. n. 47. where they thank the king 
 for the remedy he had ordained in destruction of the heretical doc- 
 trine of the sects; and besides in the same parliament-roll, n. 81. 
 " Inter petitiones communitatis, Item prient les communes, qe quant, 
 ascun home ou feme, de qel estate ou condition qil soit, soit 
 prise & imprisone per LoUardie, qe maintenant soit mesn [ 398 ] 
 en respons, et eit tiel judgement, come il ad deservy en ex- 
 ample dauires de tiel male sect per ligierment cesser lour malveys 
 predications, & lour tenir al a foy christian. Ro'. le Roy le voet. 
 
 It is true this was never drawn up into a distinct act, for the pro- 
 vision by the statute of 2 H. 4. cap. 15. had a full and effectual pro- 
 vision for it; but this petition of the commons with the king's assent 
 was the principal basis, upon which the statute of 2 H. 4. cop. 15. 
 was built, and the statute was drawn up upon both petitions, as well 
 that of the commons, as that of the clergy both put together, as was 
 usual in those times, and so warrants the recital of the preamble of 
 the printed statute of 2 H. 4. of the petition both of the clergy and
 
 398 HISTORIA PLACITORUM CORONA. 
 
 commons,(*) and every man knows, that in the time of Henry IT. 
 and afterwards tlie true j3rofessors of the' christian rehgion, (that yei 
 for the same were sentenced as heretics,) came under the reproachful 
 title of Lollards. 
 
 This act of 2 H. 4. doth hot determine what is heresy or what not, 
 but leaves it to the decision of the diocesan, which wild and un- 
 bounded jurisdiction they had and used, till 25 H. 8. this therefore 
 was their power at common law, and the temporal judge or power 
 was to give credence herein to their sentence, but yet the consequeuce 
 thereof being but to be left to the secular power, the secular power 
 might exercise his own discretion, and grant a writ dehwretico com- 
 burendo,i{ he were satisfied of the justice of the sentence, or forbear 
 the granting it, if he were not satisfied, that the thing charged was a 
 real heresy, or that the ecclesiastical judge had proceeded fairly in 
 the case.t 
 
 But there were some points of power introduced by this 
 [ 399 ] act, and given to the diocesan, which he had not at the 
 common law, viz. 
 
 1. Power to arrest and imprison persons suspect of heresy, for 
 altho the pope's decretals had before this pretended to give power 
 of imprisonment to the diocesan, Extr. de psenis, cap. 3. in. 6to, yet 
 that power never obtaind in England, till this act of 2 H. 4. 
 
 2. Power to set and estreat fines upon the offender. 
 
 3. Power to deliver over immediately to the temporal officer a 
 relapsed or contumacious heretic to be burnt without expecting the 
 king's writ de hperetico comhurendo, with this notable advantageous 
 clause whereupon credence shall be given to the diocesan or his 
 commissary. 
 
 And accordingly the bishops after this act put the same in ure hy 
 their own immediate warrant or order delivering the party to the 
 sheriff to be executed; but yet the conclusion of their sentence ran 
 most commonly as formerly, viz. appointing him to be left to the 
 secular power, and so leaves him, but sometimes, as in the definitive 
 sentence against the lord Cobham, Fox, part 1. p. 734. committing 
 him from henceforth to the secular power, and judgment to do him 
 thereupon to death. 
 
 Now it is true, that upon the sentence of the diocesan the' sheriff 
 or officer, or any other were not to dispute, whether the same were 
 truly heresy or not. 1. Because it was an act within their cogni- 
 
 (*) This petition of tlie commons amounts to no more, than that the Lollards should 
 be cald to an account and punished according to their deserts, but contains nothing in 
 it, w.Licii can be a warrant lor such severe penalties, as are provided by that act, these 
 proceeded from the petition of the clergy. 
 
 (t) But by tije pa[)al constitutions this liberty is not allowed to the secular power, for 
 by those constitutions it is provided. That the punishment of heretics must not be relaxed 
 or delayed. Consiil. Inmc. IV. caj>. 24 and 32. Clem. IV. Constit. XIII. and "That all 
 magistrates under the penally of excommunication must execute the penalties by the ' 
 inquisitors imposed on her(;ties without revising the justice of them, for heresy is a crime 
 merely ecclesiastical." Connlil.X. Bull. Rom. Tom. 1.^.453.
 
 HISTORIA PLACITORUM CORONA. 399 
 
 zance and jurisdiction. 2. Because it is by 2 H. 4. enacted, that 
 credence herein shall be given to the diocesan or his commissary. 
 
 But yet as to the first point of the statute, the imprisoning of per- 
 sons suspect of heresy, the temporal judge had cognizance and power 
 to determine, whether fhai for which the party was imprisoned by 
 the diocesan were heresy or not; and if it appeared to the temporal 
 judge not to be heresy, tho the diocesan had certified it to be heresy, 
 the temporal judge might deliver the party imprisoned upon an 
 Habeas Corpus, as was done M. 5 E. 4. Rot. 143. B. R. in Key- 
 ser^s case.(o) and the party detaining him is punishable in 
 an action of false imprisonment, as was done in Warner^s [ 400 ] 
 case,(/;) M. \\ H. 7. Rot. 327. both which cases are at 
 large reported, Co. P. C. cap. 5. p. 42. and therefore in cases of such 
 return upon an Habeas Corpus, or justification by this act in false 
 imprisonment, the particular heresy must be set forth, what it is, 
 that the temporal judge may judge, whether it be heresy or no. 
 
 By this statute it appears, 1. That the ditjcesan might convict of 
 heresy, and thereupon the party convict be left to the secular power, 
 which settles the doubt raised by Fitzh. N. B. 269. 2. That he 
 might convict an heretic, so as to subject him to the punishment of 
 death not only in case of relapse after abjuration, but also in case of 
 refusal to abjure. 3. The power of convicting an heretic is not 
 limited to the diocesan only, but also to his commissary in order to 
 his execution by the secular power. 
 
 After this ensued the statute of 2 H. 5. cap. 7. against heretics and 
 LoJ/ards, and thereby it is enacted. 
 
 1. " That all temporal officers be sworn to destroy all heresies and 
 errors, commonly called Lollardy, and tliat they be assisting to the 
 ordinary, when required, at the ordinary's charge. 
 
 2. "That when persons are convict of heresy, and left to the 
 secular power by the ordinaries or their commissaries, their lands in 
 fee-simple shall after their death be forfeit to the king or lords, of 
 whom they are held, others than the ordinaries and commissaries 
 themselves, and all their goods. 
 
 3. " That the justices of the king's bench, of the peace, and 
 assize, shall have power to inquire of such errors and heresies called 
 Lollardy, and their abetters, iyc. and make out process of Capias 
 against them. 
 
 4. " That such Lollards and their indictments be de- 
 hvered over by indenture to the ordinaries or their commis- [ 401 ] 
 saries, who thereupon are to proceed to their acquittal or 
 conviction, but the indictment to be only as an information, not as 
 evidence against the oflender, but the ordinaries to commence their 
 process against them, as if there were no indictriient. 
 
 (0) Keijser^s heresy was, that being- excommunicated by the archbishop of Canter, 
 vry; he said, that notwithstanding that, he wns riot excommunicated before God, for his 
 corn yielded as well, as any of his neighbuurs, 10. H. 7. 17. 
 
 (p) Warner's licrcsy was, that he said he was not bound to pay tithes to the curate of 
 the parish, where he dwelt. 1 Rol. Rep. 110. 3 Co. Inst. 42.
 
 401 HISTORIA PLACITORUM CORONiE. 
 
 5. " Piinisbtnent for escapes is by forfeiture of goods and seizure 
 of lauds till he returns;" and some other provisions. 
 
 This is the first law, that gave forfeiture of lands in fee-simple of 
 an heretic convict, and executed, and the first law, that settled the 
 forfeiture of their goods, tho forfeiture of goods were de facto used 
 before. (9') 
 
 Tlio in some respects it enlarged the ordinary's power, yet it may 
 seem some kind of curb upon tliem to have an indictment previous, 
 yet I find them not restrained from proceeding, tho there were no 
 such previous indictment. 
 
 Hitherto there was no limitation or restraint, what should be or 
 what should not be heresy, whereupon death might be inflicted, but 
 the ordinary's power was left arbitrary and unlimited therein. 
 
 By the statute of 25 H. 8. cap. 14. there was a great alteration 
 made as to the point of heresy. 
 
 1. The ordinaries were not to proceed against any for heresy with- 
 out presentment or indictment thereof before the king's justices, or 
 an accusation by two lawful witnesses at the least, and that before 
 any citation or process by the ordinary. 
 
 2. That persons convict by the ordinary of heresy, and refusing 
 to abjure, or having abjured relapsing, shall be burnt by the king's 
 writ de hserctico comburendo first had and obtained for the same. 
 
 3. Tho it do not positively limit what only shall be heresy, yet it 
 enacts what shall not be accounted heresy. 1. Speaking against the 
 authority of the pope. 2. Speaking against spiritual laws made by 
 the authority of the see of Rome repugnant to the laws of this realm, 
 
 or the king's prerogative, and indeed it was time to make 
 |] 402 j this provision, the papal authority being now in a great 
 measure taken away by act of parliament. 
 
 4. Persons accused of heresy shall and may be letten to bail either 
 by the ordinary, or in their default by two justices of the peace. 
 
 IV. By the statute of 31 ^. S. cap. 14. a farther alteration was 
 made touching heresy. 
 
 1. Six articles are "declared and enacted, 1. That in the sacrament 
 of the altar after consecration there remains no substance of bread 
 and wine, but the substance of Christ. 
 
 2. That communion in both kinds is not necessary ad salutem. 
 
 3. That priests may not marry by tlie law of God. 4. That vows 
 of chastity ought to be kept by the law of God. 5. That private 
 mass is necessary to be continued. 6. That auricular confession is 
 necessary to be retained and used. 
 
 2. That to preach or to declare, or hold opinion against the first 
 article touching transubstantiation shall be adjudged heresy, and the 
 persons convict thereof, their aiders, ^-c. convicted thereof in the form 
 underwritten shall be adjudged heretics, and suffer death by burning 
 without any benefit of abjuration, sanctuary, or clergy, and shall for-, 
 feit his lands to the king, as in case of high treason. 
 
 {(I) Co. P. C. 43.
 
 HISTORIA PLACITORUM CORONA. 402 
 
 3. That if any openly preach against the last five articles, and 
 be thereof convict or attaint by the laws nnderwritten, every such 
 offender shall suffer death as a felon without benefit of clergy or sanc- 
 tuary. 
 
 4,' That if any person publish or declare his opinion against the 
 five articles last mentioned, he shall for the first offense forfeit his 
 goods, the profits of iiis lands during his life, and ecclesiastical pro- 
 motions, and he imprisoned at the king's will, and upon the second 
 conviction shall suffer as a felon without benefit of clergy. 
 
 5. The king is empowered to issue commissions directed to the 
 archbishop or bishop of the diocese, and the chancellor and others, 
 or three of them, whereof the archbishop or bishop, or chancellor to 
 be one, to take information by oath of twelve men, or the testimony 
 of two lawful persons of all heresies, Sf'C. 
 
 6. The ordinaries within their several jurisdictions to take 
 information of heresies, and justices of peace, 4'C. to take [403] 
 inquisitions touching heresies; these informations and inqui- 
 sitions to be certified to the commissioners above-mentioned. 
 
 7. The commissioners or any three of them to make process 
 against the offenders into all the shires of England and ^^ales, as in 
 case of felony, and upon their appearance shall have full power and 
 authority to hear and determine the said offenses according the laws 
 of this realm and this statute. 
 
 8. Commissioners or two of them have power to bail persons, ac- 
 cused, till trial. 
 
 9. No challenge to be admitted but for malice or enmity, trial of 
 foreign pleas by the commissioners, no eschetes to the lords, with 
 some other clauses. 
 
 This act, tho it doth not, in express terms, repeal the statute of 
 2 H. 5. yet it doth, in a great measure, alter it. 1. In point of juris- 
 diction; for, here the proceeding to judgment is to be by commis- 
 sioners under the great seal, and not by the ordinary or ecclesiastical 
 jurisdiction. 2. The offense of heresy now in a great measure is 
 made a secular offense, especially in the five last articles which are 
 made felony. 3. Tho the commissioners have power to proceed 
 upon accusations, as well as indictment, yet the trial of the offender 
 was to be by jury, and the words hear and determine, &;c. import 
 the same. 
 
 Thus the law stood until 1 E. &. with some small variations in 
 34 <§• 35 H. 8. cap. 1. but by the statute of 1 E. 6, cap. 12. all the 
 before-mentioned statutes, viz. 5 li. 2. 2 H. 4. 2 H. 5. 25 //. S. 31 
 H. 8. 35 H. 8. and all other statutes made in the time of Henry VIII. 
 concerning religion are repealed. (r) 
 
 (r) So that the punishment of heresy then stood as it was at common law before any 
 statute made against it,' notwithstanding which there were some examples in this reign 
 of persons burnt for heresy, viz. Joan Backer and George van Parre, wlio were put to 
 death much against the will of that good king by the over-persuasion of archbishop 
 Cranmer, fur which reason (as bishop Burnet remarks) what that archbishop afterwards 
 suffered in the succeeding reign was thought a just retaliation on him. Burnet's Hist. 
 of lieforination, To/. II. p. 112.
 
 403 HISTORIA PLACITORUM CORONA. 
 
 By the statute of 1 <§• 2 P. S,^ M. cap. 6. the statutes of 5 7?. 2. 
 2 H. 4. and 2 H. 5. are revived: but the statutes in Henry VIII.'s 
 time, and repealed by 1 E. 6. stood still repealed, and thus 
 [404] they continued till 1 Eliz. and if there had needed any far- 
 ther repeal of the statutes of 25 and 31 H. 8. besides what 
 was done by 1 E. 6. yet the statute of 1 (§• 2 P. S,^ M. cup. 8. in fine 
 hath this clause, that was never repealed by the statute of 1 Eliz. 
 nor any other statute since made, viz. "That the ecclesiastical juris- 
 diction of archbishops, bishops and ordinaries be in the same state 
 for process of suits, punishments of crimes, and execution of censures 
 of the church, with knowledge of causes belonging to the same, and 
 as large in these points as the said jurisdiction was in the 20th year 
 of Henry VIII." which doubtless repealed all acts made between 
 20 H. 8. and 1 8^" 2 P. <§• M. in derogation or alteration of the eccle- 
 siastical jurisdiction, or the styles or forms of their proceeding by 
 Henry VIII. or Edward VI. 
 
 V. I come now to the time of queen Elizabeth. '■ " • '• 
 
 By the act of 1 Eliz. cap. 1. there are these alterations: 1. The 
 statutes of I S,^ 2 P. <§- M. cap. 6. 5 R.2.2 H. 4. 2 H. 5. are repealed, 
 so that now the whole jurisdiction touching heresy stands as it did at 
 common law, with such farther additions as are made by that statute 
 of 1 Eliz. 2. The queen, her heirs and successors to have power to 
 issue commissions under the great seal to exercise all jurisdictions 
 spiritual and ecclesiastical within this kingdom, and to visit, reform, 
 redress, order, correct, and amend all errors, heresies, schisms, S,'c. 
 which by any spiritual or ecclesiastical power can or may be law- 
 fully reformed. 3. That such commissioners shall not have power 
 to determine any matter to be heresy, but only such as have been 
 heretofore determined to be heresy: 1. By the authority of the 
 canonical scriptures. 2. Or by any of the first four general councils, 
 or any other general council, wherein the same was declared heresy 
 by the express and plain words of the said canonical scriptures. 
 •3. Or such as shall hereafter be determined heresy by parliament 
 with the assent of the clergy in their convocation. 
 
 Upon this statute these things are observable : 
 
 1. By this statute the ancient common law was revived for the 
 conviction of heretics,and delivering them over to the secular power, 
 which might at common law be done either in a provincial 
 [ 405 ] .council, or by the diocesan alone, and accordingly, it is said 
 Co. P. C. cap. 5.(.s) the conviction of heretics was practised 
 ill, the queen's time, but I find no particular instance thereof in the 
 queen's time,(^) but in the case of Legal, 9 Jac. it was so resolved' 
 by four judges, and accordingly put in ure, and upon such a convic- 
 tion before the diocesan a writ de /lasrelico comburendo might and 
 did issue in the cases o{ Legal and Wighlman convict oi Jirianisni 
 
 is) p. 40. 
 
 (<) Tliat is of a conviction in a provincial council, or before the diocesan alone, 
 for of convictions before the commissioners some instances are here mentioned by our 
 author. 
 
 I.
 
 HISTORIA PLACITORUM CORONA.. 405 
 
 befjre the diocesan and left to the secular power, who were accord- 
 ingly burnt :(i<) vide Baker's Chronicle, p. 446. 
 
 2. There was another method of conviction of heresy, and there- 
 upon deUvering over to the secular power, and execution of the 
 offender by writ de hseretico comburendo, namely by sentence of the 
 commissioners for ecclesiastical causes instituted by the statute of 
 1 Eliz. but this takes not away the conviction of heresy by the dio- 
 cesan or in a provincial council, but these remain as they did at com- 
 mon law, and thus it was done 17 Eliz. upon John Peters and 
 Henry Dirwert,{x) Flemings, convict of heresy before the commis- 
 sioners for Jlnabaptism, and thereupon a writ de hseretico com- 
 burendo issued. 
 
 3, That this act restored the issuing of a writ de hseretico com- 
 burendo{ij) according to the course of the common law against a 
 man convict of heresy, and refusing to abjure, or having abjured 
 relapsed, and thereupon delivered to the secular power. 
 
 And note, that this writ is no writ of course, nor can the chan- 
 cellor or keeper issue this writ upon a signijicavit by the commis- 
 sioners or diocesan without a special warrant, for that the king 
 may see cause to suspend the issuing thereof, or wholly supersede 
 it, or pardon the sentence, for it may so fall out, that the diocesan 
 hath adjudged a thing to be heresy, or a party to be an 
 heretic, which in truth and reality is not so, or it may be the [ 406 J 
 party may retract, and so be capable of mercy. 
 
 But the course was for the diocesan alone, if the conviction were 
 singly before him, or for the diocesan with the consent of the com- 
 missioners, if the conviction were before them, by signijicavit under 
 the seal of the diocesaii to return the conviction into the chancery, 
 and then the same is brought before the king and his council, and 
 after deliberation by the king with his council, a special warrant 
 issues from the king by the advice of his council, to the chancellor 
 or keeper, together with the tenor of the writ de hseretico combu- 
 rendo expressed in the warrant, and commanding the chancellor or 
 keeper to issue it under the great seal, which warrant is filed for the 
 keeper's indemnity: this was the form which was used 17 Eliz. in 
 the case of the Jinabaptists above-named; and note, altho the con- 
 viction were before the commissioners, yet the diocesan was one of 
 the conunissioners, and his seal to the signijicavit, so that there 
 were the junctures of both authorities, viz. the authority of the dio- 
 cesan according to the course* of the common law, and of the com- 
 missioners according to the power given by the statute of 1 Eliz. 
 and we have reason to believe, that the subsequent convictions in 
 
 {ii) But yet ought not to have been so by law, according to tlie opinion of lord Coke, 
 for that the statute of 2 H. 4. cap. 15. which gave the writ de harelico comburendo was 
 repealed, and at common law no such writ lay upon a conviction by the ordinary, 5 Co. 
 Rep. 23. a. 12 Co. Rep. 5(i. 92. 
 
 {JC) Their names were John Wiehnacker and Hendrick Ter Wqort. 
 
 iy) Tlie act says notliing about this writ one way or other, but only repeals the 
 several statutes relating to heresy, and so leaves the matter, as it was at common law.
 
 406 HISTORIA PLACITORUM CORONA. 
 
 the queen's time pursued this form, and possibly that of Legates in 
 9 Jac. might be in the same nature, the the resolution of the judges, 
 upon which it seems the process was formed, takes notice only of 
 the diocesan. 
 
 4. That the forfeiture of goods or lands by conviction of heresy is 
 by this act repealed. 
 
 5. Here is the first boundary, that was set to the extent of heresy 
 as to the matter thereof, what only shall be adjudged heresy ;(z) 
 and altho this clause refers expressly only to the commissioners, yet 
 it is to be the measure and rule for diocesans, and the convictions in 
 their proceedings against heretics. 
 
 But it is true, it is not so particular and certain, as might 
 [ 407 3 have been wished, for according to the inclination of the 
 judge possibly some would determine that to be heresy by 
 the canonical scriptures, which possibly is not at all heresy, nor con- 
 trary to the canonical scriptures but iiowsoever it brought heresy 
 to a greater certainty than before. 
 
 Upon this statute of 1 Eliz. these things seem to me to be true: 
 1. That the sig7iijicavit of the conviction of heresy ought to con- 
 tain, even at common law, the particular heresy, whereof the party 
 was convict, and without such particular signijicavit no writ de 
 hseretico comburendo ought to issue; and the reasons are, 1. Be- 
 cause it concerns the highest temporal interest that any man can 
 have, namely his life, and for this reason even in smaller temporal 
 concerns a general cause or return of heresy or criminousness is not 
 sufficient; it is not a sufficient cause of refusal or non-admission of 
 a clerk to allege, that he is crimiiiosus (§' non idonenSyOX that he is 
 schismuticus inveterutus 5 Co. Hep. 58 a Specofs case, and the 
 reason is very well given, coment que nappent al court la roygne a 
 determiner schismes ou heresies, uncore I'original cause del suit 
 esteant mafter, dont le court le roy ad conusance, le cause del 
 schisme ou heresie, purque le presentee est refuse, covient estre al- 
 ledge en certain al entent le court le roy poit consult ove divines a 
 scaver, si ceo soit schisme ou nemy; and upon the same reason it is, 
 that in Keyser^s case upon an Habeas Corpits, and fVarner's case 
 upon a false imprisonment, that altho the statute of 2 H, 4. .enable 
 the ordinary to arrest for heresy, it is not a sufficient return or justi- 
 fication to say the party was an heretic, or suspect of heresy, but he 
 must return the particular heresy, for which he was so arrested, that 
 the court may judge upon it; and tho the temporal court hath no 
 original cognizance of heresy, yet it being incident to a temporal in- 
 terest, namely the liberty of a man's person, the temporal court 
 shall judge, whether it be heresy or no;(*) and accordingly in 
 
 («) And great cause there was for tliis limitation, as appears from the fore-mentioned 
 cases oi^ Keijser and Warner, and otiiors, 12 Cu, Hep. 58. aUho, as our author says, there 
 still is too ijreat a latitude left, since it is unavoidable, but difierent interpretations will 
 in many cases be put even ui)on scripture, so long as tiie use of reason and liberty of 
 thouglit continues. 
 
 (*) This is certainly agreeable to the law of the land, 2 Co. lustit. G15, 623. altho it 
 
 J
 
 HISTORIA PLACITORUM CORONiE. 408 
 
 those cases they did adjudge that to be no heresy, which the 
 bishop returned as an heresy, and in one case the prisoner was 
 discharged, and in the other case recovered by an action of false 
 imprisonment. Co, P. C. cap. 5. 2. Altho heresy be a case of eccle- 
 siastical cognizance and jurisdiction, and as long as it only con- 
 cerns ecclesiastical censures, and (so far forth only) faith is to be 
 given to them, 'till reversed by appeal, yea altho it should in the 
 sentence itself most evidently appear, that it was not heresy, yet as 
 to the inflicting of death at common law they had no pow^r, but all 
 they could do was to commit him to the secular power, their busi- 
 ness was then at an end ; but now begins tlie concern of the secular 
 povver, and herein they were not, as lacqueys, only to follow what 
 the ecclesiastical judge had done, for now the life of a subject 
 was concerned either to be taken away or not, and that merely by 
 the secular power, and herein the secular power had a judgment of 
 discretion of their own, which they are to exercise, but yet cannot 
 do it, unless the special matter of the heresy be certified to them. 
 
 2. Admit a general certificate without shewing the particular cause 
 of heresy were good at common law, yet since the statute of 1 Eliz. 
 it must be particular, because an act of parliament, which belongs to 
 the interpretation of the common law, directs what shall be heresy 
 and what not, and the king and his council are to give the warrant 
 for issuing the writ, and therefore must be ascertained, whether it be 
 an heresy within the description of this act, and the chancellor or 
 keeper of the great seal is to affix the seal and issue the writ, and 
 therefore ought to be satisfied by the signjicavit, that it is an heresy 
 within that act, and if he be not, he is not to seal it, for it concerns 
 the life of a subject; these are not bare ministerial acts by the 
 king and his council or chancellor in subservience to theeccle- [409]] 
 siastical jurisdiction, but they are acts judicial, where they 
 are to exercise both a legal and well warranted discretionary judg- 
 ment, and therefore must have the cause before them upon the sig- 
 nijicavit, and not by a bare general story of a conviction of heresy, 
 and therefore if upon the return o{ the significavU, whereby the party 
 is convict and sentenced either as an obstinate or relapsed heretic, it 
 shall, by the particularity of the return, appear, that it is not heresy, 
 there ought no warrant to be granted for the issuing of the v/rit, and 
 
 be what the clergy have always disrelished, wlio never liked to submit their proceedings 
 to the judgment of the king's courts, or of any authority but what was ecclesiastical, 
 accordingly we find a decree of BonifaceY. " WJiereby all powers, lords temporal, and 
 rectors with their officers are forbid to judge or take cognizance of heresy, it being 
 merely ecclesiastical, or to refuse to execute the punishments enjoined by them, or any 
 way directly or indirectly to hinder their process or sentence under the pain of excom- 
 munication, which if they obstinately lie under for a year, they are to be condemned aa 
 heretics ;" Sixt. decretal. I. 5 tit. 2 cop. Inquisitionis ncgotium : this decree is con- 
 firmed by the general council of Constance, sess. 45. See the constitutions of arch- 
 bishop Boniface, cap. de impetranlibus prohibitiones, (Sec. cap. de malitia judicis 
 secularis, &c. cSj- cap. dc poena impedicntium, &,c. See also archbishop Bancroft's ob- 
 jections, 2 Co. Instil. GO I, 609, Sfc. Codex Leg. Ecclesiast. Anglic, p. 1066. Fref. to 
 Codex, p. VJ,
 
 409 HISTORIA PLACITORUM CORONA. 
 
 if granted, yet the writ ought not to be sealed, and therefore the cer- 
 tificate or signijicavit must be special and certaip.(*) 
 
 Again, tiiis definition or circumscription of heresy is by an act of 
 parliament, and tho the matter of it, viz. Heresy, be of ecclesiastical 
 cognizance, yet the interpretation of the act of parliament is of a 
 temporal cognizance, especially where a temporal interest, and the 
 greatest temporal interest in the world, namely life, is concerned: we 
 have many acts of parliament, that concern matters of ecclesiastical 
 cognizance, as touching clergy and purgation, touching matrimony 
 and the prohibited degrees, yet when these acts of parliament come 
 to be expounded, the temporal judge hath the cognizance of them. 
 
 The statute of 2 H. 4. hath two notable clauses, one whereby the 
 ordinary hath power to arrest for heresy, there is in that clause no 
 express provision, that credence shall be given to the ordinary and 
 therefore if he arrest for that, which is not heresy, the arrest is un- 
 lawful, and as an incident to an interest at common law, z;/z. the 
 liberty of the subject, the temporal court hath power to determine, 
 whether it be heresy or not, as is above-shewn: the other clause is a 
 power committed to the ordinary to deliver over the party convict to 
 the sheritf to be executed without any writ de hseretico comburendo. 
 This was introductory of a new law, and therefore the sheritf or 
 officer might possibly scruple not only whether there were 
 [410] such a sentence, («) but whether the thing, for which the 
 party was condemned as an heretic, were really heresy; but 
 to avoid all difficulties of this kind this imusual clause is added, that 
 herein credence shall be given to the diocesan or his commissary. 
 
 We are here in the case of an act of parliament, an act that intro- 
 duceth a new circumscription of heresy, an act that concerns the life 
 of the subject, in a business, which after the ordinary hath passed his 
 sentence, is now wholly left to the king, who, tho he be supreme in 
 matters ecclesiastical as well as temporal, yet in the issuing of his 
 writ de hseretico comburendo is looked upon by the ecclesiastical 
 judge, as acting by his secular power, for that is the conclusion of the 
 sentence, niz, that tie be left to the secular power, in this he acts not 
 ministerially but judicially, and therefore upon all accounts must have 
 a certain return of the cause of the heresy, and if it shall appear to him, 
 or to the chancellor, that is to seal the writ, that the return contains 
 not any certainty of the heresy, or that which is returned as an he- 
 resy, be not such as is described by the statute of 1 Eliz. no writ de 
 hseretico comburendo ought to issue, whether the conviction be by 
 the high commission, or diocesan, or convocation. (6) 
 
 Blacks. Com. Lib. iv. ch. 4. p. 43, 44. &c. 1 Hawk. P. C. ch. 23, 
 
 (*) The same reasoning holds in granting the writ de excommunicato capiendo, for 
 that, affecting tlie liberty of a man's person, concerns a temporal interest. 
 
 (») Tiiere could be no room for this scruple, because, unless the sheriff was present at , 
 pronouncing the sentence, the ordinary had no ])ower by 2 //. 4. to deliver the heretic to 
 the sheriff", nor could the shcriiF proceed to execute him without a writ. 
 
 (6) Since our author wrote, ahlio no alteration has been made in tlie definition of he- 
 resy, whicli still subsists upon the loot of the statute of 1 Eliz. yet tlie severer part of the 
 punishment is taken away, and the doubt removed, whether the party be liable to a writ
 
 HISTORIA PLACITORUxM CORONA. 411 
 
 CHAPTER XXXI. 
 
 CONCERNING HOMICIDE AND FIRST OF SELF-KILLING OR FELO DE SE: 
 
 Having gone thro the pleas of the crown touching high treason, mis- 
 prision- of treason, and petit treason, the order that I have proposed 
 leads me to consider of felony, S,'C. and these are of two kinds, felonies 
 by the common law, and felonies made such by act of parliament. 
 
 Felonies by common law are such, as either concern the taking 
 away of life, or concern the taking away of goods, or concern the 
 habitation, or concern the obstruction of the execution of justice in 
 criminal and capital causes, as escapes, rescues, ^^c. 
 
 In the first place therefore come to be considered those felonies or 
 offenses, that relate to life or the taking away thereof without due 
 process of law; and this again is either that, which concerns the loss 
 of life happening to a man's self, or happening to another. 
 
 As to the first of these, namely the consideration of that offense or 
 crime, that concerns a man's own Ufe, where there is no other offen- 
 der but the sufferer, this falls under these two heads or divisions. 
 
 I.-Homicidiurn sui-ipsius, or felony of a man's self 
 
 II. Infortunium, or pure accident, or at least, where no other 
 reasonable creature is concerned in the effecting of it. 
 
 Of the former of these in this chapter. 
 
 Felo de se or suicide is, where a man of the age of discretion, and 
 compos mentis, voluntarily kills himself by stabbing, poison, or any 
 other way. 
 
 , No man hath the absolute interest of himself, but 1. God almighty 
 Kath an interest and propriety in him, and therefore self- 
 murder is a sin against God. 2. The king hath an interest [ 412 ]] 
 in him, and therefore the inquisition in case of self-murder 
 is felonicl Sr voluntarit seipsum, interfecit fy murderavit contra 
 paceni domini regis. 
 
 Co. Lift. § 194. fol. 127. a. M. 11. Jac. Wright's case, a man to 
 the itUent to make himself impotent, and thereby to have the more 
 colour to beg, caused another to strike off his hand, for this they were 
 both indicted, fined and ransomed. 
 
 de h<Eretico comburendo, for by 29 Car. 2. cap. 9. this writ and all proceedings thereon, 
 and all capital punishments in pursuance of ecclesiastical censures are utterly abolished 
 and taken away, so that heresy is now punishable only with excommunication, (except 
 in the case of a clergyman, who is also to be deprived and degraded;) the civil effects of 
 which are, that the party communicated is disabled from making a will. Swinb. of Wills, 
 part. 2. § 22. or from suing for any debt or legacy, Ibid. part. 5. § 6. or doing any legal 
 act, Co. Lit. 133. b. and if the party do not submit within forty days after publication, 
 upon a signijicavit into Chancery, there issues a writ de excommunicate capiendo, by 
 virtue of which he may be arrested and detained in prison, till he do submit; so that 
 there seems now to he no material difference between a simple heretic and a relapsed 
 heretic, for excommunication not being a definitive sentence, but only a process for con- 
 tempt to inforce obedience to the sentence, whenever the party complies with it by re- 
 tracting, doing penance, S^c. altho a relapsed heretic, he' is to be absolved. 
 VOL. I.— 36
 
 412 HISTORIA PLACITORUM CORONA. 
 
 A man or woman as to capital offenses is of the age of discretion 
 at fourteen years old: vide qiise supra dicta sunt cap. 3. 
 
 Compos inentis. 
 
 If he lose his memory by sickness, infirmity, or accident, and kills 
 himself he is woifelo de se, neither can he be said to commit murder 
 upon himself or any other. 
 
 If a man gives himself a mortal stroke, while he is non compos, 
 and recovers his understanding, and then dies, he is wo{felod.ese,{oT 
 tho the death complete the homicide, the act must be that, which 
 makes the offense. 
 
 P. 22 E. 3. Coi'on. 244. Co. P. C. 54. vide supra cap. 4. who 
 shall be said non compos. 
 
 It is not every melancholy or hypochondriacal distemper, that de- 
 nominates a man non compos, for there are few, who commit this 
 offense, but are under such infirmities, but it must be such an aliena- 
 tion of mind, that renders them to be madmen or frantic, or destitute 
 of the use of reason: a lunatic killing himself in the fit of Junacy is 
 notye/o ^/e 5e, otherwise it is, if it be at another time. 
 
 What a voluntary killing. 
 
 If a man voluntarily give himself a mortal wound, and die within 
 a year and a day of that wound, he is felo de se, and he cannot purge 
 the crime, nor the forfeiture inflicted by the law, by his repenting of 
 what he had done. 8 E. 4. 4. 
 
 It must be simply voluntary, and with an intent to kill himself. 
 
 If ./5. with an intent to prevent a gangrene beginning in his hand 
 doth without any advice cut off his hand, by which he dies, 
 r 413 3 he is not thereby felo de se for tho it was a voluntary act, 
 yet it was not with an intent to kill himself. 
 
 It is said Co. P. C. p. 54. and by Mr. Ballon, cap. 92., (a) that if ^. 
 gives P. a stroke, that he falls to the ground, B. draws his knife and 
 holds it up for his own defense, ^. in. haste falling upon P. to kill 
 him falls upon the knife, whereby he is wounded to death, #/?. is felo 
 de se, and for that they cite 44 E. 3. 44. 44 ,/iss. 17. where indeed it 
 is adjudged, and that rightly, that P. is not guilty, and shall not for- 
 feit his goods, and that it is not barely se defendendo, for he did not 
 strike, only held up his knife, and so is simply not guilty; and all that 
 Knivett says is, Est trove, que le mort occise lui rnesme, and ad- 
 judged that P. is not guilty, nor his goods forfeit: but Knivett says 
 not, that ^^. is felo de se, neither indeed is he, but it is only per infor- 
 tuniu?n. 
 
 But i( ^i. had stricken at P. with a knife intending to kill him, and 
 missing P. had stricken himself, and killed himself, there he had 
 been Jelo de se, because that act, whereby he intended to murder P. 
 shall have the same construction, if it kill himself or any other per-, 
 son, as it should have done, if it had taken its effect upon P. de quo 
 infra. 
 
 Touching the forfeiture of Felo de se. 
 
 (a) New Edit. 1727. ca^. 144. 
 
 1
 
 t 
 HISTORIA PLACITORUM CORONA. 413 
 
 He doth not forfeit his lands nor his wife's dower. 
 
 But he doth forfeit his goods and chattels. 
 
 As to the relation of the forfeiture. 
 
 Baron and feme joint purchasers of a term for years, the husband 
 drowns himself, the lease is forfeited, and the wife surviving shall not 
 hold it against the king or almoner, Ploicd. Com. 260. b. Dy. lOS. 
 Dame Hale's case, in which all the judges agreed, but seem to inti- 
 mate different reasons: Weston held the relation was only to the 
 death, but the title of the king and a common person coming toge- 
 ther, the king's title shall be preferred, but yet they concluded, that 
 the forfeiture relates to the first act, whereby the felony was commits 
 ted, namely the throwing himself into the water, and so the 
 king's title commenced in the life of the husband, and [ 414 ~\ 
 amounted to a forfeiture in his life-time, when bylaw it was 
 in his power, either by his disposal or forfeiture, as by outlawry, to 
 bind the interest of the wife, and therefore they say, that if a villain 
 give himself a mortal wound, and the lord seize the goods, and then 
 the villain die of the wound, the king shall have the goods against 
 the lord, and with this agrees Littleton, 8 E. 4. 4. 
 
 That the law was well resolved in that case I do not doubt, but I 
 am not satisfied, that the relation of the forfeiture is to the time of 
 the stroke to all purposes, no more than in case of another felony, 
 for suppose a man should give himself a mortal stroke and live eleven 
 months after, how shall he support himself and his family? 
 
 But whereas in other cases of other felonies the forfeiture as to 
 goods relates neither to the stroke, nor to the death, but to the convic- 
 tion, here the forfeiture relates not barely to the presentment or 
 inquisition, but to the death in case of a/e/o de se, for being his own 
 executioner he prevents any formal conviction, as in other felonies. ■ 
 
 But yet in order to this forfeiture it is necessary, that there should 
 be a record to entitle the king, viz. an inquisition. 
 
 Inquisitions therefore in this case are of two kinds, viz. if the body 
 cannot be seen, then it is inquisible before the justices of oyer and 
 terminer, yea or before the justices of peace of the county, for it 
 is a felony, and within the extent of their commission, H. 37 Eliz. 
 B. R. Langhton's case, Co. P. C. p. 55., (6) and accordingly adjudged. 
 M. 1656. in Greeve's case. 
 
 And so if an indictment of felony be before commissioners o{ oyer 
 and terminer or goal-delivery, Ǥ'C. and ^.fiigam, fecit be presented, 
 if process be made against those, that have the goods, the flight may 
 be traversed, for it is but an inquest of office, and shall not conclude. 
 47 E. 3. 26. : 
 
 But it is there held, that if an inquisition be taken before the coro-> 
 ner super visum corporis, that a man is felo de se, that inquisition 
 shall be conclusive, and is not traversable by the executors or ad- 
 ministrators of the deceased, Co. P. C.p. 55. and the like 
 seems to be held by Stamford, P. C. p. 183. b. where a [415 ] 
 fugani fecit is presented before the coroner super visum 
 
 {b) In Margine.
 
 415 HISTORIA PLACITORUM CORONA. 
 
 corporis, where it is found, that a murder was committed, and the 
 murderer fled; and yet (he offender himself shall be received to plead 
 not guilty to the indictment or inquisition before the coroner, as by 
 daily experience it appears, tho Stamford makes it there a question 
 whether the fit g am fee il be traversable. 
 
 And therefore I remember in the king's bench in the case o{ Bar- 
 clay it was ruled, that in case of an inquest before the coroner stiper 
 visum corporis, wherein the party was found y^/o de se, the inquisi- 
 tion was quashed in the king's bench, because upon examination it 
 appeared, that the coroner refused to let the jury hear .witness on the 
 part of him that was dead, to prove that he was not felo de se, for 
 the coroner ought to hear evidence on both sides, partly because it 
 was doubted, that the inquisition in this case was conclusive, and a 
 conviction, and not traversable, and the court of king's bench, who 
 are the sovereign coroner, did set aside that inquisition, and order 
 the coroner to inquire de novo super visum, corporis, because the body 
 was yet to be viewed. H. 1658. B. R. Barclay'' s case.(c) 
 
 If an inquisition be taken before the coxonex super visum corporis, 
 whereby the party dead is found to have died per infortunium, if it 
 is suggested on the part of the king or almoner, that he was felo de 
 se, and in the king's bench a writ of melius inqiiirendum is prayed 
 to the sheriff", it seems j^t ought not to be granted, because the coroner 
 is theproper officer, and accordingly it was denied in Pasch. 24Car. 2. 
 and if granted, and an inquisition taken, it hath been held vo\d{d) by 
 the statute of 28 E. 3. cap 9. tho many precedents of such writs are 
 extant. H. 37 Eliz. B. R. Croke,7i. 13, Harks Ion's case, F. N. B. 
 144, 250.(<>) 
 
 But it seems, if the coroner's inquisition omit the finding of the 
 goods of the/e/o de se, that may be supplied by a writ of melius' in- 
 quire7idum directed to the sheriff, for that is not witiiin the statute of 
 2Q E. 3. 
 
 But whensoever any inquisition is taken by the sheriff by 
 ["416 3 ^ writ or con\m\s,?\o\\o{ melius inquirendum, without ques- 
 tion that inquisition is traversable. 
 
 If an inquisition be taken before the coroner super visum corporis 
 de villis Ji. B. C. and D. and says not de quatuor villatis proximo 
 adjacent, according to the statute of 4 E. 1. de coro7iatoribus,{f) 
 yet it hath been held the inquisition is good, because the statute is 
 only directory. H. 1658. B. R. Barclay's case.(,g') 
 
 But altho an inquisition taken before the coYon*^,x super visuvi cor- 
 poris in the point oi felo de se is of great authority and a sufficient 
 record, whereupon process may be made against those that detain 
 the goods found in the inquisition, yet it seems to me, that it is tra- 
 versable in the very point so found, for it is but an inquest of office, 
 and whereupon the party grieved thereby can have no attaint; but 
 
 • (c) 2 Sid. 90. 101. id) 2 Ander. 204. 
 
 (r) Edit. 1718. jj. 322,554. 
 
 ( /") Tliis statute was but an afFirmancc oftlie common law, Brit. 7. a. 
 (g) 2 Std, 144. See also the King versus Crosse, Sfc. 1 Sid. 204.
 
 HISTORIA PLACITORUM CORONiE. 416 
 
 otherwise it is of a presentment oi ^ fugam fecit before the coroner. 
 8 E. 4 4. 
 
 The coroner hath power super visum corporis to inquire touching 
 the murder or interfection of the party that is dead, and also of all 
 accessaries before, and of their flight, but not of accessaries after the 
 fact. 4 H. 7. IS. b.{h), yet the party presented before the coroner to 
 be principal or accessary before is not convict by such presentment, 
 but shall be arraigned and plead to the felony, and I know no diff"er- 
 ence between that and this; and it seems unreasonable, that by an 
 inquest taken against a dead person, whereby he is found /e/o de sCy 
 that the executors, administrators, legatees, and children of the de- 
 ceased should be concluded, and lose the goods of the deceased with- 
 out an answer, by an inqusition which may be taken by 
 the coroner behind their backs, and I find no book express [417 ] 
 in it, but the opinion of my lord Coke, P. C. 55.,{i) for the 
 doubt of Mr. Stamford, P. C 1S3. is only upon a fugam fecit, and 
 in the case of Barclay 1658, the Court of King's Bench were not 
 satisfied, that it was conclusive. 
 
 P. 45 E. 3. inter communia scaccarii there was a presentment 
 (before the coroner, as it seems, but it is not so expressed in the 
 record) that Walter Page felonice se siibmersit, <§' sic felo de se 
 devenit, ^nd thereupon a writ issued out of the Exchequer to inquire 
 what debts were due to Walter Page ; the sheriff's of London, took 
 an inquisition, whereby it was found that Simon Long of Essex was 
 indebted to Walter Page at the time of his death in 40/. by bill, 
 thereupon process issued against Simon Long to answer the debt, 
 who came in and confessed he owed the debt to Walter Page, dicit 
 tamen, quod domino regi reddere non debet, quia qualitercunque 
 praesentatum fuit, quod dictus Walteriis Page nequiter and felonice 
 se submersit, ut praedicitur, idem Walteriis Page interfectus fuit 
 per emulos suos, & per ipsos in quodam fossato in loco vocato the 
 wilds in com. Surrey projectus, absque hoc, quod ipse aliqualiter 
 se submersit; and thereupon isssue was joined, and by a jury of 
 Surrey found, quod dictus Walterus Page fuit interfectus per emu- 
 los suos, & in fossato projectus, absque hoc, quod ipse aliqualiter se . 
 submersit. 
 
 There a traverse was taken to the presentment, which nfiust needs 
 be before the coroner by the whole circumstance of the case, tho the 
 coroner be not mentioned in the record. 
 
 And with this agrees the book of 8 E. 4. 4. that the finding of 
 one to he felo de se is traversable, tho found before the coroner; but 
 
 {h) This case says notliing directly of the coroner's power to inquire of accessaries, yet 
 by resolvinj;;, that in case ot' an accessary before the iact presented before tlie coroner, 
 it it was found he fled, lie should forfeit iiis groods, but not so in case of an accessary after 
 the fact, it seems strongly to imply, that the coroner had jurisdiction in the one case, but 
 not in the otiier; and Stamford says, tiiat the judgres in that case of 4 H. 7. abridged the 
 coroner of a power, which lie would have usurped in inquiring of those, who were acces- 
 saries after the murder. See to this purpose Dalison 32, 
 
 (i) See also to the same purpose Hob. 317.
 
 417 HISTORIA PLACITORUM CORONA. 
 
 indeed it holds, that a fugam fecit presented before the coroner is 
 not traversable, quia aimtient ley de corone.{k) . 
 
 If there be two coroners in a county, the outlawry must be given 
 
 by both, ullagatns est per judicium coronatorum, yet one of them 
 
 may take an inquisition super visum co?y)oris, M. 6 4* 7 Eliz.C. B.{1) 
 
 By the statute of 3 H. 7. cap. 1. the coroner ought to re- 
 
 {[418]] turn and certify the inquisition taken by him to the next 
 
 goal-delivery, or into the king's bench. 
 
 And thus far touching felodese and his forfeiture. 
 
 There is another kind of death of a man, which may be consider- 
 able in this place, namely the death of a manner infortunium, and/ 
 this is of two kinds, viz. 
 
 1. Where one man is the cause of another man's death withoift 
 any ill-intent, and by misfortune: of this I shall treat under the dis- 
 tribution of homicide. 
 
 2. When a man comes to an untimely end, where no other rea- 
 sonable creature concnrs to it, and this is properly per infortunium. 
 
 As where a man falls from an horse, or house, or boat, or into a 
 pit, or a tree or tile fall upon him and kill him, or is killed by a beast, 
 in this case the coroner ought to take an inquiry super visum cor- 
 poris, and also of the manner and means, how he came by his death, 
 and of the thing, whereby it happened, and of the value thereof, be- 
 cause in many cases there is a forfeit belonging to the king as a deo- 
 dand, whereof in the next chapter.[l] 
 
 (A-) See Slamf. Prerog. 46. b. (I) See Hob. 70. 
 
 [1] By 4 Geo. IV. c. 52, s. 1, it shall not be lawful for any coroner, or other officer 
 having authority to hold inquests, to issue any warrant or other process directing the 
 interment of tiic remains of persons against whom a finding of fclo de se shall be had, 
 in any public higliway; but such coroner or other officer shall give directions for the 
 private interment of the remains of such person felo de se, without any stake being 
 driven through the body of such person, in the church-yard, or other burial-ground of 
 the parish or place in which the remains of such person might, by the laws or customs 
 of England, be interred, if the verdict of felo de se had not been found against such 
 person, such interment to be made within twenty-four hours fi^om the finding of the 
 inquisition, and to take place between the hours of nine and twelve at nigiit. Proviso 
 not to authorize the performing of any of the rites of Christian burial on the interment 
 of the remains of any such person, nor to alter the laws or usages relating to the 
 burial of such person, except so far as relates to the interment of such remains in such 
 church-yard or burial-ground at such time and in such manner. 
 
 By self-murder all the chattels, real and personal, which the felo de se has in his own 
 right are forfeited, and also all chattels real whereof he is possessed either jointly with 
 his wife or in her right, and also all bonds and other personal things in action belonging 
 solely to himself, and also all personal things in action, and, as some say, entire chattels 
 in possession to which he was entitled jointly with another, on any account except that 
 of merchandise. But it is said thut he shall forfeit a moiety only of such joint chattels 
 as may be severed, and nothing at all of what he was possessed of as executor or ad- 
 ministrator. His lands of inheritance are not forfeited, nor his wife barred of dower. 
 No part of his personal estate vests in the king before the self-murder is found by some 
 inquisition. But after inquisition it is forfeited from the time the act done. 4 Bl, 
 Com. 190. n. 22. Stephens, C. L. 145-7. See post, ch. 32, note. 
 
 Suicide consists in a man's deliberately putting an end to his own existence, or com- 
 mitting any unlawful malicious act, the consequence of wliich is his own death — as if
 
 HISTORIA PLACITORUM CORONA. 418 
 
 attempting to kill another he runs upon his antagonist's sword, or shooting at another the 
 gun bursals and kills himself. 4 Bl. Com. 189. 
 
 But the act must be strictly his own, for if a man desire another to kill him, who com- 
 plies, the person killed is noifelo de se.though the killer is a murderer. 1 Hawk. c. 27, s. 6. 
 1 Russell, 424, 426. 
 
 So he must be of years of discretion, and in his senses. 4 Bl. C. 189. 
 
 There may be an accessary before the fact to self-murder, for if a man persuades 
 another to kill himself, and he does so, the adviser is guilty of murder, as an accessary 
 before the fact. 4 Bl. C. 189. Keilw. 136. Rex v. Russell, R. Sf M. C. C. R. 356. Vaux's 
 Case, 4 Rep. 44. b. 
 
 Where two persons agree to die together, and one of them, at the persuasion of the 
 other, buys poison and mixes it in a potion, and both drink of it, and he who bought 
 and made the potion survives by using proper remedies, and tlie other dies; it is said to 
 be the better opinion, that he who dies shall be adjudged a felo de se, because all that 
 happened was originally owing to his own wicked purpose, and the other only put it in 
 his power to execute it in that particular manner. 1 Hawk. P. C. c. 27, «. 6. Keilw. 136. 
 Moor, Ibi. 
 
 If a man, intending to shoot at another, mortally wound himself by the bursting of 
 the gun, he is felo dese; his own death being the consequence of an unlawful, ma- 
 licious act towards another. It has also been said, that if A. strike B. to the ground, 
 and B. draw a knife and hold it up for his own defence, and A. in haste falling upon B. 
 to kill him, fall upon tiie knife and be thereby killed, A. is felo de se; 3 Inst. 54. Dalt. 
 c. 144; but this has been doubted. 1 Hawkins, F. C. c. 27, s 4. 
 
 A husband and wife being in extreme poverty and great distress of mind, the husband 
 said, " I am weary of life, and will destroy myself;" upon which the wife replied, " If 
 you do, I will too." The man bought some poison, mixed it with some drink, and they 
 both partook of it. The husband died ; but the wife, by drinking salad-oil, which 
 caused sickness, recovered, and was tried for the murder of her husband, and acquitted ; 
 but solely on the ground that, being the wife of the deceased, she was under his con- 
 trol ; and inasmucli as the proposal to commit suicide had been first suggested by him, 
 it was considered that she was not a free agent, and therefore the jury, under the direc- 
 tion of the judge who tried the case, pronounced a verdict of not guilty. Anonymous 
 referred to in Reg. v. Allison, 8 C. Sf F. 418. Maore, 754. 1 Russ. on C. 508. 
 
 Hawkins speaks with some warmth against an unaccountable notion, which he says 
 prevailed even in his time, that every one who kills himself must be non compos of 
 course; because it is said to be impossible that a man in his senses should do a thing so 
 contrary to nature and all sense and reason. But he argues, that if this doctrine were 
 allowable, it might be applied in excuse of many other crimes as well as tiiis; as, for 
 instance, that of a mother murdering her child, which is also against nature and reason; 
 and this consideration, instead of being the highest aggravation of a crime, would make 
 it no crime at all ; for it is certain a person non compos mentis can be guilty of no crime. 
 1 Hawk. c. 27, s. 3. 
 
 If one encourages another to commit suicide, and is present abetting him while he 
 does 60, such person is guilty of murder as a principal; and if two encourage each 
 other to murder themselves, and one does so, the other being present, but failing in the 
 attempt on himself, the latter is a principal in the murder of the first; but if it be un- 
 certain whether the deceased really killed himself, or whether he came to his death by 
 accident before the moment when he meant to destroy himself, it will not be murder in 
 either. R. v. Dyson, R. Sf R. C. C. 523. R. v. Allison, 8 C. Sf P. 418. See Post, Chap. 
 34, Note.
 
 419 HISTORIA PLACITORUM CORON.^. 
 
 CHAPTER XXXII. 
 
 OF UEODANDS. 
 
 Regularly that moveable good, that brings a man to an untimely 
 death, is forfeit to the king, and it is usually granted by the king to 
 his almoner to distribute in charitable uses. 
 
 But they are not forfeit till the death be found, which is regularly 
 by the coroner, and may be before the commissioners of goal-delivery, 
 oyer and terminer, or of the peace, if omitted by the coroner, and 
 hence it is, that these goods, as neither the goods of felons of them- 
 selves, felons and other outlawed persons, cannot be claimed by pre- 
 scription, because there must appear a title to them by matter of 
 record, before they are forfeited. 
 
 Upon the d6ath of a man by misadventure, &cc. the inquisition 
 ought to inquire of the goods, that occasioned the death, and the 
 value of them, and the Villafa, where the n>ischance happened, 
 shall be charged with process for the said goods or their value, tho 
 they were not delivered to them,(«) 3 E. 3. Cor. 298. 
 
 And this is the reason, that in every indictment of murder, man- 
 slaughter, <5'C. the indictment finding, that he was killed with a 
 sword, staff, 4'C. ought to find also the price, viz. 5 solidorum, be- 
 cause the king is entitled to that instrument, whereby the party was 
 killed, or the. value thereof, &nd that altho it were the sword of 
 another man, and not his, that gave the stroke, Co. P. C. 57, 58. tho 
 this doth not vitiate the indictment as to the offense itself, tho the 
 price be omitted. 
 
 . Deodands are of two natures: 1. Such as do mover e ad 
 
 r 420 ] mortem. 2. Such as, tho they are qidescentia, yet occasion 
 
 the party's death: v/flfe statute 4 E. 1. de officio coronatoris. 
 
 1. Things moving to death: as if a beast kill a man, 8 E. 2. Co- 
 ron. 403. if a man be cutting of a tree, and the tree fall upon another 
 tree and break down a limb, which falls upon a man and kills him, 
 botli the limb, and the tree that fell, are deodands, 8 E. 2. Co- 
 ron. 398. 
 
 If a man be driving of a cart, and the cart fall and kill a man, the 
 cart and horses are a deodand. 8 E. 2. Coron. 388. and so if a cart 
 run over a man and kill him, the cart and horses are forfeit, 8 E. 2. 
 Coron. 403. 3 E. 3. Coron. 326, 342. ((^) so if tlie timber that hangs a 
 bell, fall and kill a man, the timber and bell are both forfeit. (c) 
 
 (rt) This case is cited from an Iter, by Fitzherbert, who adds at the end of it, quod 
 mirum. 
 
 (b) A cart met a wag-jE^on loaded upon the road, and the cart endeavouring to pass by 
 the wajTgon, was driven ui)on an Iiiffh bank and over-turned, and threw a person, that was 
 in the cart, just before tlic wheels of the waggon, and the vvagfjTon ran over him and liild 
 him; it was resolved in tliis case in the Jiorne circuit by Pollexfen and Gregory, tiiat the 
 cart, wapjjon, loading, and all the horses were deodands, because they all moved ad Jftor- 
 te7n. 1 Salk. 220. 
 
 (c) 8 E. 2. Corone 405. vide contra Rex versus Crosse, Sfc. 1 Sid. 207.
 
 HISTORIA PLACITORUM CORONA. 420 
 
 If a man in watering his horse is drowned, the horse is a deodand. 
 8 E. 2. Coron. 401. 
 
 If a man fall into the water, and the water carry him under the 
 wheel of a mill, whereby he is killed, the wheel is forfeited, but not 
 the miW. 8 E. 2.. Coron. 389. 
 
 If a weight of earth fall upon a worker in a mine and kill him, 
 the weight of earth is forfeit, not the whole mine. 12 B. 2. For- 
 feiture 20, 
 
 A man falls from his horse against a trunk, whereof he dies, the 
 horse is forfeit as a deodand, but not the trunk. 3 E. 3. Coron. 341. 
 
 And yet I find strong authority, that in that case the horse is not 
 forfeited, unless he throw his rider. 
 
 Clans. 5. E. 3. pai^t 2. m. 9. It was found by inquisition, " Quod 
 Willielmus Daventrise in parochia beatse Murix Strond in com. 
 Middlesex., cum ad-aquavit quendam equum magistri sui, dictusque 
 Willielmus redeundo de eodem equo per infortunium cecidit, & cum 
 eodem eqno per amicos suos semivivus deductus fnit ad hospitium 
 praedicti magistri sui apud Fleelstreet in suburbio London, 
 & ibidem languidus vixit usque occasum solis, quo tempore [ 421 ] 
 obiit ex casu praedicto; & quod prsedictus equus tempore 
 casus prsedicti per aliquem vel aliquam non fuit perterritus, per quod 
 habuit occasionem recalcitrandi. 
 
 This inquisition being removed into the chancery by Certiorari, 
 thereupon it was adjudged coram rege 4* concilio, quod equus prse- 
 diclus lanquam deodand' regi in hoc casu non debet adjudicari,^\\^ 
 thereupon a writ issues to the sheritls and coroners of London recit- 
 ing the inquisition: " Jamque dicta certificatione coram nobis & con- 
 cilio nostro inspecta & plenius examinata, nobis &. dicto concilio nos- 
 tro videtur, quod equus praedictus tanquam deodand' nobis in hoc 
 casu non debet adjiidicari," commands the sheriff and coroners, 
 " quod exactionem, quam Johanni Bleburgh (the master of the horse) 
 vel plegiis, vel manucaptoribus suis in hac parte pro equo proedicto 
 vel ejus pretio nobis tanquam deodand' reddend' fecistis, supersede- 
 atis omnino & districtionem in hac parte factam sine dilatione relax- 
 etis." 7! R. apud Guildford 18 Novemb. 
 
 Which judgment is of greater weight, than any above cited, and 
 may be a great guide in cases of this nature, and therefore I have 
 cited it at large: 1. It is a resolution subsequent to all those judgments, 
 that are above-raentiond, for the last of them is the 3 E. 3. and this 
 is 5 E. 3. Again, 2. It is a solemn judgment given in Chancery coram 
 rege S,' concilio upon great examination, and the whole case stated in 
 the inquisition, and every man knows, that understands any thing 
 of records of those times, that coram rege 8," concilio was the king's 
 legal council, namely the Chancellor, Treasurer, Keeper of the Privy 
 Seal, justices of the one bench and the other, chancellor and barons 
 of the Exchequer: these usually met in chancery upon such occasions 
 under the style of co?iC27n/m. 
 
 3. It is a judgment given by the king and council against the for- 
 feiture, the whole case appearing upon the inquisition, which is of
 
 421 HISTORIA PLACITORUM CORONiE. 
 
 greater moment, than a judgment given for the king, because given 
 by liimself and his officers against his own interest. 
 
 2. Now touching deodands of things not moveable. 
 [^422 ] If a man be drowned in a pit, tho the pit cannot be for- 
 feited, the coroner may charge the township to stop the pit, 
 and make entry thereof in his roils; and if it be not done before the 
 next eyre or goal-dehvery, the township shall be amerced. 8. E. 2. 
 Coron. 416. 
 
 If a man falls from a hay-rick, whereby he dies, it is said {noia, 
 not adjudged) that it shall be forfeit. 3 E. 3. Coron. 348. 
 
 If a man be getting up a cart by the wheel to gather plums, and 
 neither the cart nor horses moving, the man falls and dies, neither the 
 cart nor horses are forfeit, but only the wheel. 8 E. 2. Coron. 409. 
 
 It seems, that if a man be under the age of fourteen years, and falls 
 from a cart or horse, it shall not be a deodand, because he was not 
 of discretion to look to himself; but if a horse, bull, or the like kill 
 him, or if a cart run over him, there it shall be a deodand 8 E. 2. 
 Coron. 389. StamforcTs P. Cor. 21. a. Co. P. C. p. 57. for there it 
 shall be imputed to the neglect of the keeper of the goods, that did 
 the mischief, and so it is, if a tree fall upon one within the age of 
 discretion, it is a deodand. 
 
 Touching deodands in ships or boats, these things are observable: 
 
 1. If a ship or boat be laden with merchandize, tho it fall out that 
 a man be killed by the motion of the ship or boat, yet the merchan- 
 dize are no deodand, tho it be in the fresh water; but if any particular 
 merchandize fall upon a party, whereby he dies, that particular 
 merchandize shall be a deodand, and not the ship. Britton, cap. 1. 
 de office de coroner, § 13 <§' 14. 
 
 2. If a ship or vessel be sailing upon the sea, and a person falls out 
 of the ship and is drowned, the ship is no deodand. 
 
 By the antient constitutions of the admiralty it seems, that if a man 
 were drowned upon the sea by falling off from the ship under sail, 
 there was no deodand due, nor if he died by the fall of a mast or sail- 
 yard, or otherwise; but indeed in the articles of inquiry in the court 
 of admiralty, mentiond in the black book of the admiralty, one of 
 the articles is to inquire of them, that take any deodands, 
 [ 423 ] besides the admiral of any gold, silver or jewels found upon 
 any man slain upon the sea, drowned in the sea, or slain 
 with a mast in the ship, or with the yard of the ship, or with any 
 other thing, which is the cause of the death of any man, that in such 
 case appurtient al admiral per prendre and administre per I'alme, ce 
 quest mort, le moiety, & I'autre moiety a doner al feme celui, quest 
 mort,ses inlans, freres au soers,sil ad aucunes: but certainly this never 
 obtaind, for without question the goods of the deceased were no 
 deodands, but only the goods that moved to his death. 
 
 Rot. Par. 51 E. 3. n. 73. The commons pray, Que come il ad un 
 custome use parmy cest njalme, que si ascun home ou garson eschie 
 hors de ascun niefe, batelle, ou autre vessel en le mere, haven, ou 
 auire ewe, &, soil pcrisse, le dit vessel ud estre forfeite au roy, ou
 
 HISTORIA PLACITORUM CORONA. 423 
 
 autres seigneurs de franchises, to the great prejudice of mariners and 
 shipping, and tiierefore pray, que nul neife, batell, ne autre vessel 
 soil forfeitable desormes pur le cause avant dit. 
 
 Resp. En le mere ne doit pes deodand estre ajugge, mes quant al 
 ewe fresh le roy ent ferra sa grace, on lui pleyst. 
 
 The like petitions were renewed Rot. Par. 1 H. 4. n. 154. 1 H. 5. 
 n. 35. 14 H, 6. n. 2Q. but tiiey obtained no other answer, than that 
 the law be observed. 
 
 Yet that answer in 51 E. 3. is a sufficient declaration, that no deo- 
 dand is to be upon such a death happening upon the sea, and with 
 this difference touching the forfeiture of a ship or other thing, as 
 deodands in mari 4" in aqua diilci, agrees Bract. Lib. III. cap. 5. 
 p. 122, and cup. 17. p. 136. in fine, viz. that de submersis in aqua 
 dulci batelli, de quibus tales submersi fuerunt, apprecieiUur, sed non 
 in mari, nee sunt deodanda ex infortunio in mari. 
 
 And with the same agrees Fleta. Lib. I. cap. 25, §. 9. de submer- 
 sis, si de molendino ceciderit vel carecta vel de batello, quamvis car- 
 catis, duni tamen in acqua dulci, secus quam in falsa, and goes far- 
 ther, but too far, viz. that the vessel with its lading, and the cart 
 with its lading, and the mill, with all that is moveable in it, are deo- 
 datids. 
 
 But now, what shall be said the sea or salt water? 
 
 My lord Coke, ubi supra, viz. p. 58. saith,and that truly, [ 424 ~\ 
 the arm of the sea is included herein; and by the book of 
 22 Jissize, j)l. 93. so far as the sea flows and reflows is an arm of 
 the sea. 
 
 And thus far of deodands. 
 
 I shall only add this one thing more relating to the coroner's office 
 touching those that come to a violent death de subito mortuis: if the 
 township bury the body before the coroner be sent for, the township 
 shall be amerced; and if the coroner come not to make his inquiry 
 upon notice given, he shall be fined in eyre, or in the king's bench, 
 or before the justices of goal-delivery. [1] 
 
 [1] By deodand, is meant whatever personal chattel is the immediate occasion of the 
 death of any reasonable creature; which is forfeited to the king to be applied to pious 
 uses, and distributed in alms by his high almoner: though formerly destined to a more 
 religious purpose. It seems to have been originally designed, in the days of Catho- 
 licity, as an expiation for the souls of such as were snatched away by sudden death, 
 and for that purpose ought properly to have been given to the church ; in the same 
 manner as the apparel of a stranger, who was found dead, was applied to purchase 
 masses for the good of his soul. And this may account for that rule of law, that no deo- 
 dand is due where an infant under the age of discretion is killed by a fall froin a cart, a 
 horse, or the like, not being in motion; whereas if an adult person falls from thence, and 
 is killed, the thing is certainly forfeited. For the reason given by Sir Matthew Hale, 
 (ante. p. 422,) seems to be very inadequate, viz. because an infant is not able to take care 
 of himsiflf; lor why should the owner save his forfeiture on account of the imbecility of 
 the child, wiiich ought to have made him more cautious to prevent any accident of mis- 
 chief? The true ground of this rule seems rather to have been, that the child, by reason 
 of its want of discretion, was presumed incapable of actual sin, and tfierefore needed rio 
 deodand to purchase propitiatory masses; but every adult, who died in actual sin, stood 
 in need of such atonement, according to the humane belief of the founders of the
 
 424 HISTORTA PLACITORUM CORONA. 
 
 English law. 1 Blac. Comm. 300. 301. and note (21) in 2lst Land. Ed. 1844. 2 Steph. 
 Comm. 5G5. 
 
 The origin of this law (of deodands) is traced back to the oldest periods of European 
 religious faith, when the belief in the efticacy of. masses for the souls of the dead to rescue 
 them from the pains of purgatory, was as prevalent and as thoroughly rooted in the mind 
 of all Christendom, as the disbelief of it is now in this country. It was in tiiose days a 
 general practice, naturally flowing from this belief, among tlie classes of society whose 
 means would permit, for fliasses to be said for the souls of the dead, particularly of 
 those who died on the field of battle, or otherwise came to sudden death, and were sup- 
 posed, therefore, to pass from this world witiiout due preparation, and without absolution; 
 and to this practice is traced tlie law of dcodand. Anciently, it seems, when any person 
 came suddenly by his death by the accidental agency of any animate or inanimate chat- 
 tel, the chattel was to be given to the cliurch for masses for the soul of the deceased. 
 Such a law was manifestly a wise and humane one, while it was the fervent belief 
 of the people that saying of such masses was essential to the eternal welfare of the 
 souls of deceased persons; for in all times, persons of the poorer sort are those who are 
 most exposed to death by accidents, and this would be particularly the case in the times 
 of wiiich we speak, when the higher classes of society took care, by their continual state 
 of warfare and mutual destruction, to allow little room for accidental death among them- 
 selves, so that but for the law which devoted to the procurement of masses the thing that 
 caused accidental death, there could have been for the poor no provision for that species of 
 spiritual aid, which was considered, both by rich and poor, as much an essential as decent 
 burial is at this day. In process of time, however, the law appears to have been perverted 
 from its original intention; and, while the ulterior object for which the forfeiture was 
 inflicted, appears to have been gradually lost sight of, the forfeiture itself was retained, 
 but in favour of the crown; and the fruits of it became and have continued, even down 
 to this day, a mere source of revenue to the crown. 
 
 The notion upon which dendands have been principally levied in our own times, and 
 which appears indeed, to have been always considered as, partly, the reason of the law, 
 has been that they operate as a sort of penalty on carelessness, tending to make the 
 owners of chattels of a dangerous character, more cautious in using them. Tiiis is simply 
 an attempt to fasten some extraneous attribute of utility, upon a process in itself almost 
 ■wholly denied of fitness and utility. As a law lending to enforce caution, it is manifest- 
 ly one sided; for the forfeiture of the thing which is the cause of a man's death can, of 
 course, operate only as an inducement to caution, (if indeed it does operate at all) upon 
 the owner of the thing, whose caution or incaution has, in general, very little to do with 
 the matter; while upon the persons who expose themselves to the injurious action of the 
 thing, it can have no effect; yet it is the incaution of the latter class much more than of 
 the former, that is the cause of accidental death. 9 Lond. Jur. 49, 50. P. II. See also 
 1 Blac. Comm. note (22) p. 302. 2lst Ed. 
 
 In the Parliamentary Session of 1845, Lord Campbell introduced a " Bill to abolish 
 Deodand<," and Lord Lyttlelon introduced anotlier entitled " An Act for Compensating the 
 Families of Persoris killed by Accidents;"(*) neither of which however were passed; and 
 the Law of Deodands in England still rests upon its ancient principles and foundations.(t) 
 
 (*) This Bill has now (/4;)riZ 1847) become a law, 9 4- 10 Vict. c.93.2m August, 18i6. 
 The provisions of the law are as follow: 
 
 § 1. An action to be maintainable against any person causing death through neglect, 
 &c. notwithstanding the death of the person injured. 
 
 (} 2. Acti<m to be for the benefit of certain relations, and shall be brought by and ia 
 the name of executor or administrator of the deceased. 
 
 § 3. Only one action shall lie, and to be commenced within twelve calendar months, 
 
 § 4. Plaintiff to deliver a full particular of the person for whom such damages shall i>e 
 claimed. 
 
 § 5. The mode of construing the words and expressions in the act. 
 
 § 6. The act to take efl'eot immediately after passing, and not to apply to Scotlan/i. 
 
 ^ 7. The act may he amended or repealed the present session of Parliament. See the 
 Slat, at large in 10 /i«;if/. J(/r. 370. /^<. 2. 
 
 (+) When this note was written {July 134fi) such was the law of England, but now, 
 (April 1847) the learning of the law of deodands has yielded to the spirit of legal reform, 
 i'lie lirilish Parliament passed "An Act to abolish l)(M)dands," the 18th August, 1846. 
 Whereas the law respecting the forfeiture of chattels which have moved to or caused the 
 death of man, and respecting deodands, is unreasonable and inconvenient: be it euacied,
 
 HISTORIA PLACITORUM CORONA. 404 
 
 It was never introduced into this conntry, except in a very infornaal manner, and no such 
 title as Deodand is to be found in the United States Digests. 
 
 The introduction of Lord Campbell's Bill, together with some recent cases has caused 
 the learning of this branch of the law to be much investigated. However important such 
 investigations may liave been in England, they are liere rather matters of curious anti- 
 quarian law, tlian of any daily practical utility. An edition o{ Hale^s Pleas uf the Crown 
 would nevertheless be incomplete without a discussion of the subject, and hence, this note 
 has been prepared. 
 
 "Tiie principles upon which they (the doctrines of deodands) were established," ob- 
 serves the present Lord Chief Justice of the Queen's Bench, in delivering a recent and 
 important judgment, {Reg. v. Polwart, 1 Q. B. 824.) -'are so entirely matter of conjec- 
 ture that we do not feel called upon or justified at the present day to extend their appli- 
 cation, but rather to limit them strictly to the cases in which we' find them established 
 by practice and recognised by law." ^ . ' ' 
 
 It will be convenient to notice here the distinction which exists between the forfeiture 
 of a weapon or other instrument with which a felony has been ccmmilted, and the value 
 of which is for the purpose of such forfeiture always found by the jury, and that parti- 
 cular species of forfeiture which is designated as a deodand. To these two kinds of for- 
 feiture the name of deodand is by some authors, and amongst others by Sir William 
 Blackstone {vol. \. p. 302.) indifferently applied, but according to the weight of authority, 
 it is strictly applicable in those cases only where death has been caused accidentally, and 
 without the intervention of human means. Poster's Crown L. 266. Indeed it is quite 
 clear from the older cases, and has recently been expressly decided by the Court of 
 Queen's Bench that the coroner's jury has no power to lay a deodand if the verdict 
 returned be one of murder or manslaughter. In Reg. v. Polwart, 1 Q. B. 818. to which 
 we here allude, the coroner's jury returned a verdict of manslaughter against one Joseph 
 Polwart, for occasioning the death of one Robert Mason, by his improper and negligent 
 navigation of a steamboat; and the inquisition further found that "the said steamboat 
 was moving to the death of the said Robert Mason, and is of the value of X800, and the 
 property of and in the possession of J. W. D. The late Sir William- Follett in support 
 of the rule for quashing the inquisition, contended that, a deodand could not be given 
 in a case of felony, and that consequently so much of the inquisition as related to the 
 deodand ought to be quashed, as was done in Ex Parte Carrutkers, 2 Man. ^ Ry. 397. 
 A deodand, observed the learned counsel, is only where death happens by misadventure. 
 The instrument of death may indeed be forfeited to the king in cases of felony, but that 
 is not an instance of deodand properly speaking; and he cited Slaund. Pleas del Cor. Lib. I. 
 e. -U.fol. 20. a. 3 Inst. c. 9. p 57. Foxley's case, 3 Rep. 109, 110. Fost. Cr. Law, 265. 
 Rex V. Rope, 2 Barnardislon, R. 82. 111. Com. Dig. Waife, E. 1. which certainly fully 
 support this view of the question. Judgment was accordingly given that so much of the 
 inquisition, as related to the deodand therein mentioned should be quashed. "All the 
 authorities in our law books, said the lord Ch. Justice, treat deodands as being due 
 where the death is by misadventure; and no one instance has been adduced or can be 
 found, where a deodand has been laid, where a verdict of murder or manslaughter has 
 been found." The same learned judge, amongst other authorities referred to the following 
 passage from lord Coke, (3 Inst. c. 9. p. 57.) cittd by Sir William in his argument p. 820, 
 which is apposite for our present purpose; "deodands" he describes as being laid when 
 " any moveable thing inanimate, or beast animate, do move to or cause the untimely 
 death of any reasonable creature by mischance in any county of the realm, (and not 
 upon the sea or upon any salt water,) without the will, offence or fault of himself or of 
 any person." The rule of law as finally established in this case in 1 Q. B. 818, will be 
 found very material in guiding us to a correct conclusion as to the utility of the power 
 at present possessed by a coroner's jury of imposing deodands. This power, it will be 
 observed, ceases to exist whenever the degree of negligence which has occasioned death 
 comes within the definition of legal guilt; and in order to place this matter in the clcar- 
 
 &c. that from and after the first of September, 1846, there shall be no forfeiture of any 
 chattel tor or in respect of the same having moved to or caused the death of man; and no 
 coroner's jury sworn to inquire, upon the sight of any dead body, how the decased came 
 by his death, shall find any forfeiture of any chattel which may have moved to or caused 
 the death of the deceased, or any deodand whatsoever, and it shall not be necessary in 
 apy indictment or inquisition for homicide, to allege the value of the instrument which 
 caused the death of the deceased, or to allege that the same was of no value, 10 Lond, 
 Jur. p.
 
 424 HISTORIA PLACITORUM CORONA. 
 
 est point of view, we shall divide cases of violent death into three classes : 1st. where the 
 death is purely accidental, in which case only a nominal deodand or none at all oug-ht of 
 course to be imposed; 2d. where death has resulted from negligence and misconduct, 
 not amounting in contemplation of law to manslaughter, in which class of cases the 
 power of awarding deodands may undoubtedly be used for the purpose of punishing the 
 guilty party; and 3d. where death has resulted from manslaughter where, as we have 
 just seen, no deodand can be laid. 5 Land. Law. Mag. 191-193. The same learned writer 
 in the 5lh vol. of the Land. Law. Mag. investigates the origin and history of deodands; 
 (see p. 194-198.) and gives abstracts of both lord CampheWs and lord Lyttleton's Bills, 
 (seep. 199-203.) See Hansard's Pari. Deb. vol. 18. p. 947. Id. vol. 19. p. 1053, for dis- 
 cussions upon the respective bills before referred to. 
 
 A few modern cases in which the law of deodands is investigated have been adjudica- 
 ted and are here cited. Reg. v. Brownlow, 11 Ad. Sf El. R. 119. Reg. v. Tlie Grand 
 Junction Railway, Id. 123, and note, (a) Reg. v. Polwart, 1 Q. B. 818. Reg. v. The 
 Great Western Railway Company, 3 Id. 341. Ex parte Caruthers, 2 Man. Sf Ry. Rep. 
 397. Attorney GenHv. J'he Easttrn Counties Railway Company, 3 Railw, Cas. 145. 
 
 CHAPTER XXXIII. 
 
 OF HOMICIDE, AND IT's SEVERAL KINDS, AND FIRST OP THOSE CON- 
 SIDERATIONS THAT ARE APPLICABLE, AS WELL TO MURDER AS 
 MANSLAUGHTER. 
 
 Having dispatched the business of suicidiiim or self-murder, and 
 per infortunium simplex, I come now to consider of homicide, as 
 it relates to others. 
 
 And this is of three kinds: Purely voluntary, r/r. murder and 
 manslaughter. Purely involuntary, as that other kind of homicide 
 per infortuni\im. 3. Mixt, partly voluntary, and partly involuntary, 
 or in a kind necessary, and this again of two kinds, viz. inducing a 
 forfeiture, as se defendendo, or not inducing a forfeiture, as, 1. In 
 defense of a man's house. 2. Defense of his person against 
 [ 425 ~\ an assault in vid regid. 3. In advancement or execution of 
 justice, and according to this distribution I shall proceed. 
 
 I shall begin with those matters considerable, which are applicable 
 as well to homicide, as to murder. 
 
 Murd>;r is a killing of a man ex malitid prsecogitatd;{2'] homicide 
 is killing a man without forethought malice.[l] 
 
 [1] It will be perceived that the word homicide is here used not in the present general 
 sense of killing, but as the term manslaughter is now used. 
 
 [2] Coke's definition of murder, (3 Inst. 41,) as modified by Blarkstone, is so accurate, 
 comprehensive and elegant that it has been universally recognized wherever English 
 law prevails. " Murder (says Blarkstone, 4 Comm. 198) is when a person of sound 
 memory and discretion unlawfully killcth any reasonable creature in being and under 
 the king's peace, with malice aforethought, cither express or implied." 
 
 This is substantially the dcHiiilion of this crime as known for several hundred years in 
 England, and as now understood in the United States. Wilkins's Laws of the Anglo- 
 Saxnns, 480; Glari. L. 1 4, c. 3 ; Home's il/n ror, 4G; Dait. c. 145 ; St. 52, //. 3, 25 ; Bracton, 
 L. 3, c. 4, s. 1; Britt. c. (J, s. I ; Fletn, L. 1, c. 30; Kelham's Norman Diet. "Murder;" 
 CoweWs Diet. "Murder;" BlounCs Law Dirt. "Murder;" Stauud. b. 1, c. 10; 1 Hoick. 
 c. 31, s. 3; Vin. Abr. "Murder," a. 1; 2 McNally, 553; Foster, 25ti; 1 East, P. C. 215;
 
 HISTORIA PLACITORUM CORONA. 425 
 
 It is a mistake in those, that think, that before the statute of Mar- 
 lebridgc, cap. 2G, all killing of a man, tho per infortunium or se de- 
 fendendo, was murder, for the statute saith, that murdrum de csetero 
 non adjudicetur coram justiciariis, ubi infortunium tantummodo ad- 
 judicatur, sed locum habet murdrum de interfectis per feloniam tan- 
 turn, & non aliter, and therefore they thought that before this statute 
 a man should be hanged for killing another in his own defense.. 
 21 E. 3. 17. b.{a) 
 
 But the truth is, murdrum in this case was but an amercement, 
 that was antiently imposed upon a township, where the death of a 
 man happened ;(Z») and this appears by many hundred old charters 
 of the kings of England., especially to bishops and monasteries, 
 whereby it was granted, that they and their possessions should be 
 quit de murdro Sf latrocinio among divers other immunities, where- 
 by we must not think that they had power granted them to commit 
 murder or theft, but they were thereby acquitted of those common 
 amercements, usually in those antient times imposed in eyre upon 
 vills for murder and theft committed there. 
 
 To make up the crime of homicide or murder there must be these 
 three concurring circumstances. 
 
 I. The party must be killed, antiently indeed a barbarous assault 
 with an intent to murder, so that the party was left for dead, but yet 
 recovered again, was adjudged murder and petit treason, 
 15 E. 2. Coron. 3S3. but that holds not now, for the stroke [ 426 ] 
 without the death of the party stricken, nor the death with- 
 out the stroke or other violence makes not the homicide or murder, 
 for the death consummates the crime. 
 
 It remains therefore to be considered, to what intents the offense 
 of murder or manslaughter relates to the stroke or other cause of the 
 death, and to what purposes it relates to the death only. 
 
 (a) See also 2 Co. Instit.p. 148, who is of tliat opinion. 
 
 (b) This is so plain, that it is matter of surprize, that any should mistake it; the 
 word murdrum usually signifying a secret killing of another, so that the murderer was 
 not known, for if the murderer was known, it was not in this sense murder; as if the 
 murderer was taken, Sf judicium sustinuerit, nullum erit murdrum, quia convincitur 
 felunia, or if the murdered person lived for some time after his wounds, it was no murder 
 because he might discover the murderers, the meaning of which is not, that the offender 
 would not in those cases be liable to be indicted and punished for murder, but that the 
 vill or township would not in such cases be liable to any amerciament. Bract. Lib. HI. 
 de corona, cap. 15. p. 135. a. Wilk. Le^. Anglo-Sax. p. 280. vide supra p. 39. in notis, vide 
 fostea cap. 35. See also Kelynge, 121. 
 
 Bac. Abr. " Murder," A.; Jacob's Law Diet., " Murder;" 2 Ld. Rnym. 1487; Kehjnge^ 
 1-21-127; 3 Chithj, 123; 3 Slarkie, 513; 1 Russell, 421 ; ^rchbold, 818; 2 Deacon, 896; 
 Roscoe, 5G2 ; Davis, Cr, L '92 ; C. J. Parsons's def. {Selfridge's Tr. 3,) Brockenbo. 
 rough, J. in 6 Randolph's Va. R. 723; 6 Mass. R. J39 ; 7 Dnn'e, Abr. c. 212; State v. 
 Ze'ler, 2 Halsted's R. N. Jersey, 242 ; Comm. v. Drew, 4 Mass. 391; The People v. 
 Enoch, 13 Wend. 159; Respublica v. Mulatto Bob. 4 Dallas, 149; Commonwealth v. Har. 
 man, 4 Barr. ; Commonwealth v. Mosler, 4 Barr. ; U. S. v. McGill, 1 Wash. C. C. R. 463. 
 Some of the authorities above quoted are from "A Report of tlie Penal Code of 
 Massachusetts, prepared under a resolulion of the Legislature," Boston, 1844. To the 
 authors of this very able and comprehensive work, Messrs. James C. Alvord, Luther .S 
 Cus«iN<5,WiLLARD PiiiLLirs, and Samuel B. Walcott, the editors, are largely indebted 
 for the notes to this and some of the immediately succeeding chapters.
 
 426 HISTORIA PLACITORUM CORONA. 
 
 If a man gives another a mortal stroke, and he lives a month, 
 two or three, or more, and die within the year and day, the title 
 of the lord by eschete to avoid mesne incumbrances relates to the 
 stroke given, and not only to the death. Plowd. Com. 263. Dame 
 Hale's case. [3] 
 
 If a man give another a mortal stroke, and he dies thereof within 
 a year and a day, but mesne between the stroke and the death there 
 comes a general pardon, whereby all misdemeanors are pardoned, 
 this doth pardon the felony consequentially, because the act, that is 
 the offense, is pardoned, tho it be not a felony till the party die. 
 Ibid. 401. CoWs case. 
 
 If a mortal stroke be given on the high sea, and the party comes 
 to land in England and die, the admiral shall not have jurisdiction 
 in this case to try the felon, because the death that consummated the 
 felony, happened upon the land, nor the common law shall not try 
 him, because the stroke, that made the offense, was not infra corpus 
 comitatus, 5 Co. Rep. 106. h. Sir Henry Constable's case, 2 Co. 
 Rep. 93. a. Biyigham^s case, Co. P. C. p. 48. and Lade's case, 
 25 Eliz. cited there to that purpose; de quo alibi; see 9. Geo. IV. 
 c. 31, s. 7, Ǥ'C. 
 
 At common law, if a man had been stricken in one county and 
 died in another, it was doubtful whether he were indictable or tri- 
 able in either, but the more common opinion was, that he might be 
 indicted where the stroke was given, for the death is but a con- 
 sequent, and might be found tho in another county, 9 E. 4. 48. 
 7 H. 7. 8. and if the party died in another county, the body was 
 removed into the county, where the stroke was given, for the coro- 
 ner to take an inquest super visum corporis, 6 H. 7. 10. but now 
 by the statute of 2 <§' 3 E. 6. cap. 24. the justices or coroner 
 [] 427 3 of the county, where the party died, shall inquire and pro- 
 ceed, as if the stroke had been in the same county, where 
 the party died. 
 
 On the other side, as to some respects, the law regards the death 
 as the consummation of the crime, and not merely the stroke. 
 
 If a party be kild in one county, the coroner super visum corporis 
 might at common law inquire of all accessaries or procurers before 
 the fact, tho the procurement were in another county, 20 H. 7. Kelw. 
 67. b. per omnes justiciarios Anglise; but now by the statute of 2 (§• 
 3 E. 6, cap. 24. the indictment and trial of the accessaries shall be in 
 the county, where they were accessary, viz. procuring, abetting or 
 receiving. 
 
 If a party be mortally wounded, and the offender taken and in the 
 custody of the constable, and he suffers him to escape before the 
 
 [3] The death must ensue within a year and a day after tho stroke received or cause of 
 deatli adtiiinistcred, in the compulation of wliich tlie whole day upon which the hurt was 
 done shall he reckoned the first. .3 Initt. l.'iS; 1 Ihiwk. c. 31, s. 9; 1 East. P. C. 343- 
 344; 1 Russell, 428; 4 lil. Com. 1!)7; 3 Chdly, 72G. Sec Nicholos' case, Foster, 64, 
 where it is doubled whether Cule\<s case warrants the rule in the latitude here luid 
 down.
 
 HISTORIA PLACITORUM CORONiE, 427 
 
 wb.unded person die, it is not felony in the constable, tho he die after 
 within the year. 11 H. A. 12. Ploiv. Com. 401. Coie\ ca.se. 
 
 If a stroke be given the Is't of January/, and the party die the 1st 
 of March following, the year and day to bring an appeal is to be 
 accounted from the death, and not from the stroke, contrary to the 
 opinion of Slamford P. C. 63. a. quod vide Co. P. C. p. 53. Sr sur 
 statute de Glouc. cap. 9.,{c) 4 Co. Rep. 42. b. Haydorfs case, SatUt. 
 3 //. 7. cap. 1. 
 
 If t-'?. give a mortal stroke the 1st of January, and the party lives 
 till the 1st o{ February, and then dies of the stroke, the conclusion of 
 the indictment is best, Et sic prsefatus A. <§'C. modo <§• forma prm- 
 dictd interfecit Sf murdravit, because it applies to the whole case. 
 2. But if it be, Et sic praefafits A. prxdicto 1 Januarii ipsum, S^^c. 
 interfecit ^' murdravit, it is naught, because it is no murder till the 
 party dies, 4 Co. Rep. 42, Haydoti's case, vide ibidem Katharine 
 HuDie's case. 3. But if it conclude, Et sic prxfatus A. ipsiim, <5'C. 
 prsedicto 1 Februarii interfecit 4* murdravit, it is good, because 
 then the murder is complete, 4 Co. Rep. 47. a. Wigge's case, tho in 
 such a case of a stroke at one day or one place, and a death 
 at another day or place, the best conclusion, and that which [428 ] 
 is in common use at this day is, Et sic pra3dictus Ji. ipsum, 
 &c. modo & forma praedictis interfecit & murdravit. 
 
 And thus far touching the relation to the stroke or death. 
 
 Now what shall be said a killing and death within the year and 
 day. 
 
 If a man give another a stroke, which it may be, is not in itself so 
 mortal, but that with good care he might be cured, yet if he die of 
 this wound within the year and day, it is homicide or murder, as the 
 case is, and so it hath been always ruled, 3 Inst. 47, 
 
 But if the wound or hurt be not mortal, but with ill applications 
 by the party, or those about him, of unwholesome salves or medi- 
 cines tlie party dies, if it can clearly appear, that this medicine, and 
 not the wound, was the cause of his death, it seems it is not homicide, 
 but then that must appear clearly and certainly to be so. 
 
 But if a man receives a wound, which is not in itself mortal, but 
 either for want of helpful applications, or neglect thereof, it turns to 
 a gangrene, or a fever, and that gangrene or fever be the immediate 
 cause of his death, yet, this is murder or manslaughter in him that 
 gave the stroke or wound, for that wound, tho it were not the imme- 
 diate cause of his death, yet, if it were the mediate cause thereof, and 
 the fever or gangrene was the immediate cause of his death, yet the 
 wound was the cause of the gangrene or fever, and so consequently 
 is causa causoti. 
 
 If a man be sick of some such disease, which possibly by course of 
 nature would end his life in half a year, and another gives him a 
 wound (Jr hurt, which hastens his end by irritating and provoking the 
 disease to operate more violently or speedily, this hastening of his death 
 
 (c) 2 Co. Instit. 320. 
 VOL. I.— 37
 
 428 HISTORIA PLACITORUM CORON^E. 
 
 sooner than it would have been is homicide or murder, as tlie case 
 liappens, in him, that gives the wound or hurt, for he doth not die 
 simply ex visitatione Dei, but the hurt that he receives hastens it, and 
 an offender of such a nature shall not apportion his own wrong, and 
 thus I have often heard that learned and wise judge Justice Rolle fre- 
 quently direct. [4] 
 
 If a man either by working upon the fancy of another, or 
 [[429 3 possibly by harsh or unkind usage puts another into such 
 passion of grief or fear, that the party either dies suddenly, 
 or contracts some disease, whereof he dies, tho, as the circumstances 
 of the case may be, this may be murder or manslaughter in the sight 
 of God, yet inforo hximano it cannot come under the judgment of 
 felony, because no external act of violence was offered, whereof the 
 common law can take notice, and secret things belong to God; and 
 hence it was, that before the statute of 1 Jac. cap. 12. witchcraft or 
 fascination was not felony, because it wanted a trial, tho some con- 
 stitutions of the civil law make it penal. [5] 
 
 If a physician gives a person a potion without any intent of doing 
 him any bodily hurt, but with an intent to cure or prevent a disease, 
 and contrary to tlie expectation of the physician it kills him, this is • 
 no homicide, and the like of a chirurgeon, 3 E. 3. Coron. 163. And 
 
 [4] Martin's case, 5 C. Sf P. 128. 1 Russell, 429. Archbold, 319. Roscoe, 544-6. 
 575, 576. Johnson''s case h'fore Halleck, B. Nisi Priiis, York Assizes, 1827. {Lewin's 
 Crown Cases, 164.) seems to conflict with tlie text. The prisoner was indicted for kill- 
 ing the deceased while in a state of intoxication by a blow, which the physician testified 
 might not have produced death if the party had been sober. Halleck, B. directed aa 
 acquittal, observing that " where the death was occasioned partly by a blow and partly 
 by a predisposing cause, it was impossible to apportion the operation of the several 
 causes, so as to be able to say with certainty that the deatii was immediately occasioned 
 by any one of them in particular." It seems that the doctrine thus laid down and ap- 
 plied to the case then on trial, cannot be the law. It is entirely at variance with the 
 principle established by previous authorities, and stated in the text; for it would be as 
 applicable to any other predisposing cause, the infirmity of age and sickness, for instance, 
 as that of intoxication. Roscoe questions the correctness of the decision. See also, 
 IHawk.c. 31. s. 10. 1 East, P. C. 3i4. 3 Chitty,126. I Russell, 428. Archbold, 319, 
 Commonwealth v. Green, 1 Ashmead, 289. 
 
 [5] The distinction between destroying life by mechanical means or bodily injury, and 
 by operating upon the fears or passions, appears not to be derived from any difference in the 
 criminal nature of the acts, for the latter in many cases may show tlie deeper design and 
 darker malignity, but from the difficulty in the latter, of the proof connecting the act 
 with the result, and the dangerous latitude of the opposite principle. 1 East, P. C. 225. 
 3 Chitly, 726. 1 Russell, 425. 2 Starkie's Ev. 514. Roscoe, 570. 2 P. Sf F. Med. Juris. 
 110, n (a ) Report on the Penal Code of Massachusetts. 4 Bl. Com. 197. Chitti/s nute ' 
 and cases there cited. 
 
 If, however, a jierson being attacked should from an apprehension of immediate vio- 
 lence, an ajiprehension which must be well grounded and justified by the circumstance?, 
 throw himself for escape into the river, and be drowned, the person attacking Jiiin is 
 guilty of murder. Rejr v. Pitts, 1 Car. Sf Mars. 284. 
 
 Or if words or signs are used to induce an act resulting in death, it is a killing by the 
 person inducing the act; as if a blind man be directed to a precipice, or a deadly drOg 
 be recommended, and death ensue in consequence, it is a killing. Davis'' Cr. L. 94. Lit). 
 P. C. 437. Evans' case, O. B Sep. 1812. M. S. Baylei/, .}. in 1 Russell, 425. Freeman's 
 Case, 4 Mnsim, 505. So also if one counsels or assists another to commit suicide. Vaults 
 Case, 4 Rep. 44 h. 1 Russell, 424-29. 4 Bl. Com. 188. 3 Chitly, 726. Dyson's Case, R. Sf 
 R. 523. Bowcns' Case, 13 Mass. 356. Mass. Com. Rep. p. 12.
 
 HISTORIA PLACITORUM CORONA. 429 
 
 I hold their opinion to he erroneous, that think, if he be no licensed 
 chirurgeon or physician, that occasioneth this mischance, that then it 
 is felony, for physic and salves were before licensed physicians and 
 chirurgeons; and therefore if they be not licensed according to the 
 statute of 3 H. S. cap. 1 1. or 14 //. 8. cap. 5. they are subject to the pe- 
 nalties in the statutes, but God forbid that any mischance of this kind 
 should make any person not licensed guilty of nmrder or manslaughter. 
 These opinions therefore may serve to caution ignorant people not 
 to be too busy in this kind with tampering with physic, but are no 
 safe rule for a judge or jury to go by : we see the statute of 34 <§• 35 
 H. 8. cap. 8. dispenseth with the penalty of those former statutes, as 
 to outward applications and medicines for agues, stone, orc^strangury, 
 which may be administered by any person, and the preamble of the 
 statute tells us, that if none but licensed chirurgeons should be used 
 in many cases, many of the king's subjects were like to perish for 
 want of help. [6] 
 
 [6] Later authorities agree with Hale in these points. If a person, whether he be a 
 regular practitioner or not, honestly and bona fide perform an operation which causes 
 the patient's death, lie is not guilty of manslaughter. Rex v. Van Butchell, 3 C. Sf P. G29. 
 But if he be guilty of criminal misconduct, arising from gross ignorance or criminal in- 
 attention, then he will be guilty of manslaughter. Rex v. Williamson, 3 C. A- P. 635. 
 Rex V. Spiller, 5 V. Sf P. 333. 
 
 When the defendant, not a regular physician, killed a woman by an application, and 
 the jury found he entertained a criminal disregard of human life, he was convicted of 
 and punished for manslaughter. Rex v. Long, 4. C, Sf P. 423. Rex v. Senior, R. ^- M. 
 C. C. 346. In Rex v. Webb, 1 M. S( Rob.4H). Lord Lyndhurst laid down the following 
 rule; — " In these cases there is no difference between a licensed physician or surgeoa 
 and a person acting as physician or surgeon, without license. In either case, if a party 
 having a competent degree of skill and knowledge makes an accidental mistake in his 
 treatment of a patient, through which mistake death ensues, he is not thereby guilty of 
 manslaughter; but if, where proper medical assistance can be had, a person totally igno- 
 rant of the science of medicine, takes on himself to administer a violent and dangerous 
 remedy to one labouring under disease, and death ensues in consequence of that danger- 
 ous remedy having been so administered, then he is guilty of manslaughter. If I enter- 
 tained the least doubt of this position, I might fortify it by referring to the opinion of 
 Lord Ellenborough in R. v. Williuwson, 1 shall leave it to tiie jury to say — first, whether 
 death was occasioned or accelerated by the medicines administered; and if they think it 
 was, then I shall tell them, secondly, that the prisoner is guilty of manslaughter, if they 
 think that in so administering the medicine he acted with a criminal intention or from 
 very gross negligence." In the case of R. v, Nancy Simpson, (reported in Willcock on the 
 Law relating to the Medical Profession, Append. 2"27,) the prisoner was indicted for 
 manslaughter. It appeared that the deceased, a sailor, had been discharged from the 
 Liverpool Infirmary as cured alter undergoing salivation, and that he was recommended 
 by another patient to go to the prisoner for an emetic, to get the mercury out of his 
 bones. The prisoner was an old woman, who resided at Liverpool, and occasionally dealt 
 in medicines; she gave him a solution of while vitriol, or corrosive sublimate, one dose 
 of which caused his death; and she said she had received the mixture from a person who 
 came from Ireland, and had gone back again. And in that case Mr. Justice Bayley said, 
 "I take it to be quite clear tliat if a person, not of medical education, in case wiicre pro- 
 fessional aid might be obtained, undertakes to administer medicine which may have a 
 dangerous effect, and thereby occasions death, such person is guilty of manslaughter. 
 He may have no evil intention, and may have a good one, but he has no right to hazard 
 the consequences in a case where assistance may be obtained. If he does so, it is at his 
 peril. It is immaterial whether Uie person administering the medicine prepares it or 
 gets it from another." The prisoner was convicted. If a chemist's apprentice be guilty 
 of negligence in delivering medicine, and death ensue in consequence, he is guilty of
 
 429 HISTORIA PLACITORUM CORONiE. 
 
 But if a woman be with child, and any giv^s her a potion to de- 
 stroy the child within her, and she takes it, and it works so strongly, 
 that it kills her, this is murder, for it was not given to cure 
 r 4301 her of a disease, but unlawfully to destroy her child within 
 her, and therefore he that gives a potion to this end, must 
 take the hazard, and if it kill the mother, it is murder, and so ruled 
 before me at the assizes at Bury in the year 1670. [7] 
 ■ And certainly if that opinion should obtain, that if one not li- 
 censed a physician should be guilty of felony, if his patient miscarry, 
 we should have many of the poorer sort of people, especially remote 
 from London, die for want of help, lest their intended helpers might 
 miscarry. • 
 
 This doctrine, therefore, that if any die under the hand of an un- 
 licensed physician, it is felony, is apocryphal, and fitted, I fear, to 
 gratify and flatter doctors and licentiates in physic, tho it may, as I 
 said, have its use to make people cautious and wary, how they take 
 upon them too much in this dangerous employment. 
 
 If a man have a beast, as a bull, cow, horse or dog, used to hurt 
 people, if the owner know not his quality, he is not punishable, but 
 if the owner be acquainted with his quality, and keep him not up 
 from doing hurt, and the beast kill a man, by the n.r\i\en\. Jewish 
 law(*) the owner was to die for it, Exod. xxi. 29. and with this 
 seenis to agree the book of 3 E. 3. Coron, 311. Slam/. P. C. 17. a. 
 wherein these things seem to be agreeable to law. 
 
 1. If the owner have notice of the quality of his bea^t, and it doth 
 any body hurt, he is chargeable with an action for it. 
 
 "2. Tho he have no particular notice, that he did any such thing 
 before, yet if it be a beast, that is /eras naturss, as a lion, a bear, a 
 wolf, yea an ape or monkey, if he get loose and do harm to any per- 
 son, the owner is liable to an action for the damage, and so I knew 
 it adjudged in Andrew Baker^s case, whose child was bit by a mon- 
 key, that broke his chain and got loose. See May v. Burdette, 
 10 Lond. Jiir. ' 
 
 3. And therefore in case of such a wild beast, or in case of a bull 
 or cow, that doth damage, where the owner knows of it, he must at 
 
 (*) Vide supra, p. 3. in notis. 
 
 manslaugfhler. {Tessymond^ s Caso, 1 Lew. 169.) SeeRegina v. Spilling, 2 M, S( Rob. 107. 
 Rex V. Simpson, 1 Lrwin. C. C. 172. Rex v. Ferguson, 1 Lewin. C. C. 181. Coin.y. 
 Chauncey, 2 Ashniead, 227. 
 
 In Massachusetts, it' one assuming to be a physician, however ignorant of the medical 
 art, administers to his j)aticnt remedies which result in liis deatli, he is not guilty of man- 
 slaughter, unless he has so much knowledge or probable information of the fatal tendency 
 of his prescriptions, as to raise a presumption of obstinate, wilful rashness. Com'm, v. 
 Thompson, 6 Mass. 134. When however, such person has opportunity to know of the 
 injurious cfiecls of his remedies, and then administers them, it would be competent for 
 the jury to find him guilty of manslaugiitcr, even though he might not have intended any 
 bodily harm to his patient. Viid. 
 
 [7] If a woman take poison with intent to procure a miscarriage and dies of if, she is 
 guilty of self-murder, whether she was (juick with child or not: and a person who fur- 
 nished her with the poison lor that purpose, will if absent, be an accessary before the 
 fact. Rex v. Russell, 1 M. C. C. R. 356.
 
 HISTORIA PLACITORUM CORONA. 430 
 
 his peril keep him up safe from doing hurt, for tho he use his dili- 
 geuce to keep him up, if he escape and do harm, the owner is Uable 
 to answer damages. 
 
 4. But as to the point of felony, if the owner have notice 
 
 of the quaUty of the ox, 4'C. and use all due diligence to [ 431 ] 
 
 keep him up, yet the ox breaks loose and kills a man, this 
 
 is no felony in the owner, but the ox is a deodand. • 
 
 5. But if he did not use that due diligence, but thro negligence the 
 beast goes abroad after warning or notice of his condition, and kills 
 a man. I think it is manslaughter in the owner. 
 
 6. But if he did purposely let him loose, or wander abroad with 
 design to do mischief, nay tho it were with design only to fright 
 people and make sport, and it kill a man, it is murder in the owner, 
 and I have heard, that long since at the assizes held at SL ^^Ibans 
 for Hertfordshire it was so ruled, and the owner hanged for it, but 
 this is but an hearsay. [8] 
 
 If a man lay poison to kill rats, and a man casually take it, where- 
 by he is poisoned, this is no felony, but if a man lay poison to the 
 intent that B. should take it, to be poisoned therewith, and C. by 
 mistake take it, and is poisoned to death, this is murder, tho it 
 were not intended for him. Bait. cap. 93.{d) 9 Co. Rep. 81. b. 
 Jlgnes Gore's case, Plowd. Com. 474. Sander's case. 
 
 And altho the party take the poison himself by the persuasion of 
 another in the absence of the persuader, yet it is a killing by the per- 
 suader, aiKi he is principal in it, tho absent at the taking of it. 4 Co. 
 Rep. 44. h. Vaiix's case. 
 
 if vi. gives poison to B. intending to poison him, and B. ignorant 
 of it, gives it to C. a child, or other near relation of ^1. against 
 whom he never meant harm, and C. takes it and dies, this is murder 
 in A. and a poisonmg by him, Plowd. Com. 474. a. Bait, cap 93. 
 but B. because ignorant, is not guilty. 
 
 \i A. gives purging comfits to B. to make sport, and not to hurt 
 him, and B. dies thereof, it is a killing by A. but not murder, but 
 manslaughter. Bait. cap. 93. [9] 
 
 There are several ways of killing, 1. By exposing a sick or weak 
 person or infant unto the cold to the intent to destroy him, 2 E. 3. 
 18. b. whereof he dieth. 2. By laying an impotent person abroad, 
 so that he rAay be exposed to and receive mortal harm, as 
 laying an infant in an orchard, and covering it with leaves, [ 432 3 
 whereby a kite strikes it, and kills it. 6 Eliz. Crompt. de Pace 
 
 (d) New Edit. 1727. cap. U5. p. 471. 
 
 [8] 4 Bl. Com. 197. 3 C. S^ P. 320. Palm. 554. 1 Russell, 622. Roscoe 571. 
 
 [9] If ^. give a poisoned apple to B. intending to poison her, and B. ignorantly give 
 it to a child who eats it and dies, this is murder in A. but no otrence in B. and this 
 though A. being present at the time endeavoured to dissuade B. from giving it to the child. 
 2 Plowden Com. 473, edition Dublin, 1792, and authorities there collected. S. P. Crompt. 
 Jus. 23. pi. 24. Lamb Just. lib. 2. cap. l.fol. 242. Dalt. JuM. cap. 145. s. 8. 3 Inst. 51. 
 1 H'lwk. P. C. 79. 2 Hawk. P. C, 316. Lane, 47. Jenk. 290. 1 Finch, 63. 3 Bacon's 
 Abr. 663. 670. The notes to the case in 2d Plowden, at great length, refer to all the 
 ancient law.
 
 432 HISTORIA PLACITORUM CORONA. 
 
 24. DaJf. cap. 93.{e) 3. By imprisoning a man so strictly that he 
 dies, and therefore where any dies in gaol, the coroner onght ta be 
 sent for to inquire the manner of his death. 4. By starving or fa- 
 mine. 5. By wounding or blows. 6. By poisoning. 7. By laying 
 noisome and poisonous filth at a man's door, to the intent by a poi- 
 sonous air to poison him, Mr. Ballon, cap. 93. out of Mr. Cook's 
 rdlUding. 8. By strangling or suffocation. [10] 
 
 (e) iVew 'Edit. cap. 145. p. 469. 
 
 . [10] Killing is causing the extinction of life by means of some bodily injury. Living-. 
 ston''s Penal Code, 4. 2 Starkie Ev. 51'S. It may be effected by violence immediately 
 directed against the person, or constructive and consequent on the act of the accused. 
 
 1. By striking. Thompson'' s case. Moody, 139. Kelley^s case, ibid. 113. Whitens case, 
 6 Binnei/, 181. Moslcr^s case, 4 Barr. 
 
 2. By stabbing. T/iiirston''s case, 1 Lei\ 91. 1 Keble, 454, 455. Edward's case, 
 6 C. Sf P. 401. Rex v. Hay ward, 6 C. Sf jP. 157. '■ 
 
 3. By shooting. Hiip:hes' case, 5 C. S( P. 126. Tawle's case, 3 Price, 145. Self, 
 ridcre's case, Boston, 1806. Pamphlet. Daily's case, 4th Perm. Law Journal, 150. 
 
 4. By drowning. Dyson's case, R. tSf R. 523. Green's case, 2 St. Trials, 214. Har- 
 grove's edition. Harman's case, 4 Barr. 
 
 5. By sutfocation. Rex v. Tye, 1 Russell, 470. R. Sf R. C. C. 435. Rex v. Waters, 
 1 Car.\^ P.250. Rex \: Caulkin, 5 Car. Sf P. \'2l. 
 
 6. By strangling. Tye's case, R. Sf R. 345. Huggins' case, 3 C. Sf P. 414, Caulkin's 
 case, 5 C. Sf P. 121. Rex v. Shaw, 6 C. Sf P. 372. 
 
 7. By crushing. Hale's Sum. MS., 53. 
 
 8. By bruising. Hale's Sum. MS., 53. 
 
 9. By poisoning. Saunders' case, Plowd. 474. Gove's case, 9 Rep. 81. Anon. Kely. 
 52. Vaux's case, 4 Rep. 44. a. Reg. v. Sandys, 1 Car. ^- M. 345. 
 
 From the secrecy, malice and deliberation attendant on killing by poison, it hasahvajrs 
 been esteemed homicide of the higlicst nature. Tlie laws of most countries affix to it 
 peculiar guilt. The statute 22 Hen. VIII. c. 9. made it high treason, and punished it by 
 boiling to death. Tiie Statute 1 Ed. VI. c. 12. repealed this act. In most of the United 
 States, killing by poison is declared by statute to be murder of the first degree. See 
 notes to chap. 36. 
 
 10. Giving one excessive quantities of spirits to drink, whereby death is occasioned. 
 R. V. Packard et al. 1 C. Sf M. 236. 
 
 11. By starving. Beale's case, 1 Leon. 327. Squire's case, 1 Russel, 426. 
 
 12. By corrupting the air. 2 Paris tSf Fonblanque's Medical Jurisprudence, question 
 as to whether death can be produced in tiiis way. However tiiis may be as to the exter- 
 nal atmospliere, it is undoubtedly true that death may be caused by noxious gases under 
 many circuiiistanccs. To confine a person in a close room filled with the fumes of char- 
 coal; to compel or induce the respiration of air deprived of the qualities necessary to 
 support life, or impregnated with noxious qualities, might cause death, and the party 
 would be criminally responsible. In Paris many such cases have occurred. 
 
 13. ]5y communicating infection. See ;?os<, 432. 
 
 14. 15y putting one to death at his request, or advising it. Rex v. Sawyer, 1 Russ, 
 424. Rex V. Dyson, R. Sf R. C. C. 523. Reg. v. Allison, 8 C. Sf P. 418. Comm- v. 
 Bowen, 13 il/ass. 359. 
 
 15. By laying a trap or pitfall. 4 Bl Com, 35. 1 Russell, 617. 
 
 16. By letting loose a dangerous animal. Palmer, 545. 4 Bl. Com. 197. 1 Russell, 
 622. Roscoe, 511. ante, p. 4:i0. 
 
 17. (Compelling one to do an act likely to cause, and which docs cause death. 1 Rus. 
 sell, 425-6. Archbold,3VJ. Ro.'^coe, 511. Rex v. Evans, \ Russ. 426. 
 
 18. The lilic, the compulsion being by threats only. Evans Case, O. B. Sep. 1812. 
 M. S. Buyh-.y, J. 1 Russoll, 425. 
 
 19. Death in obedience to the command of one having authority. In Freeman' s case, 
 4 Mason, 505, tlie prisoner, being the master of a ship, coni|)elled a sailor in a state of 
 great exhaustion and debility, known to the master, to go aloft, and the seaman foil from 
 the mast and was drowned. The jirisoncr was convicled of manslaughter. 
 
 20. By pretended medical treatment. Com. v. Thompson, 6 Mass, 134. Com. v.
 
 HISTORIA PLACITORUM CORON.E. 432 
 
 Moriendi mille Jigurx. 
 
 A man infected with the plague, having a plague-sore running 
 upon him, goes abroad, this is made felony by the statute of 1 Jac. 
 cap. 31, but is now discontinued ;(/) but what if such person goes 
 
 ( /") It was made at first to continue no longer, than until the end of the first session 
 of the next parliament. 
 
 Ckauncey, 2 Ashmead, 227. Rex. v. Van Butchell, 3 C. ^ P. 629. Rex. v. Williamson, 
 3 C. .^ P. 635. Rex v. Spiller, 5 C. ^ P. 333. Rex. v. Long, 4 C. S( P. 423. Rex v. 
 Senior. R. Sf M. C. C. 346. Rex v. Webb, 4 M. S( Rob. 410. Regina v. Spilling, 2 M. 
 if Rob. 207. Re^ v. Simpson, 1 Lewin, C. C. 172. Rex v. Ferguson, 1 Lewin, C. C181. 
 
 21. By attempt to procure abortion or destroy an unborn child. See anle, note 1, p. 430. 
 R£x. V. Russell, 1 M. C. C. R. 356. 
 
 22. By exposure or neglect of, or cruelty towards one incapable of self-protection. When 
 a parent, guardian, master or other person, having the custody of a child, apprentice or 
 servant ot tender years, or of a sick man, insane man or idiot or other person, exposes 
 him to a situation of manifest danger to life, or is guilty of gross neglect or cruelty to- 
 wards him, and dciith ensue in consequence, it is a killing by such parent, guardian, 
 master or person having custody. 3 Inst. 53. 1 Russell, 426. Archbold, 319. 
 
 The following cases illustrate this division of tiie modes of killing. When a parent 
 places a helpless infant in a hog-stye, where it is devoured, 1 East, P. C. 225. or exposes 
 it on a rock at sea, from which it is washed away, Helen Wilson's case, 1 Hume, 279. or 
 leaves it in a remote iield, where it is destroyed by wild beasts or trodden upon by cattle, 
 1 Hawk. c. 31, s. 5. or exposes it where it may perish with cold or famine or want of care, 
 BeaWs case, 1 Leon. 327. Margaret Smith's case, 1 Hume, 279. or a parent, master or 
 guardian refuses to furnish a child or apprentice of tender years or infirm health, to 
 whom he owes support, with sutficient or proper sustenance, or lodging or clothing, 
 Squire's case, 1 Russell, 426, note. Self's case, 1 Leach, 137. Gould's case, Salkeld, 361. 
 Ridley's case, 2 Camp. 650. Elizabeth Key's case, 1 Hume, 279. or wiien 'municipal 
 officers, to avoid a charge, shift a child from town to town, without sufficient food, or 
 clothing, or other care. Rainier, 545. Holloicay's case, 1 Russell, 425. or one carries his 
 sick father, against his will, abroad in an inclement season, 1 Haick.c. 31, s. 5. or where 
 a jailor confines a prisoner in the same cell with an outrageous madman unbound, or 
 with a person dying with a malignant or contagious disease ; or thrusts him into a 
 loathsome and pestilential dungeon, knowing tlie danger, and death follows in conse- 
 quence, it is killing by the jailor; or if one procures an idiot or lunatic to kill another, 
 it is a killing by the person so procuring the idiot or lunatic to do the homicide. In all 
 these cases, or others of like nature, if the duty violated be plain and the danger apparent, 
 and death ensue in consequence of the act or neglect, it is a criminal killing. Mass. Com. 
 Rep. 9, 10, 11, refers to Britt. c. 11. s. 9. Stamf. 36. 3 Inst. 52. Palmer, 548. 1 Hawk. 
 c. 31. sec. 10. (note.) Foster, 322. Huggin's case, 2 Ld. Raymond, 1574. 2 Strange, 882. 
 Castell V. Bambridge, 2 Strange, 856. 1 East, P. C. 226-331. 1 Russell, 459. Bacon's 
 Abridgment, Murder A. See cases of Huggins, Bambridge, and Atkins, State Trials, 
 (Hargrove) vol. 17. quarto, 310-452. et seq. (folio) vol. 9. 107. 146. 182. et seq. Regina 
 V. Walters, 1 Car. Sf M. 164. Regina v. Pitts, 1 Car. Sf M. 284. Rex 7. Squires, 1 Russ. 
 C. Sf M. 426. Rex v. Cheesman, 1 C. Sf P. 454. Regina v. Marryatt, 8 C. & P. 425. 
 Rex v.Self, 1 Leach, C. C. 137. 
 
 The early writers laid down the law to be, that it was a killing to take away the life 
 of another by swearing deliberately, falsely in a capital trial. (Mirror, c. l,s. 9; Britt. 
 c. 5. s. 2; Bract. B. 3, c. 4, and see 1 Hawk. c. 31, s. 10.) But lord Coke says, (3 Inst. 
 48,) " It is not holden for murder at this day;" and such seems now to be the weight of 
 authority. The latest case on this point is that of McDaniel and others, reported in 
 Foster, 132, and 1 Leach, 44. The defendants were convicted, but judgment was re- 
 spited, in order that the question of law might be fiilly considered. But the attorney 
 general declined to prosecute the case further, and the prisoners were discharged from 
 the indictment. The opinion of Sir Michael Foster was against the indictment. Sir 
 William Blackstone, however, says, (4 Com. 196,) that tiie attorney general did not press 
 the point on account of prudential reasons, and not from any apprehension that it was 
 not maintainable; and in 1 East's P. C. 333, it is added, that lord Mansfield had said.
 
 432 HISTORIA PLACITORUM CORONA. 
 
 abroad, to the intent to infect another, and another is thereby infect- 
 ed and dies? whether this be not murder by the common law miglit 
 be a question, but if no such intention evidently appear, tho de 
 facto by his conversation another be infected, it is no felony by the 
 common law, tho it be a great misdemeanor, and the reasons are, 
 
 1. Because it is hard to discern, whether the infection arise from 
 the party, or from the contagion of the air, it is God's arrow, and 
 
 2. Nature prompts every man, in what condition soever, to pre- 
 serve himself, which cannot be well without mutual conversation. 
 
 3. Contagious diseases, as plague, pestilential fevers, small pox, 
 4'C. are common among mankind by the visitation of God, and the 
 extension of capital punishments in cases of this nature would multi- 
 ply severe punishments too far, and give too great latitude and loose 
 to severe pnnishments.[ll] 
 
 II. the second consideration, that is common both to murder and 
 manslaughter, is, who shall be said a person, the killing of whom 
 shall be said murder or manslaughter. 
 
 If a woman be quick or great with child, if she take, 
 r 433 3 or another give her any potion to make an abortion, or if 
 a man strike her, whereby the child within her is killed, it 
 is not murder nor manslaughter by the law of England, because it 
 is not yet iri reruin natura, tho it be a great crime, and by the judi- 
 cial law of Moses{g) was punishable with death, nor can it legally be 
 made known, whether it were killed or not, 22 E. 3. Coron. 263. so 
 it is, if after such child were born alive, and baptized, and after die 
 of the stroke given to the mother, this is not homicide. 1 E. 3. 23. b. 
 Coron. 146. [12] 
 
 (g) Exod.xx'u 22. 
 
 that the opinions of several judges, including himself, were strongly in favour of the in- 
 dictment. Most of the more recent writers, however, seem to incline to the opinion that 
 a person cannot be indicted for murder in procuring another to be executed by falsely 
 charging him with a crime of whicli he was innocent. 1 East, P. C. 333. See 4 Bl. Com. 
 196-7. Chilb/snote. I Russell, 421. 3 ChiUy,126. Archbuld, 319. Roscoe, 513. 10 Am. 
 Jurist, 261. The Gothic laws punished this offence with death, (4 Bl. Cum. 196, quotes 
 Stcirnh, de jure Goth. L. 3, c. 3. See also D. 48, 8, 1 ; and Folhier''s Pandects, 48, 8, 
 No. .3, by which it would seem that, in tlie Roman law, tlie judge also, if he were 
 bribed, and, under the influence of the bribe, improperly condemned a man who suffered 
 death in consequence, was guilty of murder. 
 
 [II] Cas<eZ/'s case, 5'ira. 856. Hug^in's case, S^ra. 882. Bantridge's case, ^ Haf. 
 State Trials, folio 17. fjuarto 4.52. 2 Paris Sf Fon. Med. Jur. 115. See ante, p. 432, note. 
 
 [12] The person killed innst be "a reasonable creature in being, and under the king''8 
 peace" at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are 
 all under the king's peace and protection, is as much murder as to kill the most regular 
 born Englishman, except he be an alien enemy in time of war. To kill a child in its 
 mother's womb is now no murder. 4 Bl. Com. 197, 198. 3 Inst. 50. 
 
 Aitliough to kill a child in its mother's womb is no murder, yet if the child be hajn 
 alive, and die by reason of the potion or bruises it received in the womb, it is murder in 
 the person who administered or gave them. 3 Inst. 50. 1 Hawk. c. 31. s. IG. so if a mor- 
 tal wound be givon to a child wliilst in the act of being born, for instance, upon tlie head 
 as soon as the head appears, and before the child has breathed, it may be murder, if the 
 child is afterwards born alive and dies thereof Hex v. Senior, 1 Moody, C. C. 346. 
 
 To justify a conviction on an indictment charging a woman with the wilful murder of
 
 HISTORIA PLACITORUM CORONA. 433 
 
 But if a man procure a woman with child to destroy her infant, 
 wlien born, and the child is born, and the woman in pursuance of 
 that procurement kill the infant, this is murder in the mother, and 
 the procurer is accessary to murder, if absent, and this, whether the 
 child were baptized or not. 7 Co. Rep. 9. Dyer 186. [13] 
 
 The killing of a man attaint of felony, otherwise than in execution 
 of the sentence by a lawful officer lawfully appointed, is murder 
 
 a child of which she was delivered, and which was born alive, the jury must be satisfied, 
 affirnnitivcl}-, tliat the whole body was brought alive into the world ; and it is not sufficient 
 that the child had breathed in the progress of the birth. Rex v. Powlton,5 Car. Sf P. 329. 
 
 If a child has breathed, before it is born, this is not sufficiently life to make the killing 
 of the child murder. There must be an independent circulation in the child, or the child 
 cannot be considered as alive, for this purpose. Rex v. Enoch, 5 Car. Sf P. 539. 
 
 If a child has been wholly produced from the body of its mother, and she wilfully, and 
 of nialice aforethought, strangle it, while it is alive, and has an independent circulation, 
 this is murder, although the child be still attached to its mother by the umbilical cord. 
 Reg. V. Trilloe, 1 Car. ^^- M. 650. 
 
 An unskilful practitioner of midwifery wounded the head of a child, before the child 
 was perfectly born. The child was afterwards born alive, but subsequently died of this 
 injury : — Held, manslaughter, although the child was in ventre sa mere, at the time when 
 the wound was given. Rex v. Senior, 1 M, C. C. R. 344; 1 Lewin, C. C. 183. n. 
 
 A girl was indicted for the murder of her child, aged sixteen days. She was proceed- 
 ing from Bristol to Llandogo, and was seen near Tintern, with the child in her arms, at 
 6 P. M. Slie arrived at Llandogo between 8 and 9 P. M. without the cliild. The body 
 of a child was afterwards found in the river Wye, near Tintern, which appeared not to 
 be-tlie child of the prisoner: — Held, that the prisoner must be acquitted, and that she 
 could not, by law, either be called upon to account for her child, or to say where it was, 
 unless there was evidence to show that her child was actually dead. Rig. v. Hopkins, 
 8 Car. 4" P. 591. 
 
 A prisoner- was charged with the murder of her new born child, by cutting ofF its 
 head : — Held, that in order to justify a conviction for murder, the jury must be satisfied 
 tliat the entire child was actually born into tlie world in a living state ; and that the fact 
 of its having breathed is not a decisive proof that it was born alive, as it may have 
 breathed, and yet died before birth. Rex v. Sellis, 7 Car. ^ P. 850. 
 
 If a child was slrangled intentionally, while it was connected with the mother by the 
 umbilical cord, but after it was wholly produced into the world, qutBve, whether this 
 would be murder? Rex v. Croutchly, 7 Car. Sf P. 814. 
 
 An indictment charged that the prisoner, being big with child, did bring forth the 
 child alive, and afterwards strangle it: — Held, that the jury ought not to convict on this 
 indictment, unless they were satisfied that the child was wholly born when it was 
 strangled. Ibid. 
 
 The child must be actually wholly in the world in a living state, to be the subject 
 of a charge of murder ; but if it is wholly born and is alive, it is not essential that it 
 should have breathed, but the jury must be satisfied that the child was wholly born into 
 the world, at the time it was killed, or they ought not to convict the prisoner of murder. 
 Rex V. Brain, 6 Car. Sf P. 349. 
 
 If a child be killed after it has wholly come forth from the body of the mother, but is 
 still connected with her by means of the umbilical cord, it seems that such killing will 
 be murder. Reg. v. Reives, 9 Car. ^ P. 25. 
 
 On a charge of child murder, it appeared that the child must have died before it had 
 an independent circulation: — Held, that as the child had never had an independent cir- 
 culation, the charge of murder could not be sustained. Reg. v. Wright, 9 Car. Sf P. 754. 
 1 Ritss. on Crimes, 485, 4S6, 487. 
 
 In this connexion it may be added, that it is a general rule, that no person should be 
 found guilty of murder, unless the body of the deceased is found ; but this rule must be 
 taken rather as a caution than as a maxim never to be departed from. 3 C/iit. C. L. 738. 
 
 [13] Where one counsels a woman to kill her child when it shall be born, who after- 
 wards dotii kill it in pursuance of such advice, he is an accessary to tiie murder. 1 Huwh. 
 c,3l,s.l7.
 
 433 HISTORIA PLACITORUM CORONA. 
 
 or manslaughter, as the case happens, and tho there was some 
 doubt, whether the kiUingof a person outlawed of felony were homi- 
 cide or no, 2 ^.3. 6. yet it is homicide in both cases. 21 Jlssiz. 41. 
 Coron. 203. 
 
 If a person be condemned to be hanged, and the sheriff be- 
 head him, this is murder, and the wife may have an appeal. 35 H. 
 6. 5S (A) 
 
 If a man he attaint in ?i prsemunire whereby he is put out of the 
 king's protection, the killing of him was held not homicide, 24 H. 8. 
 B. Coron. 197. But the statute of 5 Eliz. cap. \{i) hath now put 
 that out of question, declaring it to be unlawful. (A^) 
 
 If a man kill an alien enemy within this kingdom, yet it is 
 felony, unless it be in the heat of war, and in the actual exercise 
 
 thereof.[14] 
 f 434 ] III. The third inquiry is, who shall be said a person 
 killing. 
 
 An infant under the age of fourteen, years in presumption of law 
 is supposed without discretion, and therefore prima facie he cannot 
 commit murder or manslaughter, but being indicted thereof, upon 
 not guilty pleaded he ought to be found not guilty. 
 
 But if he be above that age, in presumption of law he is of dis- 
 cretion, and may be guilty. 
 
 But if he be under the age of fourteen, yet if upon circumstances 
 it can appear, that he hath discretion, he may be convict of felony. 
 3 H. 7. i. b. 12. «.(/)[15] 
 
 (7i) See also Co. P. C. p. 52. queere, in case of treason, (where the sentence is, that the 
 party shall be hanged, but not till he be dead, S(c.) if the king remit all, but the hanging, 
 whether it be not murder in the sheriff to hang him till he be dead ? 
 
 (t) hi fine. 
 
 (k) See Coron. 203. wliere it is declared felony to kill one outlawed for felony. 
 
 (I) Vide supra, p. 27. 
 
 [14] 4 Bl Com. 178. Bracton, folio 120. 1 Hawk. P. C. 70. Dalton, c. 150. Finch, 
 i. 31. 3 Inst. 52. 
 
 [15] Infants under the age of discretion ought not to be punished by any criminal 
 prosecution whatever. 1 Hawk. P. C. 2. By the ancient Saxon law, the age of twelve 
 years was established for the age of possible discretion, and tlie age of fourteen as that 
 when lie became completely liable as one arrived at years of discretion. 4 Bl. Com. 
 23. The presumption is as stated in the text; a presumption, however, which may be 
 negatived eitlier to involve those under, or to excuse those over that age : for the capa- 
 city of doing ill or contracting guilt, (says Blackstone, 4 Com. 23.) is not so much 
 measured by years and days, as by the strength of tiie delinquent's understanding and 
 judgment. Under seven years of age, however, an infant cannot be guilty of feluny, 
 {Mirror, c/t. 4. s. 16.) but at eight years lie may, (Bait. c. 147.) if it be shown that he had 
 knowledge and understanding, and felonious intent. There are many cases in which 
 infants under the age of fourteen have been capitally convicted. Foster, 72. In a 
 comparatively late case in Frifrland, the ancient doctrines were reaffirmed: it was 
 ruled that if a child more than seven, and under fourteen years of age, is indicted for 
 felony, it will be left to the jury to say whether the prisoner at the time of the offence, 
 had a guilty knowledge that he or she was doing wrong. The presumption of law 
 being tliiit a child of that age has not such guilty knowledge, unless the contrary be 
 proved by the evidence. Rex v. Owm, 4 Car. S( P. 236. A boy of the age of twelve 
 years and five months may be convicted on his own confessions of the crime of murder 
 and executed. The capacity to commit a crime, necessarily supposes the capacity to 
 confess it. Stale v. Guild, 5 Halst. IS. J. 1G3. See ante, p. 26, note.
 
 HISTORIA PLACITORUiM CORONA. 434 
 
 If a man be non compos mentis, and kill a man, he is to plead 
 not guilty, and shall be acquitted, and is not driven to purchase a 
 pardon, tho antienlly it was so used. StumfariTs P. C. 16. b. ^- 
 libros ibi. 
 
 And the same law it is of a lunatic, that kills a man in the time of 
 his lunacy; but if it be in those intervals, when he hath his under- 
 standing, then he is a felon, sed de his svpru. p. 31. [16] 
 
 If there be an actual forcing of a man, as if ^. by force take the 
 arm of 5. and the weapon in his hand, and therewith stabs C. where- 
 of he dies, this is murder in ,d. but B. is not guilty, Dalt. cap. 93. 
 p. 242. (w) Plowd. Com. 19. a. 
 
 But if it be only a moral force, as by threatning, duress, or impri- 
 sonment, (S'c. this excuseth not. [17] 
 
 Kfeme covert is in law under the coercion -of her husband, and 
 therefore, if she commit larciny or burglary together with her hus- 
 band, the husband is in law guilty, but regularly the wife is not 
 guilty. Stamf. 26. a. Coron. 160. Dalt. cap.^104. p. 267.{n) [IS] 
 
 But if she commit murder, or treason, or manslaughter, it is no 
 
 (m) New Edit. cap. 145. p. 473. (n) New Edit. cap. 157. p. 503. 
 
 [16] Murder or manslaughter cannot be committed by an idiot, lunatic, or infant, 
 unless, indeed, he show a consciousness of doing wrong, and of course a di.scretion, or 
 discernment between good and evil. 4 Black. Com. 195. 1 Haick. c- 1. But if any 
 person procure an idiot, &,(;. to murder another, the procurer is guilty of murder. 
 
 1 Hawk. c. 31, s. 7. Or if he aid and abet him knowing that he entertains mischievous 
 designs. Reg v. Tyler, 8 C. Sf F. 61G. See ante, p. 37, note. 
 
 ■ [17] A fear of death, well grounded, may excuse the doing of some acts which, under 
 other circumstances, would be criminal; as joining rebels, or continuing with them : 
 but an apprehension, liowcver strong and well founded, of having property wasted or 
 destroyed, or of suffering any other mischief not endangering the person, will afford no 
 excuse. Rex v. Gordon, 1 East, P. C. 71. Rex v. McGrowther, 1 East, F. C. 71. 
 
 A., who was insane,' collected a number of persons together, who armed themselves, 
 having a common purpose of resisting the lawfully constituted authorities: A., having 
 declared that he would cut down any constable who came against him. A., in the pre- 
 sence of C and D., two of the persons of his party, afterwards shot an assistant of a con- 
 stable, who came to apprehend A. under a warrant : Lord Denman held, that C. and D. 
 were guilty of murder, as principals in the first degree, and that any apprehension that C, 
 and D. had of personal danger to themselves from A., was no ground of defence for con- 
 tinuing with him after he had so declared his purpose; that it was no ground of defence 
 that A. and his party had no distinct or particular object in view when they assem- 
 bled together and armed themselves; and that the apprehension of personal danger does 
 imt furnish any excuse for assisting in doing any act which is illegal. Reg v. Tyler, 
 8 Car. 4" P. 616. 
 
 [18] Although a wife cannot commit larceny in the company of her husband, for it is 
 deemed his coercion and not her voluntary act, yet, if she do it in his absence, and by 
 his mere command, she is then punisiiable as if she were sole; and the husband, it is 
 said, may be accessary to the wife. Anon. 2 East, F. C. 559. When a felony is com- 
 mitted by the wife in the presence of the husband, it is a presumption only and not a con- 
 clusion of law, that it is done under his coercion. Rex v. Hughes, 2 Lewin, C. C. 229. 
 See Conolh/s case, 2 Lewin, C. C. 229. Rex v. Morris, R. <^- R. C. C. 270. 1 Russell, 
 18. Rex V. Dix, 1 Russell, 16. Rex v. Archer, R. t^- M. C. C. 143. Rex v. Morris, 
 
 2 Leach, C. C. 1096. Rex v. Atkinson, 1 Russell, 20. Rex v. Hassall, 2 Car. i^ P. 
 434. Res V. Woodward, 8 Car. S^- P. 561. Rex v. Knight, 1 Car. ^y /'. 1 16 Rix v. 
 Price, 8 Car. <^ P. 19. Reg v. Cruse, 8 Cur. 4- P. 341. 2 M. C. C. R. 53. 4 BL 
 Com. 28. See ante, p. 45, note.
 
 434 HISTORIA PLACITORUM CORONA. 
 
 plea to say she did it by coercion of her husband, but she is guilty, 
 tho committed with her husband. Bait. lbid.\\%^ 
 
 [ 435 ] CHAPTER XXXIV. 
 
 CONCERNING COMMANDING, COUNSELLING, OR ABETTING OF MURDER 
 OR MANSLAUGHTER. 
 
 Altho this title may seem more proper under the title oi principal 
 and accessaries, yet because it relates to the inquiry, who shall be 
 said a murderer or manslayer, and is common in some respects to 
 both crimes, I shall take up the consideration thereof here'. 
 
 He that counsels, commands, or directs the killing of any person, 
 if he be absent, is an accessary to murder before the fact. 
 
 In case of poisoning, he that counsels another to give poison, if 
 that other doth it, the counseller, if absent, is but accessary before 
 Coke P. C.p. 49. Sir Thomas Ouerbitr^'s case.(a) 
 
 But he that actually gives or lays the poison to the intent to poi- 
 son, tho he be absent, when it is taken by the party, yet he is princi- 
 pal, and this was Weston's case, (6) Co. P. C. p. 49. in Sir Thomas 
 Overbury^s case, and 4 Co. Rep. 44. b. Vaux's case. 
 . In case of murder, he that counselled or commanded before the 
 fact, if he be absent at the time of the fact committed, is accessary 
 before the fact, and tho he be in justice equally guilty with him that 
 commits it, yet in law he is but accessary before the fact, and not 
 principal. , 
 
 If ^^. commands B. to beat C. and he beats him so that he dies 
 thereof, it is murder in B. and *^. if present, is also guilty of the 
 oflense, if absent, he is accessary to murder. Dalt. cap. 93.(c) Plowd. 
 Com. 475. b. Co. P. C.p. 51. 2> E. 3. Coron. 314. 
 
 \i Ji. counsel B. to poison his wife, B. accordingly obtains' 
 [ 436 '\ poison from ./^. and gives it to his wife in a roasted apple, 
 the wife gives it to a child of B. not knowing it was poison, 
 who eats it and dies, this is murder in B. tho he intended nothing to 
 the child. Plowd. Com. 474. Saunder''s case: and so it is, if an apo- 
 thecary send a potion to the wife, and the husband mingle poison 
 with it, and upon some dislike of the physic the apothecary is sent 
 for, who to justify it to be wholesome voluntarily eats part of it, and 
 
 (a) See Slate Tr. Vol. I. p. 331. (c) New Edit. cap. 145. p. 472. 
 
 (Jb) State Tr.Vol. I./). 313. 
 
 [19] 4 Bl. Com. 28. 1 Hawk. I'. C. 3. Wif*e not guilty of any breach of duty, in ne- 
 glectinw- to provide an uppreiifice of her Iiusband with sufHcicnt food and necessaries, 
 whereby he died, as she was only the servant of her husband. Rex v. Squire, 1 Rus- 
 sell, 16.
 
 HISTORIA PLACITORUM CORONA. 436 
 
 is poisoned and dies, this is murder in B. tho the apothecary was 
 never intended to be hurt, but voluntarily look it. 9 Co. Rep. 81. 
 Ji^nes Gore^s case. 
 
 But in this case, he who was absent, and counselled the poisoning 
 of the wife, is not accessary to the murder, because as to him the 
 command shall not be construed further, than as to the person in- 
 tended by him. Plowd. Com. 474. Saunder^s case.{d) 
 
 l( ,/i. counsel or commands B. to beat C. with a small wand or 
 rod, which could not, in all human reason, cause death, if ^. beats 
 C. with a great club, or wound him with a sword, whereof he dies, 
 it seems, that ^'i. is not accessary, because there was no conmiand 
 of death, nor of any thing, that could probably cause death, and B. 
 hath varied from the command in substance, and not in circum- 
 stance. 
 
 If t^. command or counsel B. to kill C. and before the fact done 
 t/9. repents, and comes to B. and expressly discharges him from the 
 fact, and countermands it, if after this countermand B. doth it, it is 
 murder in B. but .^. is not accessary, but if ^. repent of it, but before 
 any discharge orcountermand given to B. B. kills C. yet »^. remains 
 accessary notwithstanding his private repentance, for in as much as 
 his express counsel or command occasions the fact, he must at his 
 peril see, that he countermand B. and so remedy as much 
 as in him lies the mischief, that his former command occa- [ 437 1 
 sioned. Co. P. C. p. 51. Plowd. Com. 476. a. Saiinder's 
 case. 
 
 In manslaughter there can be no accessaries before the fact, for it 
 is presumed to be sudden, for if it were with advice, command, or 
 deliberation, it is murder and not manslaughter, and the like of se 
 defendendo. 
 
 And therefore in an indictment of manslaughter only, if others be 
 indicted as accessaries before the fact, the indictment is void against 
 them. 
 
 And if j1. be indicted of murder, and B. as accessary before by 
 procurement, 4'c. and ,j3. is found guilty only of manslaughter, B. 
 shall be discharged. 4 Co. Hep. 43. b. Goffe versus Bibilhe a.nd Hodl 
 David. 
 
 And anciently, he that struck the stroke, whereof the party died 
 was only the principal, and those, that were present, aiding, and 
 assisting, were but in the nature of accessaries, and should not be put 
 upon their trial, till he that gave the stroke were attaint by outlawry 
 or judgment. 40 Ass. 25. 40 E. 2. 42. a. 
 
 But at this day, and long since, the law hath been taken otherwise, 
 and namely, that all that are present, aiding, and assisting, are equally 
 
 . (d) But tho the judges were of opinion in this case, tliat he was not accessary, yet 
 they thought it properest tliat he should be delivered rather by a pardon, tlian otiiervvise, 
 and accordingly they kept him in prison from one session till another, till he procured a 
 pardon; and master Plowden, the reporter, says, it was his opinion, that whoever coun- 
 sels or commands an evil thing should be adjudged accessary to all which follows from 
 tliat evil action, but not from any other distinct thing.
 
 437 HISTORIA PLACITORUM CORONA. . 
 
 principal with him that ga-ve the stroke, whereof the party died. 4 H. 
 7. IS. a- per omnes justiciarios ntriusque band, for tho one gave 
 the stroke, yet in interpretation of law it is the stroke of every per- 
 son, tliat was present, aiding, and assisting, and tho they are called 
 principals in the second degree, yet they are principals, and the law 
 was altered herein, in tempore H. 4 Ploivd. Com. 100. a. and there- 
 fore, if there be an indictment of murder or manslaughter against ./?. 
 that A. felonice, ^-c. percnssit B. whereof lie died, and that C and D. 
 were present,abetting, aiding, and assisting to r^. «f//e/onmm 8^' mur- 
 drum S^-c. niodo Sj- forma prsedictd f(iciend\ and J2. appears not, but 
 B. and C. appear, they shall be arraigned, and receive their judgment 
 if convict, tho A. neither appear, nor be outlawed. Plowd. Com. 97. 
 and 100. Gyt tin's case. 
 
 \i A. be indicted as having given the mortal stroke, and B. and C. 
 as present, aiding, and assisting, and upon the evidence it 
 ("438] appear that B. gave the stroke, and Ji. and C were only 
 aiding and assisting, it maintains the indictment, and judg- 
 ment shall be given against them all, for it is only a circumstantial 
 variance, for in law it is the stroke of all that were present, aiding, 
 and abetting. Ploivd. Com. 98. a. 9 Co. Rep. 67. b. Mackally^s case. 
 
 Yet the circumstances of the case may vary the degree of the 
 offense in those that are in this kind parties to the homicide. 
 
 \i t/i. have malice against B. and lies in wait to kill him, and C. 
 the servant of.^. being present, but not privy to the intent of his 
 master, finds his master fighting with B. takes part with his master, 
 and the servant or master kill B. this is murder in A. because he had 
 malice forethought, but only homicide in C. PIovkI. Com. 100. b. 
 Salisbury'' s case, where it was also resolved, that where Ji. had ma- 
 lice against D. the master of ^. but by mistake assaults and kills B. 
 the servant, or having malice against D. the master, and B. his ser- 
 vant, comes in aid of his master, and Ji. kills him, it is murder ni Ji. 
 as much as if he had killed the master, for the malice shall be carried 
 over to make the killing of i9. murder. 
 
 Upon an indictment of murder, tho the party upon his trial be 
 acquit of murder, and convict of manslaughter, he shall receive judg- 
 meiu, as if the indictment had been of manslaughter, for the offense 
 in substance is the same. 
 
 And upon the same reason it is in case of malice implied, if .^. B. 
 and C. be in a tumult together, and D. the constable comes to ap- 
 pease the affray, and Ji. knowing him to be the constable, kill him, 
 and B. and C. not knowing him to be the constable, come in, and 
 finding./^, and J), struggling, assist and abet ./^. in killing the consta- 
 ble, this is murder in Jl. but manslaughter in B. and C. 
 
 To make an abetter to u murder or homicide principal in the felo- 
 ny, there are regularly two thnigs requisite, 1. He must be present. 
 2. He must be aiding and abettnig ad fcloniam ^" murdrum, sive 
 homicidium. 
 
 If he were procuring, or abetting, and absent, he is acces- 
 r 439 ] sary in case of murder, and not principal, as hath been shewn, 
 unless in some cases of poisoning, ut supra.
 
 HISTORIA PLACITORUM CORONA. 439 
 
 If he be present, and not aiding or abetting to the felony, he is 
 ueither principal nor accessary. 
 
 If A. and B. be fighting, and C. a man of fnll age comes by chance, 
 and is a looker on only, and assists neither, he is not gnilty of murder 
 or homicide, asf>rincipal in the second degree, but it is a misprision, 
 for which he shall be fined, unless he use means to apprehend the 
 felon. 8. E. 2 Coron. 395. 3 E. 3. ibidem 293. 14 H. 7. 31. b. Stam- 
 ford's P. C. 40. b. Dalton, cup. lOS. p. 2SA.{e) 
 
 Therefore it remains to be inquired, 1. Who shall be said to be 
 present. 2. Who shall be said abetting, aiding or assisting to the 
 felony. 
 
 I. As to the first: if divers persons come to make an affray, 4*c. 
 and are of the same party, and come into the same house, but are in 
 several rooms of the same house, and one be killed in one of the 
 rooms, those that are of that party, and that came for that purpose, 
 tho in other rooms of the same house, shall be said to be present. 
 Dull. cap. 93. p. 241. (/) 
 
 The lord Uacre and divers others came to steel deer in the park 
 of one Pelham, Rayden one of the company killed the keeper in 
 the park, the lord Dacre and the rest of the company being in other 
 parts of the park, it was ruled, that it was murder in them all, and 
 they died fo»* it. Crompt. 25. a. Dalt. ubi supra, 34 H. 8. B. Co- 
 ron. 172.(5-) 
 
 The like in case of burglary, tho some stood at the lane's end or 
 field-gate to watch if any came to disturb them, Co. P. C.p. 64. 11 
 H. A. 13 b. yet they are said to be burglars, because present, aiding, 
 and assisting to the burglary. 
 
 II. Who shall be said abetting, aiding and assisting. 
 
 If A. comes and kills a man, and B. rnns with an intent to be 
 assisting to him, if there should be occasion, tho de facto he doth 
 nothing, yet he is principal being present, as well as Ji. 3 E. 3. Co- 
 ron. 309. 
 
 If divers come with one assent to do mischief, {male f aire) 
 as to kill, rob or beat, and one doth it, they are all princi- [440"] 
 pals in the felony, (^-c. 3 E. 3. Coron. 314. 
 
 \{ A. and divers others in his company intending to rob a person 
 charge him with felony, and as they are carrying him to gaol, some 
 of the company rob the person attached, this is robbery in all, but if 
 the rest of the company come without any such intent, it seems they 
 are not guilty. 3 E. 3. Coron. 350. 
 
 If .,^. comes in company with B. to beat C. and B. beats C. that 
 he die, A. is principal, but then, according to those elder times, the 
 indictment must not be only, that he was present, aiding, and assist- 
 ing, for that, as the law was then taken, makes him only accessary, 
 but the indictment mu.st shew the special matter, that they came to 
 that intent, 19 ^. 2. Coron. 433. but now that course is altered, and 
 
 (e) New Edit. cap. 161. p. 527. (/) New Edit. c.ip. 145. p. 472. 
 
 {g) See also Moor 86. Kelyuge 56. ' '
 
 440 HISTORIA PLACITORUM CORONA. 
 
 the indictment only runs, that A. was present, aiding, and assisting, 
 and that is sufficient to make iiim principal. 
 
 So if Ji. being present command B. to kill C. and he doth it, both 
 are principals. 13 H.l. 10. «.(A) 
 
 If many be present, and one only gives the strc^e, whereof the 
 party dies, they are all principals, if they came for that purpose. 
 21 E. 4. 71. a. 
 
 The case of Drayton Basset reported by Mr. Crompton, fol. 28. 
 was- this: ./?. with thirty others and more entered with force uppu 
 the manor-house of Drayton Basset, and ejected B. his children, 
 and servants out of the same ; afterwards twenty others on the 
 behalf of B. three days after, in the night, came with weapons vvith 
 intent to re-enter, and one of the twenty, about ten of the clock in 
 the night, cast fire into a thatcht house adjoining to the house, 
 •whereupon one that was in the house shot otf a gun, and killed 
 one of the party of B. and then the rest of the party of B. fled, and 
 Jl. and his company continued the forcible possession of the house 
 for many days after, whereupon t^. and twenty-seven more 
 [ 441 ] were indicted of murder, and arraigned in the king's bench, 
 and the matter aforesaid given in evidence against him, and 
 Mich. 22 4' 23 Eliz. he was found guilty of manslaughter, & divers 
 outres de rioters, que fueront in le meason al temps, que le home 
 fuit tue, fueront arraigns come principals, coment que ne assent al 
 setter del gunne ne al tuer, purceo que fueront la illoyalment assem- 
 blies, & in forcible manner gard le meason one Ji. que fuit convict. 
 
 And consonant to this is Mr. Dalton, p. 241. (e) in these words: 
 " Note also, that if divers persons come in one company to do any 
 unlawful thing, as to kill, rob or beat a man, or to commit a riot, or 
 to do any other trespass, and one of them iii doing thereof kill a man, 
 this shall be adjudged murder in them all that are present of that 
 party abetting him, and consenting to the act, or ready to aid him, 
 altho they did but look on. 
 
 A man seizeth the goods of a Frenchman in time of war, and 
 carries them" to his house, a stranger pretending to be deputy- 
 admiral with a great multitude of men came with force to the 
 house, where the goods were, and at the gate of the house made 
 an assault upon them that were in the house, a woman issued out of 
 the house without any weapon, and is killed by one of the servants, 
 who came to take the goods, by throwing a stone at another, that 
 was in the gate, and the person, that came to seize the goods, said, 
 (before his coming) he would make him a cokes that kept the goods 
 and would make him to know the basest in his house. By five 
 judges, two Serjeants, the queen's attorney, and solicitor, it was 
 held, that if it appear that the woman came in defense of the 
 master of the house, then it was murder in the vice-admiral and all 
 
 (h) This ■case was something more tlian a l^are command, for one hold him, while the 
 other killed him; but wliat our author hero says is jnorc directly proved by the case in 
 
 A.n.i. 18. «. 
 
 {i) New Edit. p. 472.
 
 HISTORIA PLACITORUM CORONA. 441 
 
 his companions : but by other five judges contrary, for no malice 
 was against the woman, and murder shall not be extended further, 
 than it was intended', and the former held, that if JI. and B. fight by 
 appointment betore-hand, and a stranger comes between 
 them to part them, and he is killed by A. it is murder in [] 442 ] 
 him, and some said in both, but the others noluerunt ad 
 hoc concordare. Mansell and Herbert^s case, H. 2 S,- 3 P. 4' M. 
 Dyer 12S. 6. • 
 
 That point, wherein the judges differed, was whether, the -mistake 
 of the person excuseth it from murder, but it seems not questioned, 
 but ail agreed it manslaughter, and that not only in him, that gave 
 the blow but in all the companions of that party: but now the 
 former point is sufficiently settled, that if it had been murder, in 
 case the man had been killed, that was meant, it is murder in 
 killing the woman, and that, whether she came as a partizan to 
 Mansell, the owner of the house, or not, quod vide supra: and in 
 the last case put, in Herberts case before, it is certainly murder in 
 him that kil's the man that comes to part them, and if it had been 
 only a sudden quarrel, it had been manslaughter in him that kills 
 him, and Dalt. cap. 93. p. 240.(/t) yea, and if the combating were 
 hy malice prepense, it it is held, that the killing of him, that comes 
 to part them, is murder in both, and both were hanged for it, be- 
 cause each of them had a purpose to have kild the other. 22 E, 3. 
 Corone 262. Lambert out of Dallison^s report, p. 217. but that 
 seems to- me to be mistaken, it is not murder in both, unless both 
 struck him that came to part them; and by the book of 22 t/2ss. 
 1\. Coron. ISO. (which seems to be the same case, tho more at 
 large,) he only that gave the stroke, had judgment, and was exe- 
 cuted. (/)[!] 
 
 And therefore it is a mistake in those that say, if it be not 
 known which of them did it, they shall both have judgment, for 
 the jury ought precisely to inquire, and upon circumstances to sa- 
 tisfy themselves, whether the one, or the other, or both did it, and 
 neither to acquit, nor convict both, because they know not who 
 did it. 
 
 But to return to the aiders and abetters again. 
 
 By the cases of Drayton Basset and Herbert it appears, that if 
 many come to commit a riotous unlawful act, if in the pursuit of that 
 action one of them commits murder or manslaughter, they 
 are all guilty, that are of that party, that committed the dis- [ 443 ] 
 order; wherein nevertheless these things must be observed. 
 
 1. In that case it must be intended, when one of the same party 
 
 Qc) New Edit. cap. 145. p. 472. 
 
 (/) Tlie other doth not appear to have been before the court, but upon puttingf the 
 case, the court said, he that struck is guilty of felony, but said nothing as to him who did 
 net strike. 
 
 [1] Dyer, 128. Kel. Ill, 112, 1]7. Foster, 261. 1 Hawk. c. 31. s. 42. Slate w, Cooper, 
 1 Green, [N. J.) State v. Bentry, 2 Dev. ^ Bat. 19G. 
 
 VOL. I. — 38
 
 443 HISTORIA PLACITORUM CORONA. 
 
 commits the murder or manslaughter upon one of the other party, or 
 upon those that came to appease or part them, or by due course of 
 law to disperse them. 
 
 ' And therefore I have always taken the law to be, that if *^. and 
 B. have a design to fight one with another upon premeditation or 
 malice, and ^. takes C. for his second, and B. take D. for his second, 
 t/i. kills B. in this case C. is principal, as present, aiding, and abet- 
 ting, but D. is not a principal, because he was of the part of him, 
 that was killed, and yet I know, that some have held, that D. is 
 principal as well as C. because it is a compact, and rely much upon 
 tl)e book of 22 E. 3. Coron. 262. before-mentioned, but, as I think, 
 the law was strained too far in that case, and so it is much more 
 in making D. a principal in the death of B. that was his friend, 
 tho it be, I confess, a great misdemeanor, yet I think it is not mur- 
 der in D. 
 
 And the books in all the instances of this nature say, that it is 
 murder or manslaughter in that party, that abetted him,(*) and con- 
 sented to the act, that Z>. never abetted A. to kill B. but abetted B. 
 indeed to have killed t^.[8] 
 
 2. It must be a killing in pursuit of that unlawful act, that they 
 were all engaged in, as in the case of the lord Dacre before-men- 
 tioned, they all came with an intent to steal the deer, and conse- 
 quently the law "presumes they came all with intent to oppose all 
 that should hinder them in that design, and consequently when one 
 killed the keeper, it is presumed to be the act of all, because pursuant 
 to that intent: but suppose, thai A. i?. and C. and divers others come 
 together to commit a riot, as to steal deer, or pull down inclosures, 
 and in their march upon tjieir design, t/^. meets with D. or some other 
 with whom he had a former quarrel, or that by reason of some col- 
 lateral provocation given by D. to A. A. kills him without any abet- 
 ting by any of the rest of liis company, this doth not make all the 
 
 (*) Yiz. who committed the homicide. 
 
 [2] When upon a previous agreement, and after there has been time for theblood to cool, 
 two persons meet with deadly weapons, and one of them is killed, the party who occa- 
 sions the death is guilty of murder, and the seconds also are equally guilty ; and with 
 respect to others shown to be present, the question is, did they give their aid and assist- 
 ance by their countenance and encouragement of the principals in the contest? Merc 
 presence will not be sufficient; but if they sustain the principals, cither by advice or 
 assistance, or go to the ground for the purpose of encouraging and forwarding the un- 
 lawful conflicts, although they do not say or do any thing, yet, if they are present assist- 
 ing and encouraging by their presence at the moment when the fatal shot is fired, they 
 are, in law, guilty of the crime of murder. lieg.y. Young, 8 Car. eSf P. 644. 
 
 If two persons diliberatcly fight a duel, and one of them be killed, the other and bis 
 second are guilty of murder. 1 Hawk. c. 31. s. 31. liix v. Onel.y,2 Sb-unge, 776. No 
 matter how grievous the [)rovocation, or by which p;irty given. The second of the 
 deceased also is now deemed guilty of murder, as being present, aiding and abetting; 
 and altliougli Lord Hale scorns to think the rule of law, as to |)rincipals in the second 
 degree, too far strained in that case, yet in several late cases it has been laid down that 
 boili the seconfls arc guilly, if they are present assisting and encouraging. Sec Smith v. 
 The. Sl„te, 1 Yerger, 228. Tiwcrnie's case, 3 liulstrode, 171-2. 1 Roll. Hep. 361. Hex 
 V. Murphy, 6 (J. df P. 103. Jirg v. Caddij, 1 Car. Sf P. 210. Foster, 297. 4 ^l. Com. 
 I'Jl. 3 inst. 51. Rex v. Rice, 3 East, Gtil, post, 453.
 
 HISTORIA PLACITORUM CORONA. 444 
 
 party oft/?, tho present, to be therefore aiding and abetting, and con- 
 sequently priiicipals in this murder or manslaughter, which was acci- 
 dental, and not within the compass of their original intention. 
 
 But if, when they had come to steal the deer, or throw down the 
 inclosure, any had opposed them in it, either by words or actual re- 
 sistance, and A. had killed him, it had been murder in all the rest 
 of the company, that came with the intent to do that unlawful act, 
 tho there were no express intention to. kill any person in the first 
 enterprize, because the law presumes they come to make good their 
 design against all opposition. 
 
 And this is the reason of the book 3 E. 3. Coron. 350. where many 
 came to commit a disseisin, and one was killed, and all that were of 
 the company were arraigned as principals, and the fact found and 
 they were condemned, tho the jury said they did nothing {de male 
 voliint) of malice, but were of the company; tho possibly, as the cir- 
 cumstances of that case were, it was only manslaughter, as in the 
 case of Drayton Basset, because it was upon a sudden, and upon a 
 pretense of title. 
 
 3. Again, altho if many come upon an unlawful design, and one of 
 the company kill one of the adverse party in pursuance of that de- 
 sign, all are principals; yet if many be together upon a lawful account, 
 and one of the company kill another of an adverse' party without 
 any particular abetment of the rest to this fact of homicide, they are 
 not all guilty that are of the company, but only those, that gave the 
 stroke, or actually abetted him to do it. 
 
 There is a common nuisance committed in the highway by A. B. 
 C. D. in the vill of M. and E. F. G. H. J. <§-c. and twenty more of 
 the inhabitants of M. come to remove the nuisance, Jl. B. C. and D. 
 oppose, F. strikes A. suddenly, and kills him, F. is guilty of man- 
 slaughter, but the rest of the party of F. are not therefore guilty, 
 barely upon this account that they were of the company, but only 
 such of the company, as did actually assist or abet F. to strike or kill A. 
 
 But if in truth it were no nuisance, but an act that was lawfully 
 done by A. and then JJ. had been killed by F. all the rest of the 
 party and company of F. had been guilty, that came with 
 design to remove Ihat which they thought a nuisance, but [445] 
 was not, because it was a riotous and unlawi'ul assembly. 
 
 If t/^. hath a good title to his house, or hath been in possession 
 thereof tor three years, (in which case he may detain it with force by 
 the statute of 8 H. 6. cap. 9.) if any person come to rob him or kill 
 liinr, and he shoot and kill him, it is not felony, nor doth he forfeit 
 his goods, as in case of homicide se defendenilo. 11 Co. Rep. 82. b. 
 5 Co. Rep. 91. h. 
 
 But '\{ A. comes to enter with force, and in order thereunto shoots 
 at his house, and B. the possessor, having other company in his house, 
 shoots and kills A. this is manslaughter in B. and so it is ruled 
 5 Eliz. in Hdrcourt^s case, Crompt. 29. a. Dalt. cap. IS. p. 105. (m) 
 Ibid. cup. 98. p. 250.(n) 
 
 (m) New Edit, cap. 121. p. 427. (n) cap. 150. p. 483.
 
 445 HTSTORIA PLACITORUM CORONA. 
 
 And in this case, if B. shoot out of liis house, and killeth ^. I 
 think it plain, that it is not felony in the rest of the honsehold, nay, 
 tho he had hired extraordinary company to help to guard his house 
 upon such an occasion, (as by law it seems he may do, notwithstand- 
 ing the opinion of Crompton,fol. 70. u. to the contrary, vide 21. H. 
 7. 39. a. 5 Co. Rep. Q\. b. Seamati's case,. 11 Co. Rep. 82. b. Leioes 
 Bowlegs case) yet this is not manslaughter in the rest of the com- 
 pany, because the assembly was lawful and justifiable. 
 
 And therefore in that case, no others of the company, that are in 
 the liouse, shall be said guilty, but only such as actually abet him to 
 do the fact; and these indeed will be principals by reason of actual 
 abetting, but not barely upon the account of being in the house, and 
 jof the same company, because the assembly to defend the house by 
 lawful means was lawful. 
 
 But in the case of a riotous assembly to rob, or steal deer, or do 
 any unlawful act of violence, there the offense of one is the offense of 
 all the company; as in the case of the lord Dacre, and of the house 
 of Drayton Basset, where there was first a riotous and unlawful 
 entry, and keeping possession by those that shot. 
 
 4. If there be many, that are present, abetting, aiding, 
 r 446 ] and assistuig, tho all may, as in the cases afore shewn, be 
 guilty of homicide, yet upon different circumstances some 
 may be guilty of homicide, and not of murder, others may be guilty 
 of murder; vide the case o{ Salisbury before, Ploivd Com. 101. a. 
 The master assaults with malice prepense, the servant being igno- 
 rant of the malice of his master, takes part with his master, and kills 
 the other, it is manslaughter in the servant, and murder in the master. 
 
 Upon a sudden falling out between ^. and B. in the street, ./?. 
 gathers^ many of his friends together to assault B. and B. doth the 
 like, the constable, and some .in his aid, come to part the affray, and 
 keep the peace. Jl. hath notice, that he is the constable, but divers 
 of his company know it not, nor could reasonably or probably know 
 it, ^. kills the constable, this is murder in Jl. but the rest of his 
 company, that knew it not^ are not guilty of the murder. 
 
 But such of them, as knowing it to be the constable, yet abetted 
 ^. to kill him, are guilty of murder, those that knew it not, and 
 ■yet abetted J2.\o kill him, are guilty of manslaughter; and those, that 
 neither knew him to be the constable, nor did actually abet nor assist 
 ^. to kill him, are not guilty, as it seems, because this was a new 
 emergency, and out of the bounds and verge of the quarrel, wherein 
 they were before engaged, and such whereunto these were not privy; 
 quod I amen (juxre.\^o) 
 
 Sec Foster 121-131. and his discourse III. p. 341. — per lot. 4 Blacks. Com. ch. 3. 
 p. 34-40. See Index to I Hawk. P. C. tit. Accessary. ' 
 
 [3] One who procures, counsels, or commands another, but is absent when the crime 
 is consurinnatcd, is an accessary before the fact. I'ost, 612. G1.5,G16. Dyer., I8G. 3 Ind. 
 108. 139. 2 Hawk. P. C.315-VJ. Foster, 73. 125.361. 1 Moody C. C..417. 7 C. <.^ F. 
 836. 4 Bl. Com. 3,'). 40. 323. 
 
 If several persons meet together for the prosecution of some ui^lawful design, and in
 
 HISTORIA PLACITORUM CORON.^. 446 
 
 furtherance of that design a man be killed, tlie gfuilt of the iiillin^ will attacii to all pre'- 
 senl, whetlier it be murder or manslaughter. Foster, 2G1. M'jickiin''s case, 2 Leu}. 225. 
 
 As to what will excuse persons otherwise liable as accessaries, see ante 52 et seq. Rex 
 V. Sawyer, 1 Russ. 424. Rex v. Dyson, R. Sg R. C. C. 523. Reg. v. Tyler, 8 C. df 
 F. 616. 
 
 On indictment for murder against several, one cannot be convicted of an assault com- 
 mitted on the deceased in a previous scuffle, such assault not being in any way con- 
 nected with the cause of death. Re^. v. t kelps, 2 M. C. C. R. 240. 
 
 All present at the time of committing an otfence are principals, although one only 
 acts, if they are confederated and engaged in a common design, of which the offence is 
 part. Rex v. Tattersall, 1 Russ. 22. Rex v. Dyson, R. ^ R. C. C. 523. 
 
 AH those who assemble themselves together, with an intent, even to commit a tres- 
 pass, the execution whereof causes a felony to be committed, and continue together, 
 abetting one another till they have actually put their design into execution, and also, 
 ail those who are present when a felony is committed, and abet the doing of it are prin- 
 cipals in felony. Reg^. v. Howell, 9 Car. Sf F. 437. 
 
 Where persons combine to stand by one another in a breach of the peace, with a 
 general resolution to resist all opposers, and in the execution of their design a murder is 
 committed; all of the company are eciuajly principals in the murder, though at the time 
 of the fact some of them were at such a distance as to be out of view. Reg. v. Howell, 
 cited supra. 
 
 If several are out for the purpose of committing a felony, and upon an alarm run dif- 
 ferent ways, and one of them maim a pursuer, to avoid being taken, the others are not 
 to be considered principals in such act. Rex v. White, R. S^ R. C. C. 99. 
 
 If a charge against an accessary is, that the principal felony was committed by per- 
 sons unknown, it is no objection that the same grand jury have found a bill imputing 
 the principal felony to another person. Rex v. Bush, R. tSf R. C. C. 372. 
 
 It is nut essential that there should have been any direct communication between an 
 accessary before the fact and the principal felon. It is enough if the accessary direct 
 an intermediate agent, to procure another to commit a felony, and it will be sufficient 
 even if the accessary does not name the person to be procured, but merely directs the 
 agent to employ some person. Rex v. Cooper, 5 Car. 6f P. 535. Rex v. Morris, 2 Leach 
 C. C. 1096. Rex v. Giles, R. ^ M. 166. Rex v. Badcock, R. S^ R. C. C. 249. Rex v. 
 Stewart, R. 6; R. C. C. 363. 
 
 If A. is charged in the indictment as principal, and B. as accessary, and the jury find 
 B. to be the principal and A. the accessary, the indictment is sustained. Statev. Mairs, 
 Coxe, N. J. 453. 
 
 Tiie crime of an accessary before the fact to a murder is murder. The Feople v. 
 Mather, 4 Wend. 229. 
 
 An accessary in a capital felony cannot be tried without his own consent when the 
 principal has died before conviction. Commonwealth v. FhiUips, 16 Mass. 423. But he 
 must answer to an indictment charging him as accessary to two principals, one of whom 
 only has been convicted, the other liavmg died. Conimonwealth v. Kiiapp, 10 Pick. 477. 
 Conviction of the principal is prima facie evidence of his guilt, on the trial (jf an ac- 
 cessary, and throws the burden of proof, as to his innocence, on the accessary; but the 
 accessary is not ms^tricted to the proof of new facts. Idem.. 
 
 The charge of King, P. in the case of Daily (4 Penna. Law J., 155, Philadelphia, 1845,) 
 contains an excellent summary of the common law doctrine of the responsibility of per- 
 sons engaged in unlawful combinations resulting in death. "When divers persons, (says 
 Judge King) resolve generally to resist all officers in the commission of a breach of the 
 peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, 
 and in doing so happen to kill a man, they are all guilty of murder, for they must at their 
 peril abide the event of their actions, who unlawfully engage in such bold disturbances 
 of the public peace in opposition to, and in defiance of the justice of the nation. Malice 
 in sucii a killing is implied by law, in all who were engaged in the unlawful enterprise; 
 whetiicr the deceased fall by the hand of the accused in particular, or otherwise, is im- 
 material. AH are responsible for the acts of each, if done in pursuance and furtiierance 
 of the common design. This doctrine may seem hard and severe, but has been found 
 necessary to prevent riotous combinations committing murder with Impunity. For 
 when su-jh illegal associates are numerous, it would scarcely be practicable to establish 
 the identity of the individual actually guilty of the homicide. When, however, a homi- 
 cide is committed by one or more of a body unlawfully associated, from causes .having no
 
 446 HISTORIA PLACITORUM CORONA. 
 
 connexion with the common object, the responsibility for such homicides attaches ex- 
 clusively to its actual perpetrators." 
 
 If several persons combine to commit murder, and before the killing is actually 
 effected, one of them withdraws from tlie combination and leaves the others, doing no- 
 tiling to aid or encourage them in any way, he is not responsible for their acts, although 
 they carry out the object of the original combination by committing murder. Common- 
 wealth V. Hnuphey, M S. before the Oyer and Terminer for Philadelphia county, March, 
 1845. King, President. See also, U.S. v. Cornell, 2 Mason, C. C. R. 91. U. S. v. Ross, 
 1 Gallison, C. C. R. 524. 
 
 He who kills another upon his desire or command is, in the judgment of the law, as 
 much a'murderer as if lie had done it merely of his own head. 1 Hawk. c. 21, s. 6; Saw- 
 yer's case, O. 5. 1815, MS. 1 Riiss. 485. 
 
 If two persons mutually agree to commit suicide together, and the means employed 
 to produce death only take effect on one, the survivor will, in point of law, be guilty of 
 the murder of the one who died. R. v. Alison, 8 Car. ^ P. 418. 
 
 If one counsel another to commit suicide, and the other, through the influence of the 
 advice, kill himself, the adviser is guilty of murder as principal. The presumption of 
 law in such case is, that the advice had the effect intended by the adviser, unless the 
 contrary be shown. Commonivealth v. Bowcn, 13 Mass. 359. See Rex v. Dyson, R. Sf 
 R. C. C. 523. 1 Hawk. P. C. c. 27, s. 4. 
 
 But Alderson, J. in Regina v. Leddinston, 9 C. Sf P. 79, ruled that a person cannot be 
 tried for inciting another to commit suicide, although that other commit suicide. 
 
 [447] 
 
 CHAPTER XXXV. 
 
 CONCERNING THE DEATH OF A PERSON UNKNOWN, AND THE PROCEED- 
 INGS THEREUPON. 
 
 Because this chapter as well concerns murder as mayislmis^hter., 
 before I come to examine the particular offenses themselves, I shall 
 subjoin a few words touching* this title. 
 
 Antiently there was a law introduced by Caniitiis the Dane, that 
 if any man were slain in the fields, and the manslayer were unknown, 
 and could not be taken, the township, where he was slain, should be 
 amerced to sixty-six marks,(*) and if it were not sufficient to pay it, 
 the hundred should be charged, unless it could be made appear be- 
 fore the coroner, upon the view of the body, that the party slain were 
 an Englishman, and this making it appear was varicfiis, according 
 to the custom of several places, but most ordinarily it was by the 
 testimony of two males of the part of the father of him that was 
 slain, and by two females of the part of his mother. 
 
 And this amercement was usually called murdrum ; and the pre- 
 sentment and proof, that the party slain was an Englishman, was 
 called Englesbury, and presentment of Engleshury. 
 
 And this was tlierefore provided to avoid the secret murder of the 
 Danes, who were hated by the English, and oftentimes privily mur- 
 
 (*) Sec the laws nf Edward the confessor, Lih XV. Sf XVI. by which it appears the 
 amerciament was XLVI. marks, and not LXVI. marks, as Bracton says, whicli mistake 
 might probably be occasioned, as Wilkins observes in liis notes ad Leg. Anglo-Sax. 
 p. 280. by thq transposition of the numeral letters L and X.
 
 HISTORIA PLACITORUM CORONA. 447 
 
 dered ; this appears by Bracton,{a) and is transcribed out of him by 
 Stomf. Lib. I. cup. 10. fol. 17. 
 
 When JVillicnn the first came in, he found the like animosity by 
 the Danes and Saxons against the French and Normans, who were 
 many times secretly icilled by the natives, and therefore he did in 
 effect continue this lavv,(J) only he applied it to the French 
 and Normans, viz. that if a person were slain by an un- [ 448 ] 
 known hand, if he were a Frenchman or a Norman, the 
 hundred was amerced, where he was found, and if they were 
 insufficient, then the county, which was sometimes 36/. some- 
 times 24/. 
 
 And tho this was instituted for the preservation of the French and 
 Normans, yet intermarriages happening between the natives and 
 them, so that in process of time they became, as it were, one people, 
 the same custom was continued as to all persons that were killed by 
 unknown hands, and this amerciament was called murdrum.^ 
 
 This appears at large by the black book of the Exchequer written 
 by Gervasius Tilbiiriehsis, Lib. I. cap. Quid niitrdrum, &r qnare 
 sit dictum, which expounds the true scope of the statute of Marl- 
 bridge, cap. 2G. Quod miirdriim de cxtero non adjudicetur pro 
 niortuo per infortunium. 
 
 But as well the presentment of Englesbery, as the amerciament 
 for secret homicide by persons unknown, was taken away by the 
 statute of 14 E. 3. cap. 4. yet there remained a certain amerciament 
 upon the township, where a person was slain, and the offender 
 escaped, viz. If a person were slain in the day-time, in a town walled, 
 or not walled, the town is to be amerced, if the vill be not suffi- 
 cient, the hundred shall be charged, and on default of them the 
 county. 
 
 If he be slain in the day-time out of any vill, the hundred shall be 
 amerced, and on their disability the county shall be charged with the 
 amerciament. 
 
 If a man be killed either in day or night, and the offender be taken 
 and committed to the constable, or to the vill, if he escape, the town- 
 ship where the party was slain, or where the offender was taken, 
 shall be fined. (/>) 
 
 But if a person be slain in the day or night in a walled town, and 
 the offender be not taken, the town or city shall be fined. 
 
 If any private person be present when a murder or man- 
 slaughter is committed, and doth not his best endeavour [449] 
 to apprehend the malefactor, he shall be fined and impri- 
 soned. 
 
 All which differences appear by comparing the books of Stamf. 
 
 (a) Lib. III. de corona cap. 15. p. 134. b. vide Spelm. verb. Engleckeria. Blacks. Com. 
 Lib. IV. cap. 14. p. 195. 
 
 (t) Vide Leg. Gul. Con. I. 2G. Sf Leg. Hen. I. I. 91. Wilk. Leg. Anglo-Sax.p. 224. 280. 
 
 t By tlie word " murder" in g^rants, the grantee claimed to have amerciaments of mur. 
 derers. Bro. tit. quo icarranto. HI. 2. 
 
 {b) For the vill is not discharged till he be delivered into goal, or to the custody of 
 the sheriff, after which the sheriff will be chargeable. Stamf. If. C. cap. 31.
 
 449 HISTORIA PLACITORUM CORONA. 
 
 P. C. cap. 30 4' 31. Coke P. C. cap. 1. p. 53. 3 H. 7. cap. 1. and, the 
 books there cited.[lj 
 
 — s:^ — 
 
 [1] All persons who are present when a felony is committed, or a dang-erous wound 
 given, are bound to apprehend the offender, on pain of being- fined and imprisoned for 
 their neg-lect, unless they are under age at the time. 2 Hawk. c. 12. s. 1. 
 
 Also every private person is bound to assist any officer demanding his help for the 
 taking of a felon, or the suppression of an affr^iy, id. s. 12, and may be indicted if he 
 refuses without lawful excuse. Reg. v. Brown, 1 C. S^ Mar. 314. 
 
 And it is the duty of all private persons to arrest without warrant any person detected 
 in the attempt to commit a felony. R. v. Hunt, R. 8^ M. C C. 93; R. v. Howarth, R. Sf 
 M. C C. 207. And though the otfender run away, and give over his intention of com- 
 mitting the felony, still it seems, on firesh pursuit, he may be apprehended by any one. 
 R. V. Howarth, R. 4f M. G. C. 207. 
 
 If a felony has been actually committed by some one, a private person may arrest, or 
 direct a peace officer to arrest a party whom he has reasonable grounds for suspecting to 
 have been guilty of it, though in fact such party be really innocent; but he is not abso- 
 lutely bound to do so, like a peace officer; and he does so at his peril, for if these grounds 
 for suspecting the party be not reasonable, or there has been no felony committed, the 
 person arresting is guilty of a false imprisonment, and liable accordingly. Pauton v. 
 Williams, 1 G. <.y D. 504. 2 Ad. Sf E. {N. S.) 69; Allen v. Wright, 8 C. ^ P. .522. 
 
 A bare surmise, however, is plainly insufficient. Davis v. Russel, 5 Bing. 364. 2 M, 
 Sf P. 590, S. C. 4 Inst. 144. 
 
 See Vol. 2d, chapter 10. 
 
 CHAPTER XXXVI. 
 
 TOUCHING MURDER, WHAT IT IS, AND THE KINDS THEREOF. 
 
 Murder and manslaughter differ not in the kind or nature of the 
 offense, but only in the degree, the former being the killing of a man 
 of malice prepense,[2] the latter upon a sudden provocation and fall- 
 ing out.[l] 
 
 [1] For manslaughter, see chapter' XXXVIII. p. 466. 
 
 [2] The best explanation of the legal meaning of malice, is that of Justice Foster. Its 
 brevity, accuracy and felicity of language have recommended it and caused its almost 
 universal recognition as well in America as in England, particularly the closing clause, 
 in which an act is declared to be malicious, which shows " a heart regardless of social 
 duty and fatally bent on mischief" When (says Foster) the law maketh use of the term 
 molice aforethought, as descriptive of the crime of murder, it is not to be understood in 
 that narrow restrained sense, to which the modern use of the word malice is apt to lead 
 one, a principle of malcvoltnce to particulars ; for the law by the term malice in this in- 
 stance rneancth, that the fact hath been attended with sucli circumstances as are the 
 ordinary symptoms of a wicked, depraved, malignant spirit. 
 
 In the case of an appeal of death, which was anciently the ordinary method of prose- 
 cution, the term malice is not made use of as descriptive of the offence of murder, in 
 contradistinction to simple felonious homicide. The precedents charge, that the fact wits 
 done nequitir <^- in felouid, which fully takclli in tiie legal sense of the word malice. The 
 words per malitiam and malitiosc our oldest writers do indeed frequently use in some 
 other cases; and tliey constantly mean an action flowing from a wicked and corrupt 
 motive, a tiling done malo animo, mala conscientid, as they express themselves. Of which 
 many instances might be given. I will mention one or two. 
 
 Tlie method of proceeding in ancient times in a case of robbery or larceny, when the 
 stolen goods were found upon tlic defendant, was, that if he alleged that he bought them 
 of another, whom he named and vouched to warranty, the voucher, if he appearedand 
 entered into warranty was to stand in tiie place of the defendant pro bono Sf malo. The
 
 HISTORIA PLACITORUM CORONiE. 449 
 
 And therefore it is, that upon an indictment of murder the party 
 offending may be acquitted of murder, and yet found guilty of man- 
 legislature hath likewise frequently used the terms malice and malicioushj in the same gene- 
 ral sense, as denoting a wicked, perverse, and incorrigible disposition." Foster refers to the 
 statutes 28 Ed. 1. st. '2. 4 Sf 5 W. S( M. c. 4. and continues: " In the same latitude are the 
 words malice aforethought to be understood in the statutes which oust clergy in the ease 
 of wilful murder. The malus animus, which is to be collected from all the circumstances 
 is what bringeth tlie offence within the denomination of wilful malicious murder, what- 
 ever might be the immediate motive to it; wlicther it be done as the old writers express 
 themselves, ' Iiu vtl odio, v^l causa lucii,' or from any other wicked or mischievous in- 
 centive. And most if not ail the cases, which in the hooks are ranged under the head of 
 implied malice, will if carefully adverted to, be found to turn upon this single point, that 
 the fact hath been attended with such circumstances as carry in them the plain indica- 
 tions of an heart regardless of social duty and fatally bent upon mischief." Foster, 256, 257. 
 An act " flowing from a wicked heart, a mind grievously depraved, and acting from mo- 
 lives highly criminal, is the genuine notion of malice in our law." Curtis'' ease. Foster, 138. 
 
 Lord Hult says upon this subject, " some have been led into mistakes by not -well con- 
 sidering what the passion of malice is; tboy have construed it to be a rancour of mind 
 lodged in the person killing for some considerable time before the commission of the fact; 
 which is a mistake, arising from a not well distinguishing between hatred and malice. 
 Envy, hatred and malice, are three distinct passions of the mind." Kel. 127. Amongst 
 the Romans, and in the civil law, malitia appears to have imported a mixture of fraud, 
 and of that which is opposite to simplicity and honesty. Cicero speaks of it De Nat. 
 Deor. Lib. 3. s. 30. as " ver.suta et falleax nocendi ratio;" and in other work De Ojjic. 
 Lib. 3. s. 18. he says, " mihi quidem etiam vertp hsereditatcs non honestte videntur si 
 sint malitiosis, (i. e. according to Pearce, a malo animo profe'ctis,) blanditiis officiorum ; non 
 veritate sed simnlatione qucesitcB." And see Dig. Lib. 2. Tit. 13. Lex 8. where, in 
 speaking of a banker or cashier giving his accounts, it is said, " Ubi exigitur argentarius 
 rationes edere, tunc punitur cum dolo malo non exhibet. * * * Dolo malo autem non 
 edit, et qui maliliose edidit, et qui in totum non edit." "Amongst us malice is a term of 
 law importing directly wickedness, and excluding a just cause or excuse." 1 Russell on 
 Cri tries, 483. 
 
 Lord Coke, in his comment on the words per 7nalitia7n, says, " if one be appealed of 
 murder, and it is found by verdict that he killed the party se defendendo, this shall not 
 be said to be per malitiam, because he had a just cause." 2 Inst. 384. And where the 
 statutes speak of a prisoner on his arraignment standing mute of malice, the word clearly 
 cannot be understood in its common acceptation of anger or desire of revenge against 
 another. Thus, where the 25 Hen. VIIL c. 3. says, that persons arraigned of petit trea- 
 son, cSfc. standing " mute of malice or froward mind," or challenging tSj-c, shall be ex- 
 eluded from clergy, the word malice, explained by the accompanying words, seems to 
 signify a wickedness or frowardness of mind in refusing to submit to the course of jus- 
 tice; in opposition to cases where some just cause may be assigned for the silence, as 
 that it proceeds from madness, or some other disability or distemper. And in the statute 
 21 Edw. 1. De malefactoribns in parcis, trespassers are mentioned who shall not yield 
 themselves to the foresters, dfc. but " immo malitiam suam prosequendo et continuando," 
 shall fly or stand upon their defence. And where the question of malice has arisen in 
 cases of homicide, the matter for consideration has been whetlicr the act were done with 
 or without just cause or excuse; so that it has been suggested that what is usually called 
 malice, implied by the law, would perhaps be expressed more intelligibly and familiarly to 
 the understanding if it were called malice in a legal sense. Malice, " in its legal sense, 
 denotes a wrongful act done intentionally without just cause or excuse." I'er Little- 
 dale, J., McPherson v. Daniels, 10 B. i^ C. 272. " We must settle what is meant by the 
 term malice. The legal import of this term differs from its acceptation in common con- 
 versation. It is not, as in ordinary speech, only an expression of hatred and ill will to an 
 individual, but means any wicked or mischievous intention of the mind. Thus in the 
 crime of murder, which is always stated in the indictment to be committed with malice 
 aforethought, it is neither necessary in support of such indictment to show that the pri- 
 soner had any enmity to the deceased, nor would proof of absence of ill will furnish the 
 accused with any dol'cnoe, when it is proved that the act of killing was intentional, and 
 done without any justifiable cause." Per Best, J., Rex v. Harvey, 2 B. S( C. 268. 1 Russ. 
 on Crimes, 483. note i. See 4 Bl. Com. 199. 1 East. P. C. 215. 1 Haivk. P. C. c. 29. s. 12.
 
 449 HISTORIA PLACITORUM CORONA. 
 
 slaughter, as daily experience witnesseth,(fl) and they may not find 
 him generally not guilly, if guilty of manslaughter.[3] 
 
 In an appeal of murder it is agreed on all hands, that the jury may 
 find him not guilty of the murder, and guilty of manslaughter; this 
 was accordingly ruled(i6) P. 34 Eliz. B. R. the case of Wroth and 
 Wig,s;es,{c) P. 5 Jac. B. R. n. 20. Pellet and Barendon, P. 7. Jac. 
 B. R. n. 11. ;(^) hut it hath been held, that altho upon an indictment 
 of murder, if the party appear to be guilty of manslaughter, the jury 
 ought not to acquit him generally, but' find him guilty of manslaugh- 
 ter; yet in an appeal of murder, tho the jury may, if they please, find 
 him guilty of manslaughter, if the fact be such, yet they 
 [[450 ] may find generally, that he is not g^dlty, because it is the 
 suit of the party, and he should lay his case according to the 
 truth. 
 
 With this agrees H. 38 Eliz. B. R. Penryn and Corbett,{e) H. 
 38 Eliz. B. R. B. 183. (/) M. 22 Jac. B. R. L. 278. Blount's 
 case,(o-) but it was held P. 2. Car. 1. in Bassage's case, (A) that 
 they may not in such a case find a general verdict of jiol guilty, but 
 must find him guilty of manslaughter, because included in murder, 
 as well in case of an appeal, as in case of an indictment, and so it 
 seems the law is. 
 
 The difference betwe'en the offenses of murder and manslaughter 
 seems to rest in these particulars. 
 
 1. In the degree and quality of the offense, for murder, as hath 
 been said, is accompanied wiih malice forethought, either express 
 or presumed; but bare homicide is upon a sudden provocation or 
 falling out. 
 
 2. A lid therefore in murder there may be accessaries before, as 
 well as after, because ordinarily it is an act of deliberation, and not 
 merely of sudden passion; but in bare homicide or manslaughter 
 there can be no accessaries before, tho there may be accessaries 
 after, and therefore, if an indictment be of murder against ,/2. and 
 that 5. and" C were counselling and abetting as accessaries before 
 only, (and not as present, aiding and abetting, for such are princi- 
 pals, as hath been said) if ^5. be found guilty only of homicide, and 
 acquit of the murder, the accessaries before are hereby discharged. (4) 
 
 (a) See Dalison 14. (ft) Or ratlier taken for granted. 
 
 (c) Cro. Eliz. 276. See also Cro. Eliz. 296. 1 Sid. 325. 
 
 {d) These two cases I do not find any wiiere among the printed reports. 
 
 (e) Cm. Eliz. 464. 
 
 (/) I suppose this may be the case of Gojf and Byhij, Cro. Eliz. 540. 
 
 (g) 2 Roll. Rep. 460. (/t) Latch. 126. 
 
 Rex V. Grcenricre,S Car. Sf P. 35. Rrx v. Walters, 1 Car. ^- M. 164. Reg. v. Kirkham, 
 8 Car. ^ P. 115. 7?^ir. v. Marryntt, 8 Car. c^ P. 425. Rex v. Self, 1 Lench, 137. 
 Rex V. Bailey, R. &; R. ('. C. 1. Commonweallk v. Drew, 4 Mass. 391. Respublica v. 
 Mulatto Boh, 4 Dallas, 146. Pennsylvania v. Lewis Addison, 282. Commonweulth v. 
 Green, I As/imcad, 289. Coffee v. 'J'/te Slate, 3 Yerjrer, 283. and post in this ciiapter and 
 chapter 37. 
 
 [3] Tills is unchanged cither in England or the United Stales. 
 
 [4J Those who arc charged only as accessaries before the fact, when the principal is
 
 HISTORIA PLACITORUxM CORONA. 450 
 
 3. The indictment of murder essentially requires these words, /e/o- 
 nich ex malitid sua prsecogitatd interfecit 8^- ninrdravit, but the 
 indictment of simple homicide is ouXy felon ice interfecit. 
 
 4. Altho at common law, and by tlie statute of 25 E. 3. cap. 4. 
 clergy was promiscuously allowed, as well in case of murder, as of 
 homicide and manslaughter, yet by the statute of 23 H. 8. cap. 1. 
 25 H. 8. cap. 3. 1 £. 6. cap. 12. 5 (§• 6. E. 6. cap. 10. clergy is taken 
 away from murder ex malitid prxcogitald.[^5'\ 
 
 Now having before, cap. 33. declared those things, that 
 are common to the oftenses of murder and manslaughter, it f 45L ] 
 remains, that I consider those things, that are specificial and 
 peculiar to murder, which is what shall be said a killing ex malitid 
 pi'secogifatd, or what in law is said such a malice, as makes tlie 
 offense of killing a person thereby to be murder. 
 
 Such a malice tlierefore, that makes the killing of a man to be 
 murder, is of two kinds, 1. Malice in fact, or 2. Malice in law, or 
 ex prscsximptione legifs. 
 
 ]\lalice in fact is a deliberate intention of doing some corporal harm 
 to the person of another. 
 
 Malice in law, or presumed malice, is of several kinds, viz. 1. In 
 respect of the manner of the homicide, when without provocation. 
 2. In respect of the person V\\^,viz. a minister of justice in execution 
 of his office. 3. In respect of the person killing. 
 
 Touching the first of these in this chapter, viz. malice in fact. 
 
 Malice in fact is a deliberate intention of doing any bodily harm to 
 another, whereunto by law lie is not authorized. 
 
 The evidences of such a malice must arise from external circum- 
 stances discovering that inward intention, as lying in wait, menacings 
 antecedent, former grudges, deliberate compassings, and the like, 
 which are various according to variety of circumstances. 
 
 It must be a compassing or designing to do some bodily harm. [6] 
 
 found guilty of manslaughter, cannot be punished, because that necessarily supposes the 
 fact to have happened on a sudden, for if it had been done on premeditation, it would 
 have been murder. 4 Coke, 43, 44. Moore, 461. Da!t. c. 108. 
 
 Hawkins suggests that under the law of principal and accessary as it stood before the 
 statute 1 Anne, c. 9. they who are charged as accessaries after the fact should be dis- 
 charged at common law when the principal is found guilty of manslaughter, and admit- 
 ted to the benefit of clergy, because in such case it could not appear by any" judgment 
 that there was a princioal. 2 Hawk. c. 29. s. 24. 3 Inst. 25. Co, Eliz. 540. Fos- 
 ter, 3G3. ^ 
 
 But see Rex v. Greenacre, 8 C.Sf P. 35. where it was ruled that an accessary after the 
 fact was liable. 
 
 [5] For the English statutes, since Hale's time, see note at the end of this chapter, 454, d. 
 
 [6] It has been suggested that the distinction between express malice (malice in 
 fact) and implied malice (malice in law,) is not of practical importance. It is not, 
 perhaps, in a tnere classification of crime with reference to punishment, but as an aid 
 to the ascertainment of guilt, its antiquity and frequent observation show its value. 
 When the act alleged is one from which the law presumes malice, the examination of 
 a jury may be confined to the sirvgle question of whether or not the act was committed, 
 in order to arrive at a conclusion of the guilt or innocence of the accused. It is 
 true that the classification of murder in most of the Untied States into murder of the 
 first and second degrees, usually renders it necessary fur the jury in their deliberations,
 
 451 HISTORIA PLACITORUM CORONA. 
 
 If there have been a long suit in law between A. and B. either 
 touching interest or wrong done, as if A. sue B. or threaten to sue 
 him, this alone is not a sufficient evidence of mahce prepense, tho 
 possibly they meet and fall out, and fight, and one kills the other, if 
 
 after havin» ascertained that the party is gruilty of murder, to pursue the investigation so 
 as to deteruiine to which degree the killing belongs, and on this point the question of 
 intention, which is the great test, often involves substantially the points connected with 
 the malice in fact of the text. The value of the distinction, as applied to murder gene- 
 rally or manslaughter, remains notwithstanding. 
 
 Hawkins says that express malice exists in such murder as is occasioned through an 
 express purpose to do some personal injury to him who is slain in particular. As to 
 murder in this sense, sucii acts as show a direct and deliberate intent to kill another, as 
 poisoning, stabbing, and such like, are clearly murder. 1 Hawk. P. C. 31. s. 19. 
 
 Implied malice is where there is such killing as happens in the execution of an unlaw- 
 ful action, principally intended for some other purpose, and not to do a personal injury to 
 him in particular wlio is slain, in which case the malice seems to be most properly said to 
 be implied. The cases which have borne dispute have generally happened in the following 
 instai^ces: First, in duelling. Secondly, in killing another without any provocation, or 
 but upon a slight one. Thirdly, in killing one whom the person killing intended to hurt 
 in a less degree. 1 Hawk. c. 'A\. s. 20. 
 
 Blackstone, who quotes Hale in the first sentence, and follows him and Hawkins, says 
 of the distinction between express and implied malice: " Express malice is when one, 
 with a sedate, deliberate mind and formed design, doth kill another: which formed 
 design is evidenced by external circumstances discovering that inward intention ; as ly- 
 ing in wait, antecedent menaces, former grudges, and concerted schemes to do him some 
 bodily harm. Tjiis takes in the case of deliberate duelling, where both parties meet 
 avowedly with an intent to murder. Also, if even upon a sudden provocation one beats 
 another in a cruel and unusual manner, so that he dies, though he did not intend his 
 death, yet he is guilty of murder by express malice; that is, by an express evil design, 
 the genuine sense of malitia. As when a park-keeper tied a boy, that was stealing 
 wood, to a horse's tail, and dragged him along the park; when a master corrected his' 
 servant with an iron bar; and a schoolmaster stamped on liis scholar's belly; so that 
 each of the sufferers died; these were justly held to be murders, because the correction 
 being excessive, and such as could not proceed but from a bad heart, it was equivalent 
 to a deliberate act of slaughter. Neither shall he be guilty of a less crime, who kills 
 another in consequence of such a wilful act, as shows him to be an enemy to all man- 
 kind in general; as going deliberately, and with an intent to do mischief, upon a horse 
 used to strike, or coolly discharging a gun among a multitude of people. So if a man 
 resolves to kill the next man he meets, and docs kill him, it is murder, although he knew 
 him not; for this is universal malice. And, if two or more come together to do an un- 
 lawful act against the king's peace, of which the probable consequence migiit be blood- 
 shed, as to beat a man, tq conmiit a riot, or to rob a park: and one of them kills a man, 
 it is murder in them all, because of the unlawful act; the malitia prcacogilata, or evil 
 intended beforehand." 4 lU. Com, 19!). • , . 
 
 And of implied malice, he adds: " In many cases where no malice is expressed, the 
 law will imjjly it: as where a man wilfully poisons another, in such a deliberate act the 
 law presumes malice, though no particular cnmil}' can be [)r(Wed. And if a man kills 
 another suddenly, without any, or without a considerable provocation, the law implies 
 malice, for no person, unless of an abandoned hi^art, would be guilty of such an act, 
 upon a slight or no apj)arent cause. No affront, by words or gestures only, is a sufh- 
 cicnt provocation, so as to excuse or extenuate such acts of violence as manifestly en- 
 danger the life of another. But if tiie person so provoked had unfortunately killed the 
 other, by beating him in such a manner as showed only an intent to chastise and not to 
 kill him, tlic law so far considers the provocation of contumelious behaviour, as to 
 adjudge it only manslaughter, and not murder. In like manner if one kills an officer 
 of justice;, either civil or criminal, in tiie execution of his duly, or any of his assistants 
 endeavouring to conserve the peace, or any private person endeavouring to suppress an 
 pffray or apprehend a felon, knowing his authority or the intention with which he 
 interposes, the law will imply malice, and the killer shall be guilty of murder. And if
 
 HISTORIA PLACITORUM CORON^E. 451 
 
 it happen upon sudden provocation ; but this may by circumstances 
 be lieightened info a malice prepense, as if .^. without any new pro- 
 vocation strike B. U[)on the account of that difference in law, where- 
 of B. dies, or t convcrso, or if he lie in wait to kill him, or come 
 
 one intends to do another felony, and undesig-nedly kills a man, this is also murder. 
 Thus if one shoots at A. and misses him, but kills B. this is murder; because of the 
 previous felonious intent, which the law transfers from one to the other. The same is 
 the case where one lays poison for A. and B. against whom the prisoner had no mali- 
 cious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a 
 woman with child a medicine to procure abortion, and it operates so violently as to kill 
 the woman, this is murder in the person who gave it." 4 HI. Com. 200. 
 
 Roscoe, Cr. Ev. 579 ; Archbold, Cr. PL 3d8; and Russell, 1 C. S( M. 482, follow, and 
 quote Hale and Hawkins. 
 
 The collections of cases do not always accurately indicate the distinctions between 
 the two sorts of malice, less, perhaps, in Hale's Pleas of the Croicn, than in the more 
 modern works; so that many of the cases which might be introduced in the notes under 
 the head of malice in fact, will be found in the next chapter, being there put the more 
 fully to illustrate the text. 
 
 Whenever malice is shown to exist, the offence is murder, though there may have 
 been intervening provocation. If one seek another, and enter into a fight with him, 
 with the pur|)osc, under the pretence of fighting, to stab him; if a^omicide ensue, it will 
 be clearly murder in the assailant, no matter what provocation was apparently then 
 given, or how high the assailant's passion rose during the combat, for the malice is ex- 
 press. Slate v. Ferguson, 2 Hill, 619. Slate v. Lane, 4 Iredell, 113, (N. C'irolina.) 
 So if ^., from previous angry feelings, on meeting with B. strike him with a whip, with 
 the view of inducing B. to draw a pistol, or believing he will do so in resentment of the 
 insult, and determines, if he do so, to shoot B. as soon as he draws, and B. does draw, 
 and A. immediately shoots and kills B., this is murder. State v. Martin, 2 Iredell. 101. 
 
 Blows previously received will not extenuate homicide- upon deliberate malice and 
 revenge; especially where it is to be collected from the circumstances that the pro- 
 vocation was sougiit for the purpose of colouring the revenge. Rex v. Mason, 1 East, 
 P. C. 239. 
 
 If a party, under colour of fighting upon equal terms, uses from the beginning of the 
 contest a deadly weapon, without the knowledge of the other party, whom he kills with 
 such weapon; or if at the beginning of tlic contest he prepares a deadly weapon, so as to 
 have the power of using it in some part of the contest, and accordingly does so, and kills 
 the other party ; the killing in both these cases will be murder. Rex v. Whiteley, 
 1 Lewin, C. C. 173. 
 
 If a person, being in possession of a deadly weapon, enter into a contest with another, 
 intending at the time to avail himself of it, and in the course of the contest actually use 
 it, and kill the other, it will be murder ; but if he did not intend to use it when he began 
 the contest, but used it in the heat of passion, in consequence of an attack made upon 
 him, it will be manslaughter. If he use it to protect his own life, or to protect himself 
 from such serious bodily harm as would give him a reasonable apprehension that his life 
 was in immediate danger, having no other means of defence, and no means of escape, 
 and retreating as far as he can, it will be justifiable homicide. Reg v. Smith, 8 Car. Sc 
 P. 160. 
 
 If A. had formed a deliberate design to kill B., and afler this they meet and have a 
 quarrel, and many blows pass, and A. kill B., this will be murder, if the jury are of opi- 
 hion that the death was in consequence of previous malice, and not of the sudden provo- 
 cation. Reg v. Kirkham, 8 Car. S^- P. 115. 
 
 Although a person may not go in search of, or lie in wait for another, whom he kills, 
 yet, if he has formed the purpose to kill him, and within a short time afler forming and 
 avowing such purpose, he duly armed, meets the other, by chance, whether in public or 
 in secret, and slays him immediately, there is a presumption that he did it on the pre- 
 vious purpose and grudge, if there be no evidence of a change of purpose. State v. Tilly^ 
 3 Iredell, 424. 
 
 When a deliberate purpose to kill, or to do great bodily harm, is ascertained, and there 
 is a consequent unlawful act of killing, the provocation, whatever it may be, which im-
 
 451 HISTORIA PLACITORUM CORONA. 
 
 with a resolution to strike or kill him, for in such a ease the differ- 
 ence in the law-suit, (which alone makes not mahce) is coupled and 
 
 joined with circumstances, that prove the purpose of the 
 [452 ] party was more, than the law allows in a legal vindication 
 
 of wrong done. 
 
 mediately precedes the act, is to be thrown out of the case and goes for nothing, unless 
 it can be shown, that this purpose was abandoned, before the act was done. Slate v. 
 Johnson, 1 Iredell, 354. 
 
 If, upon a provocation received, one party deliberately and advisedly denounce ven- 
 geance against the other, as by declaring that he will have his blood, or by preparing for 
 the conflict, or the like, and afterwards carry his design into execution, he will be guilty 
 of murder, although the death happened so recently after the provocation, as that the 
 law might, apart from such evidence of express malice, have imputed the act to unad- 
 vised passion. 1 Vent. 159. Onely's case, 2 Ld. Raymond, 190. 
 
 Thus, where two persons quarrel, and one throws a brick-bat at the other, who has 
 privately armed himself with a deadly weapon, and keeps it concealed, in expectation of 
 the affray, and, on such an assault being made upon him, immediately draws forth the 
 weapon, and, with it, kills the assailant, though then retreating; it was held, that a ver- 
 diet of murder would not be disturbed, though there was no proof of previous malice, 
 malice being implied from tlie res gestcB, and from the preparation of the defendant. 
 Slaughter v. The Conffuonwealth, 1 Leigh, 681. 
 
 And where two parties had previously had words, and a general challenge to fight 
 passed, and, three hours afterwards, the defendant, belonging to one of them, renewed 
 the challenge, which was accepted, and a fight ensued, which resulted in the death of 
 one of the other party, it was held murder. Commonwealth v. Crane, General Court of 
 Virginia, Nov. 1791. 2 Wheeler'' s cases, 587. 
 
 Where it appeared that the deceased had threatened the prisoner, about three weeks 
 before, that he would kill him, that they met in the street, on a star-light night, when 
 they could see each other, that the deceased pressed for a fight, but the prisoner retreated 
 a short distance, that when the deceased overtook him the prisoner stabbed him with 
 some sharp instrument which caused his death, and that, at the time of this meeting, the 
 deceased had no deadly weapon, it was held, that the offence was murder. State \. Scott, 
 4 Iredell, 409. , ._ 
 
 Where the deceased, after being married for some years, left the country; and his 
 wife, not hearing from him for two years, marrieu the defendant, though not under cir- 
 cumstances which would make the second marriage legal under the Pennsylvania 
 statute, and the deceased returned, after a lapse of a year from the second marriage, 
 and found his wife living with the defendant, upon which a quarrel arose, which was 
 partially composed, but wliicli ended in the defendant deliberately shooting the deceased 
 at his own house; it was held murder in the first degree. Commonwealth v. Smith, 
 7 Sniith''s Pa. Laws, Appendix, 2 Whfieler''s cases, 80. 
 
 Where, however, fresh provocation occurs between pre-conccived malice and death, it 
 ought clearly to appear that the killing was upon the antecedent malice; which may be 
 difficult, in some cases, to show satisfactorily, if the new provocation be a grievous one. 
 In such cases, it should not be presumed that they fought on the old grudge, unless it 
 appear by the whole circumstances of the fact. But, with respect to poisoning, that 
 necessarily im|ilics malice, however great the provocation may have been, because it is 
 a deliberate act, though no other proof of malice exists. 1 Hank. c. 31. s. 30. 3 Inst. 
 48. 4 Bl. Com. 193-200. F«.s/cr, (J8. Commonwealth v. Norton, 3 Boston Law Re. 
 porter, 241. Commonwr.nllh v. Kinney, ihid. 405. 
 
 By the common law, independent of all local legislation, it is not only murder for one 
 man to kill another in a duel, but his second, also, is guilty of murder: and the better 
 opinion is that this extends even to the second of him who was killed, because the death 
 iiaj>pcned u[>on a compact in which all were engaged. See ante, 443, and post, 453. 
 
 'i'o make a man principal in a murder, it is not necessary that he should inflict the 
 mortal wound. It is sufficient if he be present, aiding and abetting the act. Nor is it 
 nccesMary that there should be a particular malice against the deceased. It is sufficient 
 if there lie drlihcrate malignity and depravity in the conduct of the party. U. Slates v. 
 Ross, 1 Gallison. C. V. R. 524.
 
 HISTORIA PLACITORUM CORONA. 452 
 
 If there be an old quarrel betwixt Ji. and B. and they are recon- 
 ciled again, and then upon a new and sudden falling out A. kills B. 
 this is not murder, but if upon circumstances it appears, that the 
 reconciliation was but pretended or counterfeit, and that the hurt 
 done was upon the score of the old malice, then it is murder. 
 
 Malice may be exerted against a party in his absence ; as where A. lays poison for B. 
 in liis victuals, which B. afterwards takes and dies. So, where A. procures an idiot or 
 lunatic to kill B., whicli he does. In both instances A. is guilty of the murder as prin- 
 cipal, and B. is merely an instrument. Fauar's case, 4 Coke^ 446. Rex v. Giles, 
 1 Moodij, C. C. 166. Hawkins, c.l.s.2. ^ 
 
 Most of the above cases on the subject of express malice are collected in Wharton^s 
 Am. Cr.L.p.22't-9. 
 
 If two persons fight, and one overpower the other, and knock hfm down, and put a 
 rope round his neck and strangle him, this will be murder. Rex v. Shaw, 6 Car. 
 4" p. 372. 
 
 If persons cover another with straw and set fire to it, intending to do him a serious 
 injury, and he die, it is murder, though they did not intend to kill him. But if they 
 intended to act in sport, and merely to frighten him, it is manslaughter. Eriingtori's 
 case, 2 Lewin, C. C. 217. 
 
 Semble, that where guns are fired by one vessel at another vessel, and those on board 
 her generally, those guns are to be considered as shot at each individual on board her. 
 Rex v. Bailey, R. Sf R. C. C. 1. 1 Russ. C. Sf M. 109. 
 
 If a person being attacked should, from an apprehension of immediate violence — an 
 apprehension which must be well grounded and justified by the circumstances — throw 
 himself for escape into a river, and be drowned, the person attacking him is guilty of 
 murder. Reg. v. Pitts, 1 Car. Sf M. 284. 
 
 If a master, by premeditated negligence, or harsh usage, cause the death of his ap- 
 prentice, it is murder. Rex v. Self, 1 Leach, C. C. 137; 1 East, P. C. 226. 
 
 It is murder to cause the death of an infant of tender years, unable to provide food for 
 and take care of itself, by not providing sufficient food and nourishment, whether such 
 infant be child, apprentice or servant, whom the party is obliged by duty or contract to 
 provide for. Rex v. Squires, 1 Russ. C. Sf M. 426. 
 
 Where a person in loco parentis, inflicts corporal punishment on a child, and compels 
 it to work for an unreasonable number of hours, and beyond its strength, and the child 
 dies, the deatii being of consumption, but hastened by the ill-treatment, it will not be 
 murder, but only manslaughter in the person inflicting the punishment, although it was 
 cruel and excessive, and accompanied by violent and threatening language, if such per- 
 son believed that the child was shamming illness, and was really able to do the quantity 
 of work required. Rex v. Cheeseman, 7 Car. Sf P. 454. 
 
 On an indictment for the murder of an aged and infirm woman, by confining Ijer' 
 against her will, and not providing her with meat, drink, clothing, firing, medicines, and 
 other necessaries, and not allowing her the enjoyment of the open air, in breach of an 
 alleged duty; if the jury think that the prisoner was guilty of wilful neglect, so gross 
 and wilful that they are satisfied he must have contemplated her death, he will be guilty 
 of murder; but if they only think that he was so careless that her death was occa- 
 sioned by his negligence, though he did not contemplate it, he will be guilty of man- 
 slaughter. Reg. v. Marriott, 8 Car. Sf P. 425. 
 
 If a woman left her child, a young infant, at a gentleman's door, or other place where 
 it was likely to be found and taken care of, and tiie child died, it would be manslaughter 
 only; but if the cliild were left in a remote place, where it was not likely to be found, 
 e.g. on a barren heath, and the death of the child ensued, it would be murder, lb. 
 
 If a person do an act towards another wlio is helpless, which must necessarily lead to 
 the death of tiiat other, the crime amounts to murder; but if the circumstances are 
 such that the person could not have been aware that the result would be death, that 
 would reduce the crime to manslaughter, provided that the death was occasioned by an 
 unlawful act, but not such an act as showed a malicious mind. Reg- v. Walters, 
 1 Car. Sf M. 1 64. 
 
 "Malice is express" (says Chief Justice Parsons, Selfridire's Trial, p. 5.) "where there 
 was a premeditated intention to kill. Malice is implied when tiie killing is attended
 
 452 HISTORIA PLACITORUM CORONA. 
 
 « 
 If there be malice by Ji. against B. and by B. against A. and 
 they meet, and upon the account of that malice A. strii^es B. and B. 
 thereupon kills Ji. (otherwise than in his own necessary defense) it 
 is murder in B. but if they meet accidently, and Ji. assaults B. first, 
 and B. merely in his own defense, witliout any other malicious 
 design kills Ji. this is not murder in B. for it was not upon the ac- 
 count of the former malice, but upon a new and siidden emergency 
 for the safe-guard of his life; but if ,/?. and B. had met deliberately 
 lo fight, and A. strikes B. and pursues B. so closely, that B. in safe- 
 guard of his own life kills A. this is murder in B. because their 
 meeting was a compact, and an act of deliberation, and therefore 
 all, that follows thereupon, is presumed to be done in pursuance 
 thereof, and thus is Mr. Ballon, cap. 93. p. 241. (e) to be under- 
 stood. 
 
 But yet qusere, whether if B. had really and truly declined the 
 fight, ran away as far as he could, (suppose it half a mile,) ofFerd to 
 
 (i) New Edit, cap. 145. p. 471. 
 
 with circumstances which indicate great wickedness and depravity of disposition, a 
 heart void of social duty and fatally bent on mischief." " Malice is implied," says 
 Mr. East^ " from any deliberate act. however sudden." And he adds, (225.) " He who 
 wilfully and deliberately does any act which apparently endangers another's life, and 
 thereby occasions his death shall, unless he clearly prove the contrary, be adjudged to 
 kill him of malice prepense." " Malice," says Judge Addison, quoted and approved 
 by Judge Rush, (trial of Richard Smith, in Philadelphia, for murder of John Carson, 
 May, 1816, p. 83.) "is a deliberate, wicked, vindictive temper, regardless of social 
 duty, and bent on miscliief. When a wilful killing is proved, the law presumes malice, 
 unless the killer prove the contrary," {page 84.) Deliberate killing witliout passion, 
 whatever may have been the provocation, is murder. In pape 231 it is said, the law 
 does not fix the time of such deliberation. " If the defendant has time to think," said 
 Judge Rush, in that trial, {pa<re 231.) " and did intend to kill for a minute, as well as 
 for an hour or a day, it is a deliberate, premeditated killing, constituting murder. To 
 deliberate is to reflect with a view to make a choice, and a reflection but for a minute 
 is a sufficient deliberation. No time is too short for a wicked man to frame in his 
 mind a scheme of murder, and to contrive the means of accomplishing it." 
 
 If a man, says Chief Justice Parker, in Philips^ Trial, 45, kills another suddenly with 
 slight or no provocation, the law implies malice. 
 
 Foster says, (Crown Law, 380,) malice is implied where an officer is killed in the law- 
 ful discharge of his duty. Lord //aZe expresses it rather more strongly: "To kill an 
 officer in the faithful discharge of his duty, is murder, and the law will imply the highest 
 dvgree of malice," post, 465. 
 
 Malice may also be inferred from the instrument used, the mode in which the weapon 
 was obtained and selected, especially if it was the best choice for the purpose; the 
 manner, too, in which the wea|)on was used, the repetition of dangerous wounds, the 
 choice of vital spots for those wounds, and the perseverance in the assault until death 
 be produced ; these are all circumstances indicative of malice. Deliberate malice may 
 also be seen in the mode of attack, the time selected for it when the victim is off hfs 
 guard, when he has no o]>portunity for self defence, when stabs are given from behind) 
 pursuing a man, selecting him from among others, advancing on him in a studied, cir- 
 cuitous manner which could not be perceived, intercepted, or prevented, also show calcu- 
 lation, deliberation, and malice. 
 
 Finally, ifthere was cause, real or imaginary, for. resentment ; if the purpose of killing 
 was long harboured; if no motive but revenge can be assigned for the fatal deed; if re- 
 venge was harboured, and if previous threats have been made, these facts would be evi- 
 dcnee of express malice.
 
 HISTORIA PLACITORUM CORONA. 452 
 
 yield, and yet A. refusing to decline it had attempted his death, and 
 B. after all this kills A. in his own defence, whether it excuseth him 
 from murder; but if the running away were only a pretense to save 
 his own life, but was really designed to draw out A. to kill him, it 
 were murder. [7] 
 
 Ji. commands B. to kill C. and before the act done repents, and 
 countermands B. and charges him not to do it, yet B. doth it, Ji. is 
 not guilty. Coke P. C. p. 51. 
 
 A. challenges C. to meet in the field to fight, C declines it as 
 much as he can, but is threatened by A. to be posted for a coward, 
 4-c. if he meet not, and thereupon A. and B. his second, 
 and C. and D. his second, meet and fight, and C. kills A. [453] 
 this is murder in C. and D. his second, and so ruled in P. 
 14 Jac. in 2\ivernerh case,(A^) tho C. unwillingly accepted the chal- 
 lenge.[S] 
 
 But if it seems not to be murder in B. because tho he had malice 
 against C. and D. his opponents, yet he had none against ./?. tho 
 some have thought it to be murder also in B. because done by com- 
 pact and agreement. 22 Eliz. 3. 262. sed quaere de Aoc.[9] 
 
 If A. challenge B. to fight, B. declines the challenge, but lets A. 
 know, that he will not be beaten, but will defend himself; if B. 
 going about his occasions wears his sword, is assaulted by A. and 
 kild, this is murder in A. but if B. had kild A. upon that assault, it 
 
 (it) 1 Rol. Rep. 360. 3 Bui. 171. 
 
 [7] This quere of lord Hale is discussed by Mr. East, and it is observed that Black- 
 atone (4 Bl. Com. 185,) expressly puts the same case of a duel as Hale, but does not 
 subjoin the same doubt; and that it was considered as settled law by tlie Cliief Justice 
 in Onely^s case, {Ld. Raymond, 1489.) Mr. East, after reasoning in extenuation of the 
 crime of one so declining to tight, proceeds thus : "Yet still it may be doubtful, whether, 
 admitting the full force of this reasoning, the offence can be less than manslaughter, or 
 whether in such case the party can altogether excuse himself upon tlie foot of necessity 
 in self-defence, because the necessity which was induced from his own faulty and illegal 
 act, namely, the agreement to fight, was in the first instance deliberately foreseen and 
 resolved upon, in defiance of the law." 1 East, P. C. c. 5. s. 54. p. 284. 
 
 [8] Upon this principle, deliberate duelling if death ensuelh, is in the eye of the law 
 murder; for duels are generally founded in deep revenge; and though a person should 
 be drawn into a duel, not upon a motive so criminal, but merely upon the punctilio of 
 what the swordsmen falsely call honour, that will not excuse; for he that deliberately 
 seeketh the blood of another upon a private quarrel, actetli in defiance of all laws, 
 human and divine, whatever his motive may be. Foster, 297. 1 Hawk.c. 31. s. 21, 22- 
 29. 4 Bl. Com. 191. 3 Inst. 51. Lord Morlei/s case, 7 St. Tr. 421. 
 
 Both principals and seconds are liable for murder if either of the parties are killed, 
 all being engaged in an unlawful act, having for its direct object the taking of life. 
 The old view, that the second of the killed is not liable, is now not law, if it ever was. 
 Rrg. V. Young. 8 Car. &; P. 644. See also Smith v. The State, 1 Yerger, 228. Rex v. 
 Rice, 3 East, 581. Rex v. Murphy, 6 C. Sf P. 103. 1 Rol. Rep. 360. ante, 443. 
 
 If, however, the comhat is not deliberate, but the immediate consequence of sudden 
 quarrel, it does not fall within this doctrine, and must be judged of by the circum- 
 stances attending the particular case. Foster, 295. 1 East, P. C. 242. 
 
 [9] The later cases consider all present, aiding and abetting, alike guilty of murder, 
 and do not recognise the distinction made in the text. See ante, p. 443, and p. 453, 
 note. 
 
 VOL. I.— 39
 
 453 HISTORIA PLACITORUM CORONA. 
 
 had been se defendetido, if he could not otherwise escape, or bare 
 homicide, if he could escape, and did not. 
 
 But if B. had only made this as a disguise to secure himself from 
 the danger of the law, and purposely went to the place, where pro- 
 bably he might meet ./?. and there they fight, and he kills »/?. then it 
 had been murder in B. but herein circumstances of the fact must 
 guide the jury. 
 
 If ./?. and B. fall suddenly, out, and they presently agree to fight 
 in the field, and run and fetch their weapons, and go into the field 
 and fight, and ./?. kills B. this is not murder but homicide, for it is 
 but a continuance of the sudden falling out, and the blood was 
 never cooled ; but if there were deliberation, as that they meet the 
 next day, nay, tho it were the same day, if there were such a com- 
 petent distance of time, that in common presumption they had time 
 of deliberation, then it is murder. Co. P. C. p. 51. Jac. B. R. Ferrer^s 
 case, Al. 8 Jac. B. R. Morgan'' s case. [10] 
 
 A. the son of B. and C. the son of D. fall out in the field and 
 fight, A. is beaten, and runs home to his father all bloody, B. pre- 
 sently takes a staff, runs into the field, being three-quarters of a 
 mile distant, and strikes C that he dies, this is not murder in B. 
 because done in sudden heat and passion. T. 9 Jac. B. R, 12 Co. 
 Rep. p. 87.(/)[ll] 
 
 (Z) Cro. Jac. 296. Royleifs case. 
 
 [10] Foster, 296. Rex v. Lynch, 5 C. 4" P. 324. Reg. v. Kiikham, 8 C. Sf P. 115. 
 
 [11] In every case of homicide upoa provocation, how great soever it be, it' there is suffi- 
 cient time for passion to subside, and for reason to interpose, sucii homicide will be mur- 
 der. A. findelh a man in the act of adultery with his wife, and in the first transport of 
 passion kiUeth liim; this is no more than manslaughter. But had he killed the adulterer 
 deliberately and upon revenge after the fact and sufficient cooling time, it had been un- 
 doubtedly murder. For let it be observed, that in all possible cases deliberate homicide 
 upon a principle of revenge is murder. No man under the protection of the law is to be 
 the avenger of his own wrongs. If they are of such a nature for which the laws of so- 
 cicty will give him an adequate remedy, thither he ought to resort. But be they of what 
 nature soever, he ought to bear his lot with patience, and remember that vengeance be- 
 longeth only to the Most High. 1 Vent, 158. Sir T. Raijm. 212, 
 
 But if, upon a sudden quarrel, the parties fight upon the spot, or if they presently 
 fetch their weapons and go into the field and figlit, and one of tlicm falleth, it will be but 
 manslaughter; because it may be presumed the blood never cooled. It will be otiierwise 
 if they ap[)()iiit to fight the ne.\t day, or even upon the same day at such an interval as 
 that llie jiassion might have subsided: or if from any circumstances attending the case 
 it may be reasonably concluded, that their judgment had aetnully controlled the first 
 trans])orts of passion before they engaged, 'i'he same rule will hold, if after a quarrel 
 tiiey liiU into other discourse or diversions, and continue so engaged a reasonable time 
 for cooling. Foster, 297. AeZ. 27. 1 /i«icA:, c. 31. s. 22, 29. 4 /«. Com. 191. ^ Inst. 51. 
 1 Bulut, 86. See Murlcy's case, 7 St. Tr. 421. Croinp. 23. Kel. 56. 
 
 Where a man assailed has retreated from the assailant, and is secure in his separation 
 from further personal aggression, he has no right to return armed to the scene of con- 
 fliet, and voluntarily engage in a new contest with the aggressor. If he do so, and slay 
 liiin, he is guilty of miarder or munslaughler, according to the circumstances under 
 which the homicide is committed. If, on receiving such a deadly assault, he suddenly 
 leave the scene of outrage, procure arms, and in the heat of blood consequent upon the 
 wrong, return and renew the combat, and slay his adversary, both being armed, sucii an 
 homicide would be hut manslaughter. For the law from its sense of and te iderness to- 
 wards human infirmity, would consider that sufficient time had not elapsed for the blood
 
 HISTORIA PLACITORUM CORONiE. 454^ 
 
 A boy came into Osterhj park to steal wood, and seeing the 
 woodward climbs up a tree to hide himself, the woodward bids 
 him come down, he comes down, and the woodward struck iiiin 
 
 to cool and reason to resume its empire over the mind, smarting under the original 
 wrong. Com. v. Hare, 4 Penn. Law Jour. 257. The law assigns no limits within which 
 cooling time may be said to take place. Every case must depend on its own circum- 
 stances, Coin. V. Dougherty, 7 Smith's Law, 695, but the time in which an ordinary 
 man, in like circumstances, would have cooled, may be said to be the reasonable time. 
 Stale V. MCards, 1 Spear, 384. 
 
 In 1725, John Onelij was indicted for the murder o^ William Gower, and a special ver- 
 dict was found, stating that the prisoner, being in company with the deceased and three 
 other persons at a tavern in a friendly manner, after some time began playing at hazard, 
 when Rich, one of tlie company, asked if any one would set him three half-crowns, 
 whereupon the deceased, in a jocular manner, laid down three half-pence, telling Rich 
 he had set him tliree pieces, and the prisoner at the same time set Rich three half- 
 crowns, and lost them to him; immediately after which the prisoner, in an angry man- 
 ner, turned about to the deceased, and said, "it was an impertinent thing to set half- 
 pence, and that he was an impertinent puppy for so doing;" to which the deceased 
 answered, "whoever called him so was a rascal." Thereupon tlie prisoner took up 
 a bottle, and witli great force threw it at the deceased's head, but did not hit him, 
 the bottle only brushing some of the powder out of his hair. The deceased, in return, 
 immediately tossed a candlestick or bottle at the prisoner, which missed him; upon 
 wiiich lliey both rose up to fetch their swords, which then hung up in the room, and the 
 deceased drew his sword, but the prisoner was prevented from drawing liis by the com- 
 pany; tlie deceased thereupon tlirew away his sword, and the company interposing, 
 they sat down again for the space of an hour. At the expiration of that time the de- 
 ceased said to the prisoner, " we have had hot words, but you were the aggressor; but I 
 think we may pass it over, and at the same time offered his hand to the prisoner, who 
 made answer, "No, damn you, I will have your blood;" after which, the reckonino- 
 being paid, all the company except the prisoner left the room; but he, calling back the 
 deceased, closed the door, and the rest of the company, shortly after, hearing a clashing 
 of swords, found the deceased had received from the prisoner a mortal wound. It was 
 further found, that from the throwing of the bottles there had been no reconciliation. 
 Upon these facts all the judges were of opinion, that the defendant had been guilty of 
 murder, and that from the period which had elapsed there had been reasonable time for 
 cooling. 
 
 In delivering the opinion in this case, Raymond, C. J. discussed the subject of coolino- 
 time at length, and said, among other things, that " in cases of this nature the judges 
 are to determine what is malice, or what is a reasonable time to cool; and they must do 
 it upon the circumstances of the case; the jury are judges only of the fact, and we 
 must determine whether it be deliberate or not. Hence it is, that in summing up an 
 evidence, the judges direct the jury, — if you believe such a fact, it is so; if not, it is 
 otherwise; and they find either a general or a special verdict upon it. There is no 
 instance where the jury ever found that the fact was done of malice, or that the party 
 had or had not time to cool; but that must be left to the judges upon the circumstances 
 of the case. In Holloway^s case, it was left to the court to determine whether the tying 
 the boy to the horse's tail was not a malicious act. So in the case of the two boys who 
 had quarrelled, and the father ran after one of them and killed him, the court, and not 
 the jury, determined whether it was malice or not. Palm. 545. 
 
 In Bromicick's case, 1 Lev. 180, the declining an immediate encounter, because of 
 the disadvantage of his high heels, was held to be a deliberate act, that manitestcd a 
 coolness : and the same has been held, where the parties have debated about the cou- 
 veniency of place. A'e/yng, 56. 
 
 If A. says to B. I will give you a pot of ale to strike me, and B. strikes hi-hi, and 
 immediately A. kills B , it is murder; for A. knew what he was about, and deliberated 
 with himself how he might perpetrate the fact, and be at the same time (as he thought) 
 witliin the protection of the law. Crnmp. 49. 
 
 From all which cases it appears, that though the law of England is peculiarly favour- 
 able m making this distinction with regard to the passions of men, yet it must be such 
 a paission as for the time deprives a man of the exercise of his reason ; and wherever it
 
 454^ HISTORIA PLACITORUM CORONA. 
 
 twice, and then bound him to his horse-tail, and dragged him till 
 liis shoulder was broke, whereof he died; it was ruled murder, be- 
 
 has appeared that he had the exercise of his reason, he is out of the protection of the 
 law, and has been held guilty of murder. Here was a reasonable titne to cool, and it is 
 plain it had its operation : the prisoner was cool enough to discourse for an hour; he de- 
 termined in his own mind upon deliberation what he would do; and declared his inten- 
 tion in those bitter and deliberate expressions : '* No, he would not pass it over, damn 
 him, he would have his blood;" the young man must come back, for he had something 
 to say to him. The interchange of blovv's, where there is malice, will make no altera- 
 tion : it does not, indeed, appear who struck first upon his returning into the room ; but 
 it is sufficient that the verdict finds no act inconsistent with the malicious declaration of 
 the party; nor can the declaration of the party deceased avail in this case, for that goes 
 only to his receiving the wound in a fair manner with regard to the nature of the com- 
 bat." Rex V. Onely, 2 Strange, 766. , 
 
 Where the defendant, having been violently beaten and abused, made his escape, ran 
 to his house, eighty yards off, got a knife, ran back, and on meeting with the deceased, 
 stabbed him, it was held but manslaughter; but it was said that if, on the second 
 meeting, the defendant had disguised the fact of having a weapon for the purpose 
 of inducing the deceased to come witliin his reach, it would have been murder, such 
 concealment affording ground for the presumption of dehberation. Slate v. Norris, 
 1 Bay, 429. 
 
 In order to mitigate a homicide, committed in a second combat, by vi^hat oc- 
 curred at a previous one, which had fairly began on the sudden, both contests must 
 be considered as making one combat, or the first as a separate combat, must be con- 
 sidered as a sufficient sudden provocation for either a second combat, or for a sub- 
 sequent attack producing a contest not entitled to be called a mutual combat. Where 
 it appeared that the prisoner and the deceased, alter having been engaged in mutual 
 combat, on sudden occasion, fairly begun, were separated at the request of the priso- 
 ner, who was overcome and beaten in the contest; that the prisoner was held by one 
 of the persons present, but drew his knife and swore he would kill the deceased ; that 
 after releasing himself from the person holding him, he pursued the deceased, who had 
 left the place of combat, and who, upon being apprized of the pursuit by a call from 
 the person holding the prisoner, left the road on which he was walking, and provided 
 himself with a rail from a neighbouring fence; that on his return towards the road he 
 met the prisoner, gave back and struck liim several blows upon the head as he rushed 
 on, with the rail, which, breaking some ten paces from the point where the deceased 
 began to give back, the prisoner closed and inflicted the mortal blow; and that suffi- 
 cient time liad transpired, not only for the deceased to adjust himself after the fight 
 and walk deliberately two hundred and twenty-five yards, but for the prisoner after- 
 wards to pass over the same ground, as also for a person at a neighbouring house, 
 within hearing of the noise of the second quarrel, to reach the place of strife. The 
 court, under this state of facts, were of opinion, that both contests could not have con- 
 stituted one combat, nor could the second, in which the prisoner rushed with his drawn 
 knife upon his adversary, who had snatched the readiest means of defence at hand, 
 but was neither equally armed, nor willing to meet such a weapon, have been that fair 
 struggle which the law denominates a mutual combat. The jury having found a ver- 
 dict of guilty, the court refused to dif^turb it. State v. McCunts, 1 Spear, 384. 
 
 If a father see a person in the act of committing an unnatural offence with his son, 
 and insitantly kill him, it seems that it would be only manslaughter, and that of the low- 
 est degree; but if he only hear of it, and go in search of the person, and meeting liim, 
 strike him with a stick, and afterwards stab him with a knife and kill fiim, in point of 
 law, it will be murder. Kerr. v. Fisher, 8 Car. t^- P. 182. 
 
 In the same case, jier Park Baron, and Recorder Law. 
 
 In a case of killing, whether the blood has hud time to cool or not, is a question for 
 the court and not for the jury; hut it is for the jury to find what length of time elapsed 
 between the provocation received and the act done. lb. 
 
 Where the prisoner and the deceased, who were previously on intimate terms, were at 
 a public house drinking, when a scuflle ensued, and tlie deceased struck the prisoner in 
 the eye and gave Jiiin a black eye, the prisoner called for the police, and went away upon
 
 HISTORIA PLACITORUM CORON^E. 454*= 
 
 cause, 1. The correction was excessive, and 2. It was an act of 
 deliberate cruelty. M 4 Car. B. R. HoUowcnfa case. (m) [12] 
 
 If the master desigiieth moderate correction to his servant, and ac- 
 cordingly iiseth it, and the servant by some misfortune dieth thereof, 
 this is not murder, but per infortunium. Crompt. 136. b. Dalt. 
 Clip. ^%. p. 245.,(?j) because the law alloweth him to use moderate 
 correction, and therefore the deliberate purpose thereof is not ex 
 malitid prsccogitata. 
 
 But if the master design an immoderate or unreasonable cor- 
 rection, either in respect of the measure, or manner, or instrument 
 thereof, and the servant die thereof, I see not how this can be ex- 
 cused from murder, if done with deliberation and design, nor from 
 manslaughter, if done liastily, passionately, and without delibera- 
 tion ; and herein consideration must be had of the manner of the 
 provocation, the danger of the instrument, which the master useth, 
 and the age or condition of the servant that is stricken, and the like 
 of a school-master towards his scholar.(o) 
 
 The sheriff hath a warrant to hang a man for felony, and he 
 beheads him, this is held murder, for it is an act of deliberation. 
 Co. P. C.;?. 52.[13] 
 
 A man hath the liberty of Infangthief€,{p) the steward of the 
 court gives judgment of death against a prisoner against law, this 
 was a cause of seizure of the liberty, but was not murder in the 
 
 (m) Cro. Car. 131. W. Jones, 198. Kelyng, 127. (o) Kehjng, 64, 65. 
 
 (n) Cap. 148. p. 478. {p) See Spelman's Glossary, 313. 
 
 the policeman coming up; in about five minutes, iiowever, he returned and stabbed the 
 deceased vvitli a Itnife, which he usually carried about him: Lord Tenterden, C. J., said, 
 that it was not every slight provocation, even by a blow, which will, when the party re- 
 ceiving it striiies with a deadly weapon, reduce the offence from murder to manslaughter; 
 and that, if there had been any evidence of an old grudge between tiie parties, the crime 
 would probably be murder; but he left it to the jury to say, whether, in the interval 
 during which the prisoner was absent, there was time for his passion to cool and reasoa 
 to gain dominion over his mind: if not, they should find him guilty of manslaughter 
 only. Rex v. Lynch, 5 C. Sf P. 324. 
 
 If, in fine, there be a sufficient cooling time for passion to subside and reason to inter- 
 pose, and the person so provoked afterwards kill the other this is deliberate revenge, and 
 not heat of blood, and accordingly amounts to murder. Wh. A7n. C. L. 247. State v. 
 Yarborough, 1 Hawks, 78. Rex v. Tliomas, 1 C. Sf P. 817. 1 Hawkins, P. C. c. 31. s. 29. 
 State v. Ruthfrford, 1 Haieks. 329. U. S. v. Thayer, 2 Wheeler, C. C. 503. People v. 
 Garretson, 2 Wheeler's C. C. 347. Rex v. Rankin, 1 R. i^- R. 43. Rex v. Ayres, ibid. 
 1 East, P. C. 243. Rex v. Anderson, 1 Russ. 447. Rex v. Kissell, 1 C. &; P. 43T. 
 Commonwealth v. Daily, 4 Penn. Law Journal, 156. Comnionwealth v. Green, 1 Ash- 
 vuad, 289. 
 
 [12] So in all other cases when, upon a sudden provocation, one beats another in a 
 cruel and unusual manner so that he dies, it is murder. 4 Bl. Com. 199. R. v. Tranter, 
 et al, 1 Strange, 499. Foster, 291. So also when tlie instrument used evidently en- 
 dangers life, malice will be implied. Rex v. Howland, 1 C. S^ P. 274. Macklin's case, 
 1 Lew. 225. I Hawk. P. C. c. 31. s. 39. Com. v. Drew, 4 Mass. 3d\. State v. Morgan, 
 3 Iredell, 136. Com. v. Murray, 2 Ashmead, 41. Penna. v. Bell Addison, 1G3; and the 
 intention to kill, see Murder of First and Second Degrees, post, page 454. 
 
 [13] See post. 406-502.
 
 454* HISTORIA PLACITORUM CORONA. 
 
 judge, quia factnm judiciqUter, licet ignoranter. 2 R. 3. 10. a. the 
 case of the steward of the hberty of the abbot of Crowland.{\'\'\ 
 
 [14] The statutes which have chiefly affected the law of homicide since Holers time 
 are as follow : 
 
 The act, 9 Geo. 4. c. 31. " for consolidating- and amending the statutes oi England rela- 
 tive to offences against the person," provides: 
 
 I. Tliat so much of the great charter made in tiie nintli year of the reign of king 
 Henry the Third, as relates to inquisitions of life or member; and so much of a 
 statute made in the fifty -second year of the same reign, as relates to murder; and so 
 much of a statute made in the third year of the reign of king Edward the First, as 
 relates to inquests of murder ; and sr much of a statute made in the sixth year of the 
 same reign, as relates to any person killing another by mistbrtune or in his own de- 
 fence, or in other manner without felony ; and so much of a statute made in the 
 second year of the reign of king Henry the Fifth as relates to persons fleeing for mur- 
 ders, manslaughters, robberies, and batteries; an act passed in the twenty-fourth year 
 of the reign of king Henry the Eighth, intituled, ''An act where a man killing a 
 thief shall not forfeit his goods;" so much of an act passed the thirty-third year of the 
 same reign, intituled "An act for murther and malicious bloodshed within tiie Courts," 
 as relates to the punishment of manslaughter and of malicious striking, by reason where- 
 of blood shall be shed ; so mucli of an act passed in the first year of the reign of 
 king Edward the Sixth, intituled "An act for the repeal of certain statutes concern- 
 ing treasons, felonies, &c.," as relates to petty treason, murder, &c. ; an act passed the 
 fourth and fifth years of the reign of king Philip and queen Mari/, intituled "An act 
 that accessaries in murder and divers felonies shall not have the benefits of the clergy;" 
 an act passed in the first year of the reign of king Jumes the First, intituled "An act to 
 take away the benefit of clergy from some kind of manslaughter;" an act passed in the 
 second year of the reign of king George the Second, intituled, "An act for the trial of 
 murders in eases where either the stroke or death only happens within that part of Great 
 Britain called England;" tiiat part of the act of the twelfth year of king George the 
 First which is hereinbefore referred to, and the whole of an act in the twenty-fifth year 
 of the reign of king George the Second, intituled, " An act for better preventing the 
 horrid crime of murder," except so far as relates to rescues and attempts to re?cue; an 
 act passed in the forty-third year of the reign of king George the Third, intituled, "An 
 act for the further prevention of malicious shooting, and attempting to discharge loaded 
 fire arms, stabbing, cutting, wounding, poisoning, and the malicious using of means to 
 procure the miscarriage of women, and also the malicious setting fire to buildings ; and 
 also for repealing a certain act made in England in the twenty-first year of the late king 
 James ihe First, intituled, " An act to prevent the destroying and murthering bastard 
 children," and also an act made in Ireland in the sixth year of the reign of the late queen 
 Anne, also intituled '' An act to prevent the destroying and murdering of bastard chil- 
 dren," and for making other provisions in lieu thereof^ and an act passed in the same 
 forty-third year, intituled, " An act for the more effectually providing for the punishment 
 of offences in wilfully casting away, burning or destroying ships and vessels, and for the 
 more convenient trial of accessaries in felonies, and for extending the powers of an act 
 made in the thirty-third year of the reign of king Henry tiie Eighth, as far as relates to 
 murders, to accessaries to murders, and to manslaughters;" so much of an act passed in 
 the first year of the reign of his ])resent majesty, intituled, "An act to remove doubts 
 and to remedy defects in the law with respect to certain offences committed upon the 
 sea or within the jurisdiction of the Admiralty," as refers to the act of the forty. third 
 year of the reign of George the Third hereinbefore first mentioned; an act passed the 
 first year of the reign of his present majesty, intituled, "An act to repeal so much of the 
 several acts passed in the thirty-ninth year of the reign of Elizabeth, tho fourilt of George 
 the First, the fifth and eighth of George the Second, as inflicts capitiil i)unishnient 
 on certain offences therein specified, and to ])rovide more suitable and effectual punish- 
 ment for such offences;" and an act pass-ed in the third year of the present reign, inti- 
 tuled "An act for the further and more adequate punishment of persons convicted of 
 manslaughter, and of servants convicted of robbing tlieir masters, and of accessaries be- 
 fore the fact of grand larceny, and certain other felonies," sliall continue in force until 
 and throughout the last day oi' June in the present year, and shall from and ailcr that
 
 HISTORIA PLACITORUM CORONA. 454« 
 
 day as to that part of the United Kingdom called England, and as to offences committed 
 witliiii the jurisdiction of the Admiralty of England, be repealed, except so far as any of 
 the said acts may repeal the whole or any part of any other acts, and except as to 
 otfences committed before or upon the said last day of June, which shall be dealt with 
 and punished as if tiiis act had not been passed; and this act shall commence and take 
 effect (except as hereinbefore excepted) on the first day of July in the present year. 
 
 II. That every offence which before the commencement of this act would have 
 amounted to petit treason, shall be deemed to be murder only, and no greater offence; 
 and all persons guilty in respect thereof, whether as principals or as accessaries, shall be 
 dealt with, indicted, tried and punished as principals and accessaries in murder. 
 
 III. Provides for the punishment of principals and accessaries in murder. 
 
 IV. Provides for period of execution as to marks of infamy — sentence to be pronounced 
 immediately — judges power to respite. , 
 
 V. Provides for the dissection of the bodies of murderers. 
 VL Prison regulation as to murderers under sentence. 
 
 VII. British subjects charged in England may be tried there for murder or man- 
 slaugliter committed abroad. 
 
 VIII. Provides for the trial of murder and manslaughter in England when the death 
 or the cause of the death only happens in England. 
 
 IX. Provides for the punishment of manslaughter. 
 
 The Act of 2 t^ 3 Will. IV. c. 7.5. s. IG. repeals so much of the foregoing act of 9 Geo. 
 IV. c. 31. as directs that the bodies of murderers may be dissected — and provides that 
 such bodies may be hung in chains or buried as the court shall direct. 
 
 The Act of 4 Sf 5 Will. IV. c. 26. 
 
 I. Recites that whereas by an act passed in the 9th year of Geo. IV. it was enacted, That 
 the body of every person convicted of murder should after execution either be dissected or 
 hung in chains as to the court which tried the offender should seem meet. And whereas 
 by an act passed in the 10th year of the same reign alike provision is made with re.>pect 
 to persons convicted of murder in Ireland. And whereas by an act passed in the second 
 and third years of Will. IV. so much of the provision of the act passed in the ninth year 
 of Gen. IV. as authorized the court to direct that the body of a person convicted of murder 
 slmuld after execution be dissected is repealed, and instead thereof it was enacted that 
 such court shall direct that a prisoner so convicted shall be either hung in chains or 
 buried within the precincts of the prison in which such prisoner shall have been confined 
 after conviction, as to the court should seem meet; and that the sentence to be pronounced 
 by the court should express that llie body of such prisoner shall be either hung in chains 
 or buried within the precincts of the prison — and whereas it is expedient to amend these 
 acts — enacts, That so much of the Act of 9 Geo. IV. as authorizes the court to direct 
 that the body of a person convicted of murder should, after execution, be hung in chains, 
 and also so much of the Act of 10 Geo. IV. as authorizes the court to direct that the 
 body of a person convicted of murder should, after execution, be dissected or hung in 
 chains, and also so much of the Act of the 2d & 3d Will. IV. as provides, that in every 
 case of conviction of any prisoner for murder, the court shall direct such prisoner to be 
 hung in chains, is hereby repealed. 
 
 II. That in every case of conviction in Ireland, of any prisoner for murder, the court 
 shall direct such prisoner to be buried within the precincts of the prison where he shall 
 have been confined after conviction. ■ ' 
 
 The Act of 6 &- 7 Will. IV. c. 30. 
 
 I. Repeals so much of two Acts of 9 and 10 Geo. IV, as directs the period "of execution, 
 and the prison discipline of persons convicted of the crime of murder; and 
 
 II. Enacts, that sentence of death may be pronounced after convictions for murder, in 
 the same manner, and the judge shall have the same power, in all respects, as after con- 
 viction for other capital offences. 
 
 UNITED STATES. 
 
 In the United States statutory enactments have made some changes in the ancient 
 doctrines of homicide. The rules of construction, however, remain the same and the 
 meaning of technical terms is unaffected. In questions of the law of homicide, the com- 
 mon law authorities are the basis on which courts apply the. statutes of the several states. 
 U. S. V. Manrill, 1 TV. C. C. R. 4G3. Pa. v. M Fall, Add. A56. Com. v. Thompson, G Mass. 
 134. Slate \: ZAler, 3 Halslcad, 220. State v. Norris, 1 Hay, 429. State v. Weaver, 
 2 Hay. Com. v. Daily, 4 Fcnn. Law Journal, 154.
 
 454^ HISTORIA PLACITORUM CORONiE. 
 
 The Act of Congress of April 30, 1790, provides: If any person or persons shall com- 
 mit, upon tlie higli seas, or in any river, liaven, basin, or bay, out of the jurisdiction of 
 any particular State, murder or robbery, or any other offence, which, if Gommittcd with- 
 in tlie body of a county, would, by tiie laws of the United Stales, be punisliable with 
 death; or if any captain or mariner of any ship or other vessel, shall piratically and felo- 
 niously run away with such ship or vessel, or any goods or merciiandise to the value 
 of filty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman 
 shall lay violent hands upon his commander, thereby to hinder and prevent his fighting 
 in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship; 
 every such offender shall be deemed, taken and adjudged to be a pirate and felon, and 
 being thereof convicted shall suffer death; and the trial of crimes committed on the high 
 seas, or in any place out of the jurisdiction of any particular state, shall be in the district 
 where the offender is appreiiended or into which he may first be brought. — Act 30th 
 April, 1790, sect. 8. See post. Act of 3d March, 1845, sec. 4. 
 
 If any seaman or other person shall commit manslaughter upon the high seas, or 
 confederate, or attempt or endeavour to corrupt any commander, master, officer, or mari- 
 ner, to yield up, or to run away with any vessel, or with any goods, or to turn pirate, 
 or to go over to or confederate with pirates, or in any wise trade with any pirate' know- 
 ing him to be such, or siiall furnish such pirate with any ammunition, stores or provi- 
 sions of any kind, or shall fit out any vessel knowingly and with a design to trade with 
 or supply or correspond with any pirate or robber upon the seas; or if any person shall 
 any ways consult, combine, confederate or correspond with any pirate or robber on the 
 seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall 
 confine the master of any vessel, or endeavour to make a revolt in such vessel; such per- 
 son so offending, and being thereof convicted, shall be imprisoned not exceeding three 
 years, and fined not exceeding one thousand dollars. Ihid. sect. 12. 
 
 If any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in 
 any other place or district of country, under the sole and exclusive jurisdiction of the 
 United Stales, commit the crime of wilful murder, such person or persons, on being 
 thereof convicted, shall suffer death. Ibid. sect. 3. 
 
 If any person or persons shall, within any fort, arsenal, dock-yard, magazine, or other 
 place or district of country, under the sole and exclusive jurisdiction of the United States, 
 commit the crime of manslaughter, and shall be thereof convicted, such person or persons 
 shall be imprisoned not exceeding three years, and fined not exceeding one thousand 
 dollars. Act 30th April, 1790, sec. 7. 
 
 If any person upon the high seas, or in any arm of the sea, or in any river, haven, 
 creek, basin or bay, within the admiralty and maritime jurisdiction of the United States, 
 and out of the jurisdiction of any particular state, shall commit the crime of wilful 
 murder, or rape, or shall, wilfully and maliciously, strike, stab, wound, poison, or shoot 
 at, any other person, of which striking, stabbing, wounding, poisoning, or shooting, such 
 person shall afterwards die upon land within or without the United States, every person 
 so offending, his or her counsellors, aiders or abettors, shall be deemed guilty of felony, 
 and shall upon conviction thereof, suffer death. Act 3d March, 1 825, sect. 4. 
 
 Whenever any criminal, convicted of any offence against the United Slates, shall be 
 imprisoned in pursuance of such conviction, and of the sentence thereupon in the prison 
 or penitentiary of any state or territory, such criminal shall, in all respects, be subject to 
 the same discipline and treatment as convicts sentenced by the courts of the state or ter- 
 ritory in which such prison or penitentiary is situated; and, while so confined therein, 
 shall also be exclusively under the control of the oflicers having charge of the same, under 
 the laws of the said state or territory. Act of June 30, 1834. 
 
 In a case before the Supreme Court of the United States, in 181 8, the cotlrt said, that 
 admitting that the third article of the constitution of the United States, which declares 
 that, ''The judicial power shall extend to all cases of admiralty and maritime jurisdic- 
 tion," vests in the United Stall s exclusive jurisdiction of all such cases, and that a nmr- 
 der committed in the waters of a state, where the tide ebbs and flows, is a case of admi- 
 ralty and maritime jurisdiction; Congress have not, in the 8th section of the act of 1791, 
 ch. 9. " for the punishment of certain offences against the United Slates," so exercised 
 this power as to confer on the courts of the United States jurisdiction over such murder. 
 United States v. liivans, 3 Whcaton, 33G. 
 
 Congress having in the 8th section of the act of 1790, chapter 0th, provided for the 
 punishtnent of murder, iVc. committed " upon the hijrh seas, or in any river, haven, 
 basin or bay, out of the jurisdiction of any ijarticiilar State," it is not the offence com- 
 mitted, but the bay, &.C. in which it is conunittcd, that must be out of the jurisdiction of 
 the State. Ibid.
 
 HISTORIA PLACITORUM CORONA. 4546 • 
 
 The grant to the United States in the constitution of all cases of admiralty and mari- 
 time jurisdiction, does not extend to a cession of the waters in which these cases may 
 arise, or of general jurisdiction over the same. Congress may pass all Inws which are 
 necessary for giving the most complete effect to the exercise of the admiralty and mari- 
 time jurisdiction granted to the government of the Unon; but the general jurisdiction 
 over the place, subject to this grant, adheres to the territory as a portion of territory not 
 yet given away; and the residuary powers of legislation still remain in the state. The 
 United States v. Bevans, 3 Wheaton, 336. 
 
 On an indictment for murder, founded on the 8th Sect, of the Act of Congress of 
 April 3'yith, 1790, Ck. 36, the death as well as the mortal stroke must happen on the high 
 seas. United States v.'Mai{ill, 4 Dallas, 426. 
 
 The Federal Courts have no cognizance of a case where the mortal stroke w^as given 
 on the high seas, and the death occurred on shore in a foreign country. Ibid. 
 
 Murder, &.c. committed by persons on board a vessel not at the time belonging to the 
 subjects of any foreign power, but in possession of a crew acting in defiance of all law, 
 and acknowledging obedience to no government whatever, is within the 8th Section of the 
 Act of Congress of April 30, 1790, Ch. 36, and is punishable in the Courts of the United 
 States. United States v. Fabner and others, 3 Wh en t on, 6\0. United States v. Pirates, 
 5 IVheaton, 192. See also U. S. v. Furlong, 5 Wheaton, 134. 
 
 Under the 12lh Sect, of the Act of Congress oC April 30, 1790, Ch. 3^, manslaughter 
 is not punishable in the Courts of the United States, unless it be committed on the high 
 seas. United States v. Wilthcrger, 5 Wheaton, 56. 
 
 The Courts of the United States have jurisdiction of murder, committed on the high 
 seas, from a vessel belonging to the United States, by a foreigner being on board of such 
 vessel, upon another -foreigner being on board of a foreign vessel. Ibid, 
 
 The Courts of the United States have not jurisdiction of a murder committed by one 
 foreigner on another foreigner, on board a foreign vessel on the high seas. lind. 
 
 There is a distinction between the crimes of murder and piracy. The latter is an 
 offence within the criminal jurisdiction of all nations; not so with murder; it is punish- 
 able under the laws of each State. Pud. 
 
 The Courts of the United States have jurisdiction, under the Act of April 30th, 1790, 
 Ch. 36, of murder or robbery committed on the higli seas, although not committed on 
 board of a vessel belonging to citizens of the United States; as if she had no national 
 character, but was held by pirates, or persons not lawfully sailing under the flag of any 
 foreign nation. United States v. Holmes et al., 5 Wheat. 412. 
 
 In the same case, and under the same act, if the offence be committed oa board 'of a 
 foreign vessel, by a citizen of the United States, or on board a vessel belonging to citizens 
 of the United States by a foreigner, or by a citizen or foreigner, on board of a piratical 
 vessel, the offence is equally cognizable by the Courts of the United States. Ibid. 
 
 It is immaterial whether the offence was committed on board of a vessel, or in the sea, 
 by throwing the deceased overboard and drowning him, or by shooting him in the sea, 
 though he was not thrown overboard. Ibid, 
 
 In an indictment for a piratical murder, under the eighth section of the Act of April 
 30th, 1790, Ch. 36, it is not necessary to allege the prisoner to be a citizen of the United 
 States, nor that the crime was committed on board a vessel belonging to citizens of the 
 United States, but it is sufficient to charge it as committed from on board such a 
 vessel, by a mariner sailing on board such a vessel. United States v. Pirates, 5 Whea. 
 ton, 184. 
 
 To make a man a principal in a murder, it is not necessary that he should inflict the 
 niortul wound. It is sufficient if he be present, aiding and abetting the act. Nor is it 
 necessary tlinrt there should be a particular malice against the deceased. It is suflicient 
 if there be deliberate malignity and depravity in the conduct of the party. United States 
 T. Ross, 1 Gallison, C. C. R. 524. 
 
 If a number of persons conspire together to do an unlawful act, and death happen in 
 the prosecution of the design, it is murder in all. If the unlawful act was a trespass, the 
 murder, to affect all, must be done in the prosecution of the design. If the unlawful act 
 be a felony, it will be murder in all, although the death happen collaterally, or beside the 
 princi|)al design, lliid. 
 
 If several persons conspire to seize, with force and violence, a vessel, and run away 
 with her, and if necessary, to kill any person who shall oppose them in the execution of 
 the design, and death ensue in the prosecution of the desi^-n, it is murder in all who are 
 present, aiding and ahelting in executing the design. Ibid.
 
 454*^ HISTORIA PLACITORUM CORONA. 
 
 The legal meaning' of "malice aforetlioucrlit," in cases of homicide, is not confined to 
 Iiomicide committed in cold blood witii settled design and premeditation, but extends to 
 all cases of homicide, however sudden tiie occasion, where the act is done with such 
 cruel circumstances as are the ordinary indications of a wicked, depraved, and malignant 
 spirit; as where the punishment inflicted by a party, even upon provocation, is out- 
 rageous in its nature and continuance, and beyond all proportion to the offence ; so that 
 it is rather to he attributed to diabolical malignity and brutality than to human infirmity. 
 And much, in these cases, depends on tlie instrument employed — whether dangerous to 
 life or not. The United States v. Cornell, 2 Mason's C. C. R. 91. 
 
 NEW YORK. 
 Revised Statutes, Part IV. Chap. 1. Title 1. 
 
 Sec. 4, The killing of a human being without the authority of lavp, by jioison, shooting, 
 stabbing, or any other means, or in any other manner, is either murder, manslaughter, 
 or excusable or justifiable homicide, according to the facts and circumstances of each 
 case. 
 
 Sec. 5. Such killing, unless it be manslaughter or excusable or justifiable homicide, as 
 hereinafter provided, shall be murder in the following cases : 
 
 1st. When perpetrated from a premeditated design to effect the death of the person 
 killed, or of any human being. 
 
 2d. When perpetrated by any act imminently dangerous to others, and evincing a de- 
 praved mind, regardless of human life, although without any premeditated design to 
 effect the death of any particular individual. 
 
 3d. When perpetrated without any design to effect death, by a person engaged in the 
 commissionof any felony. 
 
 Sec. 6. Every inhabitant or resident of this State, who shall by previous appointment 
 or engagement, fight a duel without the jurisdiction of this State, and in so doing, shall 
 inflict a wound upon his antagonist or ajiy other person, whereof the person thus injured 
 shall die within this State, and every second, engaged in such duel, shall be deemed guilty 
 of murder within this State, and may be indicted, tried and convicted in the county where 
 such death shall happen. 
 
 Sec. 7. Every person indicted under the provisions of the last section may plead a 
 former conviction or acquittal for the same offence, iii another State or country ; and if 
 such plea be admitted or established, it shall be a bar to any further or other proceedings 
 against such person for the same offence, within this State. 
 
 Sec. 8. The killing of a master by his servant, or of a husband by his wif5, shall «ot 
 be deemed any other or higher offence than if committed by any other perscm. 
 
 Sec. 9. Arson in the first degree, the punishment of which is prescribed in this title, 
 consists in wilfully setting fire to or burning in the night time, a dwelling-house, in 
 which there shall be, at the time, some human being; and every house, prison, jail, or 
 other edifice, which shall have been usually occupied by persons lodging therein at night, 
 shall be deemed a dwelling-house of any person so lodging therein. 
 
 Sec. 10. But no warehouse, barn, shed, or other out-house, shall be deemfed a dwelling- 
 house, or part of a dwelling-house, within the meaning of the last section, unless the 
 same be joined to, immediately connected with, and part of a dwelling-house. 
 
 Sec. 11. Whenever any convict shall be sentenced to the punishment of death, the 
 Court, or a mayor thereof — of whom the presiding judge shall always be one, shall make 
 out, sign and deliver to the Sheriff of the county, a warrant stating such conviction and 
 sentence, and ap|)ointing the day on which such sentence shall be executed. 
 
 Sec. 12. Such day shall not be less than four weeks, and not more than eight weeks 
 from the time of the sentence. 
 
 Sec. 13. The presiding judge of the Court at which such conviction shall have taken 
 place, shall immediately thereupon transmit to the Governor of this State, by mail, a 
 statement of such conviction and sentence, with the notes of testimony taken by such 
 judge on the trial. The expense of such statement, to be estimated at the rate allowed 
 for drafts and copies of pleadings in the Sujireme Court, shall be audited by the Comp- 
 triiller, and paid out of tiie treasury. 
 
 Sec. 14. The fJovonior sliall he authorized to require the opinion of the Chancellor, 
 the justices of the Su|)rein(; C^ourt, and of the attorney general, or of any of them, upon 
 any st<it( inent so furnislied.. 
 
 Sec. 15. JNo judge. Court, or officer, other than the Governor, shall have any authority
 
 HISTORIA PLACITORUM CORONA. 454' 
 
 to reprieve or suspend the execution of any convict sentenced to the punishnnent of death; 
 except sheritis, in the Q;jses and in the manner hercinaller provided. 
 
 Sec 16. If alter any convict shall have been sentenced to the punishment of death, he 
 sliall become insane, the Sheritf of the countyrWith the concurrence of the circuit judge 
 of the circuit, or if he be absent from the county, with the concurrence of any judge of 
 the Court before which the conviction was had, may summon a jury of twelve electors 
 to inquire into such insanity, and shall give immediate notice thereof to the district 
 attorney of the county. 
 
 Sec. 17. The district attorney shall attend such inquiry, and may produce witnesses 
 before the jury; for which purpose he shall have the same power to issue subpnenas as 
 for witnesses to attend a grand jury, and disobedience thereto may be punished by the 
 Court ot'Oyer and Terminer which shall next sit in such county, in the same manner as 
 disobedience to any process issued by such Court. 
 
 Sec. 18. The inquisition of the jury shall be signed by them and the Sheriff. If it be 
 found by such inquisition that such convict is insane, the Sheriff shall suspend execution 
 of the warrant directing the death of such convict, until he shall receive a warrant from 
 the Governor of this State, or from the justices of the Supreme Court, directing the exe- 
 cution of such convict. 
 
 Sec. 19. l^he Sheriff shall immediately transmit such inquisition to the Governor, who 
 may, as soon as he shall be convinced of t!ie sanity of such convict, issue a warrant 
 appointing a time and place for his execution, pursuant to his sentence. 
 
 . Sec. 20. If a female convict sentenced to the punishment of death, be pregnant, the 
 Sheriff shall in like manner summon a jury of six physicians, and shall give the like 
 notice thereof to the district attorney, who shall attend and have power to issue sub- 
 poenas, as herein before provided, and with the like effect. An inquisition shall in like 
 inat)ner be made and signed by the jurors and the Slieriff. 
 
 Sec. 21. If by such inquisition it appear that such female convict is quick with child, the 
 SherifF_sha]l in like manner suspend the execution of her sentence, and sljall transmit 
 the inquisition to the Governor. 
 
 Sec. 22. Whenever the Governor shall be satisfied that such female convict is no longer 
 quick with child, he shall is.sue his warrant appointing a day for her execution pursuant 
 tt) her sentence, or he may in his discretion commute her punishment to perpetual im- 
 prisonment in the State prison. 
 
 Sec. 23. Whenever for any reason, any convict sentenced to the punishment of death, 
 shall not liavc been executed pursuant to such sentence, and the same shall stand in full 
 force, the Supreme Court, on the application of the attorney general, or of the district 
 attorney of the county where the conviction was had, shall issue a writ of habeas corpus, 
 to bring such convict before such Court; or if he be at large, a warrant for his appre- 
 hension may be issued by the said Court, or any justice thereof. 
 
 Sec. 24. Upon such convict being brought before the Court, they shall proceed to inquire 
 into the facts and circumstances — and if no legal reasons exist against the execution of 
 such sentence, they shall sign a warrant to the Sheriff of the proper county, commanding 
 him to do execution of such sentence, at such time as shall be appointed therein; which 
 shall be obeyed by such sheriff accordingly. 
 
 Sic. 25. The punishment of death shall in all cases be inflicted, by hanging the convict 
 by the neck, until he be dead. 
 
 Sec. 26. Whenever any person shall be condemned to suffer death for any crime of 
 which sue}] person shall have been convicted in any Court of this State, such punishment 
 shall be inflicted within the walls of the prison of the county in which such conviction 
 shall have taken place, or within a yard or enclosure adjoining said prison. 
 • Sec. 27. It shall be the duty of the Sheriff or under-sherifi' of the county to be present 
 at such execution, and to invite the presence, by at least three days' previous notice, of 
 the judges, district attorney, clerk and surrogate of said county, together with two phy- 
 sicians and twelve reputable citizens, to be selected by said Sheriff or under-sheriff'. And 
 the said Sheriff or under-sheriff shall, at the request of the criminal, permit such minis- 
 ter or ministers of the gospel, not exceeding two, as said criminal shall name, and any 
 of the immediate relatives of said criminal, to attend and be present at such execution ; 
 and also such officers of the prison, deputies and constables as said Sheriff or under- 
 sheriff .shall deem expedient to have present; but no other persons than tiiosc herein 
 mentioned sliall be permitted to be present at such execution; nor shall any person under 
 age be allowed to witness the same. 
 
 Sec. 28. The Sheriff or under-sheriff and judges attending such execution, shall pre- 
 pare and sign, ofHcially, a certificate setting forth the time and place thereof, and that
 
 454J HISTORIA PLACITORUM CORON^^. 
 
 such criminal was then and there executed in conformity to the sentence of tiie Court, 
 and the [irovisions of this act; and shall procure to said certificate the signatures of the 
 otiier puhlic officers and persons not relatives of the criminal, who witnessed such execu- 
 tion. And the Sheriff or under-sheritf shall cause such certificate to be filed in the 
 office of the clerk of said county, and a copy thereof to be published in the State paper, 
 and in one newspaper, if any, printed in said county. 2 R. S. 2d Ed. p. 546, et seq. 
 Title 2, Article 1, (of same part and chapter.) 
 
 Sec. 1. The killing' of one human being, by the act, procurement or omission of 
 another, in cases where such killing- shall not be murder according to the provisions of 
 the first title of this chapter, is either justifiable or excusable homicide or manslaughter. 
 
 Sec. 2. Such homicide is justifiable when committed by public officers, and those acting 
 by their command, in their aid and assistance, cither — 
 
 1. In obedience to any judgment of a competent court; or, 
 
 2. When necessarily committed in overcoming actual resistance to the execution of 
 some legal process, or to the discharge of any other legal duty; or, 
 
 3. When necessarily committed in retaking felons who have been- rescued or who 
 have escaped; or, 
 
 4. When necessarily committed in arresting felons fleeing from justice. 
 
 Sec. 3. Such homicide is also justifiable, when committed by any person, in either of 
 the following cases : 
 
 1. When resisting any attempt to murder such person, or to commit any felony 
 upon him or her, or upon or in any dwelling-house in which such person shall be; or, 
 
 2. When committed in the lawful defence of such person, or of his or her husband, 
 wife, parent, child, master, mistress or servant, when there shall be a reasonable ground 
 to apprelicnd a design to commit a felony, or to do some great personal injury, and there 
 shall he imminent danger of such design being accomplished; or, 
 
 3. When necessarily committed in attempting by lawful ways and means to appre- 
 hend any person for any felony committed; or in lawfully suppressing^any riot; oi; in 
 lawfully keeping and preserving the peace. 
 
 Sec. 4. Such homicide is excusable when committed — 
 
 1. By accident and misfortune in lawfully correcting a child or servant; or in doing 
 any other lawful act by lawful means with usual and ordinary caution, and without any 
 unlawful intent; or, 
 
 2. By accident and misfortune, in the heat of passion, upon any sudden and sufficient 
 provocation, or upon a sudden combat, without any undue advantage being taken, and 
 without any dangerous weapon belong used, and not done in a cruel or usual manner. 
 
 Sec. 5. Whenever it shall appear to the jury, on the trial of any person indicted for 
 murder or manslaughter, that the alleged homicide was committed under circutnslances, 
 or in cases where by law such homicide was justifiable or excusable, the jury shall ren- 
 der a general verdict of not guilty. 
 
 Sec. 6. The killing of a human being, without a design to effijct death, by the act, 
 procurement, or culpable negligence of any other, while such other is engaged — 
 
 1. In the perpetration of any crime or misdemeanor not amounting to felony; or, 
 
 2. In an attempt to perpetrate any such crime or'misdemeanor. 
 
 In cases where such killing would be murder at the common law, shall be deemed 
 manslaughter in the first degree. 
 
 Sec. 7. Every person deliberately assisting another in the commission of self-murder, 
 shall be deemed guilty of manslaughter in the first degree. 
 
 Sec. 8. The wilful killing of an unborn quick child, by any injury to the mother of 
 such child, which would be murder if it resulted in the death of such mother, shall be 
 deemed manslaughter in the first degree. 
 
 Sec. I). Repealed. See post, act of May I3th, 1845. 
 
 Sec. 10. The killing of a human being, without a design to effijct death, in a heat of 
 passion, but in a cruel and usual maimer, unless it be committed under such circum- 
 stances as to constitute excusable or justifiable homicide, shall be deemed manslaughter 
 in the second degree. 
 
 Sec. 1 1. Every ]»crson who shall unnecessarily kill another, either 
 
 1. While resisting an attempt by such other person to commit any felony, or to do 
 any other unlawful act; or, 
 
 2. After sucli attempt shall have fiiilod; 
 
 Shall be deemed guilty of manslaughter in the second degree. 
 
 Sic. 12. The killing of another in the heat of passion, without a design to effect 
 death, by a dangerous weapon, in any case c.vccpt such wherein the killing of another
 
 HISTORIA PLACITORUM CORONiE. 454k 
 
 is herein declared to be justifiable or excusable, shall be deemed manslaughter in the 
 third degree. 
 
 Sec. 13. The involuntary killing of a human being, by the act, procurement, or 
 culpable negligence of another, while such other person is engaged in the comniit-sion 
 of a trespass, or other injury to" private rights or property, or engaged in an attempt to 
 commit such injury, shall be deemed manslaugiiter in the third degree. 
 
 Sec. 14. If the owner of a mischievous animal, knowing its propensities, wil- 
 fully suffer it to go at large, or shall keep it without ordinary care, and such animal, 
 while so at large or not confined, kill any human being, who shall have taken all the 
 precautions which the circumstances may permit, to avoid such animal, such owner 
 shall be deemed guilty of manslaughter in the tliird degree. 
 
 Sec. 15. Any person navigating any boat or vessel for gain, who shall wilfully or 
 negligently receive so many passengers, or such a quantity of other lading, that by 
 means thereof such boat or vessel shall sink or overset, and thereby any human being 
 shall be drowned or otherwise killed, shall be deemed guilty of manslaughter in the 
 third degree. 
 
 Sec. 16. If the captain or any other person, having charge of any steamboat used for 
 the conveyance of passengers, or if the engineer or other person having charge of the 
 boiler of such boat or of any other apparatus for the generation of steam, shall, from 
 ignorance or gross neglect, or for the purpose of excelling any other boat in speed, 
 create, or allow to be created, such an undue quantity of steam as to burst or break the 
 boiler or other apparatus in which it shall be generated, or any apparatus or machinery 
 connected therewith, by which bursting or breaking, any person shall be killed : every 
 such captain, engineer, or other person, shall be deemed guilty of manslaughter in the 
 tliird degree. 
 
 Sec. 17. If any physician, while in a state of intoxication, shall, without a design to 
 efifect death, administer any poison, drug or medicine. Or do any other act to another 
 person, which shall produce the death of such other, he shall be deemed guilty of man- 
 slaughter in the third degree. 
 
 Sec. 18. The involuntary killing of another, by any weapon, or by means neither 
 cruel nor unusual in the heat of passion, in any cases other than such- as are herein de- 
 clared to be excusable homicide, shall be deemed manslaughter in the fourth degree. 
 
 Stc. 19. Every other killing of a human being, by the act, procurement, or culpable 
 negligence of another, wliere such killing is not justifiable or excusable, or is not de- 
 clared in this cJiapter murder, or in this title manslaughter of some other degree, shall 
 be deemed manslaughter in the fourth degree. 
 
 Sec. 20. Persons convicted of manslaugiiter in the first, second, or third degrees, shall 
 be punished by imprisonment in a state prison, as follows: 
 
 1. Persons convicted of manslaughter in the first degree,for a term not less than seven 
 years. 
 
 2 If convicted of manslaughter in the second degree, for a term not less than four,, 
 and not more than seven years. 
 
 3. If convicted of manslaughter in the third degree, for a term not more than four 
 years, and not less than two years. 
 
 Sec. 21. Every person convicted of manslaughter in the fourth degree, shall be 
 punished by imprisonment in a state prison for two years, or by imprisonment in a 
 county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or 
 by both such fine and imprisonment. 2 R. S. 2d ed. p. 546, et seq. 
 
 By the Act of May 13, 1845. 
 
 1. Every person who shall administer to any person pregnant with a quick child, or- 
 prescribe for any such woman, or advise or procure any such woman to take any nicdi- 
 cine, drug, or sub.stance whatever, or shall use or employ any in.'^trument or other means, 
 with intent thereby to destroy such child, unless the same shall have been necessary to 
 preserve the life of such mother, shall be deemed guilty of manslaughter in the second 
 degree. 
 
 2. Every person who shall administer to any pregnant woman, or prescribe for any 
 such woman, or advise or procure any such woman to take any medicine, drug, or sub- 
 stance or thing whatever, or shall use or employ any instruments or ether means what- 
 ever, with intent thereby to procure the miscarriage of any such woman, shall, upon 
 conviction, be punished by imprisonment in a county jail, not less than three months nor 
 more than one year. 
 
 3. Every woman who shall solicit of any person any medicine, drug, or substance or 
 thing whatever, and shall take the same, or shall subuiit to any operation or other means
 
 454^ HISTORIA PLACITORUM CORONA. 
 
 whatever, with intent thereby to procure a miscarriagfe, shall be deemed guilty of a mis- 
 demeanor, and sliall upon conviction, be punislied by imprisonment in the countyjail not 
 less than three montlis nor more than one year, or by a fine not exceeding one thousand 
 dollars, or by botli such fine and imprisonment. 
 
 4. Any woman who shall endeavour privately, either by herself or the procurement of 
 others, to conceal the death of any issue of her body, which if born alive would by law 
 be a bastard, whether it was born dead or alive, or whether it was murdered or not, shall 
 be deenied guilty of a misdemeanor, and shall, on conviction thereof, be punished by im- 
 prisonment in a county jail not exceeding one year. 
 
 5. Any woman who sliall be convicted a second time of the offence specified in the 
 fourth section of this act, shall be imprisoned in a state prison for a term not less than 
 two or more than five years. 
 
 6. Section nine, article first, title second, of chapter one, of the fourth part of the Re. 
 vised Statutes; and section twenty -one, title six, chapter one, of the fourth part of the 
 Revised Statutes, are hereby repealed. 
 
 In Enqch^s case, (1834") Cliancellor WalwortTi delivering the judgment of the Court of 
 Errors of JVew; York, said: "Where an offence is created by statute, which was not an 
 offence by the common law, it is a general rule that the indictment must charge the 
 offence to have been committed under the circumstances, and with the intent mentioned 
 in the statute, which of course contains the only appropriate definition of the crime. 
 State v. Jones, 2 Yerg. Ten. R. 22. State v. O. Bannon, 1 Bailei/s Law, R. 144. But even 
 in that case it is not necessary to pursue the exact words of the statute creating the 
 offence, provided other words are used in the indictment which are equivalent, or words 
 of more extensive signification, and which necessarily include the words used in the 
 statute; as where advisedly is substituted for knowingly, or maliciously for imlfully, and 
 the like. The King v. Fuller, 1 Bos. ^ Pull. 180. ^United States v. Bachelder, 2 Gall. 
 R. 15. It is otherwise in indictments for common law offences, where the law has 
 adopted certain technical expressions to define the offence, or to indicate the intention 
 with whicli it was committed; in which cases the crime must be described, or the inten- 
 tion must be expressed by the technical terms prescribed, and no other. Thus, in an 
 indictment for murder, the terms, murder of his malice aforethought, are considered ab- 
 solutely necessary in describing the offence: and if these words are left out of the indict- 
 ment, it will be deemed a case of manslaughter only. In determining the question whether 
 an indictment should be drawn as at the common law, or should appear to be founded 
 upon a statutory provision which is applicable to the offence, the following rules are to be 
 observed : If the statute creates an ort'ence, or declares a common law offence, when com- 
 mitted under particular circumstances not necessarily included in the original offence, 
 punishable in a different manner from what it would have been without such circum- 
 stances; or where the statute changes the nature of the common law offence to one of a 
 higher degree, as where what was originally a misdemeanor is made a felony, the in- 
 dictment should be drawn in reference to the provisions of the statute creating or 
 changing the nature of the offence, and should conclude against the form of the statute; 
 but if the statute is only declaratory of what was previously an oflTence at common 
 law, without adding to, or altering the punishment, as was the statute of 25 Edward III., 
 declaring what should be considered and adjudged treason, the indictment need not con- 
 clude against the form of the statute, 1 Deac. Crim. Law, 661. 
 
 The object of the legislature in adopting the provisions of the revised statntes relative 
 to homicide, in tiie recent revision of the laws, certainly was not to create a new offence 
 of murder; but the intention uiuloubtcdiy was to restore the ancient common law on that 
 subject, as it .existed at the time when the common law form of indictment was origi- 
 nally ado|)ted, and to draw a proper line of discrimination, if possible, between the offence 
 which was hereafter to be considered a felonious killing, with malice aforethought, which 
 alone constitutes the crime of murder, and what was to be deemed a felonious killing 
 without such malice, ilow fir they have succeeded as to the last of these objects, may 
 perhaps be considered as a nintter of some doubt. l>iit they have unquestionably suc- 
 ceeded in restricting some cases to the grade f)f manslaugliler, which, upon tiie princi- 
 ples of the common law, never ouglit to have been considered or adjudfjed to be olfoiices 
 of a higher grade; such as the unintentional killing of a person, or an offender who was 
 eng.-ijred in a riot or otiicr offence, that was a mere misdemeanor, and not a felony. 
 
 'I'hcre is another class of cases, referred to on the argument as cases of murder at the 
 common law, which, under the provisions of the revised statutes, must hereafter unques- 
 tionably he considered and adjti(lg( d to be manshiughter, and not murder. And tlicre is 
 also another and much larger class of cases which hereafter must be deemed murder, by
 
 HISTORIA PLACITORUM CORONA. 454'" 
 
 reason of the implied malice that will now attach to the unlawful killin(r; which cases, 
 before the rcvi.^ion of the statutes, were cases of manshiugliter only. Tlie two classes 
 to wliicli I allude, depend however, upon a principle which does not require any change 
 ■to be made in the common law form of the indictment for murder. Malice was implied 
 in many eases at the common law, where it was evident that the offenders could not 
 haTe had any intention of destroying human life, merely on the ground that the homicide 
 'was committed, while the person who did the act was engaged in the commission of some 
 other felonj', or in an attempt to peri)etrate some offence of that grade. Every felony, 
 by the common law, involved a forfeiture of the lands or goods of the offender, upon a 
 conviction of the offence; and nearly all offences of that grade were punishable with 
 death, with or without benefit of clergy. In such cases, therefore, the malicious and 
 premeditated intent to perpetrate one kind of felony, was, by implication of law, trans- 
 ferred from such offence to the homicide which was actually committed, so as to make 
 the latter offence a killing with malice aforethought, contrary to the real fact of the case 
 as it appeared in evidence. This principle is still retained in the law of homicide ; and 
 it necessarily follows, from the principle itself, that as often as the legislature creates 
 new felonies, or raises offences which were only misdemeanors at the common law to 
 the grade of felony, a new class of murders is created by the application of this principle 
 to the case of a killing of a human being, by a person'who is engaged in the perpetration 
 of a newly created felony. So, on the other hand, when the legislature abolishes an 
 offence which at the common law was a felony, or reduces it to the grade of a misde- 
 meanor oidy, the case of an unlawful killing, by a person engaged in the act which was 
 before a felony, will no longer be considered to be murder, but manslaughter merely. 
 Such changes in the law of murder have often occurred, both in this country and in 
 England; yet it never has before been thought necessary to change the common law 
 form of the indictment to meet cases of this description. The court and jury in such 
 cases immediately apply the common law principle, and the killing is adjudged to be 
 murder er manslaughter, according to the nature and quality of the crime that the offen- 
 der was perpetrating at the time the homicide was committed. Let us then apply these 
 principles to the case now under consideration. The revised statutes having declared 
 tliat hereafter offences punishable with death or with imprisomnent in the state prison, 
 and such offences only, shall be deemed felonies, it follows, of course, that an accessary 
 to a suicide, or a person who unintentionally kills in an attempt to perpetrate a first 
 offence of petit larceny, could not now be guilty of the common law offence of murder; 
 and therefore the jury could not have found him guilty under an indictment like the one 
 now before us. The unintentional killing of a female, in an attempt to produce an 
 abortion, with her own consent, was not in itself murder, although at the common law, 
 if she was quick with child, it formed a very aggravated case of felonious homicide; and 
 it is now made murder in England, by the operation of the statute which makes the de- 
 struction of the child a capital felony. It was also murder here, by the operation of the 
 third subdivision of the fifth section of the revised statutes, which attempt to define the 
 crime of murder, until the legislature, by the amendment of the ninth section of the next 
 title, 2 R. S. 661. § 9. 3. R. S. npp. 158. § 58. made the killing of the mother, as well as 
 the child, a case of manslaughter only. Some other eases of unintentional killing, by 
 persons engaged in riots and other misdemeanors below the grade of felonies, which pre- 
 vious to the revision had also been improperly considered as cases of murder contrary to 
 principles of the ancient common law, are now restored to that grade of homicide to 
 which tlicy properly belong. All offences of that description are now placed in the class 
 of homicides committed without malice aforetiiaught; except where the killing is perpe- 
 trated by an act imminently dangerous to others, and evincing a depraved mind, regard- 
 less of human life; which circumstances now, as at the common law, are sufHcicnt to 
 authorize the jury to find the defendant guilty of killing with malice aforethought. 2 R. 
 .S. 657. § 5. sub. 2. 
 
 From this examination of the subject, I have arrived at the conclusion that a common 
 law indictment for murder is proper, under the provision of the revised statutes. And 
 a defendant cannot be convicted on such an indictment of a felonious homicide with 
 malice aforethought, unless the evidence is such as to bring the case within the statutory 
 definition of murder." Tlie People v. Enoch, 13 Wendell, lod. Vide The People v. Mc- 
 Leod, 1 Hill, 377. The People v. Jackson, 3 Hill, 92. 
 
 On the trial of an indictment for murder, where there is no pretence that the prisoner 
 killed the deceased, while engaged in a riot or other misdemeanor, not amounting to a 
 felony, by misadventure, but the death ensued in consequence of an intentional violence 
 upon the person of the deceased; whether tiie prisoner designed to kill or nut, he is not 
 entitled to have the jury instructed that they cannot convict of murder, if they should
 
 454° HISTORIA PLACITORUM CORONiE. 
 
 come to the conclusion that tlie mortal wound was inflicted in committing, or attempt- 
 ing to commit an otfence which of itself is less than felony. Homicide, occasioned by 
 committing or attempting to commit a misdemeanor, though murder at the common law, 
 is by the revised statutes reduced to manslaughter in the first degree. The People v. 
 Rector, 19 Wendell, 569. 
 
 Manslaughter ditfers from murder in this, that though the act which occasioned the 
 death be unlawful, or likely to be attended with bodily mischief, yet tlie malice, eitlier 
 express or implied, wliich is the very essence of murder, is presumed to be wanting; and 
 the act being imputed to the infirmity of human nature, the punishment is proportionably 
 lenient. Ex parte Tayloe, 5 Cowen, 51. 
 
 On a trial for murder, where it appeared that the deceased sought to gain admittance 
 into a house of ill fame by violence and against the will of the keeper thereof, who made 
 an attack upon the aggressor, and death ensued, it was held, that testimony that threats 
 made a week previous to the assault by persons who had broken into the house, that 
 tliey would return some other night and break in again, might be received and submitted 
 to the consideration of the jury, under the" instruction of the court; although it seems 
 that for the rejection of such evidence, where it was not shown that the deceased was of 
 the party who made the threats, a new trial would not be granted. The People v. Rector, 
 19 Wendell, 569. 
 
 As to bail in homicide, see Ex parte Tayloe, 5 Cowen, 51. Goodwin's case, 1 Wit. 
 Cr. C. 443. 
 
 MASSACHUSETTS. 
 
 Every person who shall commit the crime of murder, shall suffer the punishment of 
 death for the same. Rev. Stat. chap. 125, sect. 1. 
 
 In every case of conviction of the crime of murder, the court may, in their dis- 
 cretion, order the body of the convict, after his execution, to be dissected, and 
 the sheriff, in such case, shall deliver the dead body of such convict, to a professor of 
 anatomy and surgery, in some college or public seminary, if requested ; otherwise, it 
 shall be delivered to any surgeon, who may be attending to receive it, and who will 
 engage for the dissection therepf. Ihid. sect. 2. 
 
 Every person, being an inhabitant or resident of this state, who shall, by previous 
 appointment or engagement made within the same, fight a duel without the jurisdiction 
 of the state, and in so doing, shall inflict a mortal wound upon any person, whereof the 
 person so injured shall afterwards die, within this state, shall be deemed guilty of mur- 
 der witliin this state, and may be indicted, tried, and convicted in the county where such 
 death shall happen. Ibid. sect. 3. 
 
 Every person, being an inhabitant or resident of this state, who shall, by previous 
 appointment or engagement made within the same, be the second of either party, in 
 such as is mentioned in the preceding section, and shall be present as second, when 
 such mortal wound is inflicted, whereof death shall ensue within this state, shall be 
 deemed to be an accessary before the fact to the crime of murder in this state, and may 
 be indicted, tried, and convicted in the county where death shall happen. Ibid. sect'. 4. 
 
 Any person indicted under either of the two preceding sections, may plead a former 
 conviction or acquittal of the same offence, in any other state or county, and such plea, 
 if admitted or established, shall be a bar to all further or other proceedings against such 
 person, for the same offence, within this slate. Ibid. sect. 5. 
 
 Every person, who shall commit the crime of manslaughter, shall be punished by irn^ 
 prisonmcnt in the state prison, not more than twenty years, or by fine not exceeding one 
 thousand dollars, and imprisonment in the county jail not more than three years. Ibid. sect. 9. 
 
 Where the act is committed deliberately, and is likely to be attended with dangerous 
 consequences, the malice requisite to murder will be presumed ; for the law infers that the 
 natural or probable eflccts of any act deliberately done, were intended by the actor. 
 Commonwealth v. Drew, 4 Muss. 391. 
 
 A bare trespass against the property of another, not his dwelling-house, is not a 
 suflicieiit provocation to warrant the owner in using a deadly weapon in its defence; 
 and if lie do, and with it kill the trespasser, it will be murder. Ibid. 
 
 If the boating, liowcvcr, he with an instrument and in a manner not likely to kill, it 
 will bo no more than manslaughter. Ibid. 
 
 So, if any one, under colour or claim of legal auliiority, unlawAilIy arrest, or actually 
 attempt or -offtSr to arrest another, and this latter in his resistance kills the aggrcssqr, 
 it will be no more than manslaughter. Ibid. 
 
 So if one, not a stranger, aids the injured party by endeavouring to rescue him,
 
 HISTORIA PLACITORUM CORONA. 454° 
 
 or to prevent an unlawful arrest when actually attempted. Commonwealth v. Drew, 
 4 Mass. 39 1 . 
 
 If one, assuming to be a physician, however ignorant of the medical art, administers 
 to his patient remedies which result in his death, he is not guilty of manslaughter, 
 unless he has so much knowledge or probable information of the fatal tendency of his 
 prescriptions as to raise a presumption of obstinate, wilful rashness. Commonwealth v. 
 Thompson, 6 Mass. 134. 
 
 Where, however, such person has opportunity to know of the injurious effects of his 
 remedies, and then administers them, it would be competent for the jury to find him 
 g-uilty of manslaughter, even though he might not have intended any bodily harm to his 
 patient. Commonwealth v. Thompson, 6 Muss. 134. 
 
 Where one, having' committed a homicide, had been sent to the house of correction, 
 pursuant to Stat. 1797, c. 61, § 3, as a person dangerous to go at large, and was then 
 tried for murder, and acquitted on the ground of insanity, tiie court remanded him to 
 the house of correction till he should be duly discharged. Commonwealth v. Meriam, 
 7 Mass. 168. 
 
 If one counsel another to commit suicide, and the other, through the influence of the 
 advice, kill himself, the adviser is guilty of murder as principal. The presumption 
 of law in such case is, that the advice had the effect intended by the adviser, unless tlie 
 contrary be shown. Commonwealth v. Bowen, 13 Mass. 339. 
 
 When on the trial of an indictment for murder, the killing is proved to have been 
 committed by the defendant, and nothing further is shown, the presumption of law is, 
 that it was malicious, and an act of murder, and proof of matter of excuse or extenuation 
 lies on the defendant. Commonwealth v. York, 9 Metcalf, 93. 
 
 PENNSYLVANIA. 
 
 The Act o^ Ap-il 22d, 1794, reciting that, whereas the design of punishment is to pre- 
 vent the commission of crimes, and to repair the injury that hath been done thereby to 
 society, or the individual; and it hath been found by experience, that these objects are 
 better obtained by moderate, but certain penalties, than by severe and excessive punish- 
 ments; and whereas it is the duty of every government to endeavour to reform, rather 
 than exterminate offenders, and the punishment of death ought never to be inflicted 
 where it is not absolutely necessary to the public safety; provides that 
 
 No crime whatsoever, hereafter committed, except murder of the first degree, shall be 
 punished with death in the state oi Pennsylvaniq.. 
 
 And whereas the several offences which are included under the general denomination 
 of murder, differ so greatly from each other in the degree of their atrociousness, that it 
 is unjust to involve them in the same punishment. Sect. 1 ; 3 Dallas, 600; 3 Smith, 18C; 
 Phr. 1th ed. 861. 
 
 All murder which shall be perpetrated by means of poison, or lying in wait, or by any 
 other kind of wilful, deliberate and premeditated killing, or which shall be committed in 
 the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be 
 deemed murder of the first degree ; and all other kinds of murder shall be deemed 
 murder of the second degree, and the jury before whom any person indicted for murder 
 shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict 
 whether it be murder of the first or second degree; but if such person shall be convicted 
 by confession, the court shall proceed, by examination of witnesses, to determine the de- 
 gree of the crime, and to give sentence accordingly, lb, sect. 2. See^ost. Murder in the 
 first and second degree. 
 
 Every person liable to be prosecuted for petit treason shall in future, be indicted, pro- 
 ceeded against, and punished as \s directed in other kinds of murder. Act of 23d April, 
 1829, Pamphlet, p. 341 ; Purdon, 7th ed. 861. 
 
 Wheresoever any person shall be charged with involuntary manslaughter, happening in 
 consequence of an unlawful act, it shall and may be lawful for the attorney-general, or 
 other person prosecuting the pleas of the commonwealth, with the leave of the court, to 
 waive the felony, and to proceed against and charge such person with a misdemeanor, 
 and to give in evidence any act or acts of manslaughter ; and such person or persons, on 
 conviction, shall be fined or imprisoned, as in cases of misdemeanor; or the said attor- 
 ney-general, or other person prosecuting the pleas of the commonwealth, may charge 
 both offences in the same indictment, in which case the jury may acquit the party of 
 one, and find him or her guilty of the other charge. lb. sect. 8. 
 
 Every person covicted of murder in the first degree, his or her aiders, abetters and 
 counsellors, shall suffer death by hanging by the neck. Sec. 15. 
 VOL. I. 40
 
 454P HISTORIA PLACITORUM CORONiE. 
 
 Instead of the penitentiary punishment heretofore prescribed, the punishment by 
 solitary confinement at labour, shall be inflicted upon the several offenders- who shall, 
 after the first day o? July next, commit and be legally convicted of any of t-he offences 
 jiereinafter enumerated and specified; that is to say : 
 
 , Every person convicted of murder in the second degree, shall be sentenced to undergo 
 imprisonment in one of the state penitentiaries, as tlie case may be, and be kept in sepa- 
 rate or solitary confinement at labour for the first offence, for a period of not less than 
 lour, nor more than twelve years, and for the second offence for the period of iiis natural 
 life, and be fed, clothed and treated as is provided in tiiis act. 
 
 Every person duly convicted of voluntary manslaughter, shall be sentenced to undergo 
 a similar confinement at labor for the first offence, for a period not less than two, nor 
 more than six years; for a second offence for a period of not less than six, nor more 
 tiian twelve years, under the same conditions as are expressed in the first clause of this 
 section, and to give security on conviction either for the first or second offence, for good 
 beliaviour during life, or for any less time, according to tlie nature and enormity of the 
 offence. Act of 23d April, 1329, sect, i, Pamph. p. 341 ; 7th ed. Put don, 862. 
 
 The act of Jl^riM 0th, 1834, provides : • - . 
 
 Whenever hereafter any person shall be condemned to suffer death by hanging* for 
 any crime of which he or she shall have been convicted, the said punishment shall 
 be inflicted on him or her within the walls or yard of the jail of the county in 
 which he or she shall have been convicted; and it sliall bo the diity of the sheriff or 
 coroner of the said county to attend and be present at such execution, to which he shall 
 invite the presence of a pliysician, attorney-general or deputy attorney-general of the 
 county, and twelve reputable citizens, who shall be selected by the sheriff"; and the said 
 sheriff shall, at the request of the criminal, permit such ministers of the gospel, not ex- 
 ceeding two, as he or she may name, and any of his or her immediate relatives, to 
 attend and be present at sucli execution, together with such officers of the prison and 
 such of the sheriff's deputies as the said sheriff* or coroner in his discretion may think it 
 expedient to have present, and it shall be only permitted to the persons above designated 
 to witness the said execution: Provided, That no person under age shall be permitted on 
 any account to witness the same. Sec. 1. 
 
 After the execution, the said sheriff or coroner shall make oath or affirmation in 
 writing, that he proceed to execute the said criminal within the walls or yard afore- 
 said, at the time designated by tiie death-warrant of the Governor, and the same shall 
 be filed in the office of the clerk of the court of Oyer and Terminer of the aforesaid 
 county, and ^ copy thereof published in two or more newspapers, one at least of which 
 shall be printed in the county where the execution took place. Sec. 2. Pamph. L. 234. 
 I'urd. Dig. 7 ed.p. 945. 
 
 Manslaughter, though distinguished by the act of 1794, into voluntary and involuntary, 
 remains in other respects in Pennsylvania as in England. Pennsylvania v. M'Fall, 
 Addison, 256. In order to constitute the crime of voluntary manslaughter, evidence of 
 a positive intent to kill is not necessary; it is sufficient if there be such acts of violence 
 as may be expected to produce great bodily harm. Involuntary manslaughter is where 
 it plainly appears that neither death nor any great bodily harm was intended, bijt 
 death is accidentally caused by some unlawful act, or an act not strictly unlawful in 
 itself, but done in an unlawful manner, and without due caution. Com. v. Gable, IS. Sf 
 R. 428. Under the act of 1794, the attorney general must prosecute involuntary rtian- 
 siaughtcr as a misdemeanor, lliid. 
 
 One who 'is indicted for murder, cannot be convicted of involuntary manslautshter ; 
 because it is well settled that one cannot be convicted of a misdemeanor on an indict- 
 ment for felony. Com. v. Cahle, 7 iS. Sf It. 423. 
 
 Passion, arising from sufficient provocation, is evidence of the absence of malice, and 
 reduces homicide to manslaughter; but passion, without provocation, or provocation 
 without passion, is not sulFicieut : and when tiicre is both ]>rovocation and passion, the 
 provocation must be sufficient. Pennsylvania v. Honeyman, Add. 149. Pennsylvania v. 
 Bell, id. 162. 
 
 In order to constitute the crime of vduntary manslaughter, evidence of a positive in- 
 tent to kill, is not necessary; it is sufficient if there he such acts of violence as may 
 be expected to produce great bodily harm. Commonwealth v. Gable, 7 S. Sf K. '^28. 
 Til'^liman, C. .J. 
 
 Every act which apparently must do harm; which is done with intent to do harnij
 
 HISTORIA PLACITORUM CORONA. 454'« 
 
 ai)d without provocation, and of which death is the consequence, is murder. Pennsylva- 
 nia V. Honeyrnan, Add. 148. 
 
 Unlawful killing, with a design to kill, is murder in the first degree; if with a design 
 only to hurt, it is murder in the second degree. Pennsylvania v. Lewis, Add. 2B3. 
 
 Premeditation is an essential ingredient to constitute murder in the first degree, under 
 the act of 1794; but the intention slill remains the true criterion of tlie crime, and the 
 intention of the party can only be collected from his words and actions. Respuhlica v. 
 Mulatto Bob, 4 Dull. 146. 
 
 If one, without uttering a word, should strike another on the head with an axe, this 
 would be deemed a. premeditated violence, within the act of 1794. Ibid. 
 
 With respect to tlje three modes of killing, first mentioned in the act of 1794, viz. by 
 poison, lying in wait, or any other kind of wilful and deliberate killing, the intention is 
 the essence of the crime. But in the last enumerated mode, viz. in the perpetration of the 
 crimes mentioned in the act, the intention is excluded as not necessary to constitute mur- 
 der in the first degree. Com. v. Dougherty, before Rush, Pres. 1 Br. Appx. xviii. 
 
 Wlierever it appears, from the whole evidence, ihat the crime was, at the moment, 
 deliberately or intentionally executed, the killing is murder in the first degree. Ibid. 
 
 It is sufficient to constitute the crime if the circumstances of wilfulness and delibera- 
 tion were proven, although they arose and were generated at \he period of the transaction. 
 Jbid. Pennsylvania v. McFall, Add. 257. 
 
 If the party killing had time to think, and did intend to kill, for a minute, as well as 
 an hour or a day, it is a deliberate, wiltul, and premeditated killing, constituting murder 
 in the first degree, within the act of Assembly. Com. v. Richard Smith, Oyer and Ter- 
 miner, Philad. 1816, before Rush, Pres., Pamphlet 231. Com. v. O'Hara, before McKean, 
 C. J., cited ibid. 
 
 The common law implied malice in every unlawful killing, and the burden of proof of 
 extenuating circumstances lay on the defendant. Pennsylvania v. Honeyrnan, Add. 148. 
 Pennsylvania \. Bell, id. 171. Pennsylvania v. McFall, id. 257. Pennsylvania v. Lewis 
 ^ al., id. 282. 
 
 Involuntary manslaughter is, where it plainly appears that neither death nor any 
 great bodily harm was intended, but death is accidentally caused by some unlawful act, 
 or an act not strictly unlawful in itself, but done in an unlawful manner, and without 
 due caution. Ibid, 
 
 Killing by a blow, in mutual conflict, without necessity either for the protection of 
 life, or the possession of house, &c. is manslaughter. If necessary for such purpose, it is 
 homicide in self defence. Pennsylvania v. Robertson, Add. 248. 
 
 Manslaughter, though distinguished by the act of 1794, into voluntary and involuntary, 
 remains in other respects here as in England. Pennsylvania v. McFall, Add. 256. 
 
 But since the Act of 1794, the burthen of proof lies on the Commonwealth; unless the 
 circumstances of malice are proved, it is murder only of the second degree. Co7n. v. 
 O'Hara, ut supra. 
 
 Under the Act of Assembly, an unlawful killing, though it may he presumed murder, 
 will not be presumed murder in the Jirst degree. Pennsylvania v. Lewis, Add. 282-3. 
 
 Drunkenness does not incapacitate a man from forming a premeditated design of mur- 
 der; but as drunkenness clouds the understanding, and excites passion, it may be evi- 
 dence of passion onl}-, and of want of malice and design. Pennsylvania v. McFall, Add. 
 257. 
 
 If a person who has determined to take the life of another, seizes a musket to carry 
 that intention into effect, not knowing whether it was loaded or otherwise, but with the 
 expectation and desire that it should be, he is guilty of murder in any killing consequent 
 upon its discharge. Cominonwealth v. Green, 1 Ashmead, 289. 
 
 When a wound is not mortal in itself, but for want of proper application or from ne- 
 glect, turns to gangrene or fever, and that gangrene or fever is the immediate cause of 
 the death of the party wounded, the party by whom the wound was given is guilty of 
 murder or manslaughter, according to the circumstances of the case. Ibid. 
 
 To warrant a conviction of murder in the first degree, it is not essential that the 
 weapons used should necessarily nroduce death. Com. v. Murray, 2 Ashmead, 41. 
 
 When the deceased was killft by means of blows inflicted by a club not quite as 
 thick as an axe handle, held and used by one person, and by a leather strap with a metal 
 buckle at each end, held and used by another person, it was held that this was murder in 
 Uie first degree. Ibid. 
 
 If a pregnant woman be killed in an attempt by another person to produce abortion in
 
 454' HISTORIA PLACITORUM CORONA. 
 
 her, this will only be murder in the second degree, IT the perpetrator did not intend to 
 take the life of the mother. Ex parte Chauncey, 2 Ashmead, 2'27. per King, Frest. 
 
 It is a fixed principle, that if, from tlie weapon or the manner of striking-, an intention 
 to kill may or must be collected ; provocation by words only, is not sufficient to make 
 the killing, but manslaughter. ^Pennsylvania v. Bdl, Add. 163. 
 
 See 2)ost, 454, t. 
 
 MARYLAND. 
 
 The Act of 1809, Ch. 138, may be considered the basis of the law of homicide, and 
 indeed of the whole criminal jurisprudence of the state of Maryland. The od Section of 
 this Act defines murder of the first degree to be, " all murder which shall be perpetrated 
 by means of poison, or by lying in wait, or by any kind of wilfiil, deliberate, and pre- 
 meditated killing, or which shall be committed in the perpetration of, or attempt to per- 
 petrate any arson, or to burn any barn, tobacco-house, stable, warehouse, or other out- 
 house, not parcel of any dwelling-house, having therein any tobacco, grain, hay, horses, 
 cattle or goods, wares and merchandize, rape, sodomy, mayhem, robbery or burglary." 
 All other murder is deemed murder of the second degree. Manslaughter is not defined 
 in the statute, and the offence remains the same as at common law. 
 
 Sec. 4tl), thus determines the punishment of these crimes. Every person convicted of 
 murder of the first degree, his or her aiders or abettors and councillors shall suffer death 
 by hanging ; every person duly convicted of murder in the second degree, or as acces- 
 sory thereto, shall be confined in the penitentiary for from five to eighteen years; every 
 person convicted of manslaughter, shall be confined in the penitentiary for a term not 
 exceeding ten years. The Act of 1825, Ch. 93, Sec. 1, enacts that no sentence to the 
 penitentiary shall be for less than two years. The terms of confinement with the limita- 
 tions aforesaid, are in the discretion of the Court. Sec. 16. No conviction or attainder 
 works corruption of blood or forfeiture of estate; nor can sentence of death be executed 
 within less than twenty days after judgment. The Governor, in whom is lodged the 
 pardoning and commuting power, is empowered and required to issue a warrant to the 
 Sheriff, and appoint the day of execution. 1795, CA. 82, Sec. 1. Thougli forfeiture of 
 estate does not result, the estate of persons sentenced to be hung is still liable, after repa- 
 ration made to the injured party for the expenses of the State. Standing mute is equiva- 
 lent to a plea of not guilty, and the trial proceeds as if such plea had been actually put 
 in. Sec. 12. In all capital cases the right of cliallenge exists without cause to twenty 
 jurors, and with cause to any number. Sec. 13. Foreigners who are indicted for an 
 offence committed within the State, are to be tried by a jury of the county, and cannot 
 challenge for want of foreigners on the panel returned. Sec. 15. The venue is laid in 
 the county where the mortal stroke or poison has been given, and not where the conse- 
 quent death occurs; unless the mortal stroke be given on Chesapeake Bay and the death 
 take place in any county of tlie State, when the place of death becomes the venue. So 
 where the blow and death both occur on the bay, the place of arrest is the place of trial. 
 Sees. 17, 18, 19. The venue may be changed to an adjoining county, on suggestion sup- 
 ported by affidavit, that an impartial trial cannot be had in the county where the indict- 
 ment is found. Sec. 20. But the person moving the change, must have resided in the 
 county at least twelve months before indictment. 1821, Ch. 244. 
 
 By the Act of 1817, Ch. 72, Svc. 2, convicts confined in the penitentiary may be wit- 
 nesses against each other for crimes committed in tlie penitentiary. 
 
 No slave can be confined in the penitentiary, but when not punishable with death, ia 
 punished with whipping, banishment, or sale into some foreign country. 1818, ch. 1^7. 
 And a free negro after having once been an inmate of the penitentiary, may be, upon 
 conviction of a second offence, sold into foreign bondage. 1835, ch. 200, sec. 3. 
 
 The act of 1824, ch. 144, presents a new element in murder of the first degree. It is 
 there enacted, that all murder committed in the arrest and imprisonment, or attempt to 
 arrest or imprison, with a view to a forcible removal from the state, any free person or 
 one entitled to freedom after a certain time, by one who knows such person to be free, 
 shall be deemed murder of the first degree. ^ 
 
 The Maryland Reports contain no cases which elucidate the law of homicide. It 
 was, however, decided in the case of The State of Maryland v. Negro Jesse Evans, 
 7 Gill Sf John. 290, that where a statute creates an offence which did not exist at 
 common law, or changes the nature or degree of an offence existing at common law, 
 there an indictment for such an oftence must conclude ngainst the form of the statute; 
 but if a statute only direct a dillerent mode of punishment for a common law offence,
 
 HISTORIA PLACITORUM CORONA. 454' 
 
 the indictment may conclude ag-ainst the peace. An indictment concluding contra pacem, 
 charges only a violation of the common law, and with such an indictment the accused 
 need only refer when preparing for his defence to the criminal code of the common 
 law to ascertain what are the ingredients constituting the offence charged, and what 
 will vindicate or excuse him. 
 
 By the l[)th section of the Bill of Rights, it is the right of every man to be informed 
 of a criminal accusation against him, and to have a copy of the indictment in due time 
 to prepare for his defence. 
 
 SOUTH CAROLINA. 
 
 The acts of this State on the subject of homicide are — 
 
 The act of 1821, 6 Sts. at large, 158, which makes the "malicious, wilful, and 
 deliberate murder" of a slave, a capital felony; and punishes the killing a slave " on 
 sudden heat tfnd passion," with fine and imprisonment. It has been decided on these 
 acts» that the offences punished by it, contain no other ingredients than murder and 
 manslaughter at common law, and that the common law definitions of murder and man- 
 slaughter apply to them respectively. MS. 
 
 The act of 1833, 6 -S. L. 489, abolishes branding, and substitutes fine and im- 
 prisonment in all cases. This applies to homicide by manslaughter. 
 
 The act of 1840, § 39. 7 S. L. 411, makes the master, or person having charge of 
 a slave, responsible for the death of a slave killed when no other white person is present; 
 but in such case, the master, or other person in charge, may exculpate himself by oath. 
 
 The statute of stabbing, 1 Jac. 1, c. 8, has been made of force in South Carolina. 
 2S. Z/. 507. So also the .S'(s. 52. Hen. 3. c. 25; 2 S. L. 418. and all other ancient statutes, 
 ousting murder of clergy are understood to be offeree by virtue of the general provisions 
 oftheact of 1712, 2-S: L. 413. §2. 
 
 In this State the following cases recognise the common law doctrine: 
 
 The general distinction between murder and manslaughter is, that the killing in the 
 first instance must be accompanied with malice aforethought, either express or implied. 
 To constitute the latter, it must be the result of sudden heat and passion. State v. Toohey, 
 2 Rice, S. C. Dig. 104. 
 
 But although this general distinction is well understood and universally admitted, yet 
 the shades of difference are many times so small as to render them difficult to be per- 
 ceived, and in the application of the rule to particular cases, much must always be left 
 to the sound discretion of the court and jury. It is true in general, that when death 
 ensues from a sudden affray, it is considered only as manslaughter; but that is where 
 a sudden quarrel rises without any intention to kill or injure another materially, and in 
 the course of the scuffle, after the parties are heated by the contest, one kills the other 
 with a deadly weapon. But there is no case where an unprovoked attack has been made 
 on a person with a deadly weapon, and death has ensued, that it has been held to be 
 manslaughter merely because it was sudden. Such a decision would go to protect one 
 who should fall upon another suddenly, and take his life, though actuated by the most 
 deep-rooted malignity. There is a difference between a sudden affray and sudden attack. 
 An affray means something like a mutual contest suddenly enacted without an appar- 
 ent intention to do great bodily harm. But malice is implied from every unprovoked 
 attack upon a person with a deadly weapon, without any apparent cause. Ibid. 
 
 In an indictment against two persons, Michael and Martin Toohey, for murder, where 
 the jury found one {Michael) guilty of manslaughter, and the other {Martin) guilty of 
 murder; on a motion for a new trial on behalf of Martin Toohey, the court held, among 
 other things, that it belonged to the jury to determine who gave the mortal blow, and 
 observed, "Even if we admit that it was given by Michael., yet this verdict might be 
 supported if they were acting in concert." It would only prove that they ought both 
 to have been convicted, and the wrongful acquittal of one, would not entitle the other to 
 exemj)lion. It is abundantly manifest that the deceased came to his death by one of 
 these defendants, and it belonged to the jury to judge of their respective guilt. 
 
 Another fact assumed by the- defendants' counsel, that the passions of tiie defendant 
 were excited by an unintended jostle of the prisoner or his wife by the deceased, is 
 equally unsupported by proof, and unavailing if true. In a city like Charleston, where 
 many persons are constantly passing until a late hour of the night, the accidental im- 
 pinging of one upon another in the dark would not authorize such a murderous attack 
 upon him. Such iii act of itself would be a sure indication of a "depraved and wicked
 
 •454* HISTORIA PLACITORUM CORONA. 
 
 heart, void of all social duty, and fatally bent on mischief." Slate v. Toohey, 2 Rice, 
 S. C. Digest, lOi. 
 
 Every homicide must be accompanied with malice to make it murder; but so regard- 
 ful is the law of'human life, that it presumes every homicide to be accompanied with 
 malice, unless the contrary shall appear. Malice is said to exist whenever the circum- 
 stances attending the homicide exhibit the feelings of a wicked heart, regardless of 
 social duty and fatally bent on miscliief. It is inconsistent with the lessons of expe- 
 rience, the dictates of reason, and the highest authority to conclude, because the homi- 
 cide was committed in a passion, {furor brevis,) he was not under the influence of a 
 wicked heart. If without provocation he let loose his angry passions, which social 
 duty required him to control, and inflicted a death blow upon an unoffending brother, 
 he exhibits that malevolence of heart which makes him in the language of the law, 
 hostis humani generis. State v. Peters, 2 Rice, S. C. Digest, 105. 
 
 If a slave kill his master whilst the latter is correcting him, it is murder at common 
 law; and those present aiding and abetting arc guilty of the same offence. They 
 would even be guilty as principals in the first degree, although the actual perpetrator 
 himself were guilty of no crime if they made use of him as the instrument to effect 
 their own deliberate purpose of destroying the deceased. State v. Crank, 2 Bail. Rep. 64. 
 2 Rice's S.C. Dig. IQC). 
 
 So long as a party liable to arrest endeavours peaceably to avoid it he may not be 
 killed; but whenever, by his conduct, lie puts in jeopardy the life of any attempting to 
 arrest him, he may be killed, and the act may be excusable. State v. Anderson, 1 Hill, 
 S.C. Rep. •627. 
 
 If one in sudden heat of passion take the life of another, it is manslaughter, and not 
 murder; but there must be reasonable provocation, and what will constitute it, is the 
 principal difficulty in applying the distinction. The line which distinguishes between 
 those provocations, which will and will not extenuate the offences, cannot be certainly 
 defined. Such provocations as are in themselves calculated to provoke a high degree of 
 resentment, and ordinarily induce a great degree of violence wlien compared with those 
 which are slight and trivial, and from which a great degree of violence does not usually 
 follow, may serve to mark the distinction. 
 
 But no provocation, however grievous, will excuse from the crime of murder, where 
 from the weapon, or the manner of the assault, an intention to kill or to do some great 
 bodily harm was manifest. 
 
 If one interfere in an aff'ray to separate the combatants, and give notice of his intent, 
 and is slain by one of the combatants, it is nmrder. 
 
 The prisoner and one W. engaged in a fight, and were separated by the deceased. 
 Some time after tlie fight was renewed, and tlie deceased again interfered ; but being 
 unable to take the prisoner off', called a negro to his assistance, who, in tlie act of sepa- 
 rating the combatants, threw the prisoner against the wall. The prisoner then made at 
 the deceased (who endeavoured to avoid him) with a knife, and inflicted a mortal blow: 
 Held, that this was a case of murder. State v. Ferguson, 2 Hill, S. C. Rep. 619. 2 Rice's 
 Digest, 106, 107. 
 
 MURDER OF THE FIRST AND SECOND DEGREES. 
 
 The murder of the common law is, in many parts of the United States, divided into 
 murder of the first and second degrees. The distinction of murder into two degrees, is 
 found in Pennsylvania, Maine, New Hampshire, New Jersey, Virginia, Alabama, Ten- 
 nessee, Maryland, Michigan and Ohio. The distinctions in all these states, except Ohio 
 and Maiyland, are substantially the same, and nearly in the same language. 
 
 In Maine. — Whoever shall, unlawfully, kill any human being, with malice afore- 
 thought, either express or implied, shall be deemed guilty of murder. — Rev. Stat.ch. 154. 
 sect. 1. 
 
 Whoever shall commit murder, with express malice aforethought, or in perpetrating, 
 or attempting to [)cr])etrate any crime punishable with death, or imprisonment in the 
 state prison for life, or liir an unlimited term of years, shall be deemed guilty of murder 
 of the first degree, and shall be punished with death. — Iliid. sect. 2. 
 
 Whoever shall commit murder, otherwise than is set forth in the preceding section, 
 shall be deemed guilty of murder in the second degree, and shall be punished by impri- 
 BOTiment for life in the state prison. — Jliid. sect. .'J. % 
 
 Section 4, provides that, upon an indictment for murder, the jury shall inquire and find
 
 HISTORIA PLACITORUxM CORON.E. 454^ 
 
 whether the offence be of the first or second degree, or, if confessed, the court shall make 
 the inquiry. 
 
 In New Hampshire. — All murder committed by poi>on, starvinsr, torture, or other de- 
 liberate and premeditated killinjr, or committed in the pcqietration, or in the attempt at 
 the perpetration of arson, rape, robbery, or burglary, is murder of the first degree; and 
 all murder not of the first degree is of the second degree. If the jury shall find any per- 
 son guilty of murder,they shall also find, by their verdict, whether it is of the first or 
 second degree. — Rev. Stat. chap. 214. sect. 1. 
 
 If any person shall plead guilty to an indictment for murder, the court having cogni- 
 zance tlierecf shall determine the degree. — Ihid. sect. 2. 
 
 'J he punishment of murder in the first degree shall be death, and the punishment .of 
 murder in the second degree shall be solitary imprisonment, not exceeding three years, 
 and confinement to hard labour for life. — Jbid. sect. 3. 
 
 In Pennsylvania. — No crime, whatsoever, hereafter committed, (except murder in the 
 first degree,) shall be punished with death in the state of Pennsylvania. — Act 22d April, 
 1794. 3 Smith's Laws, 136; 7th. ed. Purdon, 861. 
 
 All murder, which shall be perpetrated by means of poison, or by lying in wait, or by 
 an}' other kind of wilful, deliberate and premeditated killing, or which shall be com- 
 mitted in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, 
 shall be deemed murder of the first degree; and all other kinds of murder siiall be deemed 
 murder of the second degree; and the jury, before whom any person indicted for mur- 
 der, shall be tried, shall, if they find such person guilty thereof, ascertain, in their ver- 
 dict, whether it be murder in the first or -second degree; but if such person siiall be 
 convicted by confession, the court siiall proceed, by examination of witnesses, to deter- 
 mine the degree of the crime, and to give sentence accordingly. — Ibid. Sect. 2. See 
 ante, p. 554." 
 
 In New Jersey. — All murder which shall be perpetrated by means of poison, or bv 
 lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or 
 which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, 
 sodo^ny, robbery, or burglary, shall be deemed murder of the first degree; and all other 
 kinds of murder shall be deemed murder of the second degree; and the jury, before whom 
 any person indicted for murder, shall be tried shall, if they find such person guilty 
 thereof, designate, by their verdict, whether it be murder in the first or second decree; 
 but if such person shall be convicted on confession, in open court, the court shall proceed, 
 by examination of witnesses, to determine the degree of the crime, and give sentence 
 accordingly — (An act, supplementary to an act entitled, " An act for the punishment 
 of crimes," passed the seventeenth day of February, eighteen hundred and twenty-nine, 
 sect. 1.) 
 
 Every person convicted of murder of the first degree, his or her aiders, abettors, 
 counsellors and procurers shall suffer death; and every person convicted of murder of the 
 second degree, shall suffer imprisonment at hard labour, for any term, not less than five, 
 nor more than twenty years. — Sec. 2. 
 
 In Virginia. — All murder, which shall be perpetrated by means of poison, or by lying 
 in wait, or by duress of imprisonment or confinement, or by starving, or by wilful, ma- 
 licious and excessive whipi)ing, beating, or other cruel treatment or torture, or by any 
 othor kind of wilful, deliberate and premeditated killing, or which shall be conmiitted in 
 the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglar}', shall 
 henceforth be deemed murder in the first degree; and all other kinds of murder shall be 
 deemed murder of the second degree; and the jury, before whom any person, indicted 
 for murder, shall be tried, shall, if they find such person guilty thereof, ascertain, in their 
 verdict, whether it be murder in the first or second degree; but if such person shall bo 
 convicted by confession, the court shall proceed by examination of witnesses, to de- 
 tcrmine the degree of the crime, and to give sentence accordingly.— iZ. C. chap. 171. 
 sect. 2, 
 
 In Alabama. — Every homicide, which shall be perpetrated by means of poison, lying 
 in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which
 
 454" HISTORIA PLACITORUM CORONA. 
 
 shall be committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, 
 robbery, or burglary, shall be deemed murder in the first degre(i; so, also, every homicide 
 perpetrutcd from a premeditated design, unlawfully and maliciously to effect the death 
 of any human being, other than him who is slain, or perpetrated by an act imminently 
 dangerous to the life of others, and evincing a depraved mind, regardless of human life, 
 although without any preconceived purpose to deprive of life any particular individual; 
 and every person, guilty of murder in the first degree, shall, on conviction, sutfer death, 
 or confinement in the penitentiary for life, at the discretion of the jury trying the same. 
 Penal Code, chap. 111. sect. 1. Clay's Digest, 412. 
 
 The next section provides that all other cases of murder, at common law, shall be 
 murder in the second degree; and punishable by imprisonment for not less than ten 
 years. 
 
 In Tennessee, — All murder which shall be perpetrated by means of poison, lying in 
 ■wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or 
 shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery, 
 burglary or larceny, shall be deemed murder in the first degree; and all other kinds of 
 murder shall be deemed murder in the second degree; and the jury, before whom any 
 person indicted for rnurder shall be tried, shall, if they find such person guilty thereof, 
 ascertain, in tiieir verdict, whether it be murder in the first or second degree; but if such 
 person sliall confess his guilt, the court shall proceed by the empanelling of a jury and 
 examination of testimony, to find and determine the degree of tlie crime, and to give 
 sentence accordingly. — Act ]829, sect. 3. Laws of Tennessee, p. 316. 
 
 In Michigan. — All murder, which shall be perpetrated by means of poison or lying in 
 wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be 
 committed in the perpetration or attempt to perpetrate any arson, rape, robbery or bur- 
 glary, shall be deemed murder of the first degree, and shall be punished with deatli; and 
 all other kinds of murder shall be deemed murder of the second degree, and shall be 
 punished by confinement in the penitentiary for life, or any term of years at the discre- 
 tion of the court trying the same. — Rev. Stat, part 4. tit. 1. ch. 3. sect. 1. 
 
 In Maryland. — All murder which shall be perpetrated by means of poison, or by lying 
 wait, or by any kind of wilful, deliberate and premeditated killing, or which shall be 
 committed in the perpetration of, or attempt to perpetrate any arson, or to burn any barn, 
 tobacco-house, stable, warehouse, or other out-house, not parcel of any dwelling-house, 
 having therein any tobacco, grain, hay, horses, cattle or goods, wares and merchandize, 
 rape, sodomy, mayhem or burglary, is murder of the first degree, and all other murder, 
 is murder of the second degree. Act of 1809, ch, 138. 
 
 In Ohio. If any person shall purposely, and of deliberate and premeditated malice, or 
 in the perpetration, or attempt to perpetrate, any rape, arson, robbery, or burglary, or by 
 administering poison, or causing the same to be done, kill another, every such person 
 shall be deemed guilty of murder in the first degree, and upon conviction thereof, shall 
 suffer death. If any person shall purposely and maliciously, but without delibera- 
 tion and premeditation, kill another, every such person shall be deemed guilty of mur- 
 der in the second degree, and on conviction thereof, shall be imprisoned in the peniten- 
 tiary, and be kept at hard labour during life. Act of March 7, 18.35, {Statutes p. 229.) 
 
 These acts have not affected the meaning of the term murder, nor changed the common 
 law doctrine, exce])ting to designate certain classes of murder, by the prefix, /irst, and all 
 other kinds by the prefix second, and to assign to each kind of killing a distinct punish- 
 ment — both kinds being murder, at common law. The tests by which to ascertain — mur- 
 dcr generally being proved — to which degree; the case belongs, are to be found, either, IQ 
 the existence of certain facts connected with the manner or circumstances of the killing, 
 or in the condition of the mind of the accused at or before the moment of the killing. As 
 to the former, if murder be by poison, by lying in wait, by starving, or in the perpetration 
 or attempt to perpetrate arson, ra|)e, robbery, or burglary, &c. as set forth in the several 
 statutes; and, as to tho latter, if it be murder, with express malice aforethought, wilful, 
 deliberate, premeditated, &c. as also set forth in the several statutes — in eillier of these
 
 HISTORIA PLACrrORUM CORONA. 4M' 
 
 cases, the killing is murder of the first degree — all other species of killing, which are 
 murder at common law, are murder of the second degree. 
 
 It'tlie killing be in either of tiie modes, or under either of the circumstances specifically 
 mentioned in the statutes, the conclusion is inevitable that the accused is guilty of mur- 
 der of the first degree. The chief points for discussion and decision, and the material 
 ditHculty in applying the law to particular cases, arises under the second clause. What 
 is deliberation, express malice aforethought, wilfulness and premeditation, and what state 
 of facts includes a conclusion of their e.\istence? 
 
 The earliest case in Pennsylvania, under the act of Assembly of 1794, (the earliest in 
 any of the States,) is the Commonwealth v. Mulatto Boh, 4 Dallas, 137. Cliief Justice 
 McKean presided at the trial. Judge Smith being also on the bench. It appeared that, a 
 number of negroes being assembled, about ten o'clock at night, a quarrel arose between 
 the prisoner and negro David, the deceased. For a while, the parties fought with fists; 
 and the prisoner was heard to exclaim " enough." The aflTray, however, became general, 
 and continued so for some time. When it was over, the prisoner went to a neighbouring 
 pile of wood, and furnished himself with a club. He was advi.sed not to use it, but declared 
 that he would, and entered the crowd witii it in his hand. After remaining there about ten 
 minutes, he left the crowd without his club; and, again repairing to the wood-pile, took 
 up an axe. Being, likewise, dissuaded from returning to the crowd with the axe, he 
 said "he would do it;" and striking the instrument, with great passion, into the ground, 
 swore tiiat he would " split down any fellows that were saucy." Accordingly, he mixed 
 once more among the people; a struggle was immediately heard about the axe; the pri- 
 soner then struck the deceased with it on the head; the deceased fell; and as he was 
 attempting to rise, the prisoner gave him a second blow on the head with the sharp edge, 
 wliicli penetrated to the brain. After languishing three days, death was the consequence 
 of tliis wound. " From these facts," said the Ciiief Justice, in summing up the evidence, 
 "we are to inquire what crime the prisoner has committed? Murder, in the first degree, 
 is the wilful, deliberate, and premeditated killing of another. There are various inferior 
 kinds of homicide; but, on the present indictment, our attention is confined to a conside- 
 ration of the highest and most aggravated description of crime. Then, let us ask, did 
 the prisoner wilfully kill the deceased ? It is not pretended that there was any accident 
 in tlie case; and, therefore, the act must have been wilful. Was the killing deliberate 
 and premeditated ? or was it the effect of sudden passion, produced by a reasonable pro- 
 vocation? There had been a combat with fists; but this was over, when the prisoner, 
 without any new provocation, first procured a club, and losing that weapon, afterwards 
 armed himself witii an axe. It cannot surely be thought that the original combat was a 
 sufficient provocation for tiie prisoner's taking the life of his antagonist. An assault and 
 battery may, indeed, be resisted and repelled by a battery more violent; but the life of a 
 fellow creature must not be taken, unless in self defence. It has been objected, however, 
 that the amendment of our penal code, renders premeditation an indispensable ingredient 
 to constitute murder of the first degree. But still, it must be allowed, that the intention 
 remains, as much as ever, the true criterion of crimes, in law, as well as in ethics; and 
 the intention of the party can only be collected from his words and actions. In the pre- 
 sent case, the prisoner declared, that he would 'split the skull of any fellows who should 
 be saucy;' and he actually killed the deceased in the way which he had menaced. But, 
 let it be supposed, that a man, without uttering a word, should strike another on the 
 head with an axe, it must, on every principle by which we can judge of human actions, 
 be deemed a premeditated violence. The construction which is now given to the act of • 
 assembly, on this point, must decide, whether the law shall have a beneficial or a pcrni- 
 cious operation. Before the act was passed, the prisoner's offence would clearly have 
 amounted to murder; all the circumstances implying that malice, which is the gist of 
 the definition of the crime at common law: and if he escapes with impunity, under an 
 intcrpretdtion of the act different from the one which we have delivered, a case can 
 liardly occur to warrant a conviction for murder in the first degree. Tenderness and 
 mercy are amiable qualities of the mind; but if they are exercised and indulged beyond 
 the control of reason and the limit of justice, for the sake of individuals, the peace, order 
 and happiness of society, will inevitably be impaired and endangered. As far as respects 
 the prisoner, I lament the tendency of these observations : but as far as respects the pub. 
 lie, I have felt it a sacred duty to submit them to your consideration" The prisoner 
 was convicted of murder in the first degree, Resp. v. Mulatto Bob, 4 Dallas, 145. See 
 also, Bennett v. Com. 8 Leiah, 781. 
 
 In a case in Viririnia, it appeared on trial, that about nine o'clock of the morning on 
 which the homicide was committed, the prisoner and the deceased were seen together in
 
 454^^ HISTORIA PLACITORUM CORON.^. 
 
 the streets of Dumfries, as if about 1o engag^e in a personal conflict, but before any blow 
 they were separated. They had both remained in town from tiiat time until between 
 one and two o'clock of the same day, but how employed it did not appear; about the 
 latter liour, the prisoner was seen passings a tavern on the street, about four hundred yards 
 distant from the spot wiiere the murder was committed, and. on being accosted by the 
 witness, who was in the said tavern, he said he had been much injured by a man, whose 
 name he knew not, who had kicked him in the face; and the witness saw on the side. of 
 the prisoner's nose a fresh wound, from whicli the skin had been abraded to the superfi- 
 cial extent of a four-pence-half-penny, or nine-penny piece. The prisoner seemed angry, 
 and said he was determined to kill tiie man who had thus injured him. He then pro- 
 ceeded on about thirty yards farther, to the house of a butcher, and calling out the wife 
 of the butcher, who was then at dinner, told her that her fatlier (who was also concerned 
 with her husband in the trade of a butcher,) had sent him to borrow her husband's 
 butcher knife, whicli she immediately delivered to him. The shop where this took 
 place was about four hundred and tliirty yards from that where the murder was 
 committed. Upon his return in about five or six minutes from the last mentioned 
 shop with the knife in his hand, as lie was repassing the tavern before mentioned, 
 a short conversation took place between him and the first mentioned witness, in 
 which lie reiterated his determination to kill the deceased, and was warned against the 
 act by the witness. He proceeded along the same street about three hundred yards 
 farther and stopped at the ware-room of a merchant, where he asked the young man 
 who was in attendance, for a steel to sharpen the butcher's knife, declaring his intention 
 to kill tlic man who had injured him. About twenty yards from the ware-room he 
 turned into a cross street, and was heard denouncing loud threats of vengeance against 
 the deceased, and declaring his intention to kill liim. At the further corner of tlie first 
 square, after entering the cross street, the prisoner found the deceased on the steps of a 
 house, with his head hanging on his breast, apparently asleep. He roused the deceased 
 by kicking him, and as the deceased, who was unarmed, and made no attempt at resist- 
 ance, rose, the prisoner said he had come to kill him, and as tlie deceased answered that 
 " he reckoned no man wanted to kill him," the prisoner thrust the butcher's knife into the 
 breast of the deceased. Tlie deceased cried out, " You have stabbed' me," and the 
 prisoner replied, "damn you, if you don't Imsh, I will put the knife into you again." 
 The deceased walked about one hundred and fifty yards, fell, and expired. The 
 prisoner immediately going into a shop where he had a bundle, took it up, and walked 
 quietly out of town to a house about two miles distant, where he was domesti- 
 cated. To the owner of this house he related the incidents, and said he had given the 
 deceased his death wound, and would keep out of the way some days, until he could 
 ascertain whether or not he was dead. The prisoner and the deceased were both labor- 
 ers. It was proved that the deceased was a turbulent man, and reputed a hard fighter. 
 Nothing was said of the character of the prisoner. It did not appear that they had ever 
 been together until the day preceding the death, when they were at a cock-fight; but 
 whether they had any association there did not appear. At tl)e time of the murder the 
 prisoner eitlier did not know, or had forgotten the name of tlie deceased. Under the 
 charge of the court a verdict of murder in the first degree was rendered. Burgess v. 
 Cominonivralth, 2 Virginia cases, 484. 
 
 In another case under the Pennsylvarda act, it appeared that the prisoner was an hon- 
 est and industrious man, but addicted to intoxication, and when in that state was quar- 
 relsome. It also appeared that his wife occasionally drank too much; and that on the 
 day of the fatal occurrence they had fallen into a drunken squabble. During the quarrel 
 the wife threw several stones at him, one of which struck him on the arm. A few 
 moments after they were seen struggling together, but soon after the wife was discovered 
 fleeing with her infant in her arms, the prisoner pursuing her with an axe in his hand. 
 When he came within reach of her he aimed a blow at her which fell on the head of the 
 child as it lay upon the wife's shoulder, and caused a mortal wound, of which the child 
 died. The prisoner soon recovered himself and showed many signs of repentance 
 and manifested much distress at the manner of the child's death. The judge who 
 tried the case, in the course of his charge to the jury, said, "We now come to this 
 point: — what was the intention of the jirisoncr at the bar, when he killed Daniel 
 DougliCrty, his child ? for, if his intent was to kill his wife, and killing iier would have 
 been murder in the first degree, killing his child will also be murder in the same degree; 
 as nnich as if he had prepared a cup of poison for his wife and his child had drank it. 
 You, however, are in this case to judge of the law and facts. If you are of opinion the 
 injury the prisoner received from ids wife throwing stones at him, and hitting, him, kept
 
 HISTORIA PLACITORUIM CORONiE. 454' 
 
 his passion boiling until he g^ave the fatal blow, we think it your duty to find him g-nilty 
 of manslaughter. But if you are of the opinion his passion had time to cool, or in fact 
 had cooled, after the assault on him by his wifr, it is your duty to convict him of murder 
 in tlie first degree." The verdict was manslaugiiter. Cojiunonicealih v. Dougherty^ 
 7 Smithes Laics, 695. 
 
 In Tennessee, a verdict of murder in the first degree was sustained, where it 
 appeared that the deceased was killed on the night of the 3d of October, 1841 ; 
 that the prisoner and he had had angry difficulties from a period long anterior up to 
 the time of the commission of the offence, which resulted from mutual wrongs 
 done or charged; that the prisoner accused the deceased of having harboured his 
 wife, to his great personal injury, and the deceased accused him of having fired 
 his house; that on the 11th day of September, 1841, not many days before the 
 murder, the prisoner left the country in a steamboat, with threats in his mouth of 
 vengeance for his injuries, which he declared he would have before he left; that 
 one week before the murder, he returned and kept himself so concealed that but one 
 person saw him certainly, others saw what they took to be his tracks, and one, a person 
 in. disguise, whom he supposed might have been him; that on the night the deceased 
 took possession of the building which had formed the subject of tiie controversy between 
 them, he was killed, cowardly and treacherously ; and that the prisoner immediately 
 fled the country again, and being captured at Memphis, denied that he had been in the 
 County of Obion since his first departure on the 11th of September, but admitted that he 
 had returned up the river to within fitly miles of the residence of the deceased. Stone 
 \. The State, 4 Humphrey, 34. 
 
 Murder in the second degree includes all cases of deliberate homicide where the inten- 
 tion is not to take life, of which, homicide by a workman throwing timber from a house 
 into the street of a populous city, without warning, or pf a person shooting at a fowl, 
 animo furandi. and killing a man, are instances frequently given. Whiteford v. Coin. 
 6 Randolph, 7"21; There may, also, be cases where death ensues during a riotous affray, 
 under circumstances which would constitute murder at common law, but which, in 
 consequence of the want of a specific intent to take life being shown, amount but to 
 murder in the second degree. Thus, where it appeared that the deceased, during the 
 riots in Philadelphia in 1844, was killed while a desultory fire was going on, the object 
 of which was to prevent either of two contending parties from taking possession of a 
 position which both of them were desirous of obtaining, it was said that a homicide, 
 oonmiitted under such circumstances, though murder at common law, deliberation 
 being shown, might not be murder in the first degree, and a verdict of murder in 
 the second degree was consequently rendered. King, Pres't, who tried the case, how- 
 ever, charged the jury, "that if one or more of the parties sO engaged in an unlawful 
 combat, deliberately fire at and kill an innocent tiiird person, taking no part in tiie con- 
 flict, liaving no just reason to regard him as one of the belligerents, such killing would 
 be murder of the first degree. It would present the case of a wilful, deliberate and pre- 
 meditated killing, perpetrated with an instrument likely to take life, rendering the actual 
 perpetrators guilty of the highest grade of crime known to our criminal code. If the 
 testimony, in your judgment," he said, " brings clearly home to the defendant such a 
 charge, he should be convicted. If, however, the commonwealth has not fully satisfied 
 your minds in the affirmative of this position, or if the proofs adduced by the defen- 
 dant have rebutted this allegation, or thrown a fair doubt upon its certainty, you ought 
 not and cannot justly convict him of that part of the charge involving capital punish- 
 ment." Com. V. Hare, 4 Penns. Laic Jour. 401. 
 
 If a pregnant woman be killed in an attempt to produce abortion in her, and it 
 appears that the design of the operator was not to take the life of the mother, it is mur- 
 der in the second degree. Ex parte Chauncey, 2 Ashnead, 227. 
 
 Wherever the deliberate intention is to take life, and death ensues, it is murder in the 
 first degree ; wherever it is to do bodily harm, or other mischief, and death ensues, it is 
 murder in the second degree; while the common law definition of manslaughter remains 
 unaltered. But however clear may be the distinction between the two degrees, juries 
 not untrequcntly make use of murder in the second degree as a compromise, when they 
 believe murder to have been committed, but are unwilling, in consequence of circum- 
 stances of mitigation, to expose the defendant to its full penalties. In such cases courts 
 are not disposed to disturb verdicts, but permit them to stand, though technically incor- 
 rect. Thus, where S. having conceived and declared a design to kill P., the parties 
 met afterwards in front of S.'s own house, and a quarrel ensued, in which S. gave the 
 first offence; Pi proposed a fight; upon which S. retired for a very brief ti^ue into
 
 454^ HISTORIA PLACITORUM CORONA. 
 
 his house, armed himself witli a loaded pistol, which he concealed in his pocket, 
 and instantly returned so armed to the scene of quarrel; then P. threw a brickbat 
 at S, which did not hit him, but falling short of him, broke, and a small fragment 
 struck S.'s child, standing within his own door, who cried out, and his hearing his child 
 cry out, but without looking to see whether he was hurt or not, exclaimed, '* he has 
 killed my cliild and I will kill him," advanced towards P. deliberately aimed and fired 
 the pistol at him, then retreating with his face towards S., and the shot took effect and 
 killed P. A verdict of murder in tiie second degree being rendered, the court refused to 
 set it aside. Slaughters v. Com, 11 Leigh, 682. 
 
 There are, however, certain features which, in cases of deliberate homicide, draw 
 forth, generally from the courts instructions to the jury that by them a deliberate intent 
 to take life is shown. Where a man makes use of a weapon likely to take life; where 
 he declares his intentions to be deadly; where he makes preparations for the concealing 
 of the body; where, before the death, he lays a train of circumstances which may be 
 calculated to break the surprise, or bafHe the curiosity which would probably be occa- 
 sioned by it; wJiere, in any way, evidence arises which shows a harboured design against 
 the life of another; — such evidence goes a great way to fix the grade of homicide at 
 murder in tlie first degree; as in Resp. v. Mulatto Boh, quoted ante, 454.^" Where a man 
 loaded a pistol, took aim at, and shot another, it was held murder in the first degree. Com. 
 V. Smith, 7 Smith's Laws, 6'J6. If one man shoot another through the head with a musket 
 or pistol ball, — if he stab him in a vital part with a sword or dagger, — if he cleave his 
 skull with an axe or the like, — it is almost impossible for a reflecting and intelligent mind 
 to come to any other conclusion than that the perpetrator of such acts of deadly violence 
 intended to kill. Com. v. Daily, 4 Penn. Law Journal, 157. Where the defendant delib- 
 erately procured a butcher's knife, and sharpened it for the avowed purpose of killing the 
 deceased; Com. v. Burgess, 2 Va. Cases, 484; where lie concealed a dirk in his breast, 
 stating, shortly before the attack, that he knew where the seat of life was; BennetVs case, 
 11 Zi(io-/i, 749; where he thrust a hand-spike deeply into the forehead of the deceased; 
 Swan v. State, 4 Humphrey, 139; the presumption was held to exist, that the killing was 
 wilful. See U. S.\. Cornell, 2 Mason, 94; Woodside v. State, 2 Howard, 656; State v, 
 Tuohey,2 Rice''s Digest, 104; Com. v. Webb, 6 Randolph, 121. But it is not necessary, to 
 warrant a conviction of murder in tlie first degree, that the instrument should be such as 
 Would necessarily produce death. Thus, where the weapon of death was a club not so 
 thick as an axe-handle, the jury, under the charge of the court, rendered a verdict of 
 murder in the first degree, it appearing that the blow was induced by a deliberate inten- 
 tion to take life. Com. v. Murray, 2 Ashmead, 57. The same presumption of intention is 
 drawn with still greater strength from the declared purpose of the defendant. Thus, 
 where the prisoner, a negro, said he intended " to lay for the deceased, if he froze, the 
 next Saturday night," and where the homicide took place that night; Jim v. State, 
 5 Humphrey, 174; where it was said, "I am determined to kill the man who injured 
 me;" Com. v. Burgess, 2 Va. Cases, 484; where the prisoner had declared, the day 
 before the murder, that he would certainly shoot the deceased; Com. v. Smith, 7 Smit.h''s 
 Laws, 697; where, in another case, the language was, " I will split down any fellow that 
 is saucy;" Com. v. Mulatto Bob, 4 Dallas, 146; where the prisoner rushed rapidly to the 
 deceased, and aimed at a vital part; Com. v. O'Hara, 7 Smith's Laws, 694; where a 
 grave had been prepared a short time before the homicide, though the deceased was not 
 ultimately placed in it, the whole plan of action being changed; Com. v. Zephon, Oyer Sf 
 Term. Phila. July, 1844, MSS. Wharton's Am. C. L. 289; in each of these cases it was 
 lield murder in the first degree. It must be noticed that premeditation, in the eye of 
 the law, has no defined limits; and if a design be but the conception of a moment it 
 is as deliberate, so fiir as judicial examination is concerned, as if it were the plan of 
 years. If the party killing had time to think, and did intend to kill, for a minute, as 
 well as an hour or a day, it is a deliberate, wilful, and premeditated^ killing, constituting 
 murder in the first degree. Com. v. Smith, 7 Smith's Laws, 697. 
 
 In an early ciise in Tennessee, it is true, it was said that a previous intent to take life 
 must be positively shown; Mitchell v. Slate, 5 Yerger, 340.; but such is not the opinion 
 which now obtains even in that state. State v. Anderson, 2 Tenness. 6; Dale v. State, 
 10 Yerger, 551. If the accused, as he ajiproached the deceased, and first came within 
 view of him at a slmrt distance, then formed the design to kill, and walked up with a 
 quick pace, and killed him without any |)rovoeation then, or recently received, it is mur- 
 der in the first degree. Whiteford v. ('om. 6 Randolph, 721; Anthony v. State, 1 Meigs, 
 265; Resp. v. Mulatto Boh, 'I Vullus, 1 16. " It is true," as was said in a late case, "the 
 act says the killing must be wilful, deliberate, and premeditated. But every intentional
 
 HISTORIA PLACITORUM CORONA. 454** 
 
 act is, of course, a wilful one, and deliberation and premeditation simply mean that the 
 act was done with reflection, was conceived beforehand. No specific length of time is 
 required for such deliberation. It would be a most difficult task for human wit to furnish 
 any safe standard in this particular. Every case must rest on its own circumstances. 
 The law, reason, and common sense unite in declaring' that an apparently instantaneous 
 act may be accompanied with such circumstances as to leave no doubt of its being' the 
 result of predetermination." Com. v. Daley, 4 Penn. Law Journal, 156; Davis v. State, 
 S Humphrey, 439. 
 
 It is not necessary, nor is it the practice to desigriate the grade of homicide in the in- 
 dictment, nor that tlie killing should be charged to be wilful, deliberate, and premedi- 
 tated. Com. V. VV'tc/rs, 2 Va. Cases, 387; Mitchell v. Slate, .5 Yerger, 340 ; Com. v. Flan. 
 nagan, 8 Watts «.5" ^^rg. 415 ; Com. v. White, 6 Binney, 183 ; Com. v. Miller, 1 Va. Cases, 
 3lO; Com. v. -Gilbert, 2 Va. Cases, 70. So if murder be committed in the perpetration 
 of arson, rape, burglary, or robbery, it is not necessary that it should be so set out in the 
 indictment. Com. v. Flannagan, 8 Watts Sf Serg. 415. In Pennsylvania it is not neces- 
 sary that the indictment should conclude, contrary to the form of the act of assembjj/', 
 &,c. Com. V. White, 6 Binney, 183. On an indictment for murder, perpetrated by means 
 of poison, a verdict finding the prisoner "guilty in manner and form as stated in the in- 
 dictment," is as correct as of murder in the first degree, and sufficient to authorize the 
 judgment of death. Com. v. Earl, 1 Wharton, 525. 
 
 In Maine, the same line of distinction seems to have been taken as appears in the fore- 
 going cases. In the case of The Commonwealth v. Vurney, Shepley, J., charged the jury 
 that they could find either of four verdicts, not guilty, guilty of manslaughter, guilty of 
 murder in the second degree, or murder in the first degree. " If it was proved that the 
 prisoner killed Otis, the burden was upon him to reduce the offence from murder. The 
 distinction between murder in the first and second degree was, that it must be proved that 
 the deed was done with express malice, and with an intent to take life. Murder in the 
 second degree might be found where there was no intention to take life, but it was taken 
 not upon a mutual combat or sudden provocation, but in an assault made in consequence 
 of preconceived anger or resentment, although not amounting to an intention to kill. 
 That, in this case, to reduce the offence to manslaughter, the prisoner must satisfy them, 
 or they must be satisfied from the facts proved by the government, that the assault was 
 not the result of preconceived anger, but upon some new and sudden provocation given 
 at the time, or in the mutual combat. If the prisoner went there for the purpose of flog- 
 ging the deceased, and did make the assault accordingly, and there was no sutiicient pro- 
 vocation to excite him anew, and no mutual combat, then, although he did not intend to 
 kill, he would be guilty of murder in the second degree." Com.\. Varney, 8 Boston Law, 
 R.5i2. Vide Wh. Am. C. L. 287-290, where the above cases are collected. 
 
 The distinction taken, in Ohio, between murder in the first and murder in the 
 second degree, is different from that which obtains in other States. Thus it was 
 said, in a charge by Judge Wrisht ; "To convict of mudder in the first degree, you 
 must, in addition to the points I have mentioned, be satisfied, 1. That the prisoner 
 perpetrated the act purposely. 2. That he did it with intent to kill. 3. That he did 
 it of deliberate and premeditated malice. To constitute deliberate and premeditated 
 malice, the intention to do the injury must have been deliberated upon, and the 
 design to do it formed, before the act was done, though it is not required that either 
 should have been for any considerable time before. This supposes the party, by reflec- 
 tion, understood what he was about to do, and intended to do it in order to do harm. If 
 these things are all proved; and you find the defendant guilty of murder in the first 
 degree, you need examine- no further. If not proven to your satisfaction, you will then 
 examine further. To convict of murder in the second degree, you must be satisfied of 
 the general facts common to all the offences, which I have stated, and also of the follow- 
 ing: I. That the prisoner perpetrated the act purposely and maliciously ; 2, with intent 
 to kill; and 3, without deliberation or premeditation. If you are not satisfied of the con- 
 currence of these facts, you should acquit him of murder in the second degree, and will 
 be under the necessity of examining further." State v. Turner, Wright, 2Q; State v. 
 Town, Wright, 75 ; State v. Gardiner, Wright, 392. 
 
 To constitute the crime of murder in the first degree, when the purpose to maliciously 
 kill, with premeditation and deliberation, is found, the leno^th of time between the design 
 so formed and its execution, is immaterial. Shoemoher v. State, 12 Stanton, 43. 
 
 If the jury do not in a murder case specify in their verdict whether they find the pri.
 
 454^" HISTORIA PLACITORUM CORONA. 
 
 soner guilty of murder in the first or second degree, or of manslaughter, the court will 
 refuse to pass sentence, and award a new trial, even if not asked for. State v. Town, 
 Wright, 75. 
 
 In Kentucky, a statute was passed in 1801, 2 Morehead S^ Brown, 1267, by which a 
 similar distinction was supposed to have been created, but at the next session of the 
 legislature it was enacted that the former statute should not be so construed as " in any 
 way to alter or cliange the idea of murder, as it stands at common law." Ibid. 1281. 
 See Wharton's Am. Cr. L. p. 287-292, where most of the statutes and cases are col- 
 lected. 
 
 [ 455 ] CHAPTER XXXVII.j 
 
 CONCERNING MURDER BY MALICE IMPLIED PRESUMPTIVE, OR MALICE 
 
 IN LAW. 
 
 I HAVE before distinguished malice implied into these kinds : 1. When 
 the homicide is voluntarily committed without provocation. 2. When 
 done upon an officer or minister of justice. 3. When done by a per- 
 son, that intends a theft or burglary, &c. 
 
 1. Therefore touching the former of these. 
 
 When one voluntarily kills another without any provocation, it is 
 murder, for the law presumes it to be malicious, and that he is hoslis 
 humaiii genet-is ;[1] it remains therefore to be inquired, what is such 
 
 [1] The killing being proved, the inference is, that it was malicious, and that the 
 party is guilty of murder, and it is for the accused to show the circumstances which 
 justify, extenuate, or excuse the act; and this is accordant with the ordinary rule of 
 evidence, that the party alleging the afHrmative must prove it — a rule which usually ap- 
 plies in criminal as in civil cases. Kclyns;, 27, 1 East, P. C. 224, 340; 4 Bl. Com. 20i; 
 Roscoe Cr. Ev. (2tZ ed.) 20; The King v.^Onelij, 2 Ld. Ray. 149.3, and 2 Strange, 773; 
 Mitchell V. The State, 5 Yergcr, 340; Commonwealth v. Knapp, 10 PicA, 484 ; Kespub. 
 lica V. Mulatto Bob, 4 Dallas, 146; Mackalley's case, 9 Co. 67 h; Mavgridge^s case, 
 Kelyn<r, HO; Hollowaye^s case. Palm. 545; Cro. Car. 131; Bac. Ab. Murder, C. 2', 
 2 McNally, 546; 2 Starkie Ev. 948; Archbold, Cr. Pi. 212, 213; 3 Chitty., Cr, 
 Z. (4 Am. Ed.) 727; 1 Gabbitt, Cr. L. 455 : Queen v. Kirkham, 8 Car. ^ P. 116- 
 117; King v. Greenacre, 8 Car. S( P. 35 ; People v. McLend, 1 Hill, 436 ; State v, ZeU 
 lers, 2 Halstead, 243; Pennsylvania v. Honeyman, Bell, McFall Sf Lewis, Addison, 148, 
 161, 250, 282; Commonwealth v. York, 9 Metcalf, 93. 
 
 The killing, to be murder, must be committed with malice aforethought; but wherever 
 it appears that a man killed another, it shall be intended, prima facie, that he did it 
 maliciously, unless he can make out the contrary, by showing that he did it on a sud- 
 den provocation, or the like. 1 Hawk.c. 31, s. 32; li. v. Greenacre, 8 C tSf P. 35. 
 
 And in general, any formed design of doing mischief may be called malice; and, 
 therefore, not such killing only as proceeds from premeditated hatred or revenge against 
 the person killed, but also in many otlicr cases, such as is accompanied with those cir- 
 cumstances that show the heart to be perversely wicked, is judged to be of malice pre- 
 pense, and consequently, murder. 2 Hawk. r. 31, s. 18; 2. Str.lfjQ, 
 
 For when the law n^ikcs use of the term malice aforethought, as descriptive of the 
 crime of murder, it is not to be understood in that narrow restrained sense to whieh 
 the modern use of the word malice is apt to lead one, a principle of malevolence to par-
 
 HISTORIA PLACITORUM CORONA. 455 
 
 a provocation, as will take off the presumption of malice in him, that 
 kills another. 
 
 He that wilfully gives poison to another, that hath provoked him 
 or not, is guilty of wilful murder, the reason is, because it is an act 
 of deliberation odious in law, and presumes malice. [2] 
 
 If .,^. comes to B. and demands a debt of him, or comes to serve 
 him with a Subpcena ad respondenduin or ad lestijicatidum, and 
 B. thereupon kills ./?. this is murder, because it is no provocation. 
 
 IVatts came along by the shop of Brains, and distorted his mouth, 
 and smiled at him. Brains kills him, it is murder, for it was no such 
 
 ticulars ; for the law by the term malice (malitia) in this instance meaneth, that the 
 fact hath been attended with such circumstances as are the ordinary symptoms of a 
 wicked heart, regardless of social duty, and bent upon mischief Fost. 255, 256, 257. 
 
 Also, wherever a person in cool blood, by way of revenge, beats another in such a 
 manner that he afterwards dies thereof, he is guilty of murder, however unwilling he 
 might have been to have gone so far. 1 Hawk. c.'S\, s. 38. 
 
 So where a master or other person in authority, in for o domestico, exceeds the bounds 
 of moderation in administering correction, and death ensues, it will be manslaughter or 
 murder according to the circumstances. 
 
 A blacksmith struck his servant with a bar of iron by way of correction for im- 
 proper behaviour, by which he was killed ; held, murder. A woman kicked and 
 stamped on the belly of her child; ruled the same. Grey^s case, Kel. 64, 65; 1 East, 
 F. C. 261. Foster 262. 
 
 If a man resolve to kill the next person he meets, and do kill him, it is murder, 
 altliough he knew him not, for it is universal malice. 4 Bl. Com. 400. 
 
 Where the act is committed deliberately, and is likely to be attended with dangerous 
 consequences, the malice requisite to murder will be presumed ; for the law infers that 
 the natural or probable effects of any act deliberately done, were intended by its actor. 
 Commonwealth v. Drew, 4 Mass. 391. 
 
 Forcing a person to do an act which is likely to produce his death, and which does 
 produce it, is murder. Rex v. Evans, 1 Russ. C. ».Sf M. 426. 
 
 And threats may constitute such force. lb. 
 
 He who kills another upon his desire or command, is, in the judgment of the law, as 
 much a murderer as if he had done it merely of his own head. Rex v. Sawyer, 1 Russ. 
 C. S( M. 424. 
 
 If a man encourages another to murder himself, and is present abetting him wliile 
 he does so, such person is guilty of murder as principal. If two encourage each 
 other to murder themselves together, and one does so, but the other fails in the attempt 
 upon himself, he is a principal in the murder of the other. But if it be uncertain 
 whether the deceased really killed himself, or whether he came to his death by accident 
 before the moment when he meant to destroy himself, it will not be murder in either. 
 Rex V. Dyson, R. Sf R. C. C. 523. 
 
 Where a wound is wilfully, and without justifiable cause inflicted, and ultimately 
 becomes the cause of death, the party who inflicted it is guilty of murder, though life 
 might have been preserved if the deceased had not refused to submit to a surgical opera- 
 tion. Reg. v. Holland, 2 M. Sf Rob. 351. 
 
 See also Commonwealth v. Drew, 4 JV/flss. 391; Respublica v. Bob, 4 Dallas, 14fi; 
 Pennsylvania v. Honeyman, Addison, 148; Pennsylvania v. McFall, Addison, 252; 
 Pennsi/lvania v. Lewis, Addison, 182; Commonwealth v. York,! Boston Late Reporter, 
 510; State V. Zellers,2 Halstcd, 220; State w. Merrill, 2 Dev.26d; The People v. Mc Lead, 
 1 Hill, '317; State V. Town, Wright, 15; State v. Turner, Ibid. 20; Woodsides v. The 
 St^te, 2 Howard Miss. Rep. 656 ; Dexter v. Spear, 4 Mason, 115. ante ch. 36 notes. 
 \ 
 
 [2] 1 East, P. C. 225; 4 Bl. Com. 200. (See ante Chapter XXXIII. note.) By Sta. 
 tute, 1 Vict. c. 85, s. 2, administering poison with intent to murder, though no death 
 should ensue, is made a capital offence.
 
 455 HISTORIA PLACITORUM CORONA. 
 
 provocation as would abate the presumption of malice in the party 
 killing. M. 42 ^' 43 Ellz. B. R. Brain's case.(«)[3] 
 
 If./?, be passing the street, and B. meeting him, (there being con- 
 venient distance between ^. and the wall,) takes the wall of ..^. and 
 thereupon ,^. kills him, this is murder; but if B. had justled ./?. this 
 justling had been a provocation, and would have made it 
 []456 ] manslaughter, and so it would be, if .^. riding on the road, 
 B. had whipt the horse of .^. out of the track, and then ^. 
 had alighted, and killed B. it had been manslaughter. 17 Car. 1. Z«- 
 nure's case. 
 
 In the case of the lord Morley, IS Car. 2.(b) all the judges met, 
 and it was agreed by all judges except one, that if ./?. gives slighting 
 words to B. and thereupon B. immediately kills him, this is murder 
 in B. and that such words are not in law such a provocation, as will 
 extenuate the offense into manslaughter, and the statute of 1 Jac. 
 cap. 8. of stabbing in such a case was but provisional, because the 
 juries were apt upon any verbal provocation to find the fact to be 
 manslaughter; but it was there held, that words of menace of bodily 
 harm would come within the reason of such a provocation, as would 
 make the offense to be but manslaughter. 
 
 And many, who were of opinion, that bare words of slighting, 
 disdain, or contumely, would not of themselves make such a provo- 
 cation, as to lessen the crime into manslaughter, yet were of this 
 opinion, that if Jl. gives indecent language to B. and B. thereupon 
 strikes ,d. but not mortally, and then ^. strikes ^. again, and then B. 
 kills td. that this is but manslaughter, for the second stroke made a 
 new provocation, and so it was but a sudden falling out, and tho B, 
 gave the first stroke, and after a blow received t'i:om^.,B. gives him 
 a mortal stroke, this is but manslaughter according to the proverb 
 the second blow makes the affray ; and this was the opinion of my-^ 
 self and some others.[4] 
 
 There was a special verdict found at Neivgate, viz. A. sitting 
 drinking in an alehouse, B. a woman called him a son of a ivhore^ 
 J2. takes up a broomstaff, and at a distance throws it at her, which 
 hitting her upon the head kild her, whether this was murder or man- 
 slaughter was the question in P. 26 Car. 2. it was propounded to all 
 the judges at Se7jeants-Inn, two questions were named, 1. Whether 
 bare words, or words of this nature, would amount to such a provo- 
 cation, as would extenuate the fact into manslaughter ?(c) 
 
 2. Admitting it would not in case there had been a striking 
 
 [ 457 3 with such an instrument, as necessarily would have caused 
 
 death, as stabbing with a sword, or pistolling, yet whether 
 
 (a) Cro. Eliz. 778. Kel. 131. (6) Kelyng, 55. (c) See Kcl. 131. 
 
 [3] Slate V. Toohey, 2 Rice's Dip;. 104. U. States v. Cornell, 2 Mason, 91. Woodsides v. 
 Stnte, 2 Howard, Miss. R. 656. Davies v. The State, 2 Humphrey, 437. Coffee v. The 
 Slate, 3 Yertrer, 288. 
 
 [4] 1 Russ. on C. 587. Foster, 205. JR. v. Maugridge, Kel. 128. R. v. Snow, 1 Leach, 
 151. Reg. V. Smith, 8 C. Sf. F. IGO.
 
 HISTORIA PLACITORUM CORON.^. 457 
 
 this striking, that was so improbable to cause death, will not alter 
 the case; the judges were not unanimous in it; and in respect, that the 
 consequence of a resolution on either side was great, it was advised 
 the king should be moved to pardon him; which was accordingly- 
 done. [5] 
 
 Ji. and B. are at some difference, A. bids B. take a pin out of the 
 sleeve oi vi. intending thereby to take an occasion to strike or wound 
 B. which B. doth accordingly, and then A. strikes B. whereof he 
 died; this was ruled murder, 1. Because it was no provocation, when 
 he did it by the consent oi Ji. 2. Because it appeared to be a ma- 
 licious and deliberate artifice thereby to take occasion to kill B. 
 
 If there be chiding between husband and wife, and the husband 
 strikes his wife thereupon with a pestle, that she dies presently, it is 
 murder, and the chiding will not be a provocation to extenuate it to 
 manslaughter. 43 Eliz. Crompt.fol. 120. a.(c^)[6] 
 
 (d) See also Kd. 64. 
 
 [5] HdzeVs case, 1 Leach, 368. Twiner^s case, ] Ld. Raymond, 143. Wigg''s case, 
 1 Leach, 378. R. v. Howlett, 7 C. Sj P. 274. MacklMs case, 7 Lew. 225. 
 
 [6] An unwarrantable imprisonment of a man's person has been liolden sufficient 
 provocation to make a killing, even with a sword, manslaughter only. R. v. Buckner, 
 Sty. 467. Tlierefore where a constable took a man without warrant, upon a charge 
 which gave him no authority to do so, and the prisoner ran away, and J. S., who was 
 with the constable all the time, ran after the prisoner, who, to prevent his being retaken, 
 killed J. S.; it was holden to be manslaughter only, although, whilst under the charge 
 of the constable, the prisoner struck the man who gave the charge; because a blow 
 under the provocation of the illegal arrest would not justify the constable in detaining 
 him, unless the blow were likely to be followed by dangerous consequences, and formed 
 a new and distinct ground of detainer. R. v. Curvan, R. &• M. 132 ; see R. v. Thomp- 
 son, R. Sf M. 88. 
 
 So where a creditor placed a man at the chamber door of his debtor, with a sword 
 drawn to prevent him from escaping, while a bailiff was sent for to arrest him, and 
 the debtor stabbed the creditor, this was held manslaughter. R. v. Withers, 1 East, 
 P. C. 233. 
 
 There are other instances where slight provocation has been considered as extenuat- 
 ing the guilt of homicide, upon the ground that the conduct of tlie party killing, upon 
 Buch provocation, might fairly be attributed to an intention to chastise rather tlian to a 
 cruel and implacable malice. But it must appear that the punishment was not urged 
 with brutal violence. Thus, were A. finding a trespasser upon his land, in his passion 
 beat him, and, unluckily, happened to kill him, it was holden to be manslaughter. Post. 
 ii. 91. 1 Rvss. on Crimes, 5t!2. 
 
 So where a person, whose pocket has been picked, encouraged by a mob, threw the 
 pick-pocket into a pond, for the purpose of ducking him, but he was unfortunately 
 drowned : this was holden to be manslaughter. R. v. Ray, 1 East, P. C. 236. 
 
 It seems to be agreed, that no breach of a man's word or promise, no trespass either 
 to lands or goods, no affront by bare words or gestures, however false or malicious it 
 may be, and aggravated with the most provoking circumstances, will excuse him from 
 being guilty of murder, who is so far transported thereby as immediately to attack the 
 person who offends him in such a manner as manifestly endangers his life, without 
 giving him time to put himself upon his guard; if he kills him in pursuance of 
 such an assault, whether the person slain did at all fight in his defence or not, for 
 80 base and cruel a revenge cannot have too severe a construction. 1 Hawk. c. 31. 
 s. 33. 
 
 Nor can any provocation whatever render homicide justifiable, or even excusable; tlie 
 
 VOL. I. 41
 
 457 HISTORIA PLACITORUM CORONA. 
 
 II. The second kiud of malice implied is, when a minister of jus- 
 tice, as a bailift', constable, or watchman, S,'C. is killed in the execu- 
 tion of his office, in such a case it is murder. 
 
 If the sheriff's baihff comes to execute a process, but hath not a 
 
 least it can amount to is manslaughter. If a man kill another suddenly, without any, or 
 without a considerable provocation, the law implies malice, and the homicide is murder; 
 but it" the provocation were great, and such as must have greatly provoked him, the kill- 
 ing is manslaughter only. Kel. 135. Fust. 290. 
 
 If a man pull another's nose, or offer him any other great personal indignity, and the 
 otiier thereupon immediately kill him, it is manslaughter only. Kel. 135. 4 Bl. Com. 191. 
 But slight provocation even by a blow will not extenuate the crime where the revenge ia 
 disproportioned to the injury, or outrageous and barbarous in its nature; as, if a man, 
 upon being gently pushed by a policeman to make him move on when causing an 
 obstruction, kill him, this is murder. Reg- v. Hagan, b C. Sf P. 167. See also Sted- 
 marCs case, Fost. 292. R. v. Lynch, 5 C. Sf P. 324. 
 
 So, if a father see another person in the act of committing an unnatural crime with 
 his son, and instantly kill him, it is manslaughter only ; but if, hearing of it, he go in 
 quest of the party and kill him, it is murder. Reg. v. Fisher, 8 C. 6f Pr 182. See Fos- 
 ter, 189. 
 
 Semble, if A. kill B. under provocation of a blow not sufficiently violent in itself to 
 render the killing manslaughter, but the blow be accompanied by very aggravating 
 words and gestures, that will be but manslaughter in A. Reg. v. Sherwood, 1 Car. ^ 
 K. 556. 
 
 In a case where there had been mutual blows, and then upon one of the parties 
 being pushed down on the ground, the other stamped upon his stomach and belly with 
 great force, and thereby killed him, it was considered only to be manslaughter. Rex v. 
 Ayes, 1 Russ. C. Sf M. 496; R. Sf R. C. C. 166. But' in the case of Rex v. Thorpe, 
 1 Lewin C. C, Bailey, J. intimated that death caused by vp-and-down fighting would 
 be murder. 
 
 In the case of death by stabbing, if the jury are of opinion that the wound was 
 inflicted by the prisoner while smarting under a provocation, so recent and so strong 
 tliat the prisoner may be considered as not being at the moment master of his own 
 understanding, the offente will be manslaughter; but if there had been, after the provo- 
 cation, sufficient time for the blood to cool, for reason to resume its seat, bclore the 
 mortal wound was given, the offence will amount to murder; and if the prisoner display 
 thought, contrivance, and design in the n)odc of possessing himself of the weapon, 
 and in again replacing it immediately after the blow was struck, such exercise of 
 contrivance and design denotes rather the presence of judgment and reason than of 
 violent and ungovernable passion. Per Tindal, C, J. Rex v. Hayward, 6 Car. ^ P. 
 157. 
 
 It was held to be no excuse for killing a man who was out at night dressed in white 
 as a ghost, for the purpose of frightening the neighbourhood, that he could not otlierwise 
 be taken. Rex v. S7iiilh, 1 Russ. C. 6f M. 459. 
 
 Where the prisoner, who was a butcher, had employed the deceased, a shepherd boy, 
 to tend some sheep which were penned, and he had negligently suffered some of them 
 to escape through the hurdles ; and the prisoner, upon seeing it, ran towards the boy, 
 and taking up a stake which was lying on the ground, threw it at him, and inflicted 
 an injury of which he died : Held, that under the circumstances it was a question for 
 the jury whether it was murder or manslaughter; they found the latter. Rex v. Wiggg, 
 ] Leach, C. C. 379. 
 
 As an assault, though illegal, will not reduce the crime of the party killing the person 
 assaulting him to manslaughter, when the revenge is dispropprtionate and barbarous, 
 much less will such jiersdual restraint and coercion as one man may lawfully use to- 
 wards another form any ground of extenuation. Rex v. Willoiishby, 1 Russ. C. ^ M. 
 437; 1 East, P. C. 288. And see Rex. v. Steudmtjn, 1 East, P. C. 2"34 ; Rex v. Nailor, 
 1 E<ist, P. C. 217; Rex v. MiUon, 1 E'jst, P. C. 411. 
 
 If A. stands with an offensive vvcajjdn in the doorway of a room, wrongfully to pre- 
 vent J. IS. from leaving it, and others from entering, and C, who has a right in the room,
 
 HISTORIA PLACITORUM CORONiE. 457 
 
 lawful warrant, as if the name of the bailiff, plaintiff, or defendant he 
 interlined or inserted after the sealing thereof by the bailiff himself, 
 or any other, if such bailiff be killed, it is but manslaughter, and not 
 murder. 
 
 But if a process issuing out of a court of record to a Serjeant at 
 mace, sheriff, or other minister, be erroneous, as if a Capias issue, 
 when OiDistruiffas should issue, yet the killing of*such a minister in 
 the execution of that process is murder, altho he execute the process 
 in the night, (e) or upon a Sunday. {/) Mackally^s case, 9 Co. Rep. 
 
 68. a. 
 
 But if the process be executed out of the jurisdiction of 
 the court, the killing of the minister is only manslaughter, [458 3 
 and so it is, if the issuing of the process were void, and co- 
 ram nonjudice. 
 
 A bailiff or officer/Mr?/^ 8; conns may arrest a man without show- 
 ing his warrant, (^) and a private bailiff need not show his warrant 
 upon the arrest, till the party arrested demand it, and therefore, if the 
 party arrested kill a bailiff upon the arrest without such a warrant 
 
 (e) 9 Co. 66. a. 
 
 (/) 9 Co. 66. 6. for ministerial acts might lawfully be executed upon a Sunday, but 
 since our author wrote, the law is altered in this respect; for by 29 Car. 2. cap. 7. all 
 process, warrants, Sfc. served or executed on a Sunday are void, except in cases of trea- 
 son, felony, or breach of the peace, so that now, an officer arresting a man upon a war- 
 rant on a Sunday is, as if he had him arrested without any warrant at all. 
 
 (g) The the party do demand it; this is intended of the warrant constituting him 
 bailiff; but as to the writ or process against the party, there is no difference be- 
 tween a public or a private bailiff, for in either case, if the party submit to the arrest, 
 and do demand it, he is bound to shew at whose suit, for what cause, out of what 
 court the process issues, and when and where returnable. 5 Co. 54. a. 9 Co. 
 
 69. a. 
 
 struggles with him to get his weapon from him, upon which D , a comrade of A., stabs 
 C, it will be murder in D. if C. dies. Rex v. Longden, R. Se R. C, C228; 1 Russ. 
 C Sf M. 439. 
 
 A bare trespass against the property of another, not his dwelling-house, is not a 
 sufficient provocation to warrant the owner in using a deadly weapon in its defence; 
 and if he do, and with it kill the trespasser, it will be murder. If tiie beating, however, 
 be with an instrument, and in a manner not likely to kill, it will be no more than man- 
 slaughter. So, if any one, under colour or claim of legal authority, unlawfully arrest, 
 or actually attempt or offer to arrest another, and this latter in his resistance kills the 
 aggressor, it will be no more than manslaughter. So if one, not a stranger, aids the 
 injured party by endeavouring to rescue him, or to prevent an unlawful arrest wliea 
 actually attempted. Commonwealth v. Drew, 4 Mnss. 391. 
 
 See Woodhead's case, 1 Lewin, 163; Cro. Eliz. 778; Kel. 131; Langstaff's case, 
 1 Lewin, 1 62 ; State v. Yarborovgh, 1 Hawks, (iV. C.) Rep. 78 ; Slate v. Tachet, iliid. 210 ; 
 Allen V. The State, 5 Yerger, 423; State v. Ford, 1 Spears, 146; Jacob v. The State, 
 1 Humphrey, 493; State v. Piver, 2 Haywood, R. 29; State v. Mors'in, 3 Iredell, 136; 
 Slate V. Ferguson, 2 Hill, 619 ; Slaughter v. The Commonwealth, 11 Leigh, 681; State v. 
 McCarty, 1 Spears, 384. 
 
 Among equals the general rule is, that words are not, but blows are a sufficient 
 provocalion ; yet tliere may be words of reproach so aggravating when uttered by a 
 slave; as to excite in the white man the temporary fury, which negatives the charge of 
 malice. Slate v. Jarrott, 1 Iredell, 76.
 
 458 HISTORIA PLACITORUM CORONA. 
 
 shewn, it is murder, and so it is, if a serjeant at mace makes the ar- 
 rest without showing his mace, ibidem Mackally'' s case.(A) 
 
 A bailiff J?<r?«.s <§' conns had a warrant to arrest Peiv upon a Ca- 
 pias, and came to arrest him, not using any words of arrest, Pew 
 said. Stand off, I know you ivell enough, come at your peril, the 
 baihff takes hold of him, Pew thrusts him through; it was ruled mur- 
 der, tho he used no words of arrest, nor showed his warrant, for pos- 
 sibly he had not time. P. 6 Car, I. B. R.{i) 
 
 A bailiff having a warrant to arrest Cook upon a Capias ad satis- 
 faciendum, came to Cook's house, and gave iiim notice. Cook me- 
 naceth to shoot him if he depart not, yet the bailiff departs not, but 
 breaks open the window to make the arrest, Cook shoots him, and 
 kills hinij it was ruled, 1. That it is not murder, because he cannot 
 break the house, (>t) otherwise it had been, if it had been upon an 
 Habere facias possessionem, (l) 2. But it was manslaughter, because 
 he knew him to be a bailiff. But 3. Had he not known him to be a 
 bailiff, or one that came upon that business, it had been no felony, 
 because done in defense of his house. P. 15. Car. B. JR.{m) 
 
 But if a sheriff enter the house by the outward door open, he or 
 
 his bailiff may break open the inward doors, tho the process 
 
 r459 ] be without a Non omittas, and therefore the killing of him 
 
 in such case is murder. Af. 17. Jac. B. R. White and JVilt- 
 
 shire.(n) 
 
 If the sheriff or bailiff have once laid hands upon the prisoner, and 
 so began his execution, he may break open the outward doors to 
 take him, Sir William Fishers csLse,{o) and if the warrant be directed 
 to five bailiffsjtwo or three may make execution; resolved in White's 
 case, ubi supra. 
 
 Upon a warrant against a felon, or one that hath dangerously 
 wounded another, or for surety of the peace, or good behaviour, the 
 constable may break open the door where the offender is, Dalt. cap^ 
 78. (p) and so may the sheriff or his bailifi' upon a Capias ntlega- 
 ium, Capias pro fine, or other process for the king, if not opened 
 upon demand. 
 
 The constable of the vill of .^. comes into the vill of B. to sup- 
 press some disorder, and in the tumult the constable is kild in the vill 
 of B. this is only manslaughter, because he had no authority in B. 
 as constable. 
 
 But it seems, that if the constable of the vill of ^. had a particu- 
 lar precept from a justice of peace directed to him by name, or by 
 the name of the constable of J^. to suppress a riot in the vill of B. or 
 to apprehend a person in the vill of B. for some misdemeanor, and 
 within the jurisdiction and conusance of the juslice of peace, and in 
 pursuance of that warrant he go to arrest the party in B. and in exe- 
 cution of his warrant is killed in B. this is murder ; for tho, in such 
 
 (A) 9 Co. 69. a. (m) Cro. Car. 537. W. Jones, 420. 
 
 (i) Cro. Car. 183. («) I'almer 5-2. 
 
 (k) 5 Co. 92. 6. Semayne's case. . (o) Cited in White's case, Palmer 53. 
 
 (/) 5 Co. 91. b. {!>) New Edit. cap. 121. p. 426.
 
 HISTORIA PLACITORUM CORONA. 459 
 
 case, it seems the constable was not bound to execute the warrant 
 out of his jurisdiction, neither could he do it singly virtute officii, as 
 constable of A. yet he may do it as baihff or minister by virtue of 
 the warrant, artd the kilHn§ of him is murder, as well as if he had 
 been constable of the hundred wherein J2. and B. lie, or sheriff of 
 the county ; for a justice of peace may for a matter within his juris- 
 diction issue his warrant to a private person, as servant ; but then 
 such person must shew his warrant, or signify the contents of it. 
 14 H. 8. 16. a. 
 
 And altho the warrant of the justice be not in strictness 
 lawful, as if it express not the cause particularly enough, [460] 
 yet if the matter be withiti hisjurisdiction as justice of peace, 
 the killing of such officer in execution of his warrant is murder; for 
 in such case the officer cannot dispute the validity of the warrant, if 
 it be under seal of the justice. 14 H. 8. 16. 
 
 If A. and B. are constables of the vill of C. and there happens a 
 riot or quarrel between several persons, Ji. joins with one party, and 
 commands the adverse party to keep the peace, B. joins with the 
 other party, and in like manner commands the adverse party to keep 
 the peace, and the assistants and party of A. in the tumult kill B. it. 
 seems that this is but manslaughter, and not murder, in as much as 
 the officers and their assistants were one engaged against the other, 
 and each had as much authority as the other. 
 
 But if the sheriff having a writ of Habere facias possessionem 
 against the house and lands of A. and */i. pretending it to be a riot 
 upon him, gain the constable of the vili to assist him, and to suppress 
 the sheriff or his baihffs, and in the conflict the constable is killed, 
 this is not so much as manslaughter ; but if any of the sheriff's offi- 
 cers were killed, it is murder, because the constable had no authority 
 to encounter the sheriff's proceeding or acting by virtue of the king's 
 writ. 
 
 If a constable, or tithing-man, or watchman be in execution of his 
 office, and be killed, it is murder; and in all cases of implied malice, 
 or malice in. law, the indictment need not be special, but general ex 
 malitiu sua prsecogitatd interfecit tS* murdravit, and the malice in 
 law maintains the indictmant. 9 Co. Rep. 68. Mackally^s case. 
 
 But now toucliing the point of notice. 
 
 1. It is not necessary to make it murder, that the party killing 
 know the person of the bailiff, constable, or watchman. 
 
 2. If he be a h-d^xW'S. jurus cS* conns, it seems there is no necessity 
 for him to notify himself to be such by express words, but it shall be 
 ;)resumed that the offender knew him, as it seems by the book 9 Co. 
 Bep. 69. b. Mdckally^s case ; qusere. 
 
 3. But if it be a private baililf, either the party must know 
 
 that he is so, as in Pew\s case before, or there must be some [ 461 ] 
 such notific»ation thereof, whereby the party may know it, 
 as by saying, / an-est you, which is of itself sufficient notice, and 
 it is at the peril of the party, if he kill him after these words, or 
 words to that effect pronounced, for it is murder, if de facio it
 
 461 HISTORIA PLACITORUM CORONA. 
 
 falls out, that he were a bailiff, and had a warrant. 9 Co. Rep. iibi 
 
 4. A constable coming to appease a sudden afTray in the day time 
 in the village, whereof he is constable, it seems every man e.r officio 
 is bound to take notice that he is the constable, because he is to be 
 chosen and sworn in the leet, where all resiants are to attend, 4 Co. 
 Rep. 40. b. Youns;''s case \{q) but it is not so in the night-time, unless 
 there be some notification, that he is the constable. 
 
 5. But whether it be in the day or night, it is sufficient notice, if 
 he declare himself to be the constable, or command the peace in 
 king's name, and the like for any that come in his assistance, or for 
 a watchman, &c. and therefore, if any of them are killed after such a 
 notification, it is murder in them that kill him. 9 Co. Rep. 68. b. 
 Mackalhfs case. 
 
 And these dijTerences may be collected out of the books, 4 Co. 
 Rep. 40. YoiiJig^s case. '» Et en cest case fuit tenus per totani cu- 
 riam, que si sur affray fait le constable and autres en son assist- 
 ance veignont a suppresser le affray & a preserver le peace, & en 
 fesant lour office le constable ou ascun de ses assistants spit tue, ceo 
 est murder en ley, coment que le murderer ne scavoit le party, que 
 fuit tue, & coment que le affray fuit sodein, pur ceo que le con- 
 stable & ses assistants veigne per authoritie del ley pur le garder 
 del peace & a preventer le danger, que poit ensuer per le infreinder 
 de ceo, & pur ceo le ley adjudgera ceo murder, & que le murderer 
 avoit malice prepense, pur ceo, que il oppose luy mesme enconter 
 
 le justice del realme, & issint de le viscont, ou son bailili^, 
 [ 462 ] ou watchman en fesant son office." And 9 Co. Rep. 69. 
 
 Mackally''s case, where it was objected, that the serjeant 
 at mace did not show his mace, whereby the offender might know 
 him to be an officer; yet it was ruled, that the killing of him was 
 murder, 1. Because it was found, that he was serviens ad clavam, 
 juratvs 4* cognitufi, and a hdiW'i^ ju7ms 8^- conns need not show his. 
 warrant, tho demanded, nor another bailiff without demand ; and 
 when the books speak of ?ih^'\\\Q jurus <§• conus, it is not necessary 
 that he be known to the party arrested, but it is sufficient if he be 
 commonly known. 2. " Si notice fuit requisite il done sufficient 
 notice, quant il dit jeo toy arrest in le nosme le roy, cVc. Et le 
 party a son peril doit luy obeyer, & sil nad loyall garrant, il poit 
 aver son action de faux imprisonment, issint que in cest case sans 
 question le serjant ne besoigne a monstrc son mace, car sils serra 
 chase a monstre lour mace, ceo serra warning al party destre arrest 
 a fuer. 
 
 H. 24 (5' 25 Car. 2. A groat number of persons assembled in a 
 house called Sissinghurst iu Kent, issued out and committed a great 
 riot and battery upon the possessors of the wood adjacent. One of 
 
 • 
 
 ' (5) The reason here pivcn by our author is not mentioned in tliivS case, but it is tljere 
 held, that a person's acting as constable is a sufficient notification, altho the party do not 
 otherwise know him to be so.
 
 HISTORTA PLACITORUM CORONA. 462 
 
 their names, viz. A. was known, the rest were not known ; a war- 
 rant was obtain'd from a justice of peace to apprehend the said Jl. 
 and divers other persons unknown, which were all together in Sis- 
 smghnrst-fiouse. The constable, with abont sixteen or twenty 
 called to his assistance, came with the warrant to the house, and 
 demanded entrance, and acquainted some of the persons within, 
 that he was the constable, and came with tlie justice's warrant, and 
 demanded A. with the rest of the offenders, that were then in the 
 house, and one of the persons within came and read the warrant, 
 but denied admission to the constable, or to deliver A. or any of the 
 malefactors, but going in commanded the rest of the company to 
 stand to their staves: the constable and his assistants fearing mis- 
 chief went away, and being about five rod from the door, B. C. D. 
 E. F. 6,'c. about fourteen in number, issued out and pursued the 
 constable and his assistants; the constable commanded the peace, 
 yet they fell on and kild one of the assistants of the con- 
 stable, and wounded others, and then retired into the house [ 463 J 
 to the rest of their company, which were in the house, 
 whereof the said A. and one G. that read the warrant, were two, 
 for which the said A. B. C. D. E. F. G. and divers others were in- 
 dicted of murder, and tried at the king's bench bar, wherein these 
 points were unanimously agreed. 
 
 1. That altho the indictment were, that B. gave the stroke, and 
 th^ rest were preseut, aiding and assisting, tho in truth C. gave the 
 stroke, or that it did not appear upon the evidence, which of them 
 gave the stroke, but only that it was given by one of the rioters, yet 
 that evidence was sufficient to maintain the indictment, for in law it 
 was the stroke of all that party, according to the resolution in 
 MackaUy\^ case, 9 Co. Rep. 67. b. 
 
 2. That in this case all, that were present and assisting to the 
 rioters, were guilty of the death of the party slain, tho they did not 
 all actually strike liim, or any of the constable's company. 
 
 3. Thai those within the house, if they abetted or counselled this 
 riot, were in law present, aiding, and assisting, and principals as 
 well as those that issued out and actually coiumitted the assault, 
 for it was but within five rod of the house, and in view thereof, 
 and all done as it were in the same instant ; vide lord Dacre's case 
 before. 
 
 4. That here was sufficient notice, that it was the constable 
 before the man was killed, 1. Because he was constable of tlie 
 same vill. 2. Because he notified his business at the door before 
 the assault, viz. that he came with the justice's warrant. 3. Be- 
 cause after his retreat, and before the man slain, the constable com- 
 manded the peace, and notwithstanding it, tiie rioters fell on, and 
 kild the party. 
 
 5. It was4-esolved, that the killing of the assistant of the constable 
 was murder, as well as the killing of the constable himself. 
 
 6. That those, that came in the assistance of the constable, tho not
 
 463 HISTORIA PLACITORUM CORONA. 
 
 specially called thereunto, are under the same protection as they that 
 are called to his assistance by name. 
 
 7, That altho the constable retired with his company upon the not 
 
 delivering up of .^. yet the killing of the assistant of the con- 
 ["4643 stable in that retreat was murder. 1. Because it was one 
 
 continued act in the pursuance of his office, his retiring was 
 as necessary, when he could not attain the effect of his warrant, and 
 was in effect a continuation of the execution of his office, and under 
 the same protection of the law, as his coming was. 2. Principally, 
 because the constable in the beginning of the assault, and before the 
 man was stricken, commanded the peace, and is all one with 
 Yunge''s case. 
 
 8. It seems, that tho the constable had not commanded the peace, 
 yet when he and his company came about what the law allowd 
 them, and, when they could not effect it fairly, were going their way, 
 that the rioters pursuing them, and killing one, was murder in them 
 all, because it was done without provocation, for they were peace- 
 ably retiring ; but this point was not stood upon, because there was 
 enough upon the former point to convict the offenders, and in the 
 conclusion the jury found nine of them guilty, and acquitted those 
 within, not because they were absent, but because there was no 
 clear evidence, thattliey consented to the assault, as the jury thought, 
 and thereupon judgment was given against the nine to be hanged: 
 and note, that the award was for the marshal to do execution, be- 
 cause they were remanded to the custody of the marshal, and he is 
 the immediate officer of the court, and precedents in cases of judg- 
 ment given in the king's bench have commonly run, Et dictum 
 est 7narescallo, 4'C. qnod faciat executionem periculo incu7nbente.{r) 
 
 At Newgate in Lent vacation, 26 Car. 2. the case was thus : five 
 persons committed a robbery about Hoxinslow-heath in Middlesex, 
 viz. Jackson and four others, the party robbed raised hue and cry, 
 the country pursued them, and at Hampstead Jackson one of the 
 five turned upon his pursuers, the rest being in the same field, and 
 having often resisted the pursuers, and refusing to yield, killd one 
 of the pursuers, by five judges then present it was ruled. 1. That 
 this was murder, because the country, upon hue and cry levied, are 
 authorized by law to pursue and apprehend the malefactors; and ia 
 this case here was a felony done, and a felony done by those per- 
 sons, that were thus pursued. 2. Tliat altho there was no warrant 
 of a justice of peace to raise hue and cry, and tho there was no con- 
 stable in the pursuit, yet the hue andcrywas a good warrant in law 
 
 (r) And thus it was in the case of the Althoes, T. 9. Geo. I. B. R. who were convicted 
 of a barbarous jiiurdcr in Pemhroknshirc, at Hertford assizes, being the next English 
 county ; the indictment was removed by Certiorari into the iun<r's bench, in order to 
 arijue some exce[)tions, which were over-ruled; and after some question made, whetlier 
 tlicy ought not to be sent back to llerefiyrdshire to receive sentence there, the court was 
 of opinion, that they had the same jurisdietion over facts committed in Wa/*s, ijs if corh- 
 mitt( d iti the next adjacent county in JCiifrtand, and so they were sentenced at the king^s 
 bench, and were executed by the marshal at Kenninglon gallows near Southwark.
 
 HISTORIA PLACITORUM CORONA. 465 
 
 for them to apprehend the offenders, and the kiUing of any of the 
 pnrsuants by Jackson was murder. 3. In as much as all of the rob- 
 bers were of a company, and made a common resistance, and so one 
 animated the other, all those of the company of the robbers that 
 were in the same field, tho at a distance from Jackson, were all prin- 
 cipals, viz. present, aiding, and abetting. 4. That when one of the 
 maletactors was apprehended a little before the party was hurt, /hat 
 person being in custody when the stroke was given was not guilty, 
 unless it could be proved, that after he was apprehended he had 
 animated Jackson to kill the party : they had all judgment of death 
 for the robbery, and four of them for the murder. 
 
 A press-master seised B. for a soldier, and with the assistance of 
 C. laid hold on him. D. finding fault with the rudeness of C. there 
 grew a quarrel between them, and D. killed C. By the advice of 
 all the judges, except very few, it was ruled, that this was but man- 
 slaughter, 17 Car. 2.(5)[7] 
 
 (s) HuggeVs case, 25 April 1666. at Newgate, Kel. 59. 137. 
 
 [7] If therefore upon an affray, the constable, or otliers in his assistance, come to sup- 
 press the affray and preserve the peace, and in executing tlieir otfice the constable or any 
 of his assistants are killed, it is murder in law; although the murderer knew not the party 
 that was killed, and although the affray was sudden because the constable and his assist- 
 ants came by authority of law to keep the peace, and prevent the danger wiiich might 
 ensue by the breach of it; and, therefore, the law will adjudge it murder, and that the 
 murderer had malice prepense, because he set himself against the justice of the realm; 
 Cases of Appeals and Indictments, 4 Co. 40. This rule is not confined to the instant the 
 officer is upon the spot, and at the scene of action, engaged in the business tliat brought 
 him thither; for he is under the same protection of the law eundo,morundo, ei redeundo: 
 and therefore if he come to do his office, and meeting with great opposition, retire and be 
 killed in the retreat, this will amount to murder; as he went in obedience to the law and 
 in the execution of his office, and his retreat was necessary in order to avoid the danger 
 by which he was threatened; and upon the same principle, if he meet with opposition by 
 the way, and be killed before he come to the place, such opposition being intended to 
 prevent his doing his duty, (which is a fact to be collected from circumstances appearing 
 in evidence,) this likewise will amount to murder. 1 Russ. on Crimes, 532. Fost. 308, 
 309. 4 Penn. Law Jour. 29. Charge of King, P., to Grand Jury, Oyer and Terminer, 
 Philadelphia, 1S44. See chap. 40, notes. 
 
 A policeman is entitled to the same protection in the execution of his duty as a con- 
 stable, and if he is killed, while so engaged, it will be murder. Where, therefore, a police- 
 man, between eleven and twelve o'clock at night, was called upon to clear a beer-house, 
 which he did, and then went into the street, where the prisoner and many others were 
 standing near the door, when the prisoner, upon being requested, refused to go home, 
 and used very abusive and violent language, and the policeman laid his hand on his 
 shoulder gently, and told him to go away, on which the prisoner immediately stabbed 
 him with a knife in the throat;" it was held that if the pi>liceman had died, this would have 
 been murder. The case would not have been altered had the policeman, without 1 emg 
 called upon, gone in of his own accord upon hearing any noise at such a time of night; 
 as thereby he would not only have acted within the Ime of his duty, but have been guilty 
 of a breach of it had he done otherwise; and in this case, any blow given after the above 
 occurrences, with a cutting instrument, would be precisely the same as if it had beeri 
 given witliout any thing having been done by the policeman. Rex v. Herns, 1 C ^ P. 
 312. So when a policeman saw the prisoner playing the bagpipes, in a street, at half 
 past eleven o'clock at night, by which he collected a large crowd round him, among 
 whom were prostitutes and thieves, and the policeman told him he could not be allowed 
 to play at that time of night, and he must go on, but he said he would be damned if he 
 would, and the policeman took hold of him by the shoulder, and slightly pushed him, on 
 which the prisoner wounded him with a razor; it was held that if the prisoner was col-
 
 465 HISTORIA PLACITORUM CORONA. 
 
 III. The third kind of malice implied is in relation to the person 
 kiUing. 
 
 \i A. come to rob B. in his house, or upon the highway, or oth^r- 
 
 lectinor a crowd of persons al tliat time of night, and the policeman desired him to go on, 
 and laid his hand upon Jiis shoulder with that view only, he did not exceed liis duty, and 
 if the prisoner then wounded him, it would have been murder if he had died; but if the 
 policeman gave the prisoner a blow and knocked him down, he was not justified in so 
 doing. Reg. v. Hagan, 8 C. 4-. F. 167. 
 
 It is a general rule that, when persons have authority to arrest or imprison, and using 
 the proper means for that purpose, are resisted in so doing, and killed, it will be mur- 
 der in all who take part in such resistance. Foster, 270. But three things are to be 
 attended to in matters of this kind; the legality of the deceased's authority, the legality 
 of the niamier in which he executed it, and the defendant's knowledge of that authority; 
 for if an officer be killed in attempting to execute a writ or warrant invalid on the face 
 of it, (or if issued with a blank in it and the blank afterwards filled up; or if issued with 
 an insufficient description of the defendant. 1 East. P. C 310. Hoiisin v. Barrow, 6 T. 
 R. 122. Rex v. Wimcick, 8 T. R. 454 ; Rex v. Hood, 1 Moudy, C. C. 81 ;) or against a 
 wrong person, or out of the district in which alone it could legally be executed ; or if a 
 private person interfere and act in a case where lie has no authority by law to do so; or 
 if the defendant have no knowledge of the officer's business, or of the intention with 
 which a private person interferes, and the officer or private person be resisted or killed ; 
 the killing will be manslaughter only. Jerv. Arch. Crim. Law, 9th ed. 429. But when 
 any officer is in the legal execution of" his duty, or a private person endeavouring to sup- 
 press an affray, or apprehend a felon, and is resisted and killed ; if it appear that the 
 slayer knew the officer's business or the intent of the private person, either expressly from 
 the deceased, or impliedly from the circumstances, {R, v. Howarth, 1 Mood, C. C. 207,) 
 the killing is murder; if it appear he was ignorant in this respect, it is manslaughter only. 
 1 Hawk. c. 31. ss. 49, 50; Fast. 310. So if a constable having a charge of felony against 
 a defendant, take him without a warrant, and the defendant, knowing the constable, kill 
 him, it will be murder, even though the constable do not tell him of the charge, and the 
 defendant, in fact, has done nothing for which he is liable to be arrested. R. v. Woolmer, 
 R. 4- M. C. C. 334. 
 
 If a constable show his staff of office, this, it seems, is a sufficient intimation of his 
 authority. Post. 311. And in such a case it is not necessary to prove the deceased's 
 appointment as constable; proof that he was accustomed to act as constable is sufficient. 
 1 East, P. C. 315. But private persons, when they interfere, must expressly intiihate 
 their intention, otherwise killing them will be manslaughter only. Foster, 310, 311. An 
 officer is justified in arresting on a charge of felony, though the charge does not in 
 terms specify all the particulars necessary to constitute the felony. Rex v. Ford, R. S( 
 R. 329, But where a constable attempted to arrest a man while in a privy, without ariy 
 charge having been made against him, but upon a simple direction to take him; where- 
 upon the man immediately stabbed the constable; it was holden, by a majority of the 
 judges, that, as the actual arrest would have been illegal, the attempt to arrest when the 
 defendant was in such a situation that he could not get away, and when the waiting to 
 give notice miglit have enabled the constable to make the arrest, was such a provocation 
 as reduced the ofience to manslaughter only. Rex v. Thompson, R. 6f M. 80. A consta- 
 ble who had verbal orders from the magistrates to apprehend all thiinble-riggers, at- 
 tempted to apprehend the defendant and iiis companions, who were playing at thimble- 
 rig, in a public fair, and succeeded in apprehending one of his companions, whotn the 
 defendant rescued, and afterwards, in the evening, seeing the defendant in a public house, 
 endeavoured to apprehend him, telling that he did so for what he had been doing in the 
 fair; the defendant escaped into a [>rivy, and the constable calling others to his assistance, 
 broke open tiie l)rivy and attempted to apprehend the prisoner, who stabbed one of the 
 party; a conviction for feloniously cutting and maiming was held wrong. R. v. Gard- 
 ner, 1 Mood. C. C. 390. A [>olice officer found N. witli potatoes under his shirt, 
 which had been recently dug from the ground, and apprehended him. The policeman 
 called O. to assist him : O. did so; and a rescue being attempted, O. was struck by A, 
 who went away, and O. was afterwards killed by other persons who attempted the res- 
 cue: — Held by the judges that the police officer had no right to apprehend iV.'and that 
 the killing of O., tlierefore, did not amount to murder, and that, on an indictment for 
 niurder, A. could not be cpnvicted of an assault. Reg. v. Phelps, 1 Car, Sf M. 180. If a
 
 HISTORIA PLACITORUM CORON.E. 465 
 
 wise, without any precedent intention of killing him, yet if in the 
 attempt, either without or upon the resistance of B. A. kills B. this 
 is murder. Co. P. C. p. 52. 
 
 constable take a man without warrant, upon a chargfc which gives him no authority to 
 do so, and the prisoner run away, and is pursued by J. S. who was with the constable all 
 the time, and charged by him to arrest, and the man kill J. S, it is manslaughter only, 
 because the arrest was iliegal, and J. S. ought to have known it; and, therelbrc, the at- 
 tempt to retake the prisoner was illegal also. R. v. Ciirvun, R. ^- M. 132. 
 
 If a warrant commanding the arrest of an individual in the name of the State have no 
 eeal, it is void. If an officer attempt to arrest the party named upon such authority, he 
 proceeds at his peril, and is a wrong doer; and if he be killed in the attempt bv the 
 party, the shiycr is guilty of manslaught.er and not murder. Tackete v. The Slate, 
 3 Yerger, 392. 
 
 If any one, under color or claim of authority, unlawfully arrest or actually attempt or 
 offer to arrest another, and this latter, in liis resistance, kills the aggressor, it will be no 
 more than manslaughter. Com. v. Drevj, 4 Mass. 39 1 . The same principle applies where 
 one, not a stranger, aids the injured party by endeavoring to rescue him, or to pre- 
 vent an unlawful arrest, when actually attempted. Ibid.; and see U. S. v. Trovers, per 
 Story, J. 2 Wlieeler''s C. C. 509. Where an affray had taken place, and a quarterly ser- 
 geant appeared and ordered the wranglers to desist, and on their not doing so, reported 
 to the orderly Serjeant, who called at tlic room, and ordered the persons engaged to the 
 guard-house, but the prisoner remained behind on some pretence connected with his 
 clothes, and when the serjeant was temporaril}' absent declared he would be the death of 
 any one who attempted to take him to the guard-house, retired to a corner of the room 
 where a number of unloaded muskets had been left, loaded one, and when the serjeant 
 entered, with another, accosted him, ''Stand off; if you approach, I will take your life." 
 He immediately afterwards fired, and mortally wounded the sergeant and his companion. 
 The case depended on the question whether or no at the time the defendant was legally 
 liable to arrest, and the court. Story, J. and Davis, J., charged the jury if such was the 
 case, the offence was manslangiiter, if otherwise, murder. 2 Wheeler''s C. C. 405. 
 Where an officer of a British ship of war, in the year 1769, attempted, without a speci;il 
 warrant, to impress several seamen in a., Massachusetts merchant vessel, and was killed 
 in the attempt, it was held but manslaughter, the deceased acting without authority. 
 Case of the Crew of the Pitt packet, 4 Boston Law Reporter, 369. \yharton''s Atn, C. L. 
 236. 
 
 If a person be impressed who is not a proper object of impressment, or if the impress- 
 ment be made without any legal warrant, it is lawful for the party to make resistance; 
 and if the death of any of the parties concerned ensue, it is murder. Rex v. Dixon, 
 1 East, P. C. 313. R. Sf R. C. C. 53. Rex. v. Rokeby, I East, P. C. 312. 
 
 But if a seaman be impressed, and the pressgang be resisted, and any of them be 
 killed ; if the pressgang at the time were under the direction of a commissioned officer, 
 and such officer were then acting with them, the killing would be murder, otherwise but 
 manslaughter. R. v. Broad foot. Fast. 154. 
 
 A special constable duly appointed under the statute 1^2 Will. IV. c. 41. is appointed 
 for an indefinite time, and retains all the authority of a constable at common law, until 
 his services are suspended or determined under the 9th section of that statute. Reg. v. 
 Porter, 9 C. ^ P. 778. 
 
 In all cases where the outer door of a dwelling-house may be broken open in order 
 to execute process, there must be a demand of admittance, or something equivalent 
 thereto, and a refusal. Fast. 320. 136; see Hancock v. Brown, 2 B. <^- Aid. 592. otherwise 
 if the officer be killed, it will be manslaughter only. Arch. Cr. Law, by Jervis, 434, 9th ed. 
 
 In all cases, however, above stated to be manslaughter only, if there be evidence of 
 express malice in the party killing, the homicide will be murder. R, v. Stocklcy, 1 East, 
 P. C. 310. R. v. Curtis, Fast. 135. ■ 
 
 With respect to private persons using their endeavours to bring felons to justice, it 
 should be observed by way of caution, that they must be careful to ascertain, in the first 
 instance, that a felony has actually been committed, and that it has been committed by 
 the person whom they would pursue and arrest. For if no felony has been committed, 
 no suspicion, however well founded, will bring the person so interposing within tiie espe- 
 cial protection of the law, Cro. Jac. 194. 2 Inst. 32. 172. nor will it be extended to
 
 465 HISTORIA PLACITORUM CORONA. 
 
 So if men come to steal deer in a park or forest, or to rob a war- 
 ren of conies, and the paricer, forester, or warrener resists and is 
 killed, this is murder ; the lord Bacre^s case. [8] 
 
 If a prisoner die by reason of duress and hard usage 
 [ 466 2 by the gaoler, it is murder in the gaoler. Co. P. C. 
 p. 52. [9] 
 
 those who, when a felony has actually been committed, upon suspicion possibly well 
 founded, pursue and arrest the wrong person. Fost. 318. But the law is otherwise in 
 the case of an officer acting in pursuance of a warrant. 1 Russ. on Cr. 534. And per 
 Lord Tenterden, C. J., Beckwith v. Philby, 6 B. Sf C. 638. " There is this distinction 
 between a private individual and a constable; in order to justify the former in causing 
 the imprisonment of a person, he must not only make out a reasonable ground of sus- 
 picion, but he must prove that a felony has actually been committed ; whereas a con- 
 stable, having reasonable ground to suspect that a felony has been committed, is author- 
 ized to detain the party suspected until inquiry can be made by the proper authorities." 
 
 If an innocent person be indicted for a felony, and an attempt be made to arrest him 
 for it, .without warrant, and he resist and kill the party attempting to arrest him ; if the 
 party attempting the arrest were a constable, the killing is murder; 1 Hawk. c. 28. s. 12. 
 if a private person, manslaughter ; because the constable has authority by law to arrest 
 in such a case, but a private person has not. And the same in all cases where a person 
 is arrested or attempted to be arrested upon a reasonable suspicion of felony. Samuel 
 V. Payne, Doug^. 359. 
 
 But a private {\erson may arrest another whom he sees attempting to commit a 
 felony, and if he be killed in the attempt, it will be murder. 2 Hawk. c. 12, s. 19. 
 
 Where one interferes to stop a brawl, and exercises no other force than is necessary 
 for the object, having previously announced his purpose, the killing of him by one of the 
 assailants will be murder. Thus, when A., in order to prevent B. from fighting with 
 his brother, laid hold of him and held him down, striking no blow, upon which B. 
 stabbed A., it was decided, that if in such case A. did nothing more than was necessary 
 to prevent B. from beating his brother, tlie killing of him was murder; if otherwise, it 
 wou'd have been manslaughter only. R. v. Brown, 5 P. Sf C 120. 
 
 The prisoner and one VV. engaged in a fight, and were separated by the deceased. 
 Some time after the fight was renewed, and the deceased again interfered, but being 
 unable to take the prisoner off, called a negro to his assistance, who, in the act of sepa. 
 rating the combatants, threw the prisoner against the wall. The prisoner then made at 
 the deceased (who endeavoured to avoid him,) with a knife, and inflicted a mortal blow; 
 it was held that this was a case of murder. State v. Ferguson, 2 Hill, 619. 
 
 [8] It is a general principle that, if in the execution of or attempt to execute a 
 felony, a man kill another, he will be guilty of murder. Thus if C, having malice 
 against A., strikes at and misses him, but kills B., this is murder in C. 1 East, P. C. 
 230: or if A. feloniously shoot at the poultry of another, and kill a man, this will be 
 murder. Fost. 258. 
 
 Accidental homicide may be murder, if it happen in the prosecution of any illegal 
 act; as in carrying away furniture to avoid a distress for rent. Rex v. Hodgson, 1 Leach, 
 C C. 6; Rex v. Huhson, 1 East, P. C. 258. 
 
 On the trial of an indictment for murder, where there is no pretence that the 
 prisoner killed the deceased, while engaged in a riot or other misdemeanor, not 
 amounting to a felony, or by misadventure, but the death ensued in consequence of an 
 intentional violence upon the person of the deceased; whether the prispner designed 
 to kill or not, he is not entitled to have the jury instructed that they cannot convict of 
 murder, if they should conic to the conclusion that the mortal wound was inflicted in 
 comriiilting, or atlempting to comHiit an offbnoo, which of itself is less than a felony. 
 The People v. Rector, 19 Wen. 569; M. S. Sum. 145, 175, 37. 46; Palm. 546, 2 Roll. 
 Rep. 120. 
 
 [9] The case of Husgins and Barnes (2 Strange, 882) has been often referred to as 
 to this mode of murder. It was this: Huggins was warden of the Fleet Prison, with 
 power to execute the office by deputy, and appointed one Gibbon, who acted as deputy. 
 Gibbon had a servant, Barnes, wliosc business it was to take care of the prisoners, and
 
 HISTORIA PLACITORUM CORONA. 466 
 
 So if a sheriff have a precept to hang a man for felony, and he 
 beheads him, it is murder. Co. P. C. Ibidem. [^\0'\ 
 
 To these may be added the cases abovementioned, viz. if ^^. by 
 mahce forethought strikes at B. and missing him strikes C. whereof 
 he dies, tho he never bore any mahce to C. yet it is murder, and the 
 law transfers the mahce to the party slain; the like of poisoning, sed 
 de his supra cap. [I Ij 
 
 particularly of one Arne: and Barnes put Arne into a new built room, oVer the com- 
 mon sewer, the walls of which were damp and unwholesome, and kept him without fire, 
 chamber-pot, or other necessary convenience, for forty-four days, when he died. It ap. 
 peared that Barnes knew the unwholesome situation of the room, and IhatHuggins knew 
 the condition of the room, fifteen days at least hefore the death of Arne, as he liad been 
 once present at tlie prison, and seen Arne under such duress of imprisonment, and 
 turned away^ at which time Barnes shut the door of the room, in which Arne con- 
 tinued till h*died. It was found that Arne had sickened and died by duress of im- 
 prisonment, and that during the time Gibbon was deputy, Huggins sometimes acted as 
 warden. Upon these facts the court were clearly of opinion, that Barnes was guilty 
 of murder. But they thought that Huggins was not guilty, as it could not be interred, 
 from merely seeing the deceased once during his confinement, that Huggins knew that 
 his situation was occasioned by the improper treatment, or that he consented to the 
 continuance of it: and they said, that it was material that the species of duress, by 
 wliich the deceased came to his death, could not be known by a bare looking-in upon 
 him. Huggins could not know the circumstances under which he was placed in the 
 room against his consent, or the length of his confinement, or how long he had been 
 without the decent necessaries of life: and it was likewise material, that no application 
 was made to Huggins, which perhaps might have altered the case. And the court 
 seemed also to thmk, that as Barnes was the servant of Gibbon, and Gibbon had the 
 actual management of the prison, the accidental presence of tlie principal would not 
 amount to a revocation of the authority of the deputy. Rex v. Hugi^ins, and Barnes, 
 2 Str. 882. 2 Lord Raym. 1574. Fost. 332. 1 East, P. C. 331, 332. " 
 
 [10] With respect to the duty of officers in the execution of criminals, it has been 
 laid down as a rule, that the execution ought not to vary from the judgment; for if it 
 doth, the officer will be guilty of felony at least, if not of murder. 3 Inst. 52. 211; 4 Bl. 
 Com. 179. And in conformity to this rule it has been holden, that if the judgment be 
 to he hanged, and the officer behead the party, it is murder; 3 Inst. 52; 4 Blac. Com. 
 179. And that even the king cannot change the punishment of the law, l)y altering the 
 hanging or burning into beheading, though, when beheading is part of the sentence, the 
 king may remit the rest. 3 Inst. 52. But others have thought, that this prerogative 
 of the crown, founded in mercy ^nd immemorially exercised, is part of the common 
 law: Fost. 270. F. N. B. 244, h. 19 Rym. Foed. 264. And that though the king can- 
 not by his prerogative vary the execution so as to aggravate the punishment beyond 
 the intention of the law, yet he may mitigate the pain or infamy of it: and, accord, 
 ingly, that an officer, acting upon a warrant from the crown for beheading a person 
 under sentence of death for felony, would not be guilty of any offence. Fost. 268; 
 4 Blac. Cum. 405; 1 East, P. C. 335. But the rule may apply to an officer vary- 
 ing from the judgment of his own head, and without warrant or the colour of au- 
 thority. 
 
 [11] Where a blow aimed at one person lighteth upon another and killeth him, this 
 ia murder. Fost. 261. Thus A., having malice against B., strikes at and misses him, 
 but kills C, this is murder in A.: and if it had been without malice and under such 
 circumstances that if B. had died, it would have been but manslaughter, the killing of 
 C. also would have been but manslaughter. Dyer, 128; Kel. Ill, 112, 117; Fost. 261; 
 1 Hawk.c. 31, s. 42; State v. Cooper, 1 Green, N. J. R. Again, A., liaving malice against 
 B., assaults him, and kills C, the servant of B., who had come in aid of his master: this 
 is murder in A.; for C. was justified in attacking A. in defence of his master, who was 
 thus assaulted. In another case, if A. give a poisoned apple to B., intending to poison
 
 466 HISTORIA PLACITORUM CORONA. 
 
 her, and B., ignorant of it, give it to a child, who took it and died; this is murder in A., 
 but no offence in B.; and lliis, though A., who was present at the time, endeavoured to 
 dissuade B, from giving it to tlxe child. 2 IHoioden Com. 474. So where Plummer and 
 seven others, opposed the king's olKcers in the act of seizing wool. One of those per- 
 sons shot off a lusee and killed one of his own party. The court held, in giving judg- 
 ment upon a special verdict, that as the prisoner was upon an unlawful design, if he 
 had in pursuance tliereof discharged the fusee against any of the king's officers that 
 came to resist him, in the prosecution of that design, and by accident had killed one of 
 his own accomplices, it would have been murder in him. As if a man out of malice to 
 A. shoot at him, but miss him and kill B., it is no less a murder than if he had 
 killed the person intended. Kelijng, 111; Lord Raym. 1581; 9 St. Tr. 112; Hig. 
 gins's case; Di/er, 128; Fl. 6U; Cromp. lUl; 9 Co. 81, Agnes Gore^s case; D. WiL 
 liains^s case, cited in the Queen v. Mawgridge; Kelyng, 131, 132; 9 St. Tr. 61. In 
 another case, the prisoner mixed poison in an electuary, of which her husband, and' 
 her father, and anotlier, took part and fell sick. Martin, the apothecary, who had made 
 the electuary, on being questioned about it, to clear himself, took part of it and died. 
 On this evidence a question arose, whether Agnes Gore, the defendant, bad committed 
 murder; and the doubt was, because Martin, of his own will, without invitation or 
 procurement of any, had not only eaten of the electuary, but had by ftirring it so 
 incorporated the poison with the electuary, that it was the occasion of his death. The 
 judges resolved, that the prisoner was guilty of the murder of Martin, for the law 
 conjoins the murderous intention of Agnes in putting the poison into the electuary to 
 kill her husband, with the event which thence ensued; quia eventus est qui ex causa 
 sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary 
 by Martin, without putting in the poison by Agnes, could not have been the cause of 
 his death. 9 Co. 11; Jenk. Cent. 220; 3 Inst. 51; Plowd. Com. 514; 1 Hawk. P. C. Sf 
 C. 31, s. 3. Under the same head may be classed the case of one who gave rnedicine 
 to a woman; and that of another who put skewers in her womb, with a view in each 
 case to procure an abortion ; whereby the women were killed. The case, at common 
 law, was murder; though the original intent, had it succeeded, would not have been so, 
 but only a great misdemeanor; for tlie acts were in their nature malicious and delibe- 
 rate, and necessarily attended with great danger to the person on whom they were 
 practised. Com. v. Chauncey, 2 Ashmead, 227. ante, 90. 
 
 If a man have a sudden quarrel, and fight with A., by which his passions are strongly 
 excited, and while his passions are thus excited, he without any real or supposed provo- 
 cation kill B., who is an utter stranger to the whole affair, and has not interfered in the 
 quarrel, nor been in any way connected therewith, even in the party's own supposition, 
 it will be murder. U. S. v. Trovers, 2 W/teeZer's C. C. 503, per Story, J. But, where 
 the prisoner, having had a quarrel with his wife, pursued her, and aimed a blow at her 
 with an axe, which fell on the head of his infant son, then in her arras, by which he 
 was instantly killed, it being shown that the prisoner was ignorant of his child's posi- 
 tibn, and was at the time in the heat of blood, seeking to avenge himself on his wife for 
 a supposed injury, it was held, that as the case was to be considered as if the wife had 
 been the victim, the same grade of homicide would attach to the killing of the child as 
 it would have done to that of the wife, if she had been killed. Comwonvjealth v. Dough, 
 erty, 7 SmitWs Laws, 296. But in this, as in cases of malice prepense and express, if the 
 blow intended for one would in law only have amounted to manslaughter, it will still be 
 the same, though by mistake or accident it kill another. Thus, in an old case, a quarrel 
 arising between some soldiers and a number of keelmen at Sandgate, a violent affray 
 ensued, and one of the soldiers was very much beaten. The prisoner, a soldier who 
 had before driven part of the mob down the street with his sword in the scabbard, on 
 his return, seeing liis comrade thus used, drew his sword, and bid the mob stand clear, 
 saying he would sweep the street; and on their pressing on him he struck at them with 
 the flat-side, and as they fled pursued them. Tiie other soldier in the mean time had 
 got away, and when the [jrisotier returned he asked whether they had murdered his 
 comrade; and being several times again assaulted by the mob, he brandished his sword, 
 and bid them keep off. At this time the deceased, who from his dress might be mis- 
 taken for a keelman, was going along about live yards from the prisoner; but before he 
 passed the prisoner went up to hiin and struck him on the head with the sword, of 
 which he presently died. 'I'his was holdcn manslaughter: it was not murder, because 
 there was a previous provocation, and- the blood was heated in the contest: nor was it 
 in self-defence, because there was no inevitable necessity to excuse the killing in that
 
 HISTORIA PLACITORUM CORONA. 466 
 
 manner. Foster, 262; 1 Hawk. c. 31, s. U; Leach, C. C. R. 151, S. C.f Wharton's 
 Am Cr.L. 231-3. . 
 
 At the Old Bailey, in 1690, the prisoners with twenty mote were- hired by J. S. to 
 remove his goods, in order to prevent a distress. The landlord with some assistants 
 endeavoured to prevent tliem, and an affray happened. The constable ordered them to 
 disperse, but could not prevail; as they were fighting, one of the company, to tiie jurors 
 unknown, killed a boy who had no concern in the quarrel, as lie was standing at his 
 father's door. 
 
 These facts being found in a special verdict, Holt and Pollexfen were of opinion that 
 it was murder in all the party. For though the removing of the goods might be lawful, 
 yet the continuing of the party together alter the constable had ordered tliem to be dis- 
 persed was unlawful; and besides, the great numbers that were thus assembled, and the 
 unusual weapons they were armed with, did also make the assembly unlawful. But 
 the majority of the judges held, that as the boy was totally unconcerned in the affray, 
 the killing of him could not be imputed to tjie rest who were merely engaged in the 
 general affray. That the boy could not be deemed an opposer of the party, so as to 
 make him an object of their contention ; and that they could no more be said to have 
 abetted the killing of him, than if one of the company had killed a person looking out 
 of a window. The King against Hubson and others, Chappets, M.S. 1. M.S. Sum. 187. 
 Title, Accomplices and Accessaries in Murder. 
 
 CHAPTER XXXVIII. 
 
 or MANSLAUGHTER, AND PARTICULARLY OP MANSLAUGHTER EXEMPT 
 FROM CLERGY, BY THE STATUTE OF 1 JAC. 8. 
 
 Manslaughter, or simple homicide, is the voluntary killing of an- 
 other without malice express or implied, and differs not in substance 
 of the fact from murder, but only differs in these ensuing circum- 
 stances. 
 
 1. In the degree of the offense, mtirder being aggravated with 
 malice presumed or implied, but manslaughter not, and therefore in 
 manslaughter there can be no accessaries before. 3. In the form of 
 the indictment, the former being always /e/on2ce exmalilici prxcogi- 
 tatd interfecit S,' murdravit, the latter only felunict interfecit. 3. 
 In the point of clergy, murder being by the statute of 23 H. cap. 1. 
 exempt from the benefit of clergy, but not manslaughter. 4. In the 
 form of the pardon of murder, for tho at common law a pardon of all 
 felonies had pardoned murder; yet by the statute of 13 /?. 2. cap. 1. 
 the pardon of murder must either be by the express word of murder, 
 or else it must be a pardon o{ felonica inlerftctio with a 
 special non obstante of the statutes of 13 i?. 2. H. 1. Jac. [ 467 ] 
 Lucases case. (a) 
 
 But the pardon of manslaughter may be general by the Avords of 
 felonia ov fclonica interfectio, and hence it is, that if a man indicted 
 of murder obtains a pardon of felony, or felonica interfectio only, 
 and be afterwards arraigned upon an indictment of murder, he must 
 plead quoad murdrum <§• inteifectionem ex malitid precozHatd, not 
 guilty, and as to the felony and interfection must plead his pardon j 
 
 (a) Moor, n. 1033, _p. 752.
 
 467 HISTORIA PLACITORUM CORONA. 
 
 and then if the jury behig charged to inquire of the plea of not griilfy, 
 find it to be only a simple felony and interfection without malice fore- 
 thouglit,his pardon is to be allowd; and thus upon good deliberation 
 it was done in the year 1668, at No7'wich, Sir Thomas Pot la's case, 
 and is pursuant to the statute of 13 iff. 2. Which saith, " That before 
 a pardon of felonies shall be allowed as to murder, it shall be inquired 
 by good inquest, if he were slain by await or malice prepensed." 
 And I remember very, well in the case o( Rntaby T. 1653, wlio was 
 indicted of murder in Durham, the defendant pleaded a pardon of 
 felonica interfectio, and a general non obstante of all statutes; and 
 the attorney general demurred; it was ruled, 1. That the pardon was 
 insufficient with only a general non obstante, unless murder had 
 been containd in the body of the pardon by express words. 2. But 
 tho the pardon was disallowed as to murder, yet the prisoner 
 was remitted into Durham to be tried, whether guilty of murder, 
 and being so found was executed; but had it been found only man- 
 slaughter, he should have been discharged, and altho his plea of the 
 pardon to the indictment of murder was disallowd, yet it had stood, 
 good, if the conviction were of manslaughter: by the statute of 1 Jac. 
 cap. 8. " Any person that shall stab or thrust any person, that hath 
 not any weapon drawn, or hath not first stricken the party that shall 
 so stab or thrust, if the party die within six months, the offender is 
 ousted of clergy, provided it shall not extend to him, that kills se 
 defendendo, or by misfortune, or in preserving the peace, or chastiz- 
 ing his child or servant. 
 
 This act, tho but temporary, is continued till some other 
 r 468 ] act of parliament shall be made touching the continuance or 
 discontinuance thereof. 17 Car. I. cap. 4. 
 
 The use hath been in cases of this nature to prefer two indictments 
 against ofienders in this kind, viz. one of murder, another upon this 
 statute, and put the prisoner to plead to both, and io charge the jury 
 first with the indictments of murder, and if they find it not to be" 
 murder, then to charge them to inquire upon the other bill, because, 
 if convict upon either, the offender is ousted of clergy. 
 
 The indictment to put the prisoner from his clergy must be spe- 
 cially formed pursuant to the statute, viz. that he did with a sword, 
 «^'C. stab the party dead, he having no weapon drawn, nor having 
 struck first, otherwise it will be but a common manslaughter, -and the 
 party will have his clergy. 
 
 The indictment need not conclude contra formam statnii, no 
 more than in burglary or robbery, for the statute doth not make the 
 offense to be felony, but ousts the prisoner of his clergy, where the 
 crime is so circumstantiated as the statute cxpresseth; tliis was 
 agreed in the case of Page and Harwood. H. 23 Car. 1 B. P.{b) 
 
 i3ut yet it doth not, vitiate the indictment, tho it do conclude, Et 
 sic inlerfecit contra formam staluti, as was adjudged Trin. 9 Jac. 
 
 (h) In this case, as reported in Styles SG. it is not agreed to be so, on the contrary it 
 was denied per Roll, and doubted per Bacon.
 
 HISTORIA PLACITORUM CORONA. 468 
 
 B. R. Bradley and Banks ;{c) and accordingly for the most part to 
 this day tlie indictments upon this statute do conclude contra for- 
 mam statuti, so it is good with or without such conclusion, but it 
 is best to follow the common usage, because every man dolh not 
 readily observe the reason of the omission of that conclusion. 
 
 In the case of Page and Harwood, H. 23 Car. 1. before cited, 
 these points were resolved in the king's bench, viz. 
 
 1. That no man is ousted of his clergy by this statute, but he that 
 actually stabs, and therefore those, that are laid in the indictment 
 to be present, aiding, and abetting in such a case, shall be admitted 
 to the benefit of clergy; and therefore, tho the indictment 
 of such a manslaughter be specially formed upon the sta- [469] 
 tute, and conclude contra formam statuti, yet it is a good 
 indictment of manslaughter against them that were present, aiding, 
 and abetting, and therefore upon such a special indictment of man- 
 slaughter upon the statute, the prisoner may be convict of simple 
 manslaughter, and acquitted of manslaughter upon the statute, and. 
 the indictment serves for a common manslaughter, as well as a 
 man upon an indictment of murder may be acquit of murder, and 
 convict of manslaughter. 
 
 22 Mart'ii, 14 Car. 1. At Newgate sessions David Williams 
 was indicted specially upon this statute for the death of Francis 
 Marbury ,[d) viz. Quod felonice, 6i-c. unum malleum de ferro <§• 
 ligno, anglice an hammer of wood and iron, ^ manu sua dextrd 
 erga <§• ad anteriorem partem capitis ipsius Francisci /'elo7iicb vio- 
 lenter S,' in furore sua projecit, 4* cum malleo prsedicto ipsum 
 Franciscum in 4* super anteriorem partem capitis 4'C. percussit <§• 
 pupugit, anglice did stab and thrust the said Marhury having no 
 weapon drawn, nor struck first, whereof he presently died, 4' sic 
 viodo (§* forrnd prsedictd interfecit SfC. contra formam statuti 8fC. 
 The prisoner pleaded not guilty, and a special verdict was found, 
 viz. that upon St. David'^s day the prisoner being a Welshman 
 had a leek in his hat, and there was at the same time in waggery a 
 Jacka-lent in the street put up with a leek, and one Nicholas Red- 
 man, a porter, spake to the prisoner, and pointing to the Jack-a- 
 lent said. Look at your countryman, and the prisoner being there- 
 with enraged, threw an hammer a\ Redman to the intent feloniously 
 to hit him, but missing him, the hammer did hit Francis Marhury^ 
 whereof he died, ^' sic prsedictus Da.v[d praf at um Franciscum cu?n 
 tnalleo prsedicto pupugit <§• percussit, anglice did stab and ihrustf 
 the said Francis then not having any weapon drawn, nor then 
 having first stricken the said David ; and it was judged by Bram- 
 ston, Jones, and the recorder Gardiner, that Williams was guilty 
 of manslaughter at the common law, sed non contra formam sta- 
 tuti, so that it seems they thought not this to be a stubbing within 
 the statute, being done with the throwing of the hammer, 
 or at least they took this killing of Marbury, which was [470] 
 
 (c) Cro. Jac. 283. (d) W. Jones, 432. 
 
 VOL. I. — 42
 
 470 HISTORIA PLACITORUM CORON.E. 
 
 not at all intended by Williams, to be out of the statute, tho it ex- 
 cused him not for manslaughter at common lavv.(£') 
 
 The words of the statute are stab or thrust, if the stabbing or 
 thrusting were with a sword, or with a pikestaff, it is within the 
 statute, so it seems, if it be a shot with a pistol, or a blow with a 
 sword or staff, yet quaere, i'or J^one^ justice denied it. 
 
 In M. 5 Jac. it was ruled, that if the party slain had a cudgel ia 
 his hand, it is a weapon drawn within this statute, and the prisoner 
 was admitted to his clergy at Newgate ; but it seems it must be in- 
 tended of such a cudgel, as might probably do hurt, not a small 
 riding-rod or cane. 
 
 In the year 1657.(/) at Newgate before Glynn, who then sat as 
 chief-justice, a man was indicted upon this statute, and a special 
 verdict found, that a bailiff havhig a warrant to arrest a man, 
 pressed early into his chamber with violence, but not mentioning 
 his business, nor the man knowing him to be a bailiff, nor that he 
 came to make an arrest, snatched down a sword, that hanged in his 
 chamber, and stabbed the bailiff, whereof he presently died : there 
 was some diversity of opinion among the judges, whether this were 
 within the statute, but at length the prisoner was admitted to his 
 clergy, for tho this case was within the words of the statute, and 
 not within the particular exceptions, yet it was held, that this case 
 was never intended in the statute, for the prisoner did not know, 
 but that the party came into rob or kill him, when he thus violently 
 brake into his chamber without declaring his business.(^)[l] 
 
 (e) Lord chief justice Holt in Mawgridge^s case, Kel. 131. concurs with this judg- 
 ment, for that it was not such a weapon or act, as is within the statute ot" stabbing, but 
 ■he is of opinion, that Williams ought to have been found guilty of murder, if the indict- 
 ment had been so laid, for that there was not a sutficient provocation to lessen the offense 
 to manslaughter. 
 
 (/) Qiiare, whether the case here m^ant be not Buckner^s case, M. 1655. reported in 
 Styles 467. but that, as it is there reported, was not the case of a bailiff, but of a creditor, 
 who stood at the door with a sword undrawn to keep the debtor in, till they could send 
 for a bailiff, and was killed by the debtor. 
 
 ig) See Kel. 136. 
 
 [1] There is no difference between murder and voluntary manslaughter, but that 
 murder is upon malice aforethought, and manslaughter is upon a sudden occasion. 4 Bl, 
 Com. VJl. 1 Hawk. c. Si.s. 1. 1 East, P. C. 218. 
 
 The following are some of the more usual modes in which manslaughter occurs: 
 
 In fighting. — The character of the con)bat, the nature of the weapon used, if any, the 
 relative strength and positions of the parties, and all tho attendant and preceding circum- 
 stances must be considered in order to determine whether a killing in combat be mur- 
 der, manslaughter, or no felony whatever. 3 Inst. 55. Rex v. Kensell, I C. Sf P. 437. 
 1 East, P. C. 243. Hex v. Taylor, 5 Burr. 27!)3. Rex v. Anderson, 1 Russell, 447. 
 Rex V. Ayers, R. 6( R. IGG. Rix v. Rankin, R. S( R. 443. R. v Smith, 8 C. S( P. 160. 
 R. V. Lynch, 5 C 4" /'. 324. R. v. Kirkham, 8 f. S^ I'. 115. State v. Scott, 4 Iredell, 
 10!). Slide V. Rutherwood, 1 Hawks. 34!). Com. v. Daily, 4 Penna, L. J. 158. State v. 
 McCants, I Spear, 484. 
 
 When a tinrd party interferes, and kills one of the combatants. 1 Hawk. c. 31. 8. 35, 
 36.55. 1 East, P. C. 2^1,2^2. 12 Co. 87. Kel. 5d. Conner v. The State, 4 Yer- 
 ger, 137. 
 
 I
 
 HISTORIA PLACITORUM CORONA. 470 
 
 Even in an attempt to part them when more force is used than is necessary. Rex v. 
 Bourne, 5 C. Sf P. 120. 
 
 So also aiming at one person and killing another. Rex v. Conner, T C. Sf P. 438. 
 
 Provocation by words will not reduce the killing to manslaughter. Ante, chap. 37. 
 note. 
 . But a personal indignity will. Idem. 
 
 Or finding a man in adultery with his wife. Rex v. Manning, T. Raym. 212. People 
 V. Ryan, 2 Wheeler's C. C. 54. 
 
 Or a father seeing one committing an unnatural crime with his son. Reg, v. Fisher, 
 8 C. Sf P. 162. 
 
 Or an unwarrantable imprisonment of a man's person. Rex v. Buckner, Sly. 467. 
 Reg. V. Curvin, R. if M. 132. R. v. Thompson, R. Sf M. 88. R. v. Withers, 1 East, 
 P.C. 233. 
 
 Killing by excessive correction, if with an instrument not likely to kill, is manslaugh- 
 ter — if with a deadly weapon, murder. Foster, 262. R. v. Conner, 7 C. Sf P. 438. 
 Rex V. Turner, Comb. 407, 408. Rex v. Wigg, 1 Leach, 378. n. Anon. 1 East, P. C, 
 261. R. V. Lrggitt, 8 C. Sf P. Idl. R. v. fia;/, 1 £as<, P. C. 236. i?. v. Cheesman, 
 1 C.S( P. 425. 
 
 Killing an officer attempting to make an irregular arrest may be manslaughter. Jer. 
 Arch. C. L. 429. 1 Russ. on C. 592. Ante, chap. 37, note. C'o?n. v. Drew, 4 Mass. 391. 
 jRe^. V. Phelps, 1 Car. Sf Mars. 180. 
 
 So also killing in prize fights or unlawful sports ; the former under some circumstances 
 may be murder; but if the sport is lawful and rightly conducted, the killing is, if acci- 
 dental, only misadventure. R. v. Perkins, 4 C. iSj- P. 537. -R. v. Hargrave, 5 C. Sf P. 
 170. R. V. Murphy, 6 C. S( P. 103. 4 Bl. Coin. 183. Foster, 259. sed vide infra, 472. 
 Reg. V. Canniff, 9 C. Sf P. 359. ' 
 
 And killing by wanton and heedless acts is manslaughter. R. V. Mastin, G C. Sf P, 
 396. R. V. Timmins,! C. Sf P. 499. R. v. Sullivan, 1 C. Sf P. 641. Fenton's case, 
 1 Lewin, 179. 
 
 And by improper medical treatment which shows a criminal disregard of human life. 
 R. V. Long, iC. Sf P. 423. R. v. 5'enior, iJ. 4- M. C. C. 346. ii. v. Webb, 1 M. Sf Rob. 
 410. R. v, Siinpson, Willcock's Laws Medical Profession, Append. 227. Com, v. 
 Thompson, 6 Mass. 124. 
 
 Or gross neglect in delivering medicines of which death is the consequence. Tessy- 
 mond's case, 1 Lew. 169. 
 
 Death ensuing from gross neglect of natural duty, in the case of children or infirm 
 persons, is manslaughter. R. v. Edwards, 8 C. Sf P. 611. R. v. Saunders, 7 C. S( P. 
 277. R. v. Smith, 8 C. Sf P. 153. /Z. v. Duties, per Patterson, Justice, Hertford 6'ujn. 
 mer Jssizes, 1831. Burns' Justice, 808, fd. 1845. i?. v. Marriott, 8 C". ^ P. 425. 
 
 An indictment for manslaughter stated that the prisoners gave, administered, and 
 delivered to one M. A. divers large and excessive quantities of spirits and water, wine 
 and porter, and induced, procured, and persuaded him to drink them, the said quantities, 
 &c. being likely to cause death, which they well knew. It then averred tliat M. A., by 
 their persuasion, &c. drank, &c. and became greatlj' drunk and distempered, and while 
 he was so, the prisoner assaulted him, and forced him to go into, and placed and confined 
 him in a cabriolet, and drove and carried him about in it for two hours, and thereby 
 greatly shook and knocked him about, by means whereof he became mortally sick, &c., 
 and of the said large and excessive quantities, «Sfc., and of the said drunkenness, &.C., 
 occasioned tliereby, and of the said shaking, &c., and of the sickness and distemper 
 occasioned by it, he instantly died. The deceased was a man in possession under the 
 sheriff, and one of the prisoners, of whose goods he was in possession, assisted by his 
 brother and a friend, plied the man with liquor, themselves drinking freely also, and 
 when he was very drunk put him into a cabriolet and caused him to be driven about the 
 streets ; and about two hours after he had been put into tiie cabriolet he was found dead : 
 Held, that, if it were essential to prove that the prisoners knew that the liquors were 
 likely to cause death, the case would be one of murder and not of manslaughter, but that 
 such allegation was not a material part of the indictment, but might be dismissed from 
 the jury's consideration. Held also, that if the prisoners, when the deceased was drunk, 
 put him into a cabriolet and drove hirn about in order to keep him out of possession, and 
 by so doing accelerated his death, it would be manslaushler. Rrg. v. Packard, 1 Car. 
 ^ M. 236.
 
 471 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XXXIX. 
 
 TOUCHING INVOLUNTARY HOMICIDE, AND FIRST OF CHANCE-MEDLEY 
 OR KILLING PER INFORTUNIUM. 
 
 Involuntary ?iomicide is the death or hurt of the person of a man 
 against or besides the will of [lim that kills him. 
 
 And in these cases, to speak once for all, the indictment itself must 
 find the special matter, or in case the indictment be of murder or 
 manslaughter, and upon the trial it appears to the jury it was invo- 
 luntary, (as by misfortune, or in his own defense) the jury ought to 
 find the special matter, and so conclude. El sic per itifortunivm, or 
 se defendendo, and not generally, that it was/7er infortunium^ or se 
 defendendo, because the court must jndge upon the special matter, 
 whether it be murder, homicide, ov per infortunium, ox se defenden- 
 do, and the jury is only to find the fact, and leave the judgment 
 thereupon to the court; and in such case the prisoner must not plead 
 the special matter, and so justify, but must plead not guilty, and the 
 special matter must be found by the jury, Stamf P. C. Lib. I, cap. 7. 
 fol. 15. a. Lib. III. cap. 9. fol. 165. a. for upon the special matter 
 found, the court may give judgment against the conclusion of the 
 verdict, as that the fact is manslaughter, tho the conclusion of the 
 verdict be per infortunium, or se defendendo. 44 E. 3. Coron. 94. 
 
 This involuntary homicide is of two kinds, viz. either 1. When it 
 is purely involuntary and casual, as the killing of a man ;7er infortu- 
 nium, or 2. When it is partly involuntary, and partly voluntary, but 
 occasioned by a necessity, tliat the law allows, which is commonly 
 called homicide ex necessitate, as killing a man in his own defense, 
 or the like; de quibus postea. 
 
 Homicide per infortunium is, where a man is doing a 
 
 [^ 47*2 ]j lawful act, and without intention of bodily harm to any 
 
 person, and by that act death of another ensues, as if a man 
 
 be shooting at buts or pricks, and by casualty his hand shakes, and 
 
 the arrow kills a by-stander. 21 H.l. 28. a. 6 E. 4. 7. b. 
 
 Or if a carpenter or mason in building casually let fall a piece of 
 timber or stone, and kills another. 21 //. 7. B. Coron. 59. 
 
 But if he voluntarily let it fall, whereby it kills another, if he giyes 
 not due warning to tliose that are under, it will be at least man- 
 ' slaughter; quia debt tarn diiigentiam non adhibuit. 
 
 So if a man be felling a tree in his own ground, and it fall and 
 kill a person, it is chance-medley. 6 E. 4. 7. 
 
 IJut in all these cases, if it doth only hurt a man by such an acci- 
 dent, it is nevertlieless a trespass, and the person hurt shall recover 
 his damages, for tho the chance excuse from felony, yet it excuseth 
 not from trespass. 6 E. 4. 7. 
 
 Regularly he that voluntarily and knowingly intends hurt to the 
 person of a man, tho he intend not death, yet if death ensues, it ex-
 
 HISTORIA PLACITORUM CORONA. 472 
 
 cuseth not from the guilt of murder, or manslaughter at least; as if 
 A. intends to beat B. but not to kill him, yet if death ensues, this is 
 not per infortunium, but murder or manslaughter, as the circum- 
 stances of the case happen. 
 
 And therefore I have known it ruled, that if two men are playing 
 at cudgels together, or wrestling by consent, if one with a blow or 
 fall kill the other, it is manslaughter, and not per infortunium, tho 
 Mr, Dalton, cap. 96,{a) seems to doubt it; and accordingly it was 
 resolved P. 2. Car. 2. by all the judges upon a special verdict from 
 Newgate, where two friends were playing at foils at a fencing school, 
 one casually kild the other; resolved to be manslaughter.[l] 
 
 Sir John Chichester, and his man-servant, whom he very well 
 loved, were playing together, the man had a bedstafF in his hand, 
 and Sir John had his rapier in the scabbard, Sir John, according to 
 the usual sport between them, bids his man guard his thrust or pass, 
 which he was making at him with his rapier in the scabbard, 
 the servant with the bedstatf brake the thrust, but withal [473] 
 struck off the chape of the scabbard, whereby the end of the 
 rapier came out of the scabbard, but the thrust was not so effectually 
 broken, but the end of the rapier prickt the servant in the groin, 
 whereof he died : Sir John Chichester was for this indicted of murder, 
 and tried at the king's bench bar, where all this evidence was given ; 
 and it was ruled, 1. That it was not murder, tho the act itself was 
 not lawful, because there was no malice or ill will between them. 
 2. That it was not barely chance-medley, or per infortunium, be- 
 cause altho the act, which occasioned the death, intended no harm, 
 nor could it have done harm, if the chape had not been stricken off 
 by the party kild, and tho the parties were in sport, yet the act itself, 
 the thrusting at his servant, was unlawful, and consequently the 
 death, that ensued thereupon, was manslaughter, and was accord- 
 ingly found and adjudged, which I heard, 23 Car. I, ,(6) 11 H.l. 
 23. a. Kelw. 108, 136. 
 
 But if two play at barriers, or run a -tilt without the king's com- 
 mandment, and one kill the other, it is manslaughter; but if it be by 
 the king's command, it is not felony, or at most per infortunium. 
 11 H. 7. 23. B. Coron. 229. Dalton, cap. 96. Co. P. C.p. 56. (c)* 
 
 If t/5. come into the wood of B. and pull his hedges, or cut his 
 
 (a) New Edit. cnp. 148. p. 479. 
 
 (6) AleifTi 12. This seems a very hard case, and indeed the foundation of it fails, for 
 the pusliing with a sword in the scabbard by consent seems not to be an unlawful act, 
 for it is not a dangerous weapon likely to occasion death, nor did it do so in this case 
 but by an u\]fireseen accident, and therein differs from the case of justing, (or prize- 
 fighting) wherein such weapons are made use of, as are fitted, and likely to give mortal 
 wounds. 
 
 (c) Brooke, after having taken notice of this as Fincux^s opinion, says, That other 
 justices in the time of Henry VIII. denied this, and held it felony to kill a man in justing, 
 or spoiling after tliat manner, notwithstanding the king's command, for such command 
 is against law. 
 
 [I] See Foster, 259 ; 1 Hawk. c. 29. s. 5; Ward's case, I East, P. C. 270. 
 * See post p. 475, note 4.
 
 473 HISTORIA PLACITORUM CORONA. 
 
 wood, and B. beat him, whereof he dies, this is manslaughter, 
 because, tho it was not lawful for Ji. to cut the wood, it was not 
 lawful for B. to beat him, but either to bring him to a justice of 
 peace, or punish him otherwise according to law. 
 
 But if a school-master correct his scholar, or a master his servant, 
 or a parent his child, and by struggling or otherwise, the 
 [ 474 ~\ child or scholar, or servant die, this is only per infortunkim, 
 Crom.pt. Just. 28 b. 
 
 But this is to be understood^ when it happens only upon moderate 
 correction, for if the correction be with an unfit instrument, (^) or too 
 outragious. then it is murder, as it happened in a case at Norwich. 
 assizes 1670, where the master struck a child, that was his appren- 
 tice, with a great staff, of which he died, it was ruled murder. [2] 
 
 Several persons come to enter the house of ^/I. as trespassers, ,/^. 
 shoots and kills one, this is manslaughter, otherwise it had been, if 
 they had entered to commit a felony. Crompt. de Pace, fol. 29. a. 
 Harcourt'.s case. 
 
 But in the case of Levet indicted for the death of Frances Free- 
 mail, the case was. That William Levet being in bed and asleep in 
 the night in his house, his servant hired Frances Freeman to help 
 her to do her work, and about twelve of the clock in the night the 
 servant going to let out Frances thought she heard thieves breaking 
 open the door, she therefore ran up speedily to her master, and in- 
 formed him, that she thought thieves were breaking open the door, 
 
 {d) As with a bar of iron, or a sword, or a great cudgel, Kel. 64, 133. 
 
 [2] In all cases where the correction is inflicted with a deadly weapon, and the party 
 dies of it, it will be murder; if with an instrument not likely to kill, though improper 
 for the purpose of correction, it will be manslaughter. Foster, 262; Reg. v. Connor, 7 C. 
 4- P. 438; R. V. Turner, Comb. 407-8; R. v. Wigg, 1 Leach, 378, n. 1 EosI, 262; R. v, 
 Leggit, I C Sf P. 191. And though the correction exceeds the bounds of moderation, 
 the court will pay a tender regard to the nature of the provocation, where the act is ma- 
 nifestly accompanied with a good intent, and the instrument not such as must in all 
 probability occasion death; though tiie party were hurried to great excess. As was liie 
 case of a father {Worcester, Sp. Ass. 1775,) whose son had frequently been guilty of 
 stealing, complaints of which had come to the father, who had often corrected him. At 
 length, the son being charged with another theft, and resolutely denying it, though 
 proved against him, the father, in a passion, beat his son with a rope, by way of chas- 
 tisement for tlic offence, so much, that he died. The father expressed the utmost horror, 
 and was in the greatest affliction for what he had done, intending only to have punished 
 him with such severity as to have cured him of his wickedness. The learned judge who 
 tried the father, consulted his colleagues in office, and the principal counsel on the cir- 
 cuit, who all concurred in opinion that it was only manslaughter, and so it was ruled. 
 1 East's P. C. 261. Persons on board a ship arc necessarily subject to soniethitig like a 
 despotic government, and it is extremely important that tiie law should regulate the 
 conduct of those who exercise dominion over them. 'J'lierefore, in a case of manslaugh- 
 ter, against the captain and mate of a vessel, for accelerating the death of a seaman, 
 really in ill health, but whom, they alleged, they believed to be a skulker, the question 
 will be, in determining whether it is a slight or an aggravated case, whether the pheno- 
 mena of the dcatii were such as would excite tiic attention of reasonable and humane 
 men; and, in such a case, if the deceased be taken on board after be was discharged 
 from an lios[)ital, it is important to inquire whether he was sent on board by the surgeon' 
 of the hospital as a person in a fit state of health to perform the duties of a seaman. 
 Reg. V. Ltggatt, 8 Car. Sf P. lUl.
 
 HISTORIA PLACITORUM CORONA. 474 
 
 the master rising suddenly, and taking a rapier ran down suddenly, 
 Frances hid herself in the buttery lest she should be discovered. 
 Leveies wife spying Frances in th6 buttery, and not knowing her 
 cried out. Here they he that wonld undo 11s: Level runs into the 
 buttery in the dark, not knowing Frances, but thinking her to be a 
 thief, and thrusting with his rapier before hini hit Frances in the 
 breast mortally, whereof she instantly died: this was resolved to be 
 neither murder, nor manslaughter, uor felony: vide the case cited by 
 justice Jones, P. 15. Car. 1. B. R. and Croke, n. l.[3] (in Cook^s 
 case,(e) for kilUng a baihff, that broke a window to execute a Capias, 
 which was judged to be manslaughter;) where the book says it was 
 not felony, qnsere whether it be not homicide by misadventure, for 
 the party kild was in truth no thief, tho mistaken for one, and tho it 
 be not homicide vohintary, yet it seems to he per infortunium. 
 
 If a man knowing that people are passing along the street 
 throws a stone, or shoots an iarrow over the house or wall, [[ 475 ] 
 with intent to do hurt to people, and one is thereby slain, 
 this is murder, and if it were without such intent, yet it is manslaugh- 
 ter, and not barely ;;er infortunium, because the act itself was un- 
 lawful; but if the man were tiling an house, and let fall a tile know- 
 ingly, and gave warning, and yet a person is kild, this is per infor- 
 tunium, but if he gave not convenient warning, it is manslaughter, 
 quia non udhihuit debitam diligentiam.{f) 
 
 \i Ji. \v\ his own park shoot at a deer, and the arrow glancing 
 against a tree hits and kills B. this is homicide per infortunium, be- 
 cause it was lawful for him to shoot in his own park. 
 
 But if ^. without the licence of B. hunt in the park of B. and 
 his arrow glancing from a tree killeth a by-stander, to whom he in- 
 tended no hurt, this is manslaughter, because the act was unlawful. 
 
 So if ^. throw a stone at a bird, and the stone striketh and killeth 
 another, to whom he intended no harm, it is per infortunium. 
 
 But if he had thrown a stone to kill the poultry or cattle of B. and 
 the stone hit and kill a by-stander, it is manslaughter, because the act 
 was unlawful, but not murder, because he did it not maliciously, or 
 with an intent to hurt the by-stander.[4] 
 
 (e) Cro. Car. 538. W. Jones 429. 
 
 (/) This is upon supposition, that the house do not stand near an liiahway or place 
 of resort, for then, tho he should cry out first, it is manslaughter. See hull's case 1664. 
 Kel. 41). 
 
 [.3] " Possibly it might have better been ruled manslaughter at common law ; due cir- 
 cimispection not having been used, but it was not manslaughter within the statute." 
 Foster, 299. See 1 East, P. C. 274, 275 ; 1 Hawk. P. C. c. 28. s. 27. 
 
 [4] There are many cases in which a party causing the death of another, without 
 positive intention of inflicting injury, is criminally responsible, though he is never 
 chargeable with murder under such circumstances. The test of responsibihty is 
 whether the conduct of the accused was contrary to any law, or not being so forbidden, 
 was so gross, negligent, or violent as necessarily to produce the belief that the act 
 which remotely or immediately caused death was such an act, or '.vas done in such 
 manner as to involve moral impropriety. The conclusion of guilt is not to be hastily 
 drawn nor inferred from remote circumstances, and it is only when a clear case is
 
 475 HISTORIA PLACITORUM CORONA. 
 
 By the statute of 33 //. 8. cap. 6. " No person not having lands, 
 4*c, of the yearly value of one luuidred pounds jier annum may 
 keep or shoot in a gun upon pain of forfeiture of ten pounds." 
 Suppose therefore such a person not quahfied shoots with a gun at 
 a bird, or at crows, and by mischance it kills a by-stander by the 
 breaking of the gun, or some other accident, that in another case 
 would iiave amounted only to chance-medley, this will be no more 
 than chance-medley in him, for though the statute prohibit him to 
 keep or use a gun, yet the same was but malum prohibi- 
 I] 476 3 /«w,and that only under a penalty, and will not inhanse the 
 effect beyond its nature. 
 
 «/^. having deer frequenting his corn-field out of the precinct of any 
 forest or chace sets himself in the night-time to watch in a Wedge, 
 and sets B. his servant to watch in another corner of the field with 
 a gun charged with bullets, giving him order to shoot, when he 
 hears any bustle in the corn by the deer, the master himself im- 
 providently rushes into the corn, the servant supposing it to be the 
 deer shoots, and thereby kills his master in the night, this is neither 
 petit treason, murder, nor manslaughter, but chance-medley, for the 
 servant was misguided by his master's own direction, and was igno- 
 rant, that it was any thing else but the deer. This was my opinion 
 in a case happening at Peterborough session ; but it seemed to me, 
 that if the master had not given such direction, that was the occasion 
 of his mistake, it would have been manslaughter to have shot at a 
 man, tho by mistaking it for the deer, because he did not adhibere 
 debilam diligentiam to discover his mark, but shot directly at the 
 person of a man, tho mistaking it for a deer. 
 
 Ji. drives his cart carelessly, and it runs over a child in the street, 
 if Ji. have seen the child, and yet drives on upon him, it is murder; 
 but if he saw not the child, yet it is manslaughter; but if the child 
 had run cross the way, and the cart run over the child before it 
 was possible for the carter to make a stop, it is per infortunium^ 
 and accordingly this direction was given by us at Newgate sessions 
 in 1672, and the carter convict of manslaughter. 
 
 If a man or boy riding in the street whip his horse to put him into 
 speed, and run over a child and kill him, this is homicide, and not 
 per infortunium, and if he rid so in a press of people with intent 
 to do hurt, and the horse had kild another, it had been murder in the 
 rider,[5] 
 
 established tli.it the party is liable for the consequences of an act which may be in itself 
 legal. Various adjudications illustrate this kind of responsibility for the death of another. 
 As an accidental killing by shootitifr, furious driving, taking an unruly horse into a 
 Crowd, carelessly laying poison for rats, want of caution towards drunken persons, care- 
 less navigation of vessels, firing guns in a populous place, &c., &c. Foster, 'i^%, 263; 
 4 Bl. Com. 182-3; H. y. rimmins, 7 C. 4- P. 42iJ ; R. v. Grout, 6 C. &; P.'G29 ; Anon. 
 1 East, P. C. 2G1 ; R. v. Walker, 1 C. ^ /'. 320; R. v. Mustin, 6 C. Sf P. 3!)6; R. v. 
 Green, 7 C. Sf P. I. 50; R. v. Allen, idem 153; Burton's case, 1 Strange, 481; Comm, 
 V. York, 7 Boston Law. Rep. 517; 1 Russ. on Cr. 657. 
 
 [5] See 1 Geo. IV. c. 4. 7 Sf8; Geo. IV. c. 75, as to accidents from furious driving of
 
 HISTORIA PLACITORUM C0R0N7E. 476 
 
 BtU if a man or boy be riding in the street, and a by-stander 
 whip the horse, whereby he runs away against the will of the 
 rider, and in his course runs over and kills a child or man, it is 
 chance-medley only, and in that case the jury ought not 
 to find him not guilty generally, but the special matter; [477]] 
 but yet, because the coroner's inquest, which stood untra- 
 versed, had found the special matter, the court received the verdict 
 of not guilty upon the indictment by the grand inquest of mur- 
 der, and the party confessed the indictment by the coroner, and 
 had his pardon of course, and this was said by Lee secondary 
 to be the course at Newgate, 1 Sept. 16 Car. 2. Eicfiard Pretty''s 
 case. 
 
 Tho the killing of another per infortunium be not in truth 
 felony, nor subjects the party to a capital punishment, and there- 
 fore usually in such cases the verdict concludes, quod inter- 
 fecit per infortunium, 8f' no7i per feloniain,^^X. the party forfeits 
 his goods, and tho he ought to have quasi de jure a pardon of 
 course upon the certificate of the conviction, yet he is not to be 
 discharged out of prison, but bailed till the next term or sessions to 
 sue out his pardon of course, for tho it was not his crime, but his 
 misfortune, yet because the king hath lost his subject, and that 
 men may be the more careful, he forfeits his goods, and is not 
 presently absolutely "discharged of his imprisonment, but bailed, t^^ 
 supra. 
 
 And so strict was the judicial law of the Jews in relation to the 
 life of man, that even in this case the avenger of blood might kill 
 the manslayer per infortunium before he got to the city of refuge, 
 Duet. xix. 5, 6. [6] . . 
 
 stage-coaches, and accidents by unloading of boats. 4 Bl, Com. 200; 1 East, P. C. 231; 
 3 Wilson, 407-8 ; Foster, 2G2, 263, 259, 280, 299 ; Keil. 40. 
 
 [6] Homicide by misadventure is where a man is doing a lawful act, without intent to 
 hurt another, and death casually ensues. Hale's Sum. 31 ; 1 East's, F. C. 221. 
 
 As where a labourer, being at work with a hatchet, and the head flies oft' and kills 
 one who stands by; or when a third person whips a horse on which a man is riding-, 
 whereupon he springs out and luns over a child, and kills him ; in which case the rider 
 is guilty of homicide by misadventure, and he who gave the blow of manslaughter, 
 1 Hawk. c. 29. s. 3. 
 
 It is not sufficient that the act upon which death ensues be lawful and innocent in 
 itself. It must be done in a proper manner, and with due caution to prevent mischief. 
 Fost.262; 1 East's P. C. 261. 
 
 A p:irty causing the death of a child by giving it spirituous liquors in a quantity quite 
 unfit for its tender age, is guilty of manslaughter. R. v. Martin, 3 C. ^- F. 211. 
 
 In the case of workmen throwing stones and rubbish from a house in the ordinary 
 course of their business, by which a person underneath happens to be killed; if they de- 
 liberately saw danger, or betrayed any consciousness of it, from whence a general ma. 
 lignity of heart might be inferred, and yet gave no warning, it will be murder, on account 
 of the gross impropriety of the act. If they did not look out, or not till it was too late, 
 and there was even a small probability of persons passing by, it will be manslaughter. 
 But if it had been a retired place, where there was no probability of persons passing by, 
 and none had been seen about the spot before, it seems to be no more than accidental 
 death; for though the act itself might breed danger, yet the degree of caution requisite 
 being only in proportion to the apparent necessity of it, and there being no apparent call
 
 477 HISTORIA PLACITORUM CORON.^. 
 
 for it in the instance put, the rule applies, de non existentibus et non apparentihus eadem 
 est ratio. So, if any person had been seen on the spot, but due warning were given, it 
 will be misadventure. Hull's case, 1664; Kel. 40; 1 Russ. 769. On the otlier hand, in 
 London and other populous towns, at a time of day when the streets are usually thronjTed, 
 it would be manslaughter, notwithstanding the ordinary caution used on other occasions 
 of giving warning; for in the hurry and noise of a crowded street, few people hear the 
 warning, or sufficiently attend to it, however loud. 1 East's P. C. 262, 
 
 Again, if a person driving a carriage happens to kill another: if he saw or had timely 
 notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; for 
 the presumption of malice arises from the doing of a dangerous act intentionally; there 
 is the heart regardless of social duty. If he might have seen the danger, but did not 
 look before him, it will be manslaughter, for want of due circumspection. But if the 
 accident happened in such a manner that no want of due care could be imputed to the 
 driver, it will be accidental death, and he will be excused. 1 EasVs P. C, 263. The 
 rricre calling out will not excuse the offender. R. v. Walker, \ C. Sf P. 320. 
 
 A. was driving a cart with four horses, in the highway at VVhitechapel, and, he 
 being in the cart, and the horses upon a trot, they threw down a woman who was going 
 the same way with a burthen upon her head, and killed her: Holt, C. J., Tracy, J., Bar- 
 ron Bury, and the Recorder hotel, held this to be only misadventure. But, by Lord Hull, 
 if it had been in a street where people usually pass, this had been manslaughter; but it 
 was clearly agreed it could not be murder. O. B. Sess. before M. T. 1704; 1 EasVs P. 
 €. 263. 
 
 To make the captain of a steam-vessel guilty of manslaughter, in causing a person to 
 be drowned by running down a boat, the prosecutor must show some act done by the 
 captain^ and a mere omission on his part in not doing tiie whole of his duty is not suffi- 
 cient. But if there be sufficient light, and the captain of a steamer is either at the helm 
 or in a situation to be giving the command, and does that which causes the injury, he 
 is guilty of manslaughter. R. v. Gree, 7 C. S( P. 156. The captain and pilot of a stcamv 
 boat were both indicted for the manslaughter of a person who was on board of a smack, 
 by running the smack down. The running down was attributed, on the part of the pro- 
 secution, to improper steerage of the steamboat, arising from there not being a man at 
 the bow to keep a look-out at the time of the accident. It was proved that there was a 
 man on the look-out when the vessel started, about an hour previous. According to one 
 witness, the captain and pilot were both on the bridge between the paddle-boxes; accord- 
 ing to another, the pilot was alone on the paddle-box. Held, that under these circum- 
 stances there was not such personal misconduct on the part of either as to make them 
 guilty of felony. R. v. Allen and another, 7 C. Sf P. 153. 
 
 The law does not require the utmost caution that can be used ; it is sufficient that a 
 reasonable precaution, what is usual and ordinary in the like cases, be taken; such as 
 hath been found by long experience in the course of human affiiirs to answer the end; 
 for such conduct shows that the party was regardful of social duly, and free from any 
 manner of guilt. Fost. 264; 1 EasVs P. C. 266. And therefore upon that principle, Mr. 
 Justice Foster denies Ramptori's case {Kel. 41,) to be law; and indeed there is a qi/cere 
 put to it in the margin ot the report. The prisoner had found a pistol in the street, 
 which he had reason to believe was not loaded, having tried it with the rammer, which 
 had gone down into the muzzle of the pistol; the rammer, in fact, being too short. He 
 carried the pistol home, and his wife standing before him, he cocked it and touched the 
 trigger; on which the pistol went off and killed the woman. This was ruled manslaugh- 
 ter. In truth the man had used the ordinary precaution adapted to the probability of 
 danger in such cases: he had examined the pistol by the usual method of trial. And 
 though it was doubtless an idle frolic, yet the heart was free from all sort of guilt, even 
 the guilt of negligence; and therefore tlie act ought to have been excused. And the same 
 learned judge delermined accordingly in a case something similar. 
 
 Upon a Sundiiy morning, a man and his wife going to dine at a friend's house in the 
 neighbourhood, he carried his gun with him, to divert himself on the way; but before 
 dinner he discharged it, and set it up in a private place in his friend's house. After 
 dinner he \vent to church, and in the evening returned home with his wife and neigh- 
 bours, bringing his gun with him ; which was put into the room where his wife was, she 
 having brought it [).irl of the way. He, taking it U[), touched the trigger, and the gun 
 went off, and killed his wife. It came out in evidence, that, while the man was at 
 church, a person belonging to the family privately charged the gun, and went alter some 
 game; but bcf'orc tlie service at church was ended, returned it loaded to the place "from 
 whence he had taken it; and where the defendant, who was ignorant of all that had passed,
 
 HISTORIA PLACITORUM CORONA. 477 
 
 found it to all appearance as be had left it. Mr. Justice Foster tlioug^ht it unnecessary to 
 inquire wlietlier tlie man had examined the gun before he carried it home; hut bein^ of 
 opinion, upon the whole evidence, that he had reasonable grounds to believe that it was 
 not loaded, he directed the jury, that if they were of the same opinion, they should acquit 
 liim: and he was acquitted. Fast. 265. 
 
 A gentleman came to town in a chaise, and before he got out of it fired his pistols in 
 the street, which by accident killed a woman. This was ruled manslaughter; the act 
 was likely to breed danger, ar\d manifestly improper. Benton's case, 1 Str. 481. 
 
 It has already been observed, that this kind of homicide is only when it happeneth upon 
 a man's doing a lawful act; for if the act be done in the prosecution of a felonious intention, 
 it will be murder. 1 Russ. 540. For it is a general rule in case of all felonies, that, when- 
 ever a man intending to commit one felony happens to commit another, he is as much 
 guilty as if he had intended the felony which he actually commits. J Hawk. c. 29. s. 11. 
 As, if A. shoot at the poultry of B., intending to steal them, and by accident kill a man, 
 this is murder. Fast. 258, 259. 
 
 Further, if there be an evil intent, though that intent extendeth not to death, it is mur- 
 der. Tims, if a man, knowing that many people are in the street, throw a stone over a 
 wall, intending only to frighten them, or to give them a little hurt, and thereupon one is 
 killed, this is murder; for he had an ill intent, though that intent extended not to death, 
 and though he knew not the party slain. 3 Inst. 57. 
 
 Although this species of homicide is not properly a man's crime, but his misfortune, 
 yet, because a human being is killed, and in respect of tl>e great favour the law has to 
 the life of man, and to the end that men should use all care, diligence, and circumspec- 
 tion, in all they do, that no hurt should come of their actions, a person convicted tliereof, 
 before the 9 Geo. IV. c. 31. s. 10. forfeited his goods; but by that statute he is exempted 
 from all punishment. See ante, chap. 38. note. 3 Burns' Justice, 800*. ed. 1845, 
 
 CHAPTER XL. [ 478 ] 
 
 OF MANSLAUGHTER EX NECESSITATE, AND FIRST SE DEFENDENDO. 
 
 I COME to those homicides that are ex necessitate, and this necessity- 
 makes the homicide not simply voluntary, but mixed, partly volun- 
 tary and partly involuntary, and is of two kinds. 
 
 1. That necessity, which is of a private nature. 
 
 2. That necessity, which relates to the pubhc justice and safety. 
 The former is that necessity, which obligeth a man to his own 
 
 defense and safeguard, and this takes in these inquiries, 1. What may 
 be done for the safeguard of a man's own life. 2. What may be done 
 for the safeguard of the life of another. 3. What may be done for 
 the safeguard of a man's goods. 4. What may be done for the safe- 
 guard of a man's house of habitation. 
 
 I. As touching the first of these, viz. homicide in defense of a man's 
 own life, which is usually styled se defendendo. 
 
 It is generally to be observed, that in case of any indictment or 
 charge of felony the prisoner cannot plead any thing by way of jus- 
 tification, as that he did it in his own defense, or per iuforfiniium, 
 but must plead 7wi quil/i/ ; and upon his trial the special n)aiter is 
 to be found by the jury, and thereujion the court gives judgment. 
 
 Homicide se defendendo is of two kinds. 
 
 1. Such, as tho it excusetli from death, yet it excuseth not the
 
 478 HISTORIA PLACITORUM CORONiE. 
 
 forfeiture of goods, nor is the party to be absolutely discharged out 
 of prison, but bailed, and to purchase his pardon of course. 
 
 2. Such as wholly acquits from all kinds of forfeiture. 
 
 First, therefore, of common homicide se defendendo. 
 [479] Homicide ^e defendendo is the killing of another person 
 in the nece6\s«ry defence of himself against him that assaults 
 him.[l] 
 
 In this case of homicide se defendendo^ there are these circum- 
 stances observable. 
 
 1. It is not necessary that the party killed be the first aggressor 
 or assailant, or of his party, tho commonly it holds. 
 
 There is a malice between A. and B. they appoint a time and 
 place to fight, and meet accordingly, A. gives the first onset, B. re- 
 treats as far as he can with safety, and then kills Ji. who had other- 
 wise killed him; this is murder, for they met by cotnpact and design, 
 and therefore neither shall have the advantage of what they them- 
 selves each of them created. 
 
 There is malice between Ji. and B. they meet casually, ./5. assaults 
 B. and drives him to the wall, B. in his own defense kills A. this is 
 se dcfendendo^^w(\ shall not be heightened by the former malice into 
 murder or homicide at large, Copston''s case cited Crompt. de Pace 
 21. b. and Dalt. cap. 98. (a) for it was not a killing upon the account 
 of the former malice, but upon a necessity imposed upon him by the 
 assault oi A. 
 
 A. assaults B. and B. presently thereupon strikes./?, without flight, 
 whereof.^, dies, this is manslaughter in B. and not se defendendo, 
 43. Assiz. 31. but if B. strikes A. again, but not mortally, and blows 
 pass between them, and at length B. retires to the wall, and being 
 pressed upon hy A. gives him a mortal wound, whereof./?, dies, this 
 is only liomicide se defendendo, altho that B. had given divers other 
 
 (a) New Edit. cap. 150. p. 484. 
 
 [1] Foster divides homicide in self-defence into two classes; the first he calls justifiable 
 self-defence, tlic second self-defence culpable. In the former, the injured party may 
 repel force by force in defence of his person, habitation, or property, against one who 
 manifestly intendeth and endeavoureth by violence or surprise to commit a known felony 
 upon either. In these cases he is not obliged to retreat, but may pursue his adversary 
 till he findeth himself out of danger, and if in a conflict between them he happeneth to 
 kill, such killing is justifiable. Kel. 128, 129. The right of self-defence in these cases is 
 founded in the law of nature, and is not, nor can be, superseded by the law of society. 
 For before civil societies were formed, for mutual defence and preservation, the right of 
 self-defence resided in individuals; it could not reside elsewhere; and since in cases of 
 necessity, individuals incorporated into society cannot resort for |)rotection to the law of 
 the society, that law with great propriety and strict justice considereth them, as still, in 
 that instance, under the piotcction of the law of nature. In the latter — homicide, cul- 
 pable but excusable, or homicide se defevdrndo, upon chance medley — as when a person 
 engaged in a sudden aftVay, (juits the combat before a mortal wound given, and retreats 
 or flees as far as he can with safety, and then urged by mere necessity, kills his adver- 
 sary for tiie preservation of his own lilc. Foster, 273-7. 1 Hawkins, c. 29. s. 13. 
 
 'I'he general rule is that, in order to excuse a homicide, on the ground of self-defence, 
 it must clearly appear that it was a necessary act, in order to avoid destruction, or some 
 great bodily harm. •
 
 HISTORIA PLACITORUM CORONA. 479 
 
 strokes, that were not mortal before he retired to the wall, or as far 
 as he could. Stamf. P. C. Lib. I. cap. 1. fol. 15. a. Dalt. cup. 98. 
 Crump. 28. a. 
 
 But now suppose, that ^. by malice makes a sudden assault upon 
 B. who strikes again, and pursuing hard upon j3. A. retreats to the 
 wall, and in saving his own life kills B. some have held this to be 
 murder, and not se defendendo, because A. gave the first assault, 
 Cromp. fol. 22. b. grounding upon the book of 3 E. 3. Itin. North. 
 Coron. 287. but Mr. Ballon., ubi supra, thinketh it to be ^e 
 defendendo, {b) tho A. made the first assault, either with or [480 ] 
 without malice, and then retreated; therefore the book of 
 3 E. 3. Coron. 284, 287. which occasioned the doubt, is to be ex- 
 amined, which is thus. 
 
 It seems to me, that li A. did retreat to the wall upon a real intent 
 to save his life, and then merely in his own defense killed B. that it 
 is se defendendo, and with this agrees Slamf. P. C. Lib. I. cap. 7. 
 fol. 15. a. But if on the other side A. knowing his advantage of 
 strength, or skill, or weapon, retreated to the wall merely as a design 
 to protect himself under the shelter of the law, as in his own defense, 
 but really intended the killing of B. then it is murder, or manslaugh- 
 ter, as the circumstance of the case requires, and that was the reason, 
 why the judges demanded of the jury 3 E. 3, whether he killed B. 
 of malice, or otherwise to save himself, and when the jury answered, 
 // was to save his life, he was remitted to prison to have his pardon 
 of course. 3 E. 3. Coron. 284. 287.[2] 
 
 2. In homicide se defendendo, there seems necessary some act to 
 be done by the party killing, for if he be merely passive, this will 
 make it only a killing per infortunium. 
 
 A. assaults B. who flies to the wall, or falls, holding his sword 
 knife, or pike in his hand, A. runs violently, or falls upon the knife 
 of B. without any thrust or stroke offered at him by B. and there- 
 upon dies, this is death per infortunium, and some have 
 said, that in this case A. is felo de se, de quo antea, vide [ 481 ] 
 Stamf. P. C. Lib. I. cap. 1. p. 16. 8,- libros ibi. 
 
 (6) The case here referred to in Dalton is the case of an affray, (which is likewise the 
 case put by Stamford) of this he says there was a difference of opinions, but delivers no 
 opinion of his own ; but as to the case here put by our author of a maliciovs assault, 
 which he afterwards mentions, he seems plainly to be of the contrary opinion, and to 
 think it murder; nor do I see any thing in Coron. 284, 287. that could occa.sion any 
 doubt about this matter, or any way relates to this case, for both those cases (which 
 seem to be but one and the same) were of an affray, in wliich he that struck first, was 
 the party killed, and the party killing struck not at all, till after he had fled as fur as he 
 could, and was necessitated to do it in his own defense; so that the reason assigned by 
 our author for demanding the question of the jury is grounded on a mistake; that, 
 which to me seems the reason of putting that question to the jury, is this, the jury had 
 found the fact specially, but had not drawn any general conclusion from it, the ques- 
 tion was therefore asked, tliat they might make the usual conclusion, unde dicuiit. quod 
 prcedictus, A. (the defendant) se defendendo prcedictum B. (the deceased) iiiterfecit, Sf 
 non per feloniam aut malitiam pracuffitatum, which was done accordingly; and there- 
 fore in the first of those places, viz, Cornn. 284. the usual conclusion being inserted, no 
 notice is taken of the question put to the jury. 
 
 [2j Foster, 277. 1 Hawk. c. 29. «. 17.
 
 481 HISTORIA PLACITORUM CORON.E. 
 
 3. Regularly it is necessary, that the person that kills another in 
 his own defense, fly as far as he may to avoid the violence of the 
 assault before he turn upon his assailant; for tho in cases of hostility 
 between two nations it is a reproach and piece of cowardice to fly 
 from an enemy, yet in cases of assaults and affrays between subjects 
 under the same law, the law owns not any such point of honour, 
 because the king and his laws are to be the vindices injuriaruni, 
 and private persons are not trusted to take capital revenge one of 
 anotlier.[3] 
 
 But this hath some exceptions. 
 
 1. In respect of the person killing. 
 
 If a gaoler be assaulted by his prisoner, or if the sheriff or his 
 minister be assaulted in the execution of his office, he is not bound 
 to give back to the wall ; but if he kills the assailant, it is in law 
 adjudged se clef oidendo, iho he give not back to tlie wall ;[4] the 
 like of a constable or watchman, for they are ministers of justice, 
 and under a more special protection in the execution of their office, 
 than private persons. Co. P. C.p. 56. 9 Co. Rep. 68. b. Mackally^s 
 case. 
 
 But if the prisoner makes no resistance, but flies, yet the officer 
 either for fear that he, or some other of his party will rescue the 
 prisoner, strikes the prisoner, whereof he dies, this is murder, for 
 here was no assault first made by the prisoner, and so it cannot be 
 se dejendendo in the officer.[5] 
 
 And here is the diff^erence between civil actions and felonies. 
 
 If a man be in danger of arrest by a Capias in debt or trespass, 
 and he flies, and the bailifl' kills him, it is murder;[6] but if a felon 
 flies, and he cannot be otherwise taken, if he be killed, it is no felony, 
 
 [3] State V. Wells, 1 Cuxe, 424. U S. v. Trovers, 2 Wlieeler's C. C. 498. 507. Hay. 
 don V. The State, 4 Blackford, 547. People v. Gurretson, 2 Wheeler's C. C. 348. People 
 V, Anderson, idem, 408. 
 
 [4| 3 Inst. 56. 1 Hawk. c. 28. s. 11. c. 29. 16. MS. Sum. 36, 37. Foster, 321. 
 
 [5] So long as a party, liable to arrest, endeavours peaceably to avoid it he may not 
 be killed; but whenever, by his conduct, he puts in jeopardy the life of any attempting 
 to arrest him, he may be killed, and the act will be excusable. State v. Anderson, 1 
 HiWs S. C. R. 327. See The State v. Rutherford, 1 Hawks. 457. Selfridge's Trial, 
 160. R. v. Haworth, 1 Moody, C. C. 207. R. v. Willia7ns, ibid. 387. R. v. Langden, 
 R. Ss R. 228. 
 
 It has been said that perhaps the killing of dangerous rioters may be justified by any 
 private persons who cannot otherwise suppress thern, or defend themselves from them, 
 inasmuch as every private person seems to be authorized by the law to arm himself 
 for the preservation of the peace. 1 Hawk. P. C. c. 28. s. 14, and see Foster, 272. 
 It was so resolved by all the judges in Easter Term, 39 Eliz. though they thought it 
 more discreet for every one in such a case to attend and assist the king's officers in pre- 
 serving the peace. And certainly, if private persons interfere to suppress a riot they 
 must give notice of their intention. See Rex v. Finney, 5 C. t^ P. 254. Reg. v. Neale, 
 9 C. c^ P. 431. The charge of Tindai., C. J. to the Bristol Grand Jury, 1832. 5 C. & P. 
 261, and charge of King, P. to the Philadelphia Grand Jury, 1844. 4 Penn. Law J. 29. 
 The latter is a practical and accurate statement of the law on this subject. 
 
 [6] 1 Roll. R. 189. Foster, 271. Rex v. Browning, 1 East, P. C. 312. Rex v. Borth. 
 wick, 1 Doug. 207. M. S. Sum. 37. If the warrant was irregular and void, the killing 
 would be only manslaughter. Rex v. Stockley, 1 East, P. C 210. Hoiisia v. Barrow, 
 6 T. R. 122, R. v. Winnock, 8 T. R. 454. R. v. Hood, Moody, C. C. 281.
 
 PIISTORIA PLACITORUM CORONA. 481 
 
 and in that case the officer so killing forfeits nothing, but the person 
 so assaulted and killed forfeits his goods. 
 
 2. In relation to the person killed. 
 
 If a thief assaults a true man either abroad or in his house to rob 
 or kill him, the true man is not bound to give back, but may kill the 
 assailant, and it is not felony. Co. P. C. p. 56. [7] 
 
 3. In respect of the manner of the assault. 
 
 If ^. assault B. so fiercely, that B. cannot save his life [482] 
 if he give back, or if in the assault B. fall to tlie ground, 
 whereby he cannot fly, in such case if ^. kill ^. it is se defendendo, 
 Co. P. C.p.56. but now here will be occasion to resume the former 
 debate, where the first assailer may be said to kill the assailed se 
 uefendendo.{S'] 
 
 If A. assault B. and B. thereupon re-assault ji. and A. really 
 flies to avoid the assault of B. who pursues him, and then A. being 
 driven to the wall turns again and kills B. it seems this may be se 
 defendendo, as hath been said ; for it appears de facto, that ji. fled 
 from the assault of ^. till he could fly no farther. 
 
 But if A. assaults B. first, and upon that assault B. re-assaults Ji. 
 and that so fiercely, that A. cannot retreat to the wall or other noti 
 ultra without danger of his life, nay, tho j1. falls upon the ground 
 upon the assault of B. and then kills B. this shall not be interpreted 
 
 [7] Foster, 273. Kel. 126. 128. 1 Hawk. P. C. c. 28. s. 21. 24, When a known felony 
 is attempted upon the person, be it to rob or murder, the party assailed may repel force 
 by force; and even his servant attendant on him, or any other person present, may inter- 
 pose for preventingf mischief, and if death ensue, the party so interposingf will be justi- 
 fied. 1 East, P. C.271. Com. v. Riley, Thacher's C. C. 471. Selfridge's case, 160. 
 Commonwealth v. Daily, 3 Pa. L. I. 153. 
 
 The danger must be actual and urgent, U. S. v, Vigol, 2 Dallas, 346. No contingent 
 necessity will avail; and when the pretended necessity exists in tlie, as yet, unexecuted 
 machinations of another, it forms no defence. People v, McLeod, 1 Hill, 377. State v. 
 Morgan, 3 Iredell, 186. 
 
 In Tennessee it has been ruled, that if a man, though in no danger of serious bodily 
 harm, through fear, alarm, or cowardice, kill another under the impression that great 
 bodily injury is about to be inflicted on him, it is a case of homicide in self-defence. 
 Granger v. The State, 5 Yerger, 459. 
 
 In North Carolina, the safer and better doctrine is, that the belief that a person designs 
 to kill one, will not reduce the killing him below murder, unless he is making some attempt 
 to execute his design, or, at least, is in an apparent situation to do so, and thereby induces 
 the reasonable belief that he intends to do so immediately. State v. Green, 4 Iredell, 409. 
 
 The killing of a man on the highway is not justifiable homicide, unless there was an 
 intention on the part of the person killed, to rob or murder, or do some dreadful bodily 
 injury to the person killing; or, in other words, the conduct of the party must be such as 
 to render it necessary on the part of the party killing, to do the act in self-defence. Reg. 
 V. Bull, 9 Car. Sf P. 22, 
 
 A well-grounded belief that a felony is about to be perpetrated, will extenuate a 
 homicide committed in prevention of it, though the defendant be but a private citizen; 
 but not a homicide committed in pursuit, unless special authority be given. State v, 
 Rutherford, 1 Hawks. 457. Selfridge's Trial, 160. R. v. Haworlh, 1 Mood. C. C. 207. 
 R. V. Williams, ibid, 387. R. v, Largden, R. Sf R. 228, 
 
 But the slayer, in such cases, must not only -show that a homicide was actually com- 
 mitted, but tliiit he avowed his object, and that the felon refused to submit, and that the 
 killing was necessary to make the arrest. State v. Roane, 2 Dtv. 58. 
 
 [8] 4 Bl. Com. 185. 3 Inst. 56, 1 Hawk. P. C. c. 29. s. 14.
 
 482 HISTORIA PLACITORUM CORONA. 
 
 to be se defendendo,{c) but to be murder, or simple homicide, accord- 
 ing to the circiimstatices of the case, for otherwise we should have 
 all cases of murders or manslaughters by way of interpretation turned 
 into se defendendo. 
 
 The party assaulted indeed shall, by the favourable interpretation 
 of the law, liave the advantage of this necessity to be interpreted as 
 a fiight(^) to give him the advantage of se defendendo, when the 
 necessity put upon him by the assailant makes his flight impossible ; 
 but he that first assaulted hath done the first wrong, and brought 
 upon himself this necessity, and shall not have advantage of his own 
 wrong to gain the favourable interpretation of the law, that that 
 necessity, which he brought upon liimself, should, by way of inter- 
 pretation, be accounted a flight to save himself from the guilt of mur- 
 der or manslaughter.[9] 
 
 If./?, after the assault, had really and bond fide fled from 
 [|483] B. or that they had been parted by by-standers, that had 
 given a kind of interruption to the affray, and a declining of 
 any farther aftray by B. and therefore when B. pursues him to kill him, 
 and t^. after his flight, upon necessity of saving his life, kills B. this 
 is apparent to be se defendendo; but when it is done altogether with- 
 out any interval of flight or parting, and B. that was first assaulted, 
 gains the present advantage by his strength, courage or fortune, to 
 preclude the flight of./?, and then A. kills him, this seems to be man- 
 slaughter, and not se defendendo. 
 
 And it must be observed, that the flight to gain the advantage of 
 se defendendo to the party killing, must not be a feigned flight, or a 
 flight to gain advantage of breath, or opportunity to fall on a fresh, 
 as fighting cocks retire to gain advantage, but it must be a flight from 
 the danger, as far as the party can, either by reason of some wall, 
 ditch, company, or as the fierceness of the assailant will permit.[10] 
 
 In Fleet street A. and B. were walking together, B. gave some 
 provoking language to Jl. who thereupon gave B. a box on the ear, 
 they closed; B. was thrown down, and his arm broken, he runs to his 
 brother's house presently, which was hard by, C his brother, taking 
 the alarm, came out with his sword drawn and made towards Jl. 
 who retreated ten or twelve yards, C. pursued him, Ji. drew his 
 sword and made a pass at C and killed him; A. being indicted at 
 
 (c) Because his fall not being voluntary, as a flight is, it does not appear, that he 
 declined fighting, so that the party first assaulted cannot safely quit the advantage he 
 has got. 
 
 (t?j Not that the law esteems this necessity to be a flight, but the party not having 
 opportunity of flying, the law does not require it of him; but excuses him in the same 
 manner, as if he had fled. 
 
 [9] I Ihivok. c. 20. s. 17. On this subject jMr. East says: " I think there is great diffi- 
 culty in applying the distinction taken by Lord Hale and Hawkins against him who 
 makes the first assault, to the case of mutual combat by consent, though upon a sudden 
 occasion, when neither of the parties makes an attack till the other is prepared; because 
 in these cases it maticrs not who gives the first blow; it forms no ingredient in the 
 merits of the question." 1 East, P. C. 281-2. 
 
 [10] Foster, 277. 4 Bl. Com. 1B5.
 
 HISTORIA PLACITORUM CORONiE. 433 
 
 Newgate sessions for murder, the court directed the jury upon the 
 trial to find this manslaughter, not murder, because upon a sudden 
 falling out; not se defendendo, partly because ./?. made the first breach 
 of the peace by striking B. and partly because, unless he had fled as 
 far as might be, it could not, by way of interpretation, be said to be 
 in his own defense: and it appeared plainly upon the evidence, that 
 he might have retreated out of danger, and his stepping back was 
 rather to have an opportunity to draw his sword, and with more 
 advantage to come upon C. than to avoid him; and accordingly, at 
 last, it was found manslaughter 1671, at Newgaie-lll] 
 
 II. I come to the second consideration, namely, what the 
 offense is, if a man kill another in the necessary saving of [ 484 ] 
 the hfe of a man assaulted by the party slain. 
 
 - ^. assaults the master, who flies as far as he can to avoid death, 
 the servant kills Ji. in defense of his master; this is homicide defen- 
 dendo of the master, and the servant shall have a pardon of course, 
 21 H.l. 39. a. but if the master had- not been driven to that extre- 
 mity, it had been manslaughter at large in the servant, if he had no 
 precedent malice in him. Plowd. Com. 100. 
 
 The like law had been for a master killing in the necessary defense 
 of his servant, the husband in the defense of the wife, the wife of the 
 husband, the child of the parent, or the parent of the child, for the 
 act of the assistant shall have the same construction in such cases, as 
 the act of the party assisted should have had, if it had been done by 
 'himself, for they are in a mutual relation one to another.[12] 
 
 \i Ji. and B. and C. be of a company together, and walking in the 
 field C. assaults B. who flies, C. pursues him, and is in danger to kill 
 him, unless present help, Ji. thereupon kills C. in defense of the hfe 
 of B. it seems that in this case of such an inevitable danger of the life 
 of B. this occision of C. by Ji. is in nature of ^e defendendo, but then 
 it must appear plainly by the circumstances of the case, as the 
 manner of the assault, the weapon with which C. made the assault, 
 ^•c. that the imminent danger of the life of B. be [apparent and evi- 
 dent. [13] 
 
 And the reason seems to be, because every man is bound to use 
 all possible lawful means to prevent a felony, as well as to take the 
 felon, and if he doth not, he is liable to a fine and imprisonment, 
 therefore if B. and C, be at strife, »/5, a by-stander, is to use all lawful 
 means that he may, without hazard of himself, to part them; and the 
 
 [11] Before a person can avail himself of the defence, that he used a weapon in defence 
 of his life, he must satisfy the jury that that defence was necessary ; that he did all he 
 could to avoid it ; and that it was necessary 1o protect his own life, or to protect himself 
 from such serious bodily harm, as would give him a reasonable apprehension that his 
 life was in immediate danger. If he used the weapon, having no other means of resist- 
 ance, and no means of escape, in such case, if he retreated as far as he could, he would 
 be justified. Reg. v. Smith, 8 C. 4- P. 160. See Reg. v. Bull, 9 C. ^ P. 22. 
 
 [12] 4 Bl. Com. 182-184. 1 J?uss. on Cr. 542. Foster, 274. 
 
 [13] This rule does not extend to felonies without force, nor to misdemeanors of any 
 kind. I Hawk. P. C. c.28. s. 23. 4 Bl. Com. 180. 1 East, P. C. 290. 
 VOL. I. — 43 

 
 484 HISTORIA PLACITORUM CORONA. 
 
 very relation of acquaintance, and mntnal society between A. B. 
 and C. seems to excuse the fact of Jl. in the necessary safeguard of 
 the \\{q oi B. from the crime of simple homicide; tamen quaere. 
 
 If Ji. be travelling, and B. comes to rob him, if C. falls into the 
 company, he may kill B. in defense of A. and therefore much more 
 if he come to kill him, and such his intent be apparent, for 
 \_ 485]] in such case of a felony attempted, as well as of a felony 
 committed, every man is thus far an officer, that'at least his 
 killing of the attempter in case of necessity puts him in the con- 
 dition oi se defendendo in defending his neighbour; but of this more 
 hereafter. 
 
 A. makes an assault upon B. a woman or maid with intent to 
 ravish her, she kills him in the attempt, it is se defendendo because 
 he intended to commit a felony. Bait. cap. 98. p. 250,[14] 
 
 And so it is if C. the husband or father of B. had killed him in 
 the attempt, if it could not be otherwise prevented ; but if it might 
 be otherwise prevented, it is manslaughter; therefore circumstances 
 must guide in that case. [15] 
 
 III. I come to consider, what the offense is in killing him that 
 takes the goods, or doth injury to the house or possession of 
 another. 
 
 And herein there will be many diversities, as first, between a 
 trespassable act and a felonious act, and between felonious acts them- 
 selves. 
 
 If J2. pretending a title to the goods of B. takes them away 
 from B. as a trespasser, B. may justify the beating of A. but if he 
 beat him so that he die, it is neither justifiable, nor within the 
 privilege of se defendendo, but it is manslaughter. Dalt. cap. 98. 
 jo. 251.[16]. 
 
 Ji. is in possession of the house of B. B. endeavours to enter 
 upon him, Jl. can neither justify the assault nor beating of B. for B. 
 had the right of entry into the house, but if A. be in possession of a 
 house, and B. as a trespasser enters without title upon him, A. may 
 not beat him, but may gently lay his hands upon him to put him 
 out, and if B. resists and assaults A. then A. may justify the beating 
 of him, as of his own assault. 
 
 But li A. kills him in defense of his house, it is neither justifiable, 
 nor within the privilege of se defendendo, for he entered only as a 
 trespasser, and therefore it is at least common manslaughter: this 
 was HarcourVs case Crumpt. 27. a. who being in possession of a 
 house by title, as it seems, A. endeavoured to enter and shot an 
 arrow at them within tlie house, and Harcourt from within 
 [ 486 ~\ shot an arrow at those that would have entered, and killed 
 one of the company, this was ruled manslaughter, 5 Eliz. 
 
 [14] M. S. Sum. 39. 
 
 [15] Foster, 274 ; Handock v. Baker, 2 B. Sf P. 265. 
 
 [16j State V. Murgan, 3 Iredell, 186; Vom. v. Drew, 4 Mass, 391; Claxton T. 2%< 
 State,2 Humphrey, 181.
 
 HISTORIA PLACITORUM CORONA. 486 
 
 and it was not se defendendo, because there was no danger of his 
 life from them without. 
 
 But if ^i. had entered into the house, and Harcourt had gently- 
 laid his hands upon him to turn him out, and then ^. had turned 
 upon him, and assaulted him, and Harcourt had killed him, it had 
 been ^e defendendo^ and so it had been if J2. had entered upon 
 him, and assaulted him first, tho he intended not to kill him, yet if 
 Harcourt had thereupon killed •/?. it had been only se defendendo, 
 and not manslaughter, tho the entry of ^1. was not with intent to 
 murder him, but only as a trespasser to gain the possession, 3 E. 3. 
 Coron. 305. Cramp. 27 b. and it seems to me in such a case Har- 
 conrt, being in his own house, need not fly as far as he can, as in 
 other cases of se defendendo, for he hath the protection of his house 
 to excuse him from flying, for that would be to give up the posses- 
 sion of his house to his adversary by his flight. [17] 
 
 A. commits adultery with B. the wife of C who comes up and 
 takes them in the very act, and with a staff" kills the adulterer upon 
 the place; this is manslaughter, and neither murder, nor under the 
 privilege of se dejendendo: but if J9. had been taken by C. in the 
 very attempt of a rape upon the wife, and she crying out, her hus- 
 band had come and killed Jl. in the act of his ravishment, it had 
 been within the privilege of se defendendo, because it was a felony; 
 the former case was adjudged manslaughter by the court, B. R. M. 
 23 Car. 2.{d) 
 
 Now concerning felonies, as there is a difference between them 
 and trespasses, so there is a difference among themselves in relation 
 to the point of se dejendendo. 
 
 'If a man come to take my goods as a trespasser, I may justify the 
 beating of him in defense of my goods, as hath been said ; but if I 
 kill him, it is manslaughter. 
 
 But if a man come to rob me, or take my goods as a felon, and in 
 
 (rf) Manning's case, Raym. 212. 
 
 When he was to be burnt in the hand, the court directed it to be done gently, because 
 they said there could not be a greater provocation. 
 
 [17] As the killing in these cases is only justifiable on the ground of necessity, it can- 
 not be justified unless all other convenient means of preventing the violence are absent 
 or exhausted; thus a person set to watch a yard or garden, is not justified in shooting' 
 one who comes into it in the night, even if he should see him go into his master's hen- 
 roost ; for he ought first to see if he could not take measures for his apprehension ; but 
 if, from the conduct of the party, he has fair ground for believing his own life in actual 
 and immediate danger, he is justified in shooting him. R. v. Scully, 1 C. Sf P. 319. 
 Nor is a person justified in firing a pistol on every forcible intrusion mto his house at 
 sight; he ought, if he have reasonable opportunity, to endeavour to remove him without 
 having recourse to the last extremity. Mead's case, 1 Lew. 184. 
 
 And it would seem that in no case is a mati justified in intentionally taking away the 
 life of a mere trespasser, his own life not being in jeopardy; he is only protected from 
 the consequences of such force as is reasonably necessary to turn the wrong-doer out. 
 A kick has been held an unjustifiable mode of doing so; Child''s case, 2 Lew, 214; 
 throwing a stone has been held a proper mode. HinchcUffe's case, 1 Lew. 161.
 
 487 HISTORIA PLACITORUM CORONA. . 
 
 my resistance of his attempt I kill him, it is se defendendo at least, 
 and in some cases not so much. 
 
 At common law, if a thief had assaulted a man to rob him, and 
 he had kild the thief in the assault, it had been se defendendo, but 
 yet he had forfeited his goods, as some have thought, 1 1 Co. Rep. 
 d>^ h. tho other books be to the contrary. 26 Jissiz. 32. 
 
 But if Ji. had attempted a burglary upon the house of B. to the 
 intent to steal, or to kill him, or had attempted to burn the house of 
 B. MB. or any of his servants, or any within his house had shot and 
 kild A. this had not been so much as felony, nor had he forfeited 
 ought for it, for his house is his castle of defense, and therefore he 
 may justify assembling persons for the safe guard of his house. 21 
 H.1.2,% a.W Co. Rep. 82. b. 5 Co. Rep. 9\.b. 26 ^ssiz. 23. S E. 3. 
 Coron. 330. 
 
 But otherwise it is, as hath been said, in case of a trespassable entry 
 into the house claiming a title, and not to commit felony. 
 
 But now by the statute of 24 H. 8. cap. 5. " If any person attempt 
 any robbery or murder of any person in or near any common high- 
 way, cartway, horseway, or footway, or in their mansion houses, or 
 do attempt to break any mansion-house in the night-time, and shall 
 happen to be kild by any person or persons, &c. (tho a lodger or 
 servant) they shall upon their trial be acquitted and discharged in 
 like manner, as if he had been acquitted of the death of such person, '^ 
 JP. 15. Car. 1. Cooper's case.(e) 
 
 This statute was to remove a doubt, and was declarative and 
 enacting, and puts the killing of a robber in or near the highway, <§'c. 
 in the same condition with one, that intends to rob or murder in the 
 dwelling-house, and exempts both from forfeiture, and hath settled 
 the doubt. 
 
 And upon this statute it was, that when there was malice between 
 ^. and B. and they had fought several times, and after met suddenly 
 in the street near Ludgate, and Jl. said he would fight him, B. 
 declined it, and fled to the wall, and called others to witness it, and 
 Jl. pursued him, and struck him first, and B. in his own defense kild 
 him, he was acquit from any forfeiture by the statute of 24 H. 8. 
 cap. 5. 15 Eliz. Cromp. 27. b. Copstori's case: but upon 
 [] 488 ] this statute these things are observable. 
 
 1. It extends not to the case of a bare trespassable entry 
 into a house, but only to such an entry or attempt as is intended to be 
 for murder or robbery, <§'c. or some such felony, and therefore the 
 cases of trespasses, either in houses or near highways, are left is 
 before. 
 
 2. It seerns, that it extends not to indemnify the killing of a felon, 
 .where the felony is not accompanied with force, for it speaks of rob- 
 bery, therefore the killing of one that attempts to pick my pocket, is 
 not within the act, for there is ^o such necessity ; indeed, if any felon, 
 after a felony committed, doth resist those, that endeavour to appre- 
 
 (e) Cro. Car. 544.
 
 HISTORIA PLACITORUM CORON.E. 488 
 
 hend him, or fly, and be kild, this killing is no felony, but that is 
 upon another account, for this statute hath relation only to killing 
 before, or in the felony committed, not «/?er.[lS] 
 
 3. It speaks only of breaking the house in the night-time, so that 
 it seems it extends not to a breaking the house in the day-time, 
 imless it be such a breaking, as imports, with it apparent robbery, or 
 an intention, or attempt thereof. 
 
 4. Tho the statute speaks not of burning of houses, yet he, that 
 attempts the wilful burning of a house, and is kild in that attempt, is 
 free from forfeiture, without the aid of this staute, as appears 26 
 Jisaiz. 23. 
 
 By the judicial law, Exod. xxii. 2, 3. "If a thief be found break- 
 ing up, and he be smitten that he die, no blood shall be shed for him, 
 but if the sun be risen upon him, there shall blood be shed for him, 
 for he should make restitution, and if he have nothing, he shall be 
 sold for his theft:" and by the Roman law of the twelve tables, 
 Fur manifesto fur to deprehensiis, siaut, cutn facer et fur turn. , nox 
 esset, aitt inter-diu se telo, cum deprehenderetur, defenderet, im- 
 pune occideretur :{f) upon the latter of these laws the civilians and 
 canonists have made many curious d\s{\nci\ons,quas vide apudOovdiX- 
 ruviam, Tom. I. Par. 3, de homicidio ad defensionem com- 
 misso ;{g) and upon the former the Jewish Rabbles have [489] 
 made the like, quas vide apiid Selden de jure gentium. 
 
 But as the laws of several nations, in relation to crimes and pun- 
 ishments differ, and yet may be excellently fitted to the exigencies 
 and conveniences of every several state, so the laws of England 
 are excellently fitted in this and most other matters to the conve- 
 niencies of the English government, and full of excellent reason, and 
 therefore I shall not trouble myself about other laws than those of 
 England.{h) 
 
 IV. There remains yet one other particular, namely, the killing a 
 malefactor, that doth not yield himself to justice upon pursuit. 
 
 If a person be indicted of felony and flies, or being arrested by 
 warrant or process of law upon such indictment escapes and flies, 
 and will not render himself, whereupon the officer or minister cannot 
 take him without killing of him, this is not felony, neither shall the 
 killer forfeit his goods, or be driven to sue forth his pardon, but upon 
 
 (/) ^^S' ^*^' IV. tit. 2. ad leg. Aquil. I. 4. § 1. Agel. Lib. XI. cap, 18. vide supra cap. 
 1. p. 3 Sf 6. 
 
 ig) p. 561. Edit. Antwerp, 1614. 
 
 {h) By the common law, Qui latronem occide.rit nocturnum vel diuturnum, non tene- 
 titr, si aliter periculum evadere non possit, tenetur tamen, si possit. Bract. Lib. 111. de 
 corona, fol. 15.5. a. 
 
 Vide LL. Withred. Edit, ^^^ilk. p. 12. LL. Lim, I. 16. 20, 21. 35. LL. Ethelslani, 
 in. LL. Canuti,l.59. 
 
 [18] 4 Bl. Com. 180. But, says Mr. East, if one pick my pocket, and I cannot otiier- 
 wise take him than by killings him, this falls under the general rule concerning the 
 arresting of felons. 1 East, P. C. 273.
 
 489 HISTORIA PLACITORUM CORONA. 
 
 his arraignment shall plead 720/ gidlly. and accordingly it ought to 
 be found by the jury. 3 E. 3. Coron. 288. 
 
 ! But if he may be taken without such severity, it is at least man- 
 slaughter in him, that kills him, therefore the jury is to inquire, whe- 
 ther it were done of necessity or not. 22 *dssiz. 55 Stamf. P. C. 
 Lib. I. cap.5.ful. 13. b. 
 
 And the same law it is, if »^. commits felony and flies, or resists 
 the people, that come to apprehend him, so that he cannot be taken 
 without killing him, such killing is not felony, nor does the person, 
 that did it, forfeit any thing, tho J3. were not indicted, nor the per- 
 son, that did it, had any warrant of any court of justice, for in such 
 case the law makes every person an otiicer to apprehend a feloii. 
 22 E. 3. Coron. 261. 
 
 And the same law it is, if he be taken, and in bringing to the goal 
 he breaks away, and the people of the vill pursue and cannot take 
 him, unless they kill him, those, that kill him, upon their arraign- 
 ment shall be acquitted of the felony, but yet the township 
 []490 ] shall be amerced for the escape, and the person kild shall 
 forfeit his goods upon the flight found. 3 E. 3. Cor. 328. 340. 
 and by some it hath been held he shall forfeit the issues of his lands, 
 till the year and day be past. 3 E. 3. Coron. 290. 
 
 If t/^. be suspected by B. to commit a felony, but in truth he com- 
 mitted none, neither is indicted, yet upon the offer to arrest him by 
 B.he resists or flies, whereby B. cannot take him without killing 
 him, and B. kill him, if in truth there were no felony committed, or 
 B. had not a probable cause to suspect him, this killing is at least 
 manslaughter, but if there were a felony committed, and B. hath cause 
 to suspect t/?, but in truth »^. is not guilty of the fact, tho upon this 
 account B. may justify the imprisonment of Ji. yet qustre if B. 
 kill Ji. in the pursuit, whether this will excuse him from man- 
 slaughter. 
 
 But if a felony be committed, but not by A. but by some other, 
 and B. hath a warrant from a justice of peace to apprehend A. or 
 that a hue and cry comes to B. the constable of Z). to apprehend Ji. 
 who endeavours to escape, or stands in resistance, so that he cannot 
 be taken without killing him, it seems the killer is excused from fe- 
 lony, tho A. were not indicted; vide 'pro hoc 3 E. 3. Coron. 289. and 
 the reason is because he is bound by law to execute his warrant, or 
 pursue the party upon hue and cry and to apprehend him, and is in- 
 dictable for a contempt if he doth not, and so it differs from the for- 
 mer case, for no man is bound to suspect another, but it is the act of 
 his own judgment, and so he is merely his own warrant, and he may 
 not adventure so far as the death of the party, unless he be sure he 
 was the off'ender, tho he may imprison him, for thereupon he shall 
 be brought to his trial; scd de his vide Slamf. P. C. Lib. I. cap. 5. 
 Crompt.fol. 30. 
 
 And it is to be observed, that whether the party rescues himself 
 after he is taken, and ffy or resist, or whether lie ffy or resist before 
 his taking, and be kild in the pursuit, it is all one, the killer forfeits
 
 HISTORIA PLACITORUM CORONA. 491 
 
 nothing; but the person kild forfeits his good5?, tho he were kild before 
 attainder, upon an inquisition either by the coroner, or petit jury 
 finding his flight. 3 E. 3. Coron. 288. 328. 
 
 By the statute of 21 E. 1. de malefactoribns in pr/rcis, if a parker, 
 forester, or warrener, find any trespassers wandering in his park, 
 forest, or warren, intending to do damage therein, and they will not 
 yield to the forester after hue and cry made to stand to the king's 
 peace, but fly or defend themselves, whereupon they are kild, the 
 parker, forester, or warrener, or their assistants shall not lose life or 
 limb for the same, but shall enjoy the king's peace, so it be not done 
 upon any former malice or evil will; but to make good such justifi- 
 cation by a parker, forester, or warrener, there are these things re- 
 quisite: 1. It must be a legal forest, park, or warren, or chace, (for a 
 chase includes warren) and not a bare warren, park, 8,'c. in reputa- 
 tion, for if a man inclose a piece of ground, and put deer or conies 
 in it, this makes it not a park or warren without a prescription time 
 out of mind, or the king's charter. 2. If a man have a park within 
 a forest, where he may hunt, and the forester kills the purloin-man, 
 or his servant hunting in the purloin, this doth not excuse the forester 
 from murder or manslaughter, as the circumstances of the case are. 
 Dyer 327. a. 
 
 A!id note, that in all these cases of homicide by necessity, as in 
 pursuit of a felon, in killing him that assaults to rob, or comes to burn 
 or break a house, or the like, which are in themselves no -felony, the 
 matter may be specially presented by the grand inquest, (quod vide 
 3 E. 3. Coron. 305. 289. and several other places,) or by the coro- 
 ner's inquest. And thus it was done in Holme's case, 26 EUz. 
 Crompt. 28. and in the case of a servant of justice Croke, who com- 
 ing with the judge out of the circuit was assaulted in the highway, 
 and he kild the assailant, and the matter presently specially found 
 by the coroner's inquest, whereby he was discharged by the statute 
 of 24 H. 8. cap. 5. and in these cases upon this special presentment 
 the party shall be presently discharged without being put to plead, 
 but then this acquittal by preserUment is no final discharge, for he 
 may be indicted and arraigned again afterwards, if the matter of the 
 former indictment be false ; but if in such a case the present- 
 ment of the grand inquest or coroner's inquest be simply of [ 492 ~\ 
 murder or manslaughter, and ther^ipon he is arraigned and 
 tried, and this special matter given in evidence, he shall be acquitted 
 thereupon, for upon these special matters proved in evidence, he is 
 not guilty, for it is no felony, and this acquittal is a perpetual dis- 
 charge and bar against any other indictment for the same death; 
 therefore this latter way is more advantageous in the conclusion for 
 the party, than a special presentment. Cromp. fol. 28. Holme's 
 case. [19] 
 
 [19] Lord Bacon says, "if divers be in danger of drovvninir, by the casting away of some 
 boat, or barque, and one of them get to some plank, or on the boat's side to keep iiimself
 
 492 HISTO^IA PLACITORUM CORONA. 
 
 above water, and another to save his life thrust him from it, whereby he is drowned; 
 tiiis is neither se defendendo, nor by misadventure, but justifiable." Max. Reg. V. • 
 
 Later writers speak of this as homicide se defendendo. 
 
 The only case directly involvinjr this doctrine is that of U. S. v. Holmes, C. C. U. S. 
 for Eastern District, of Penn., March, 1842 — an indictment for manslaughter. The defen- 
 dant was a mariner, and tlie deceased a passenger in a ship wrecked and abandoned at 
 sea ; ihe crew and passengers embarking in boats, and witiiin twenty-four hours after the 
 abandonment the danger of destruction by tempest being imminent, the prisoner, together 
 with the remaining sailors, proceeded to throw overboard tliose passengers whose remo- 
 val seemed necessary for the common safety, among whom was the deceased. Relief 
 shortly after came; but the evidence conflicted as to whctiier the boat could have lield 
 out in its original crowded state even during that short period. The question, therefore, 
 whether, with no prospect of aid, acting under the circumstances which surrounded the 
 defendant at the time the act was committed, such necessity existed as would justify the 
 homicide, was one of great doubt. But a new principle was introduced into the case by 
 Judge Baldwin, who presided. Holding, that in such an emergency, there was no mari- 
 time skill required which would make the presence of a sailor of more value than that of 
 a passenger, he maintained, that in such case, it being the stipulated duty of the sailor 
 to preserve the passenger's life at all hazards, if a necessity arose in which the life 
 of one or the other must be lost, the life of the passenger must be preferred. If, on 
 the other hand, the crew was necessary, in its full force, for the management of the 
 vessel, the first reduction to be made ought to take place from among the passen. 
 gers. But under all circumstances, it was held, the proper method of determining who 
 was to be the first victim out of the particular class, was by ballot. The defendant, 
 under the charge of the court, was convicted. U, S. v. Holmes, Pamphlet, Phila., 1842. 
 
 Sir William Russell observes, that if the commission of treason may be extenuated by 
 the fear of present death, and while the party is under actual compulsion, (I East, P. C. 
 70.) there seems to be no reason why homicide may not also be mitigated upon the like 
 consideration, of human infirmity; though in case the party might have recourse to the 
 law for his protection from the threats used against him, his fears will certainly furnish 
 no excuse for*committing the murder. 1 East, P. C. 294. It must further be observed, 
 that as the excuse of selt-defence is founded on necessity, it can, in no case, extend be- 
 yotid the actual continuance of that necessity by whicli alone it is warranted; 1 East, 
 P. C. 293. for if a person assaulted does not fall upon the aggressor, till the affray is 
 over, or when he is running away, this is revenge, and not defence. 4 BL Com. 293. 
 I Russ. on Cr. 665. See Foster, 271. 277. 318. 
 
 CHAPTER XLI. 
 
 CONCERNING THE FORFEITURE OF HIM, THAT KILLS IN HIS OWN 
 DEFENSE, OR PER INFORTUNIUM. 
 
 If a man kill another by misfortune, yet he sliall forfeit his goods 
 in strictness of law, in respect o^ the great favour the law hath to 
 the life of a man, and to the end that men should use all care, dili- 
 gence and circumspection in all they do, that no such hurt ensue by 
 their actions. 
 
 But if the occision or killing can by no means be attributed to the 
 act of the person, but to the act of him, that is kild, there it seems, 
 llio the instrument of the death is forfeited as a deodand, there follows 
 no forfeiture of the goods of the person : for instance. 
 
 If ^. shoots at rovers, as he may lawfully do, if B. after the 
 arrow is delivered runs into the place, where the arrow is to fall, of 
 his own accord, and so is kild, this seems to be such an iiiforliiniuni, 
 that affects not */l. with the loss of goods, for it was not his act that
 
 HISTORIA PLACITORUM CORONtE. 492 
 
 contributed to the death of B. but the wilful or improvident act of 
 B. himself; qunere. 
 
 If Jl. assaults B. and B, in his own defense kills %8.. yet [ 493 ] 
 B. forfeits his goods. 
 
 If the coroner's inquest find the killing specially se. defendendo, 
 yet the court shall arraign him, and try him, whether it were se 
 defendendo, before he shall have his pardon of course. 4 H.l.l <§• 2. 
 
 But if B. having a pitch-fork in his hand, ^. assaults B. so 
 fiercely, that he runs upon the pitch-fork of ^., B. offering no thrust 
 at all against t/?. (tho this be a very difficult matter of fact to sup- 
 pose, yet if the fact be supposed to be so) it seems B. forfeits no 
 goods, because it was the act of ^. himself, and some have said 
 rather, that in that case Jl. is felo de se, and forfeits his goods, de 
 quo supra, 44 E. 3. 44. Coron. 94. tho 3 E. 3. Coron. 286. saith his 
 goods are forfeit in that case. 
 
 But where the killing of a man in his defense is in the law no 
 felony, but the party upon his arraignment upon the special matter 
 is to be found or judged simply not guilty, there is no forfeiture, but 
 the party ought to be absolutely acquitted, unless he fled, and it be 
 found, that fugam fecit, for that is a distinct forfeiture, altho the 
 party be not guilty of the fact, and therefore always the jury is 
 charged to inquire, whether the prisoner be guilty or not guilty, and 
 if not guilty, whether he fled for the same, and if he fled, then to 
 inquire also of his goods and chatties. 
 
 And the cases, where the prisoner is not to forfeit any goods or 
 chatties, but is to be absolutely acquitted, if he kills in his own de- 
 fense, are before remembered, and I here recollect them. 
 
 1. He that kills a thief, that attempts to rob him. 
 
 2. He that kills a person, that attempts to rob or kill him m or 
 near the highway, or in the mansion of the killer, by the statute of 
 24 H. 8. cap. 5. and this, tho he hath not yet actually robbed. 3^3. 
 Coro7i. 330. 
 
 3. He that kills a person, that attempts wilfully to fire his house, 
 or to commit burglary, tho he hath not actually broken or fired the 
 house. 26 Jissiz. 23. 29 t.dssiz. 23. if he came with that purpose. 
 
 4. An officer or bailiff, that in execution of his office kills 
 
 a person, that assaults him, tho the officer gives not back [494]] 
 
 to the wall, for the officer is under the protection of the 
 
 law, and the books tell us it is not felony in such case. Co. P. C. p. 65. 
 
 5. The same law is of a constable, that commands the king's peace 
 in an affray, and is resisted. 
 
 6. He that kills a felon, that resists, ox justiciari se non permit- 
 tit, and the like of a constable or watchman, that is charged to take 
 a person charged with felony, or attempts to take him upon hue and 
 cry, if the person so charged resist or fly, and cannot be otherwise 
 taken, tho perchance he be iiuiocent, for the reason before given, and 
 this either before or after the arrest. 
 
 7. If there be a great riot, or rebellious assembly, how far the
 
 494 HISTORIA PLACITORUM CORONA. 
 
 killing of such persons in suppressing of them is criminal is to be 
 seen. 
 
 By the statute 1 Mar. cap. 1 2. " If any persons to the number of 
 twelve or more shall intend, practise, or put in ure to overthrow pales, 
 hedges, ditches, or inclosures of parks or other grounds, banks of 
 fish-ponds, conduit-heads, or pipes, or to pull down dove-cotes, barns, 
 houses, mills, or burn stacks of corn, or abate rents or price of victual 
 or corn, and being required by the justices of peace, sheriff of the 
 county, mayors, bailitfs, or head officers of cities, by proclamation in 
 the queen's name to retire to their homes, shall remain together one 
 hour after such proclamation, or shall put in ure such things, they 
 shall be adjudged felons. 
 
 "And if any persons above the number of two shall unlawfully 
 assemble to put in ure the things aforesaid, that it shall be lawful 
 for the sheriff, justices of peace, mayors, bailiffs, and every other 
 person having commission from the queen to raise force in manner 
 of war, to be arrayed to suppress and apprehend the rioters, and if 
 the persons so unlawfully assembled after command and request by 
 proclamation shall continue together, and not return to their habi- 
 tations, and if any of them happen to be kild, maimed or hurt in or 
 about the suppressing or taking them, the sheriff, justice, 
 \_ 495 ~\ mayor, SfC. and their assistants, shall be discharged and 
 unpunishable for the same against the queen and all other:" 
 this act was continued by the statute of 1 Eliz. cap. 16. during her 
 life.(«) 
 
 And it seems, as to this manner of killing rioters, that resist the 
 ministers of justice in their apprehending, it is no other but what 
 the common law allows, or at least what the statute of 13 H. 4. 
 cap. 7. implicitly allows to two justices of the peace, with the 
 sheriff or under-sheriff of the county, by giving them power to 
 raise the posse comitalics, if need be, and to arrest the rioters, and 
 they are under the penalty of 100/. if they neglect their duty hereim 
 
 And with this agrees Mr. Dalton, cap. 46. /;. 115., (b) cap 98. 
 p. 249. ,(c) and Crompt. de Pace 62. b. " Nota, que viscount & jus- 
 tices de peace point prendre tants des homes in barneys, quant sont 
 necessary & guns &c. & tuer les rioters, sils ne voilent eux rendre, 
 come fuit pris in case de Drayton Basset, car le statute 13 //". 4. 
 cap. 7. parle, quils eux arrestant, & si les justices ou ascuns de leuir 
 company tue ascun des rioters, qe ne voil render nest offence in lui, 
 come fuit auxi prise in ledit case de Drayton Basset ;^\d) and note, 
 that tho the statute of 1 Eliz. was then in force, yet that was not a 
 case within that statute, nor depending on it. 
 
 And it seems the same law is for the constable of a vill in case a 
 riot happens within a vill, he may assemble force within liis vill to 
 arrest the rioters, and if he or those assembled in his assistance 
 come to arrest the rioters, and they resist, and be kild by the con- 
 
 (tf) 1 Geo. cap. 5. a new act was made to the same purport, which is perpetual. 
 lb) New Edit. cap. 182. />. 21^7. {(l) Sec also Crompt. 23 b. 
 
 (c) Cap. 150. p. 481.
 
 HISTORIA PLACITORUM CORONA. 495 
 
 stable or any of his assistants, the constable and his assistants are 
 dispunishable for the same, for he is enabled hereunto by the com- 
 mon law, as being an officer for the preservation of the peace, and 
 may command persons to his assistance, and if they refuse, tiiey are 
 fineable for it. 
 
 And farther, the statute of HE. 2. cap. 8. commands 
 and authorizes the king's ministers to use all their power [ 496 ] 
 to take and suppress such riots and rioters, and a constable 
 is the king's minister; and the statute of 13 //. 4. cap. 7. is no 
 repeal of this statute, so that the killing of a rioter by a sheriff, 
 justice of peace, or constable, when he will resist and not submit to 
 the arrest, seems to be no felony at common law, nor makes any 
 forfeiture, for they do but their office, and are punishable if they 
 neglect it. 
 
 S. If the prisoners in goal assault the goaler, and he in his de- 
 fense kills any of them, this is no felony, nor makes any forfeiture. 
 22 ^ssiz. 5. per Thorp, adjudge per tout le counceL* 
 
 * See ante p. 424, note I. 
 
 CHAPTER XLII. 
 
 CONCERNING THE TAKING AWAY OP THE LIFE OF MAN, BY THE 
 COURSE OF LAW, OR IN EXECUTION OF JUSTICE. 
 
 This kind of occision of a man according to the laws of the king- 
 dom and in execution thereof ought not to be numbered in the rank 
 of crimes, for it is the execution of justice, without which there were 
 no living, and murders, burglaries, and all capital crimes would be 
 as frequent and common, as petit trespasses and batteries. 
 
 The taking away of the life, theref^ore, of a malefactor according 
 to law by sentence of the judge, and by the sheriff or other minister 
 of justice pursuant to such sentence, is not only an act of necessity, 
 but of duty, not only excusable, but commendable, where the law 
 requires it.[l] 
 
 But because there are some cautions and considerations 
 in this matter, I have added it to the close of this title of [ 497 ] 
 homicide. 
 
 Regularly it is not lawful for any man to take away the life of 
 another, tho a great malefactor, without evident necessity, (whereof 
 before,) or without due process of law, for the deliberate, uncom- 
 pelled extrajudicial killing of a person attaint of treason, felojiy, or 
 murder, or in a prsemunire, tho upon the score of their being such, 
 is niurder.(tf) 
 
 (a) Coron. 203. 
 [I] Foster, 267; 4 Bl Com. 178.
 
 497 HISTORIA PLACITORUM CORONA. 
 
 Therefore it is necessary, 1. That he, that gives sentence of death 
 against a malefactor, be authorized by lawful commission or charter, 
 or by prescription to have cognizance of the cause. 2. That he 
 that executes such sentence be authorized to make such execution, 
 otherwise it will be murder or manslaughter, or at least a great 
 misprision in the judge that sentenceth, or in the minister that exe- 
 cuteth.[2] 
 
 I. As touching the authority of the judge, I shall not at large 
 discourse the jurisdiction of the judges or courts in this place; it will 
 be more proper hereafter; but shall mention only some things, that 
 may be seasonable for this place. 
 
 If he that gives judgment of death against a person, hath no com- 
 mission at all, if sentence of death be commanded to be executed by 
 such person, and it is executed accordingly, it is murder in him that 
 commands it to be executed, for it was coram non judice. 
 
 If a commission of the peace issue, this extends not to treason, 
 neither can justices of peace hear and determine all treasons by 
 force of this commission, for it extends only to felonies, (tho some 
 treasons are by act of parliament limited to their cognizance, as 
 hath been before observed) if they take an indictment of treason, 
 - and try and give judgment upon the party, this is most certainly 
 erroneous, and possibly avoidable by plea, but I do not think it 
 makes the justices guilty of murder in commanding the execution 
 of such sentence, for they were not without some colour of proceed- 
 ing therein, because all treason is felony, tho it be more, and the 
 king may, if he pleases, proceed against a traitor for felony; 
 [ 498 ] and antiently a pardon of all felonies discharged some trea-, 
 sons. 1 E. 3. Charter de Pardon 13. 22 ^ssiz. 49 Co. P. C. 
 p. 15. but it is a great misprision in such justices. 
 
 The justices of the common pleas cannot hold plea upon an 
 indictment or appeal in capital causes, it will be at least erro- 
 neous, if not voidable by plea; but if they hold plea in appeal of 
 death by writ, and give judgment therein for the party to be 
 hanged, which is executed accordingly, I think it is an error, and a 
 great misprision in them, but not felony, because they had colour to 
 hold plea thereof by an original writ out of the chancery under the 
 great seal. 
 
 Upon the same reason I take it, that if there be a writ sent to the 
 sheriff", eschetor, or »/2. B. and C. to hear and determine felonies, 
 whereas it ought to be a commission, 42 ^^ssiz. 12, 13. and they 
 proceed thereupon to a judgment and execution in case of felony, it 
 is a great misprision, but I think it makes not the judge nor execu- 
 tioner guilty of murder; the same law I take to be in Lade's case, 
 quod vide Co. P. C. p. 48. 5 Co. Rep. 106. a Constable's case. 
 The commissioners upon the statute of 28 H. S. had given judg- 
 ment of death against him that struck at sea, and the party died at 
 
 [2] 3 ImU 52. 211; Foster, 270; f! N. B. 244 A; 19 Rym. Fad. 284; 1 East, 
 P. C. 335.
 
 HISTORIA PLACITORUM CORONA. 498 
 
 land ; and the same law I take to be, where he that hath the fran- 
 chise of Infangthief, gives judgment of death against a felon not 
 within his jurisdiction, 2 R. 3. 10. b. the ease of the abbot of Croiv- 
 land; it might be a cause of a seizure of the Uberty, but makes not 
 the steward guilty of murder. 
 
 And what I have said of a proceeding in capitals without the 
 strict extent of their commission may be said of the like proceed- 
 ing, where, in strictness of law, the commission happens to be 
 determined. 
 
 A commission of gaol-delivery issues to ,ji. B. <§"c. they sit one day, 
 and forget to adjourn their commission, or the clerk forgets to enter 
 the adjournment, a felony is committed the next day, and they pro- 
 ceed in sessions, and take an indictment, and give judgment of death 
 against the malefactor, this judgment is erroneous, and the clerk of 
 assizes shall never be permitted to amend the record, and enter an 
 adjournment, this judgment is erroneous, and shall be reversed; but 
 it makes not the judges guilty of murder or homicide, tho in 
 strictness of taw their commission was determined by the £ 499 ]] 
 first day's session without adjournment. 
 
 King James issued out several commissions of gaol-delivery, SfC. 
 the justices went their circuit, the king died, yet they proceeded, and 
 before notice of the king's death condemned and executed many pri- 
 soners; it is held these proceedings were good, and the commissions 
 stood till notice of the king's death, M. 3. Car. C. B. Sir Randolph 
 Creio^s case,(6) tho, in strictness of law, their commissions were de- 
 termined by the king's death; but suppose they were both in law and 
 fact determined, the judgments that happened upon sessions begun 
 after the king's death would be erroneous, but the judges had not 
 been criminal in commanding the execution of their sentence before 
 notice; for if ignorantia juris doth in some cases excuse a judge, 
 much more doth ignorantia facti. 
 
 If a commission of gaol-delivery issue to A. B. and C. in the coun- 
 ty of D. and afterward a second commission of gaol-delivery in the 
 same county issue to E. F. and G. and there is notice given to the 
 former commissioners, but no session by virtue of the second com- 
 mission, whereupon the former proceed notwithstanding that notice 
 in pays, (as conceiving it insufficient, unless either a writ of Super- 
 sedeas had been sent them, or at least a session by the second com- 
 mission) and they proceed in cases capital, this makes them not guilty 
 of felony, 34 Jlssiz. 8. because tho the second commission be effectual 
 for them to proceed without any actual revocation by Supersedeas, 
 or otherwise of the former, yet the former is not actually determined, 
 till a Supersedeas or a session by virtue of the second commission, 
 upon an extrajudicial notice, or a notice in pays, the first commission- 
 ers may, if they please, forbear any further session, but they are not 
 bound to take notice of rumours and reports ; the like in case of a 
 sheriff", M. 26. Eliz. Moore 333. 5 E. 4. 
 
 If in the time of peace a commission issue to exercise martial law, 
 
 (6) Cto. Car. 93
 
 499 HISTORIA PLACITORUM CORONA. 
 
 and such commissioners condemn any of the king's subjects (not 
 
 being hsted under the military power,) this is without all 
 
 r 500 ] question a great misprision, and an erroneous proceeding, 
 
 and accordingly adjudged in parliament in the case of the 
 
 earl o{ Lancaster, Pari. 1 E. 3. part 1. de quo supra, p. 344. 
 
 And in that case the exercise of martial law in point of. death in 
 time of peace is declared murder. Co. P. C. p. 52. 
 
 But suppose they be listed under a general or lieutenant of the 
 king's appointment under the great seal, and modelled into the form 
 and discipline of an army, either in garrison or without, yet as long 
 as it is tempus pads in this kingdom, they cannot be proceeded 
 against as to loss of life by martial law; and the same for mariners 
 that are within the body of the kingdom, but their misdemeanors, at 
 least if capital, are to be punished according to the settled laws of the 
 kingdom, 3 Car. cap. 1. the petition of right; yea, and it seems as to 
 mariners and soldiers at sea, when in actual service in the king's 
 ships, they ought not to be put to death by martial law, unless it be 
 actually in time of hostility ; and this appears by the statute of 28 H. 8. 
 that settled a commission to proceed criminally in cases of treason 
 and felony, and by the late act of 13 Car. 2. cap. 9. settling special 
 orders under pain of death by act of parliament ;(c) but indeed, for 
 crimes committed upon the high sea, the admiral had at common law 
 a jurisdiction even unto death, secundum leges maritimas ; but this 
 was a different thing from martial law. 
 
 And this appears also by the statute of 13 7?. 2. cap. 2. the constable 
 and marshal, who are the J udices ordinarii in cases belonging to the 
 martial law, are yet thereby declared to have no jurisdiction within 
 the realm, but of things that touch war, which cannot be discussed 
 nor determined by the common law. 
 
 It must therefore be a time of war, that must give exercise to their 
 jurisdictions, at least in cases of life. 
 
 And thus far concerning the judicial sentence of death, where and 
 when it is homicide criminally, and when not. 
 
 II. Now a few words concerning the officer executing such sen- 
 tence, and where and when he is culpable in so doing. 
 
 Wheresoever the judge hath jurisdiction of the cause, the 
 [ 501 3 officer executing his sentence is not culpable, tho the judge 
 err in his judgment, but if the judge have no manner of juris- 
 diction in the cause, the officer is not altogether excusable, if he exe- 
 cute the sentence. 
 
 In the great courts of justice, as of oyer and terminer, gaol- 
 delivery, and of the peace, regularly, the sheriff of the county, or 
 those that he substitutes, as under-sheriff, gaoler, or executioner, are 
 the ordinary ministers in execution of malefactors, and they are to 
 pursue the sentence of the court,[3] and therefore, 1. If he vary from 
 
 (c) And this appears also from the annual statutes for punishing mutiny or desertion. 
 3 Geo. 1. cap, 2. S^ mullos alios. 
 
 [3] Sec this rule explained, Foster, 267, sec. 9.
 
 HISTORIA PLACITORUM CORONJ^.. 501 
 
 the judgment, as where the judgment is to be hanged, if he behead 
 the party, it is held murder.(c/) 2. It must be done by the proper 
 officer, viz. the sheriff or his substitute, if another doth it of his own 
 head, it is held murder: vide Co. P. C. p. 52. [4] 
 
 The use heretofore was, and regularly should be so still, that if 
 sentence of death be given by the lord high steward, a warrant 
 under the seal of the lord steward, and in his name should issue for 
 the execution, and the like by three at least of the commissioners of 
 01/er and terminer, where sentence of death is given by them. Co. 
 P. C.p. 31. 
 
 But use hath obtaind otherwise before commissioners of goal- 
 delivety, for there is no warrant under the seal of the justices for 
 execution, but only a brief abstract or calendar left with the sheriff 
 or gaoler; and I remember Mr. Justice Rolle would never subscribe 
 a calendar, but after judgment given would command the sheriff in 
 court to do execution, and for not doing it, he fined Varney the 
 sheriff of Warwickshire 2000/. 
 
 If a prisoner be removed into the king's bench by Habeas 
 Corpus, or taken upon an indictment of felony in Middle- [ 502 ] 
 sex, and be committed to the marshal, and upon his arraign- 
 ment be found guilty, and hath judgment to die, the court may send 
 the person to JVewgafe, and command the sheriff of Middlesex to do 
 execution, but if he be remitted to the marshal, (as regularly he 
 ought to be,) then the marshal is the proper officer of the court to 
 do execution, and he may execute the offender in Middlesex, where- 
 ever the offense was committed, (e) and the court may ore tenus, or 
 by their order, command the sheritfof Middlesex to be assisting, but 
 the entry upon the roll ought to be, Et praeceptum est marescallo, 
 Sj'C. quod facial executionera periculo incumbent e ; and thus it 
 was done H. 24. Car. 2. upon a conviction of murder committed 
 in Kent upon a trial at the king's bench bar, upon search and pro- 
 ducing of many antient and late precedents, for regularly, he that is the 
 
 (<f) Of this opinion was also lord Coke, Co. P. C.p. 52. 211. notwithstanding it had 
 been practised otherwise in some instances, as in tlie case of queen Ann Boleyn, and 
 queen Katherine Howard, in the time of Henry VIII. the duke of Somerset in the time 
 of Edward VI. and the lord Audley in tiie time of Charles I. upon the authority of 
 which cases the lady Alice Lisle was beheaded for treason. 1 Jac, II. See State TV. 
 Vol. IV. p. 129. 
 
 So in the cases o( Ashlon, 19 Jan. 1690. at the Old Baily, (State Tr. Vol. IV. ^ 483.) 
 and Matthews the printer, Octob. 30, 1719, at the Old Baily, who were both sentenced for 
 higii treason, and were handed till they were dead, without any quartering or beheading, 
 altho this was not only ditferent from, but contrary to the sentence in high treason, 
 which orders, that they shall be hanged, but not till they are dead : but as lord Coke 
 says in the place above-mentioned, Judicandum est legihus non exemphs; and indeed, 
 since the judgment is the warrant for the execution, it should seem that every execu- 
 tion, which is not pursuant to the judgment, is unwarrantable. 
 
 (e) See Althoes case supra in notis p. 464. who were executed in Surrey for a fact 
 committed in Pembrokeshire in Wales: see also the case of Fitz-Palrick and Brodway, 
 State Tr. Vol. I. p. 374, who were executed in Middlesex for a fact in Wiltshire, and 
 the case of Layer, State Tr. Vol. Wl.p. 332. who was executed in Middlesex for a fact 
 in Essex, 
 
 [4] 4 Bl. Com. 17S.
 
 502 HISTORIA PLACITORUM CORONA. 
 
 immediate minister of the court, ought to make execution, and such 
 is tlie marshal to the court of king's bench, especially where the per- 
 sons are committed to his custody, and this is done without any writ, 
 but only by the command of the court ore tenus. 
 
 And thus far concerning the death or killing of a man, where it is 
 not, and where it is punishable, and the several degrees thereof.[5] 
 
 Foster, 267. 
 
 [503] CHAPTER XLIII. 
 
 OF LARCINY, AND ITS KINDS. 
 
 Altho the offenses of burglary and arson are of an higher nature 
 than larciny, yet because there be some things that fall under the 
 consideration of larciny, that are necessary to be known previousjy 
 to the consideration of burglary, ^-c. I shall begin with this. 
 
 Larciny or theft, under the various laws of several countries, hath 
 been under various degrees of punishment; in some countries the 
 punishment was triple or fourfold restitution, as among the Jews,{a) 
 in others deportation or banishment, or condemning to several em- 
 ployments, as among the Romans-lb) 
 
 And in England, in antient time, the punishment of theft was not 
 fixed or settled, and altho Hoveden and Simon Dunelmensis tell us, 
 thdii Jirmissimd lege statuit Hqwucws primus, quod fares latrocinio 
 deprehensi suspendaniur ; yet in the time of Henry II. they were 
 otherwise punished; quod vide apud Selden. Jur. Jing. p. 83. But 
 the same law, touching the punishment of grand larciny with death, 
 seems to have been fixed and settled ever since the time of Henry II. 
 and Bracton, that wrote in the time of Henry III. takes it as a thing 
 settled and commonly practised in his time : vide ipsum. Lib. III. 
 cap. 32. jo. 151. b.{*) 
 
 Now touching the kinds of larcinies they are two, viz. either sim- 
 ple larciny, or larciny accompanied with violence or putting in fear, 
 which is called robbery. 
 
 Simple larciny or theft is of two kinds, viz. 
 
 Grtnd larciny, when it is above the value of twelve-pence. 
 
 Petit larciny, when only of the value of twelve-pence, or under. 
 
 The nature of the offense is the same in both, but the degrees of 
 their punishment differ, as shall be said. 
 
 (a) Vide supra, p. 9. {h) Vide supra, p. 11, (*) Vide supra, p. 12. Sf notes ibidem. 
 
 [5] In McLeod's case, the Supreme Court of the State of New York held that a subject 
 of Great Britain, who, under directions fronm the local authorities of Canada, cotniiiits 
 homicide, within the State of Netc York, in time of peace, may be prosecuted in the 
 State courts as a murderer; even though his sovereign subsequently approve his con- 
 duct, by avowing the direction, under which he did it as a lawful act of government. 
 The People v. McLeod, 1 Hill, 377. 
 
 J
 
 HISTORIA PLACITORUM CORONA. 504 
 
 And therefore what is said concerning grand larciny here 
 is applicable to petit larciny, except as to the point of pun- [504 3 
 ishment, for the punishment of grand larciny is death and 
 loss of goods, the punishment of petit larciny is loss of goods and 
 whipping, but not death. 
 
 Simple larciny is defined by Bracton{c) and Briiion(cl) to be 
 fraudulenta contractaiio rei aliense cum nnimo furandi invito 
 domino, ciijus res ilia fuerit : by my lord Coke to be the felonious 
 and fraudulent taking and carrying away by any man or woman of 
 the mere personal goods of another, neither from the person, nor by 
 night, in the house of the owner. Co. P. C. p. 107.[1] 
 
 1 shall pursue his method in that chapter with such additions, as 
 shall be requisite. 
 
 The indictment runs vi Sf armis felonice furatusfuit, cepit 4* a^- 
 portavit in case of dead chattels, cepit 4' ahduxit in case of a horse, 
 cepit and effugavit in case of sheep, cows, 4'C. wherein the words 
 felonice furatiis fuit, cepit, are essential to the crime. 
 
 This description gives us these heads of inquiry. 
 
 1. What a taking. 2. What a carrying away. 3. What a felo- 
 nious taking and carrying away. 4. What the personal goods. 
 5. What the goods of another. 6. What or who may be said a taker. 
 
 (c) Lih. III. de corona,cap. 32. /oZ. 150. b. 
 
 Id) Cap. 15. p. 22. See also Fleta, Lib. I. cap. 38. p. 54. 
 
 [1] "Larceny, theft, or stealing, is the fraudulently taking any thing of marketable, 
 saleable, assignable or available value, belonging to or being the property of another, 
 with the intent on the part of the person so taking the same fraudulently and without 
 right to appropriate the same to or dispose of, conceal or destroy the same for his own 
 use and benefit, or to the use and benefit of any other person than the owner of, or person in- 
 terested in the same or entitled to the possession thereof, and to deprive, defraud, or despoil 
 the owner thereof or person interested therein or entitled to possession thereof, of the same, 
 or of tlie value thereof, or of his property or interest therein, or of the benefit he might 
 derive therefrom, against the will of such owner or person interested, and without, at the 
 time of taking, having an intention then or thereafter bonajide to make compensation or 
 indemnity therefor, or a restoration thereof, to such owner thereof, or person interested 
 therein or entitled to possession thereof." Penal Code of Mass. 2. This definition of 
 larceny is given by the Mass. Commissioners, and is intended to characterize the 
 crime precisely as at the common law. It is thought to be comprehensive and accurate. 
 
 The English commissioners, in their first report oa dim. Law, p. 16, have given six 
 different definitions of this crime from as many ditferent sources. 
 
 1. Blachstone. "Theft is the felonious taking and carrying away the goods of an- 
 other." 
 
 2. Eyre, Oh. Just. '' Larceny is the wrongful taking of goods with intent to despoil 
 the owner of them lucri causa.^'' 
 
 3. Grose, J. in delivering the opinion of the twelve judges. "The felonious taking of 
 the property of another without his consent and against his will, with intent to convert 
 it to the use of the taker." 
 
 4. Pulton. "Larceny is the fraudulent taking away of another man's goods above the 
 value of twelve pence, without the knowledge of him whose the goods be." 
 
 5. Lombard. "Larceny is the fraudulent and' felonious taking of another man's goods 
 (removal from his body and person) without his will, to the end to steal them." 
 
 6. Dalton. " Larceny is the fraudulent and felonious taking away of another man's 
 personal goods (removed from his body and person) in the absence of the owner, without 
 his knowledge." 
 
 VOL. I. — 44
 
 504 HISTORIA PLACITORUM CORONA. 
 
 These regularly are the ingredients into this crime of felony, and 
 must be severally considered. 
 
 I. What shall be said a taking. 
 
 If c^. delivers a horse to B. to ride to D. and return, and he rides 
 away unimu furandi, this is no felony, [2] the like of other goods.(e) 
 Co. P. C. p. 107. 28 E/iz. Butler's case. 
 
 So if a man deliver goods to a carrier to carry to Dover, he carries 
 them away, it is no felony, [2] but if the carrier have a bale or trunk 
 with goods delivered to him, and he break the bale or trunk, 
 [ 505 ~\ and take and carry away the goods (mimo furandi, or if he 
 carry the whole pack to the place appointed, and then carry 
 it away animo furandi, this is a felonious taking by the book of 13 
 E. 4 9. Co. P. C.p. 107. 
 
 But that must be intended, when he carries them to the place, and 
 delivers or lays them down, for then his possession by the first de- 
 livery is determined, and the taking afterwards is a new taking: vide 
 21 H. 7. 14. 
 
 Before the statute of 21 H. S. cap. 7. if a man had deliverd goods 
 to his servant to keep or carry for him, and he carrieth them away 
 animo furandi, this had not been felony, (/) but by that statute it is 
 made felony, if of the value of forty shillings; but the offender shall 
 at this day have his clergy;(^) but yet if an apprentice(A) doth this, 
 or if a man deliver a bond to his servant to receive money, or deliver 
 
 (e) Upon this principle it was doubted, whether a person hiring lodgings was guilty of 
 felony in stealing tiie goods he had hired willi his lodgings. See Kcl. 24 8^ 81. but this 
 doubt is removed by 3 cSf 4 W. S^ M. cap. 9. whereby it is declared to be felony. 
 
 (/) This was a disputed point (!^ee 3 H. 7. 12 b.) for which reason the statute of 21 H, 
 8. cap. 7. was made to settle the doubt that was at common law ; for in the beforemen- 
 tioned case, 21 H. 7, 14. it is said to be felony, if he was intrusted with the keeping only 
 within the house, stable, <SfC. because then the things are adjudged in the master's pos- 
 session; but if he be intiusted to carry the things out of the house, ^c. elsewhere, then 
 it is not felony. 
 
 ig) By 27 H. 8. cap. 17. Clergy was taken away, restored again by 1 J5^. 6 cap. 12. and 
 again taken away by 12 Ann. cap. 7. from offenses committed in any dwelling-house or 
 out-house, excepting in the case of apprentices under the age of fifteen years. See note, 
 ch.U. 
 
 (Ji) The statute also excepts all servants within the age of eighteen years, this act, 
 which was repeal'd by the general words of 1 Mar. cap. 1. is revived by S Eliz. cap, 10. 
 
 [2] Bailees without hire cannot, at the common law, commit larceny. 2 £asi, P.C. 
 G81. 684. Rose, on Crim. Ev. 478. Leigh's case, 2 East, P. C. 694. Gornion's case, 2 
 Overton's Rep. 68. 
 
 Carriers, for hire, cannot, by the common law, commit larceny. Fletcher's case, 4 Carr. 
 Sf I'ay. 545. Prathifs case, 5 Id. 533. Maddux's case, Russ. iSf Rif. 92. This rule is 
 now, however, much broken in upon, and altered by judicial decision and legislation. 
 See Com. v. Brown, 4 Mass. R. 580. Mass. Rev. Slat. c. 126. s. 30. 
 
 In the case of a theft by a carrier, who, having a lien, and consequently a right of 
 possession, slept out of the character in which he exercises sucli possessory rigiit and 
 removes the thing or a part of it, and disposes of it, in violation of his trust, with intent 
 to steal il, this is held, in tlio jurisprudence both of England and this country to be a 
 stealing of the thing, or such jiarl, I'roni the proprietor, notwithstanding the carrier, both , 
 on account of his hen and his charge of the thing and responsibility for its value, is both 
 a proprietary and possessory owner of it. Report of the Penal Code of Mass. p. 11. See 
 also Com. v. Williams, 1 Virg. Cas. 14. Com. v. JIai/s, Idem. 122. Thompson v. Com. 
 2 Virg. Cas. 135. Angel v. Com. Id. 228. The Slate v. Somerville, 21 Maine R. 14. Com. 
 V. Morse, 14 Muss. R 217. ace. Norton v. The People, 8 Cow. R. 137. contra Poole v. 
 Simmonds, 1 N. II. Rep. 289. 
 
 i
 
 HISTORIA PLACITORUM CORONA. 505 
 
 him goods to sell, and he accordingly sells and receives the money, 
 arid carries it away animofurundi,\\\\s is neither felony at common 
 law, nor by this statute. Co. P. C.p. 105. 26 H. S. Dy. 5. a. b. 
 
 *ji. a servant of B. receives the rents of B. and animo furundi car- 
 ries it away, this is not felony at common law, because A. had it by 
 delivery; nor by the statute, because he had it not by the delivery of 
 his master or mistress. Dalt. cup. 102. (/) 
 
 ^i. delivers the key of his chamber to B. who unlocks the cham- 
 ber, and takes the goods of ^^. animo furandi,\h\:& is felony, because 
 the goods were not delivered to him, but taken by him. 1.3 E. 4. 9. h. 
 
 He, that hath the care of another's goods hath not the pos- 
 session of them, and therefore may, by his felonious em- [ 506 ]] 
 bezzling of them, be guilty of felony ; as the butler that hath 
 the charge of the master's plate; the shepiierd that hath the charge 
 of his master's sheep. 3 H. 7. 12. h. 21 H. 7. 15. a. Co. P. C.p. 108. 
 
 The like law for him that takes a piece of plate set before him to 
 drink in a tavern, Sf-c. for he hath only a liberty to use, not a posses- 
 sion by delivery. 13 E. A. 9. 
 
 And so it is of an apprentice, that feloniously embezzels his inas- 
 ter's goods or money out of his shop, it is felony. Dalt. cap. 102. 
 
 \{Jl. comes to B. and hj a false message or token receives money 
 of him, and carries it away, it is no felony, but a cheat punishable 
 by indictment at common law, or upon the statute of 33 H. 8. cap. 1. 
 by salting in the pillory. 
 
 \i ,ji. finds the purse of B. in the highway, and takes it and carries/ 
 it away, and hath all the circumstances that may prove it to be done 
 animo furandi, as denying it or secreting it, yet it is not felony,[3] 
 the like, in case of taking of a wreck or treasure-trove, 22 Jlssiz. 99.J 
 or a waif or stra3^ 
 
 But yet this taking of treasure-trove, waif, or stray must be where 
 the party that takes them, really believes them to be such, and colours 
 not a felonious taking under such a pretense, for then every felon 
 would cover his felony with that pretense. 
 
 Where a man's goods are in such a place, where ordinarily they 
 are or may be lawfully placed, and a person takes them animo fii- 
 randi, it is felony, and the pretense of finding must not excuse. 
 
 If a man's horse be going in his ground, or upon his common, and 
 he takes it animo furandi, it is no finding, but a felony. ' ~ 
 
 So it is if the horse stray into a neighbour's ground or common, it 
 is felony in him that so takes him; but if the owner of the ground 
 ■takes it damage feasant, or the lord seises it as a stray, tho perchance 
 he hath no title so to do, this is not felleo animo, and therefore can- 
 not be felony. 
 
 If the sheep of ^^. stray from the flock of ^^. into the flock 
 of B. and B. drives them along with his flock, or by pure [507] 
 mistake shears him, this is not a felony, but if he know it to 
 
 (i) New Edit. cap. 155. p. 496. 
 [3] 2 Ru8s. on Crimes, 12. 5 Am. Ed. 1845. note (gg.)
 
 507 HISTORIA PLACITORUM CORONA. 
 
 be another's, and marks it with his marks, this is an evidence of a 
 felony. [4] 
 
 ■~ A man hides a purse of money in his corn-mow, his servant find- 
 ing it took part of it, if by circumstances it can appear he knew his 
 master laid it there, it is felony; but then the circumstances must be 
 pregnant, otherwise it may be reasonably interpreted to be a bare 
 ^finding, because an unusual place for such a depositiim. 
 
 Ji. hath a design to steal the horse of B. enters a plaint of replevin 
 in the sheriff's court for the horse, and gets himdeliver'dto him, and 
 then rides him away; this is taking and stealing, because done m 
 frcmdem legis,{k) P. 15 Eliz. B. R. Co. P. C. p. 108. 
 
 Jl. hath a mind to get the goods of B. into his possession, privat-ely 
 delivers an ejectment, and obtains judgment against a casual ejector, 
 and thereby gets possession, and takes the goods, if it were anmio 
 furo.ndi, it is larciny.[5]. 
 
 — ■ If ^. steals the horse of B. and afterwards delivers it to C who 
 was no party lo the first stealing, and C. rides away with it animo 
 fiirandi, yet C. is no felon to B. because tho the horse was stolen 
 from B. yet it was stole by A. and not by C. for C. non cepit, neither 
 is he a felon to t/1. for he had it by his delivery. 
 
 But if Ji. steal the horse of J5. and after C. steal the same horse 
 from ./?. in this case C. is a felon both as to A. and as to B. for by 
 the theft by J2. B. lost not the property, nor, in law, the possession 
 of his horse or other goods, and therefore in that case C. may be ap- 
 peal'd of felony by B. or indicted of felony, quod cepit <§' asportuvit 
 the horse of B. 4 H. 7. 5. b. 13 E. 4. 3. b. 
 
 And that is the reason, that if Jl. steals the goods of B. in the 
 county of C and carry them into the county of D. A. may be in- 
 dicted for larciny in the county of Z>. for the continuance of the as- 
 portation is a new caption; but if he be indicted of robbery, 
 [ 508 ] it must be in the county of C. where the force and putting 
 . in fear was, de quo postea. 4 H. 7. 5. b. 
 
 II. The words of the indictment are not only cepit, but cepit Sf as- 
 •portavit, or abduxit or effugavit.* 
 
 \i A. comes into the close of ^. and take his horse with an intent 
 to steal him, and before he gets out of the close is apprehended, this ' 
 is a felonious taking and carrying away, and is larceny. Co. P. C. 
 ]). lOS, 109. Justice Dalison^s reports. 
 
 So if a guest lodge in an inn, and take the sheets of the bed with 
 an intent to steal them, and carries them out of his chamber into the 
 hall, arid going into the stable to fetch his horse is apprehended, this 
 
 Qc) See also Kel. 42. 
 
 [4] Reg. V. Reed, 1 Carr. <^ M. 306. 
 
 [5] To coiJstitutc the crime of larceny, tlio taking must be invito domino, against the 
 will of the owner, and tlic i)ropcrty in liis actual or constructive possession, tlite v. The 
 iilate, 9 Merger, iU8 ; and there must be a criminal intention on the part of the taker, 
 or an indictment for larceny cannot be sustained. The State v. Hawkins, 8 Porter, R. 461. 
 Wfiarton''s Crim. Law, 3!J4-398, where the American authorities are fully collected. 
 2 Russell on Crimes, VJ. ruh. Am. Ed. 1845, and see note {l)post.p. 508. 
 
 » Vide note [1] post. p. 508.
 
 HISTORIA PLACITORUM CORON^E. 508 
 
 is felony, and a felonious taking and carrying away, 27 ^^ssiz. 39. 
 Co. P. C. p. lOS. and accordingly it was ruled 16 Car. 2. B. R. upon 
 a special verdict found in Cambridf^eshire,{l) A. comes into the 
 dwelling-house of B. nobody being there, and breaks open a chest 
 and takes out goods to the value of jive shillings, and lays them on 
 the floor of the same room, and is apprehended before he can remove 
 them. [6] he was indicted upon the statute, and ousted of his clergy 
 by the advice of all the judges, except one; for the taking out of the 
 chest was felony by the common law, and the statute of 39 Eliz. cap. 
 15. alters not the felony, but ousts only the clergy. Ex lihro Bridge- 
 man. 
 
 A. hath his keys tied to the strings of his purse, B. a cut-purse 
 takes his purse with money in it out of his pocket, but the keys, 
 Avhich were hanged to his purse-strings, hanged in his pocket, 
 Jl. takes B. with his purse in his hand, but the string hanged to his 
 pocket by the keys, it was ruled this was no felony, for the keys and 
 purse strings hanged in the pocket of Ji. whereby A. had still in 
 law the possession of his purse, so that licet cepit non asportavlt^ 
 40 Eliz, Wilkinson^s case cited M. S. Jac. C. B.{m) 2 East, 
 P. C. 556. 
 
 III. As it is cepit and asportavil, so it must hefehnicS or animo 
 furandi, otherwise it is not felony, [7] for it is the mind that makes 
 
 (I) Simpson's case, Kel. 31. (m) See Crompt. Justice 35 a. 
 
 [fi] Simpson's case, Kel. 31. State v.Wilson, Coxe's N. J. Rep. 439. Amier's case, G C. 
 Sf Pay. 344. 2 East's P. C. 555. Rose. Cr. Ev. 470. Walsh's case, Moody, 14. 
 
 ' [7] What amounts to a felonious taking. — If a person picks up a thing, when he knows 
 that lie can immediately find the owner, and instead of returning it to the owner, con- 
 verts it to his own use, this is a larceny. Rex v. Pope, 6 Car. Sf P. 34G. 
 
 If a party finding property knows the owner, or if there be any mark upon it by which 1 
 the owner can be ascertained, and instead of returning it, converts il to his own use, | 
 such conversion will constitute a felonious taking. Anon. 2 Russ. C. ^ M. 102. Rex v. ' 
 James, id. 
 
 A. went to a sliop and asked a boy there to give him change for a half-crown; the 
 boy gave him two shillings, and sixpenny worth of copper. The prisoner held out a 
 ' half-crown, which the boy touched, but never got hold of it, and the prisoner ran away 
 with the two shillings and the copper :— //eZ(/ a larceny of the two shillings and the cop- 
 per. Rex. V. Williams, 6 Car. Sf P. 390. 
 
 A. the owner of a boat was employed by B. the captain of a ship, to carry a number of 
 wooden staves ashore in his boat; B.'s men were put into the boat, but were under the 
 control of A. who did not deliver all the staves, but took one of them away to the house 
 of his mother : — Held, that this was a bailment of the staves to A. and not a charge only ; 
 and that a mere non-delivery of tlie staves would not have been a larceny in A. but that 
 if A. separated one of the staves from the rest, and carried it to a place different from 
 that of its destination with intent to appropriate it to his own use, that was equivalent 
 to a breaking of bulk, and therefore would be sufficient to constitute a larceny. Rex v. 
 Howell, 7 Cur. Sf P. 325. 
 
 If A. asks li. who is not his servant, to put a letter in tlie post, telling him it contains 
 money, and B. breaks the seal and abstracts the money before he puts the letter into the 
 post, he is guilty of larceny. Rex v. Jones, 7 Car. Sf P. 151. But if a person, from idle 
 curiosity, either personal or political, opens a letter addressed to another |)erson, and 
 4eeps the letter, tills is no larceny, even though a part of his object may be to prevent the 
 letter from reaching its destination. i?eo-. v. Godfrey, 8 Car. Sf P. 563. 
 
 To constit'itc a larceny, by a party to whom goods have been delivered on hire, there
 
 508 HISTORIA PLACITORUM CORONA. 
 
 the taking of another's goods to be a felony, or a bare trespass only 
 
 but because the intention and mind are secret, the intention must be 
 
 judged by the circumstances of the fact, and tho these cir- 
 
 [] 509 ] cnmstances are various, and may sometimes deceive, yet 
 
 must not only be an original intention to convert them to his own use, but a subsequent 
 actual conversion ; and a mere agreement by the liirer to accept a sum ofFc-rcd for the 
 goods is not sucli conversion if the party who makes the oft'er does not intend to pur- 
 chase unless liis suspicions as to the honesty and right of the vendor to sell are removed. 
 Reg. V. Brooks, 8 Car. &f P. 295. 
 
 A person by false pretences induced a tradesman to send by his servant to a particular 
 house, goods of the value of '2s. 10^/. with change for a crown piece. On tlie way he 
 met the servant, and induced ium to part with the goods and change a crown piece, but 
 whicii afterwards was found to be bad. Both the tradesman and servant swore that the 
 latter had no authority to part with the goods or change without receiving the crowtt 
 piece in payment; though the former admitted that he intended to sell the goods, and 
 never expected them back again: — Held that the offence amounted to larceny. Rex v. 
 Small, 8 Car. S^ P. 46. 
 
 On an indictment for larceny it appeared that a landlord went to his tenant (who had 
 removed all his goods) to demand rent amounting to £12 10s. taking with him a receipt 
 ready written and signed ; the tenant gave him £2, and asked to look at the receipt. It 
 was given to him, and he refused to return it, or to pay the remainder of the rent. It 
 was proved by the landlord that at the time he gave the prisoner the receipt, he thought 
 the prisoner was going to pay him the rent, and that he should not have parted with the 
 receipt unless he had been paid all the rent, but that when he put the receipt into the 
 prisoner's hands he never expected to have the receipt again; and that he didnot want 
 the receipt again, but wanted his rent to be paid : Held a larceny, and that the fact of 
 the tenant giving the £2 made no difference. Reg. v. Rodnay, 9 Car. ^ P. 784. 
 
 An ostler assisted in removing from a wagon which stopped at the inn where he was 
 employed, a quantity of hay which had been taken by the waggoner from his master's 
 stables and put into tlie wagon, such hay not being allowed for the horses on the jour- 
 ney: — Held, that the ostler was properly indicted for receiving, because as the hay was 
 not always allowed by tlie master for the horses, tlie moment it was removed by the 
 Vv'aggoner from the stable to the wagonaniiiio furandi, the larceny was complete. Reg. 
 V. Gruncell, 9 Car. Sf P. 365. 
 
 A person hired to drive cattle to a particular place, who sells the same, and absconds 
 v.'ith the money, is guilty of stealing, though the intention to sell be not conceived till 
 after taking possession of the cattle. Reg. v. Jackson, 2 M. C. C. R. 32. 
 
 A prisoner was employed as master of a coal vessel. The custom of the trade was 
 that he should receive two-thirds of the freight — he took the whole : — Held, that he was 
 not a. joint proprietor with the master, and that he was properly convicted of stealing the 
 master's third. Anon. '2 Lewin, C. C. 258. S. P. Holmes^ case, id. 256. 
 
 If a person not being the servant of the party who intrusts him, receive a parcel contain- 
 ing notes to take to a coach-office, and abstract the notes on his way there, and apply 
 them to his use, he is guilty of larceny. Reg. v. Jenkins, 9 Car. iSf P. 28. 
 
 To constitute ftlony, breach of trust is not sufficient; there must be a felonious taking, 
 but that is satisfied by an act not warranted by the purpose for which the property was 
 delivered. Cartwright v. Green, 8 Ves.jun. 402. 
 
 To obtain property by fraud, and under a preconcerted plan to rob is felony, but the 
 animus furandi must he found by the jury. Rex v. Horner, 1 Leach, C. C. 270. 
 
 A banker's clerk enters a fictitious sum in the Icgcr to the credit of a customer, and 
 tells him he has paid the sum to his account, and on the faith of it obtains from the cus- 
 tomer his chock on the bankers, which the prisoner pays to himself by bank notes front 
 the fill, and enters in the waste-book a true account of the check-drawer and notes as 
 p:iid, "to a man." Tjiis was held a felonious taking of the notes ftom thetill. Rex v. 
 Hammon,^ Taunt.'SOi. 2 Leach, C.C. im'S: 
 
 The assent of a prosecutor to give facility to the commission of a larceny for the puri 
 pose of detecting the offenders, does not do away the felony, although the property was 
 not taken against his will. Rex v. Egginton, 2 Leach, C. C. 913. 2 East, P. C. 494/ 
 C66. 2 li. c^ P. 508. 
 
 The owner of goods, knowing of an intention in the prisoners to steal them, they hav-
 
 HISTORIA PLACITORUM CORONA. SOQ** 
 
 regularly and ordinarily these circumstances following direct in this 
 case. 
 
 If ./f. thinking he hath a title to the horse of B. seiseth it as his 
 own, or supposing that B. holds of him distrains the horse of B. 
 
 ing plotted so to do with liis servant, desired the servant to carry on his business with a 
 view to the detection of the thieves; in consequence of which the servant, with the 
 con.sent of his master, agreed with the prisoners to open the outer door to them, an(> let 
 them intoihe liouse, when tiiey brolie open inner apartments, and took the goods: Held^ 
 by a majority of the judges, to be larceny; one doubting, because of the owner's assent 
 and partial encouragement of the felony by means of his servant. lb. 
 
 If a man steals goods in one count}', and carry them into another, it will be larceny in 
 the latter, though the goods are not carried into the latter county until long after the 
 original theft. Rex v. Parkin, 1 R. 6; M. C. C. R. 45; 2 Russ. C. Sf M. 174. See infra. 
 
 An indictment for robbing a mail-bag of letters must be laid in the county where the 
 mail was actually taken, in order to bring the case within the statute; and cannot be 
 laid in the county where the prisoner was in possession of it only; the jury finding that 
 the letters had been taken from tlie bag into some other county through which the mail 
 had passed. Rex v. Thomas, 2 East, F. C. 605. 2 Leach, C. C. 634. 
 
 To make a taking felonious, it is not necessary that it should be done lucri causa ; 
 taking with an intent to destroy will be sufficient to constitute the offence of larceny, if 
 done to serve the prisoner or another person, though not in a pecuniary way. Rex v. 
 Cabbage, R. Sf R. C. C. 292. 2 Russ. C. 6{ M. 94. 
 
 If a man steals his own goods from his own bailee, thongh he has no intent to charge 
 the bailee, but his intent is to defraud the king; yet if the bailee had an interest in the 
 possession, and could have withheld it from the owner, the taking is a larceny. Rex v. 
 Wilkinson, R. Sf R. C. C. 470. 2 Russ. C. Sf M. 156. 
 
 If a part-owner of property steal it from the person in whose custody it is, and who is 
 responsilile for its safety, he is guilty of larceny. Rex v. Bramley, R, Sf R. C. C. 478. 
 2 Russ.C ^- M.155. 
 
 To constitute larceny the felonious intention must exist in the mind at the time tlie 
 property was obtained; for if it be obtained by fair contract, and afterwards fraudulently 
 converted, it is no felony. Rex v. Charlewood, 1 Leach, C. C. 409. 2 East, P. C. 689. 
 
 If, however, a fraudulent conversion takes place after the privity of contract is deter- 
 mined, it is felony. Jb. 
 
 Obtaining a post-chaise by hiring with a felonious intent to convert it to the use of the 
 hirec, is felony, although the contract of hiring was not for any definite time. Rex v. 
 Semple, 1 Leack, C. C. 420. 2 East, P. C. 691. 
 
 If a man who is hired to drive cattle, sell them, it is larceny; for he has the custody 
 only, and not the right to the possession; his possession is the owner's possession, though 
 he is a general drover; at least if he is paid by the day. Rex v. McNamie, I M. C, C, R, 
 368. 
 
 The prisoner went into a shop in London, and purchased jewelry, and said he would 
 pay in cash; and the seller agreed to deliver the goods at a coach. office belonging to an 
 inn where the prisoner stated tiiat he lodged. The seller made out an invoice and took 
 the goods there, when the prisoner said he had been disappointed in receiving some 
 money he expected by letter. Just afterwards, a two-penny post letter was put in his 
 hands, which he opened in the presence of the seller, and said he had to meet a friend at 
 Tow's Cotfce-house at seven, who could supply the money. The goods were left at the 
 coach-office, and the seller went home. The prisoner had taken a place in the mail, but 
 he countermanded that, and absconded with the goods. The seller swore that he con- 
 sidered the goods sold if he got his cash, but not before. It was left to the jury to say 
 whether the prisoner had any intention of buying and paying for the goods, or whether 
 he gave the order merely to get possession of them to convert them to his own use. The 
 jury found the latter, and the prisoner was convicted; and tlie conviction was held right 
 by the twelve judges. Rex v. Campbell, Car. C. L. 280; R. S^- M. C. C. R. 179. 
 
 Getting goods delivered into a hired cart, on the express condition that the price shall 
 be paid for tliem before they are taken from the cart, and then getting them from the 
 cart without paying the price, will be larceny, if the prisoner never had any intention of 
 paying, but had ub initio the intention to defraud. Rex v. Pratt, R. Sf M. C. C. R. 250. 
 
 Taking goods, though prisoner has bargained to buy, is felonious, if by the usage, the
 
 609'' HISTORIA PLACITORUM CORONA. 
 
 without cause, this regularly makes it no felony, but a trespass, 
 because there is a pretense of title ; but yet this may be but a trick 
 to colour a felony, and the ordinary discovery of a felonious intent 
 
 price ought to be paid before they are taken, and the owner did not consent to their 
 being taken, and tlie prisoner, when he bargained for them, did not intend to pay for 
 theru, but meant to get them into his possession and dispose of them for his own benefit 
 without paying for them. Rex v. Gilbert, R. Sf M. C. C. R. 185. 
 
 If a person, having ordered a tradesman to bring goods to his house, look out' a certain 
 quantity, and ask the price of them separate from the rest, and then by sending tlie 
 tradesman home on pretence of wanting other articles, take the opportunity of running 
 away with the goods so looked out, with intent to steal therii, it is larceny, for as the 
 sale was not completed, the possession of the property still remained in the tradesman. 
 Bex V. Skarpless, 1 Leach, C. C. 92 ; 2 East, P. C. 675. 
 
 Where property, which the prosecutor had bouglit, was weighed out in the presence 
 of his clerk, and delivered to his carman's servant to cart, who let other persons take 
 away the cart and dispose of the property for his benefit jointly with that of the others. 
 The carman's servant, as well as the others, are guilty of larceny at common law. 
 Eexv. Harding, R. Sf R. C. C. 125; 1 Russ. C. S( M. 200. 
 
 Where the owner sends goods by his servant to be delivered to -4., but B. fraudulently 
 procures the delivery to himself by pretending to be A,, he is guilty of felony. Rex v. 
 Wilkins, 2 East, P. C. 673, 1 Leach, C. C. 520. 
 
 Getting a parcel from a carrier's servant, by falsely pretending to be the person to 
 whom it is directed, if it be taken aiiimo furandi, it is larceny, for the servant has no 
 authority to part with it but to the right person. Rex v. Longstreth, R. Sf M. 
 C. C. R. 137. 
 
 Fraudulently obtaining a chest of tea from the India House, though by means of a 
 regular request, note, and permit, was holden to be a larceny. Rex v. Hench, 2 Russ. 
 C. 4- M. 120; R. Sf R. C. C. 163. 
 
 Where the prisoner having offered to accommodate the prosecutor witli gold for 
 notes, the latter put down a number of bank-notes for the purpose of their being ex- 
 changed, which the prisoner took up and ran away with : Held, a larceny if the jury 
 believed that he intended to run away with them at the time, and not to return the gold. 
 Rex v. Oliver, 2 Russ. C. Sf M. 122. 
 
 To obtain a bill of exchange from an indorsee under a pretence of getting it dis- 
 counted, is felony, if ihe jury find that the indorsee did not intend to leave the bill in 
 the prisoner's possession witliout the money, and that he undertook to discount with a 
 preconcerted design to convert its produce to his own use. Rex v. Aickels, 1 Leach, 
 C. C. 294 ; 2 East, P. C. 675. 
 
 Where two planned to rob the prosecutrix of some coats, and one got her to go with 
 him that he might get some money to buy them of lier, and she left the coats with the 
 other, who immediately absconded with them: Held, that the receipt by the onp 
 amounted to a felonious taking of the coats by both. Rex v. County, 2 Russ, p. ^ M. ■ 
 127-175. 
 
 , If a bureau be delivered to a carpenfier to repair, and he discover money in a secret 
 drawer of it, which he unnecessarily as to its repairs breaks open, and converts the 
 money to his own use, it is a felonious taking of the property, unless it appear that he 
 did it with intention to restore it to its right owner. Cartwright v. Green, 2 Leach, 
 C. C. 952. 8 Ves.ju7i.i05. 
 
 A person purchased at public auction a bureau, in which he afterwards discovered, in 
 a secret drawer, a purse containing money, which he appropriated to his own use. At 
 the time of the sale, no person knew that the bureau contained any thing whatever : 
 Held, that if the buyer had exi)rcss notice, that the bureau alone and not its contents, if 
 any, was sold to him; or if he had no reason to believe that any thing more than the 
 bureau itself was sold, the abstraction of the money was a felonious taking, and he was 
 guilty of larceny in appropriating it to his own use. Hut that if he had reasonable 
 ground for believing tiiat he bouglit the bureau with its contents, if any, he had a 
 colourable property, and it was no larceny. Merry v. Green, 7 Mee. Sf W. 623. 
 
 If a parcel be accidently left in a liackncy-coach, and the coachman, instead of 
 restoring it to the owner, detain it, open it, destroy part of its contents, and borrow
 
 HISTORTA PLACITORUM CORON_^. 509^^ 
 
 is, if the party doth it secretly, or being charged with the goods 
 denies it. 
 
 If..'?, takes away the goods of B. openly before him or other per- 
 son (otherwise than by apparent robbery) tliis carries with it an 
 
 money on the rest, he is guilty of felony. Rex v. Wynne^ 1 Leach, C. C, 413; 2 East, 
 P. C. 664-697; S". P. Rex v. Sears, 1 Leach, C. C. 415 n. 
 
 A servant clandestinely taking his master's corn, though to give to his master's 
 horses, is guilty of larceny. Rex v. Morjit, R. Sf R. C. C. 307; 2 Russ. C. Sf M. 94; 
 iS. P. Reg. V. Usborne, 5 Jur. 200; Reg. v. Careswell, 5 Jur. 251, contra; Reg. v. 
 Cole, Id. n. 
 
 PuUinff wool from the bodies of live sheep and lambs, animo furandi, is larceny. 
 Rex V. Martin, 1 Leach, C. C. 171; 2 East, P. C. 618. 
 
 So it is larceny to take the milk from a cow. lb. 
 
 The prisoner having lifted up a bag from the boot of a coach, was detected before he 
 had got it out; and it did not appear that it was entirely removed from the space it at 
 first occupied in the boot, but the raising it from the bottom had completely removed 
 eacli part of it from the space that specific part occupied : Held, that it was a com- 
 plete asportation. Rex v. Walsh, 1 R. Sf M. C. C. R.U; 2 Russ. C. Sf M. 96. 
 
 To remove a package from the head to the tail of a wagon with a felonious intent to 
 take it away, is a sufficient asportation to constitute a larceny; but merely to alter the 
 position of a package on the spot where it lies, is not. Rex v. Coslet, 1 Leach, C. C. 
 236; 2 East, P. C. 556. See Rex v. Cherry, 1 Leach, C. C. 236 n; 2 East, P. C. 556. 
 
 If a warehouseman lias several bags of wheat delivered to him for safe custody, and 
 he take the whole of the wheat out of one bag, it is no less a larceny than if he had 
 severed a part from the residue of the wheat in the same bag, and had taken only that 
 part, leaving the remainder of the wheat in the bag. Rex v. Brazier, R. S; R. C. C. 
 337; 2 Russ. C. Sf M. 134. 
 
 What does not amount to a taking. — A., in consequence of seeing an advertisement, 
 applied to B. to raise money for him. B. said he would procure him i^5000, and pro- 
 duced from his pockct-booli 10 blank 6s. bill-stamps, across each of which' ^. wrote, 
 "Accepted, payable at Messrs. P. Sf Co. 189 F. street, London," and signed his name. 
 B., who was present, took up the stamps, and nothing was said as to what was to be 
 done with tliem. Afterwards bills of excjiange for X"500 each were drawn on these 
 stamps, and B. put them into circulation : Held, that these stamps, with the accept- 
 ances thus written upon them, were neither " bills of exchange," "orders for the pay- 
 ment of money," or "securities for money;" and held also, that a charge of larceny 
 against B for stealing the stamps, and for stealing the ^o^er on which the stamps were, 
 would not be sustained, as this was no larceny. Rex v. Hart, 6 Ca.r Sf F. 106. 
 
 Stealing by the wife of a member of a friendly society, money of the society, de- 
 posited in a box in the husband's custody, kept locked by the stewards, is not larceny. 
 Rex v. Millis, 1 JVi. C. C. R. 375. 
 
 Clandestinely taking away articles to induce the owner (a girl) to fetch them, and 
 thereby to give the prisoner an opportunity to solicit her to commit fornication with 
 him, is not felonious. Rex v. Dickenson, R. Sf R. C. C. 420; 2 Russ. C. Sf M. 98. 
 
 If a larceny be committed out of the kingdom, though within the king's dominions, 
 (e. g. in Jersey) bringing the things stolen into this kingdom, will not make it larceny 
 here. Rex v. Prowes, M. C. C. R. 349. & P; Reg. v. Madge, 9 Car. Sf P. 29 ; see infra. 
 
 A. delivered his watch to B. to be repaired, instead of repairing it he sold it, and A. 
 being informed of this, told B. that he would either have his watch or the money: Held, 
 no felony. Rex v. Leny, 4 Car. Sf P. 241. 
 
 Where a g^rson gave his servant a £5 note to get changed, and he got the note changed 
 and made off with the change: Held to be no larceny, but an embezzlement. Rex v. 
 Sullens, Car. C. L. 319 ; R. Sf M. C. C. R. 129. 
 
 A. had consigned three trusses of hay to B. and had sent them by the prisoner's cart; 
 the prisoner took away one of the trusses, which was found in his stable not broken up. 
 Hdd no larceny, as the prisoner did not break up the truss. Rex v. Pratley, 5 Car. Sf 
 P. 533. 
 
 If a poacher take a gun by force from a gamekeeper under the impression that it may
 
 509^' HISTORIA PLACITORUM CORONA. 
 
 evidence only of a trespass, because done openly in the presence of 
 the owner, or of other persons that are known to the owner. 
 
 l( ji. leaves his harrow or his plovV-strings in the field, and B. 
 having land in the same field useth it, and having done, either return- 
 be used against him, it is no felony, thoug-Ii he state afterwards that he will sell the gun, 
 and it be not subsequently heard of. Rex v. HoUowny, 5 Car. S\- P. 524. 
 
 It is not an indictiible offence to take away a chattel, unless such a degree of force be 
 used as will make it an offence against the public, and the indictment must show that 
 fact. Rrx V. Gardiner, 1 Russ. C. Sf M. 52. 
 
 To obtain from a person his note of hand by threatening with aknife held to his throat 
 to take away his life, was not a felonious stealmg of the note within slat. 2. Geo. 2. c. 
 25; for it never was of value to or in the peaceable possession of such person. Rex v. 
 FMpse, 2 Leach, C. C. 673 ; 2 East, P. C. 599. 
 
 If a person be induced to play at hiding under the hat, and stake down his money 
 voluntarily on the event, meaning to receive the stake if he wins, and to pay it if he loses, 
 the taking up of the stake so deposited by him on the table, is not a felonious taking, 
 although the taker was made to appear to win the money by fraudulent conspiracy and 
 collusion. Rex v. Nicholson, 2 Leach, C. C. 610 ; 2 East, P. C. 669. 
 
 Where a prisoner took a packet of diamonds to a pawnbroker, with whom he had pre- 
 viously pledged a broach; and having agreed with the shopman for the amount of the 
 loan, sealed tlicm up and received the amount, deducting the amount for which the 
 broach was pledged; but instead of giving the packet of diamonds to the shopman, gave 
 him a packet of similar appearance, containing only glass : Held, that it was not larceny, 
 but only a fraud. Rex v. Meilheini, Car. C. L. 281. 
 
 If a pawnbroker's servant, who lias a general authority from his master to act in his 
 business, delivers up a pledge to the pawner on receiving a parcel from the pawner, 
 which he supposes contains valuables he has just seen in the pawner's possession in a 
 similar parcel, the receipt of the pledge by the pawner is not a larceny. Rex v. Jack- 
 son, R. S{ M. C. C. fl. 119. 
 
 Where a letter enclosing a check was directed to " James Mucklow, St. Marliri's Lane, 
 Birminghnm," and no person of that name lived there, but the prisoner lived about ten 
 yards from St. Martin's Lane and another James Mucklow lived in New Hall street, 
 and the prisoner, in consequence of a message left by the postman, got the letter from 
 the post-office and appropriated the check to his own use : Held, that it was not a felo- 
 nious taking. Rex v. Mucklow, Car. C. L. 280; R. Sf M. C. C. R. 160. 
 
 A prisoner cannot be found guilty of stealing goods if it appear that he could not other- 
 wise get them than by the delivery of the prosecutor's wife, in which case it may be pre- 
 sumed that he received them from her. Rex v. Harrison, 1 Leach, C. C 47; 2 East, P. 
 C. 5.59. 
 
 Where a jury found that one who assisted in taking another's goods from a fire in his 
 presence, but without his desire, and who afterwards concealed and denied having them, 
 yet took them honestly at first, and that the evil intention to convert them came on the 
 taker afterwards, it was held no larceny. Rex v. Leigh, 2 East, P. C. 694; 1 Leach, C. 
 C. 411. n. 
 
 If tlie owner parts with possession of goods for a special purpose, and the bailee, wherj 
 that ])urpose is executed, neglects to return them, and afterwards disposes of them, if he 
 had not a felonious intention when he originally took them, his subsequent withholding' 
 and disposing of them will not constitute a new felonious taking, or make him guilty of 
 felony. Rex v. Banks, R. i^ R. C. C. 411 ; 2 Russ C. Sf M. 1.32. 
 
 Sernh'e, that if a master of a foreign vessel, captured by a British ship and carried into 
 port, takes goods from the vessel after she has been condemned as a prize, it is not a 
 larceny unless there is evidence that he took them for the purpose of converting them to 
 his private use. Rex v. Van Mayen, R. Sf R. C. (7. 118. 2. Russ. C. ^- M. 10^. 
 
 If a tradesman sell a stranger goods, enter them to his debit, jjind makes out a bill of 
 parcels for them as goods sold, and the goods are delivered to the purchaser by the servant 
 of the seller, who receives bills for them, it is not felony, altiiough the tradesman sold 
 tliein for ready money, never intending to give the stranger credit, and it appear that he 
 had taken the apartments to which he ordered them to be sent for the purpose of obtain- 
 ing them fraudulently. Rex v. I'arkn-, 2 Leach, C. C. 614. 2 East, P. C. 671. 
 
 Wiiere the prisoner obtaiued possession of a hat from the maker, which had been
 
 HISTORIA PLACITORUM CORONiE. 509* 
 
 eth them to the place where they were, or acquaints B. with it, this 
 is no felony, but at most a trespass, 
 
 \(\ji. and B. being neighbours, and t/^. having an horse on the 
 common, and B. having cattle there, that lie cannot readily find, 
 
 ordered by a third person, by sending- a boy for it in the nnme of such person. Held, 
 it did not amount to larceny. Rex v. Adums, 2 Russ. C. Sf M. 113. R. Sf R. C. C. 225. 
 
 Wiiere goods in a shop were lied to a string whicJi was fastened by one end to the 
 bottom of the counter, and a thief took up the goods and carried Ihem away towards the 
 door, as far as the string would permit: Held, that being no severenee there was no as- 
 portation, and consequently it was not a felony. Anon. 2 East, P. C. 556. 1 Leach, C. C. 
 321. n. 
 
 Where the prisoner set up a long bale upon end, in a wagon, and cut the wrapper all 
 the way down, with intent to remove tlie contents, but was apprehended before he had 
 taken any thing out of it : Held, that there was not a sufficient asportation to constitute 
 a larceny. Rex v. Cherry, 1 Leach, C. C. 236. n. 2 East., P. C. 556. 
 
 If a master and owner of a siiip steal some of the goods delivered to him to carry, it 
 is not larceny in him, unless he take the goods out of their packages. Rex v. Madox, R. 
 Sf R. C. C. 92. 2 Russ. C. Sf M. 135. 
 
 Nor if larceny, would it have been a capital offence within stat. 24, Geo. 2, C. 45. lb. 
 
 If one employed to carry goods for hire, appropriate them to his own us^, but does 
 not break bulk, this is no larceny, although the person so employed was not a common 
 carrier, but was only employed in this particular instance. Rex v. Fletcher, 4 Car. Sf 
 P. 544. 
 
 Where a person received a check from Sir T. P. to buy Exchequer-bills, and he car- 
 ried it to the banker's, got the cash, and embezzled part, on being indicted for stealing: 
 Held first, that as there was no fraud to induce Sir T. P. to deliver the check, it was not 
 larceny, although the prisoner intended to misapply the property when he took it, and 
 misapplied accordingly. Secondly, that as Sir T. P. never had possession of the mo- 
 ney received at the banker's, but by the hands of the prisoner, tlie indictment could not 
 be supported. Rex v. Wnlsh, R. Sf R. C. C. 215. 2 Leach, C. C. 1054. 4 Taunt. 258. 
 But see 7^-8 Geo. 4. c. 29, 
 
 A. v/as indicted at common law, for simple larceny, in stealing in Middlesex a quan- 
 tity of lead. It appeared that the lead was stolen from the roof of the church oi Iver, in 
 BvcJiinghamshire. The prisoner was indicted at the central crijninal court which has 
 jurisdiction in Middlesex, (under 4^5 Will. 4. c. 36.) but not in Buckinghamshire, 
 Held, that he could not be convicted there on the ground that the original taking not being 
 a larceny, but created by statute a felony, the subsequent possession could not be con- 
 eidered a larceny. Rex v. Millar, 7 Car. Sf P. 665. 
 
 A drover of cattle was employed by a grazier in the country, to drive eight oxen to 
 London, his instructions were, that if he could sell them on the road he might : and those 
 he did not sell on the road he was to take to a particular salesman in Stnilhjicld market, 
 who was to sell them for the grazier. The drover sold two on the road, and instead of 
 taking the remaining six to the salesman, drove them himself to Smithjield market, and 
 sold them there, and received the money, which he applied to his own use : Held, that he 
 could not be convicted either of larceny or embezzlement. Reg. v. Goodbudy, 8 Car. Sf 
 P. 665. 
 
 Where in a case of ring-dropping the prisoners prevailed on the prosecutor to buy the 
 share of the other party, and the prosecutor was prevailed on to part with his money — 
 intending to part with it forever, and not with the possession of it only: Held, that this 
 was not a larceny, Reg. v. Willson, 8 Car, ^ P. 111. 
 
 A. was treating B. at a beer-house, and A. wishing to pay, put down a sovereign, de- 
 siring ttie landlady to give him change ; she could not do so, and B. said he would go 
 out and get change. A. said, " You wont come back with tlie change." B. replied, 
 " Never fear." A. allowed B. to take up the sovereign, and B. never returned either with 
 it or the change : Held no larceny, as A. having permitted the sovereign to be taken away, 
 for the purpose of being changed, he could never have expected to receive back the spe- 
 cific coin, and had, therefore, divested himself of the entire possession of it. Reg.w Tho. 
 7nas, 9 Car. Sf P. HI. 
 
 It is not larceny for miners, employed to bring ore to the surface, and paid by tha
 
 509^ HISTORIA PLACITORUM CORONA. 
 
 •takes lip the horse of A. and rides about to find his cattle, and hav- 
 ing done, turns off the horse again in the common, this is no felony, 
 but at most a trespass. 
 
 So if my servant, without my privity, takes my horse, and rides 
 abroad ten or twelve miles about his own occasions, and returns 
 again, it is no felony, but if in his journey he sells my horse, as his 
 own, this is declarative of his first taking to be felonious, and animo 
 JurandL^S] 
 
 But in cases of larciny the variety of circumstances is so great, and 
 the complications thereof so mingled, that it is impossible to prescribe 
 all the circumstances evidencing a felonious intent, or the contrary, 
 but the same must be left to the due and attentive consideration of 
 the judge and jury, wherein the best rule is, 171 dubiis, rather to 
 incline to acquittal than conviction. 
 
 IV. It must be of goods personal, for otherwise no felony can Be 
 committed by taking them. [9] 
 
 1. Therefore of chatties real no felony can be committed, 
 r 510 ]] and therefore the taking away of a ward cannot be felony, 
 nor of a box or chest of charters, that concern land. 10 E. 4. 
 14. d.(w.)[10.] 
 
 (n) Nor can felony be committed of bonds, notes, or other writings, that are securities 
 for a debt, because they derive their value from choses en action, which cannot be stolen. 
 DalL New Edit. p. 501, 8 Co. Rep. 33. but by a late statute 2 Geo. II. cap. 25. the steal- 
 ing of bonds, bills, notes, &c. is made felony with or without the benefit of the clergy, 
 'in the same manner as if the offender had stolen goods of the like value, with the money 
 secured by such bonds, &c. 
 
 owners, according to the quantity produced, to remove from the heaps of other miners 
 ore produced by them, and add it to tiieir own, in order to increase their wages, the ore 
 still remaining in the possession of the owners. Rex v. Webb, 1 M. C. C. R. 431. The 
 cases of Rex v. Fttrie, I Leach, C. C. 294. 2 East, P. C. 740. and Rex v, Farley, 2 East, 
 P. C. 740, relate to petty larceny, which is not now a distinct offence in England. 
 
 [8] In Cramp's case, 1 Car. Sf Pay. 658. where one took a horse and rode it away, 
 and then turned it loose, and the horse furniture was offered for sale, it was held to be a 
 larceny of the furniture and not of the horse. See also Phillips's case, 2 Russ. C. Sf AL 
 97. 2 East's P. C. 662. Rose, on Cr. Ev. 472. 
 
 [10] See Walker's case. Mood. R. 155. Vyse's case. Id. 218. Clarke's case, R. Sf R. 
 181. U. S.\. Moullon. 5 Mason Rep. 557. Westhur's case, 1 Leach, C. C. 12. U. S. y, 
 Davis, 5 Mason's R. 356. Bingley's case, 5 Car. Sf Pay. 603. 
 
 [9] Of the thing taken. — It is enough to make the crime larceny that the thing stolen 
 is of any pecuniary value, or valuable to the owner or person having a general or spe- 
 cial property or interest in it, or right of possession of it, though it be not of any value 
 to sell. Rose, on C. Evid. 5\2; Phippoe's case, 2 Leach, C. C. 673; Bryant's case, 
 2 S. C. Law. Repos. 26t); The People v. Holbrook, 13 Johns. R. 90; 2 Russ. on Crim. 
 62; Payne v. The People, 6 Johns. R. 103. 
 
 At common law a chose in action is not the subject of larceny. Culp. v. The State, 
 1 Port, R. 33. 
 
 But semble that bank-notes were not chattels within the meaning of Stats. 3 Will. ^ 
 M. c. 9, and 5 Anne, c. 31. Rex v. Morris, 1 Leach, C. C. 468; .2 East, P. C. 748; 
 eee post in this note. 
 
 Money was not within the meaning of the words "goods and chattels," in the
 
 HISTORIA PLACITORUM CORONA. 510^ 
 
 2. Neither can larciny be committed of things, that adhere to the 
 freehold, as trees, grass, bushes, hedges, stones or lead of a house, or 
 the hke.(o) 
 
 (0) But now by 4 Geo. II. cap. 32. it is felony to steal, rip, cut, or break with intent to 
 steal any lead, iron bar, iron gate, iron rail or palisado, fixed to any house, or out-house, 
 or fences thereunto belonging, and every person, who shall be aiding or abetting, or shall 
 buy or receive any such lead, S^c. knowing the same to be stolen, is subject to the same 
 punishment. 
 
 Statutes 3 Will. 4- M. c. 9, and 5 Anne, c. 31. Rex v. Guy, 1 Leach, C. C. 241 ; 2 East 
 P. C. 748; Rex v. Davidson, 1 Leach, C. C. 242. ' 
 
 But rc-issuable notes, if they cannot properly be called valuable securities whilst in 
 the hands of the maker, may be called (in an indictment) "goods and chattels." 
 U. S. V. Moulton, 5 Mason R. 537; Rex v. Vyse, Ry. 4- M. C. C. 218, cited infra. 
 
 A check on a banker's, written on unstamped paper, payable to D. F. J.^ and not 
 made payable to bearer, is not a valuable security within 7 4' 8 Geo. 4.c. 29. s. 5. Rex v. 
 Yeates, Car. C. L. 273, 333, R. Sf M. C. C. R. 170. Held, not to be a felony within 
 
 2 Geo. 2 c. 25, to steal bankers' notes completely executed, but which have never been 
 put into circulation, on tiie ground that no money was due upon them. Anon. 2 Russ. 
 C. S( M. 147; 2 Leach, C. C. 1061 n. 
 
 It has been held in this country, that bank bills complete in form, but not issued, are 
 the property of the bank ; and may be so treated in criminal proceedings for re- 
 ceiving them, with knowledge of their having been stolen. The People v. Wiley, 
 
 3 HiWs N. Y. Rep. 194. 
 
 Stealing re-issuable notes after they have been paid, and before they have been re- 
 issued, did not subject the party to an indictment on the 2 Geo. 2. c. 25, for stealing 
 notes, but he may be indicted for stealing paper with valuable stamps upon it. Rex. v. 
 Clark, R. 4- R. C. C. 181, 2 Leach, C. C. 1036. 
 
 Country bankers' notes which have been paid by the bankers in London, at whose 
 house they were made payable, and by them sent down to country bankers to be re- 
 issued, on the way they were stolen, and the prisoner was indicted for receiving 
 them. The indictment, in some counts, charged the notes to be valuable securities, 
 (see Wilson v. The State, 1 Porter, R. 118,) and in others as pieces of paper of the 
 goods and chattels of the country bankers. The prisoner was convicted, and the 
 conviction held right. Some of the judges doubted whether these notes were to be con- 
 sidered as valuable securities, but if not they all thought they were goods and chattels. 
 Rex v. Vyse,R. Sf. M. C. C. 218. 
 
 Exchequer bills, although signed by a person not authorized to do so, are securities 
 and effects within the Statute 15 Geo. 2 c. 13. s. 12. Rex v. Aslett, 1 N.R. I; 2 Leach, 
 C. C. 958 ; R. Sf R. C. C. 67. 
 
 The halves of country bank-notes, sent in a letter, are goods and chattels, and a per- 
 son who steals them is indictable for larceny. Rex v. Mead, 4 Car. Sf P. 535. 
 
 Dollars or Portugal money, not current by proclamation, are not goods within the 
 meaning of the 24 Geo. 2. c. 45. Rex v. Leigh, 1 Leach, C. C. 52 ; S. P. Rex y. Grimes, 
 2 East, P. C. 646. 
 
 A larceny may be committed of window-sashes, which are neither hung nor beaded 
 jnto the frames, but merely fastened by lathes nailed across the frames to prevent their 
 shaking out; as they are not fixed to the freehold. Rex v. Hedges, 1 Leach, C. C. 201; 
 2 East, P. C. 590 n. 
 
 Piratically stealing a ship's anchor and cable is a capital offence by the marine laws, 
 and triable under the 28 Hen. 8. c. 15; 39 Geo. 3. c. 37, not extending to this case. 
 Rex V. Curling, R. ^ R. C. C. 123. 
 
 And the stealing is equally an offence, although the master of the vessel concur in it, 
 and although the object is to defraud the underwriters for the benefit of the owners, lb. 
 
 The Ownership. — Property cannot be laid in a person who has never had either real or 
 constructive possession. Rex v. Adams, R. S^ R. C. C. 225. 2 Russ. C. 4- M. 113. 
 In an indictment for larceny the property stolen may be described as the real owner's
 
 510'' HISTORIA PLACITORUM CORONiE. 
 
 But if they are severed from the freehold, as wood cut, grass in 
 cocks, stones digged out of a quarry, then felony may be committed 
 by stealing. of tliem, for they are personal goods. IS //. 8. 2. b. 12. 
 8 E. 3. Coron. 119. 
 
 although it was never actually in his possession, but in the possession of his agent only. 
 Rex V. Remnant, R. 6( R. C. C. 136. 2 Rvss. C. 4- M. 168. 
 
 The wife of ^. was employed by her fatlier to sell sheep and receive the amount at K. 
 She did so; but before she left A'. a £5 note wliich she received in payment for the sheep 
 was stolen from her: — Hehl, that in an indictment for a larceny the note was properly 
 described as the property of the husband. Rex v. Roberts, 7 Car. Sf P. 485. 
 
 In an indictment for larceny of goods, the property of a peer who is a baron, the goods 
 may be laid as the goods and chattels of" G. T. R. Lord Z>." without styling him Baron 
 D. although the more proper way to describe the peer is by his ciiristian name and his 
 degree in the peerage as duke, earl, baron, or the like. Reg, v. Pitts, 8 Car. Sf P. 771. 
 S. P. Reg. V, Caleij, 5 Jur. 709. 
 
 If goods seized under a writ ofji.fa. are stolen, they may be described as the goods 
 of the party against whom the writ issued ; for though they are in custodid legis, the 
 original owner continues to have a property in them till they are sold. Rex, v. Eadslall, 
 2 Russ. C. Sf M. 158. 197. An indictment for stealing the wearing apparel of a son 
 who is an apprentice to his father, and furnished with his clothes in pursuance of his 
 indenture must lay them to be the propert)? of the son and not of the father. Rex v. 
 Forsgate, 1 Leach, C, C, 463. 
 
 In an indictment for stealing property which had belonged to a deceased person who 
 appointed executors who would not prove the will, it was held the property must be laid in 
 the ordinary, and not in a person who alter the commission of the offence, but before the 
 indictment, had taken out letters of administration with the will annexed, because the 
 rights of an administrator only commence from the date of the letters as distinguished 
 from those of an executor, which commence not from the granting of the probate, but 
 from the death of the testator. Rex v. Smith, 7 Car. Sf P. 147. 
 
 Where two had jointly stock upon a farm, and one died leaving several children: — 
 Held, that the property in sheep stolen was properly alleged to be in the survivor and the 
 children, the former swearing that he considered himself to hold one moiety for the bene- 
 fit of the latter. Rex v. Scott, 2 East, P. C. 655. R. S( R. C. C. 13. 
 
 Semble, that the property might have been laid in the survivor alone as he was in pos- 
 session of tlie children's moi.ety as their agent. lb. 
 
 D. and C. were partners, C. died intestate, leaving a widow and children ; from the 
 time of his death the widow acted as partner with D. and attended the business of the 
 shop. Three weeks after C's death part of the goods were stolen ; they were described 
 in the indictment as the goods of D. and the widow: — Held, that the description was 
 right. Rex v. Galy, R. &,■ R. C. C. 178. 2 Russ. C. Sf M. 161. 
 
 The goods in a dissenting chapel vested in trustees, cannot be described in an indict- 
 ment as the goods of a servant who has merely the custody of the chapel, and things in 
 it to clean and keep in order, althougli he has the key of the chapel, and no other person 
 but the minister has another key. Rex v. Hutchinson, R. Sf R, C, C, 412. 2 Russ, 
 C. SfM. 158. 
 
 A bible had been given to a society of Wesleyans ; and it had been bound at the ex- 
 pense of the society. B. stated that he was one of the trustees of the chapel, and also a 
 member of the society. No trust-deed was produced : — Held, that in an indictriient foi* 
 stealing the bible the property was rightly laid in B. and others. Rex v. Boulton, 5 Car, 
 Sf P. 537. 
 
 An unqualified person may have a sufficient legal possession of game to support an in- 
 dictment for stealing it from him. Anon. 2 Russ. C. Sf M. 152. 
 
 A box belonging to a benefit society was stolen from a r(5om in a public iiouse. Two 
 of the stewards had keys of this box; and by the rules of the society the landlord ought 
 to have had a key, but in fact he had not. Held, that the prisoner might be convicted 
 on a count laying the property in the landlord alone. Rrx v. Wy7ner, 4 Car. Sf P. 391. 
 
 An indictment for stealmg goods may under the 55 Geo. III. c. 137, state them to be 
 the goods of the overseers of the poor for the time being of the parish of A.; for this will
 
 HISTORIA PLACITORUM CORONiE. SIO-^ 
 
 Bat if a man come to steal trees, or the lead of a church or house, 
 and sever it, and after about an hour's time, or so, come and fetch it 
 away, this hatli been held felony, because the act is not conlinuated 
 but interpolated, and in that interval the property lodgeihin the right 
 
 import that they belong^ed at the time of the theft to the persons who were the then over- 
 seers. Hex V. Went, R. Sf R. C. C. 359. 2 Russ. G. Sf M. 167. 
 
 In stealing from the Invahd-office at Chelsea, the property must be laid in the house 
 of the king. Rex v. Peyton, 1 Leach, C. C. 324. 2 East, l\ C. 501. ■ 
 
 Goods belonging to a gnest stolen at an inn may be laid to be the property either of the 
 innkeeper or guest. Rex v. Todd, 1 Leach, C C 557. n. 
 
 So goods stolen from a washerwoman, may be laid to be her property. Rex v. Par- 
 leer, 1 Leach, C. C. 357, n. 
 
 So in the case of an agister who takes in sheep to agist for another, they may be laid 
 to be his property. Rex v. Woodward, 1 Leach, C. C. 357 n.; 2 East, P. C. G53. 
 
 The coach-glass of a gentleman's coach standing in a coachmaster's yard, may be laid 
 to be the property of the coachmaster. Rex v. Taylor, 1 Leach, C. C. 356 ; 2 East, P, 
 C. 653. 
 
 The property in goods stolen, held to be properly alleged to be in the driver of a 
 coach from the boot of which they were taken* Rex v. Deakin, 2 East, P. C. 653 ; 2 
 Leacfi, C. C. 862. 
 
 In larceny, the goods of a furnished lodgings must be described as the lodger's goods, 
 not as the goods of the original owner. Rex v. Belstead, R. S( R. C C 411; 2 Russ. C. 
 Sf M. 154; Rexv. Brunswick, 1 R. Sf M. C. C. R.26; 2 Russ. 154. 
 
 If a corn factor purchases a ship luden with corn, and send his lighter to fetch it from 
 the ship to his wharf, a delivery of the corn on board the lighter puts it into the possession 
 of the corn factor, altliough the lighter-man never delivers it at the factor's wharf. Rex 
 V. Spears, 2 Leach, C. C. 825 ; 2 East, P. C. 568. 
 
 If a corn factor purchase the cargo of a vessel laden with corn, and send his servant with 
 a lighter to fetch it from the ship, in loose bulk, and the servant contrive to have a certain 
 portion of it put into sacks by the meters on board the ship, and take the corn so sacked 
 feloniously away in the lighter immediately from the ship, he may be indicted for steal- 
 ing tlie property of tlie corn factor, although it was never put into his lighter, or other- 
 wise reduced into the corn factor's possession. Rex v. Ahrahdt, 2 Leach, C C 824 ; 
 2 East, P. C. 569. 
 
 An indictment for larceny, laying the goods stolen to be the property of Victory Ba. 
 roness Turkheim, is good, although her name is Selinda Victoire. Rex v. Sulls, 2 Leach, 
 C. C. 861. 
 
 An indictment for the larceny of property belonging to trustees who are not incor- 
 porated, must lay the property to be in them as individuals, subjoining a description of 
 tile character in which they are authorized to act. Rex v. Shenington, 1 Leach, C, C. 513. 
 
 Indictment. — Though to make the thing the subject of an indictment for a larceny, 
 it must be of some value, and stated to be so in the indictment, yet it need not be of the 
 value of some coin known to the law, that is to say a farthing at the least. Reg. v. Mor- 
 ris, 9 Car. Sf P. 349 ; see ante the commencement of this note. 
 
 An indictment for stealing a bank note did not conclude, contra forviam. statuti — Held, 
 by the fifteen judges, that it was bad. Rev v. Pearson, 5 Car, Sf P. 121 ; S. P. Ratcliffe's 
 case, 1 M. C. C. R. 313 ; 2 Lewin, C. C. 57. 
 
 In order to warrant a sentence of transportation for life on an indictment for a larceny, 
 after a previous conviction for felony, the indictment need not conclude, contra jo rmam 
 slatiili. Reg. v. Blea, 8 Car. Sf P. 735. , ; 
 
 Where, on the trial of a man and woman for larceny, it appears by the evidence that 
 they addressed each other as husband and wife, and passed and appeared as such, and 
 were so spoken of by the witnesses for the prosecution, it will be for the jury to say 
 whether they are satisfied that they are in fact husband and wife, even though the 
 woman pleaded to tlie indictment which described lier as " a single woman." Reg. v. 
 Woodw'ird, 8 Car. Sf P. 561. 
 
 In such a case, a female prisoner ought not to be indicted as a single woman. lb. 
 
 In an indictment against a servant of the "West India Dock Company" for stealing a 
 quantity of canvass and hcssen belonging to the company from their warehouses, it
 
 510"» HISTORIA PLACITORUM CORONA. 
 
 owner as a chattel, and so it was agreed by the court of king's bench , 
 9 Car. 1. upon an indictment for stealing the lead of fVesiminster- 
 Abbey. Dalt. cap. 103.;;. 166. (/j) 
 
 (p) New Edit. cap. 15G.p. 501. 
 
 Was held sufficient to state.the property to be "the goods and chattels of the West India 
 Company," and not necessary, notwithstanding the words of the 1^2 Will. 4 c. 11. s. 
 13'.i, to allege in addition that it was feloniously taken from the said company. Reg. v. 
 Stokes, 8 Car. Sf P. 151. _ ' ' _ 
 
 An indictment on 2 Geo. 2. c. 25. alleged the stealing of a bill of exchange in L. where- 
 on the names of vl. and B. were endorsed, which was the case when the bill was stolen 
 at M., and it appeared that the bill had an additional name as an indorsee when negoti- 
 ated al L.: Held, no variance. Rex v. Austin, 2 East, P. C. 602. 
 
 An indictment for larceny of a promissory note, may describe it generally, as " one 
 .promissory note for the payment of one guinea," without setting the note forth. Rex v. 
 Milnes, 2 East, P.C. G02. 
 
 In an indictment for larceny, if the thing stolen be described as a bank post-bill, be 
 not set out, the court cannot take judicial notice that it is a promissory note, or that 
 it is such an instrument as under stat. 2 Geo. II. c. 25, may be the subject of larceny, 
 although it be described as made for the payment of money. Rex v. Chard, R. Sf R. 
 C. C. 488. 
 
 Where an indictment described a bank note as signed by A. H. for the Governor and 
 Company of the Bank of England, and a prisoner was convicted: such conviction was 
 held bad, there being no evidence of A. H.^s signature. Rex v. Craven, R. ^ R. C. C. 14. 
 2 East, P. C. 601. 
 
 Describing a bank note " as a certain note, commonly called a bank note," was not 
 such a description as will warrant a conviction on 2 Geo. II. c. 25. for stealing it. lb. See 
 as to stealing bank notes, Spangler v. Com. cited infra. Com. v. Messenger, 1 Binn. 
 R. 273. Com. v. McDowell, 1 Browne's, R. 360. Stewart v. The Com. 4 S^ S^ R. 194. 2 Ruis. 
 on C. 1. Note to American Ed. 1845. - 
 
 An indictment for steaHng £10, in monies numbered, is not sufficient, some of the 
 pieces of which that money consisted, should be specified. Rex v. Fry, R. Sf R. C. C. 482. 
 2 Russ. C. Sf M. iHd. 
 
 In an indictment on stat. 2 Geo. II. c. 25. it was improper to lay bank notes as chat- 
 tels, but that word might have been rejected as surplusage, if the indictment be in other 
 respects sufficient. Rex v. Sadi, 2 East, P. C. 601. 
 
 A set of new handkerchiefs in a piece, may be described as so many handkerchiefs, 
 though they are not separated one from another, if the pattern designates each, and they 
 are described in the trade as so many handkerchiefs. Rex \. Niles, 1 R. Sf M. C. C, R. 
 25. 2 Russ. C. ^ M. 169. ~ 
 
 Where an indictment for stealing in a dwelling-house, alleged it to be the dwelling- 
 house of Saiah Lunns, a.nd it appeared in evidence that her name was Sarah London: 
 Held, that the varistnce was fatal to the capital part of the indictment. Rex v. Woodward^ 
 
 1 Leach, C. C. 253. n. See The Slate v. France, 1 Overton, ( Tenn.) Rep. 434. 
 
 In cases of larceny of animals, /cr<E natura, the indictment must show that they were 
 either dead, tame, or confined, otiierwise they must be presumed to be in their original 
 state. Rex v. Rough, 2 East, P. C. 607. And see Rex v. Hudson, 2 East, P. C. 611. 
 And it was not sufficient to add " of the goods and chattels," of such a one. Rex v. Rough, 
 
 2 East, P. C. 607. And see Rex v. Hudson, 2 East, P. C. 611. 
 
 An indictment for stealing a dead animal should state that it was dead ; for upon a 
 general statement that a party stole the animal, it is to be intended that he stole it alive. 
 Rex v. Edwards, R. Sf R. C. C. 497.^ 2 Russ. C. S^ M. 171. 
 
 Upon an indictment for stealing a live animal, evidence cannot be giv*n of stealing a 
 dead one. lb. But in the case of Rex v. Puckering, 1 M. C. C. R. 242, A. was in- 
 dicted for receiving a " lamb;" when he received the lamb it was dead, and it was held 
 by the fifteen judges that the indictment was sufficient, it being immaterial as to the 
 prisoner's oiTence, whetlier the lamb was alive or dead, his off"ence, and the punishment 
 for it, being in both cases the same, this case appears to overrule the case o^ Rex v. Ed- 
 wards, supra. 
 
 An indictment for stealing some live tame turkeys was laid in the county of H. it ap-
 
 HISTORIA PLACITORUM CORON.^. 510" 
 
 3. Neither of com standing upon the ground, for tho it be a chat- 
 tel personal, and goes to the executor, yet it savours of the realty, 
 while it stands so. Co. P. C.p. 109. 
 
 4. Larciny cannot be committed of such things, whereof no man 
 
 peared that the prisoner stole them alive in tlie county of C. and killed them there, and 
 brought them into the county of//. Held, that as the prisoner had not the turkeys in a 
 live state, in the county of//, the charge as laid was not proved, and that tlie word " live" 
 in the description, could not be rejected as surplusage, and therefore, that the indictment 
 was bad. Rex v. Halloway, 1 Car. Sf P. 128. 
 
 If a parish be partly situate in the county of W. and partly in the county of 5*. it is 
 not sufficient in an indictment for larceny, to state the offence to have been committed at 
 the parish of //. in the county of W. Rex v. Perkins, 4 Car. Sf P. 363. 
 
 Evidence and Trial. — Where a person went into a shop for the purpose of purchasing 
 a ruby pin, and after selecting one, which was put into a box, while the young man who 
 was serving him was absent for about a minute, took it out of the box, and put it in his 
 stock, and afterwards went into the shawl department of the shop to purchase other arti- 
 cles, saying that he would return and pay fbr both together, but was allowed to go away 
 without inquiry being made as to whether he had paid in the shawl department, and a 
 bill, including the price of the pin, was sent the next day to the house where he was 
 residing : Held, on the trial of the prisoner for stealing the pin, that under these circum- 
 stances, it was for the jury to say whetlier there was any intention to steal the pin, and 
 whether there was or was not credit given for it; and also, that the prosecutors ought to 
 have called the person who served in the shawl department; and their not doing so 
 was a circumstance which would justify the jury in looking with some suspicion at 
 the case, Reg. v. Box, 9 Car. S^ P. 126. 
 
 A. went to the shop of B , and asked for shawls for Mrs. D. to look at; B. gave her 
 five; she pawned two, and three were found at her lodgings; Mrs. D. was not called as 
 a witness : Held, that A. on this evidence could not be convicted of a larceny in stealing 
 the goods of B. Rex v. Savage, 5 Car. Sf P. 143. 
 
 A prisoner was indicted for stealing three articles. It appeared, that having taken 
 the first article, he returned in about two minutes, and took the second, and then 
 returned in half an hour and took the third : Held, that the last taking was a distinct 
 felony, and could not be given in evidence with the other two; but that the interval of 
 time between the first and second taking was so short that they must be considered as 
 parts of the same transaction. Rex v. Birdseye, 4 Car. ^ P. 386. 
 
 ■ If the only evidence against a prisoner indicted for larceny be, that the goods were 
 found in his possession, sixteen months after they had been stolen, the judge will 
 
 direct an acquittal without calling on him for his defence. Rex v. , 2 Car. Se 
 
 P. 459. 
 
 Where property, recently stolen, is found in possession of a party under circum- 
 stances which show it the more probable that he was made the instrument of others, for 
 tfie purpose of disposing of it, than the party who actually took it, the presumption of 
 guilt of larceny, arising from the recent possession, does not rise against him. Retr. v 
 Collier, 4 Jur. 703. 
 
 Stolen property usually passes through many hands. If, therefore, the interval of 
 time of the loss and the finding be considerable, the presumption against the party 
 having possession is much weakened. CocJiins''s case, 2 Leivin, C. C. 235. 
 
 The defence to a charge of stealing, that the prisoner pledged the property, intending 
 to redeem and then restore it, is a defence not to be generally encouraged, thouo-h if 
 clearly made out in proof, it may be allowed to prevail. The rule for the jury's 
 guidance in such a case seems to be, that if it clearly appear that the prisoner only 
 intended to raise money upon the property fbr a temporary purpose, and at the time of 
 pledging the article had a reasonable and fair expectation of being enabled shortly, by 
 the receipt of money, to take it out and restore it, he might be acquitted ; but otherwise 
 not. Reg. V. Phetheon, 9 Car. Sf P. 553, 
 
 A prisoner was indicted for stealing carpenter's tools, and the only evidence against 
 him was, that the stolen property was in his possession three months after it was 
 lost: Held, that this was not such a recent possession as to put the prisoner upon 
 
 VOL. I. — 45
 
 510^ HISTORIA PLACITORUM CORONA. 
 
 hath any determinate property, tho the things themselves are capable 
 of property, as of treasure trove, or wreck till seized, tho he, that 
 hath them in point of franchise, may have a special action against 
 him, that takes them. 
 
 5. Larciny cannot be committed of things, that are ferx naturx^ 
 unreclaimed, and nulHus in bonis, as of deer or conies, tho 
 [ 511 3 in a park or warren, fish in a river or pond, wild-fowl, wild 
 swans, pheasants. 
 
 Eiit if any of these are kild, larciny may be committed of their flesh 
 or skins, because now they are under propriety. 
 
 Of domestic cattle, as sheep, oxen, horses, (^r. or of domestic fowls, 
 as hens, ditcks, geese, ^-c. and of their eggs, larciny may be commit- 
 ted, for they are under propriety, and serve for food. 
 
 Of those beasts or birds, that are ferse naturd, but reclaimed and 
 made tame or domestic, and serve for food, larciny may be committed, 
 as deer, conies, pheasants, partridges, but then it must be, when he, 
 that steals them, knows them to be tame, and so of reclaimed hawks, 
 and likewise of the young of such larciny may be committed, but of 
 the young of those beasts or birds, that are ferse naturd, tho in a 
 park, and tho the owner hath a kind of property ratione loci,privi- 
 legii (§• impotentix, yet larciny cannot be committed of them, as of 
 young fawns in a park, young conies in a warren: of young pigeons 
 in a dove-coat, fish in a trunk or net, larciny may be committed. [11] 
 
 stating how he came by it, and an acquittal was directed. Rex v. Adams, 3 Car. Sf 
 F. 6U0. 
 
 Non-delivery upon request is evidence of a tortious conversion. i?ex v. Semple, 
 
 1 Leach, C. C. 424, 2 East, P. C. 691. 
 
 On an indictment for larceny the wife of a receiver who is not indicted, can- 
 not be compelled to give her evidence against the prisoner. Rex v. Ast, Car. 
 C. L. 66. 
 
 If it is probable that all the goods stolen were not stolen at one time, but it is still 
 possible that they might have been so, the judge will not put the prosecutor to elect to 
 go upon the stealing of some particular article or articles. Rex v. Dunn, Car. 
 C.L. 82. 
 
 Larceny must be tried in tiie county wliere committed, but the offence is considered 
 as committed in every county into which the thief carries the goods. Rex v. Thomp- 
 son, 2 Russ. C. S( M. 174. 
 
 Therefore if a man steal goods in the county of A. and carry them into the county of B. 
 he may be indicted for the larceny in the latter county. lb. 
 
 But if a compound larceny be committed in one county, and the offender carry the 
 property in anotlier, althougli he may be convicted in tlie latter county of the simple lar- 
 ceny, he cannot be there convicted of the compound larceny. lb. 
 
 Wliere four stole goods in the county of G. and divided them in that county, and then 
 carried their sliares into the county of W. in their separate bags : Held, that it was not 
 a joint larceny in W. but separate larcenies in that county, and the subject of different 
 prosecutions. Rex v. Baniet.l, 2 Russ. C. Sf M. 175. And see Rex v. County, 2 Russ. C. 
 £f M. 127-175. 
 
 On an indictment for tlie larceny of a bill of excliange, obtained from the prosecutor 
 under a pretence of discounting it, parol evidence of the bill may be g ven after proof of 
 a subpwna duces tecum, given to the person in whose possession it was shovvn to be, 
 shortly previous to the trial, but who did not attend. Rex v. Aickles, 1 Leach, C. C 2^4. 
 
 2 East, P. C. 675, 
 
 [11] If pigeons are so far tame that they come home every night to roost in wooden 
 boxes, hung on the outside of the house of their owner, and a party come in the night 
 and steal them out of these boxes, this is a larceny. Rex v. Brooks, 4 Car. Sf P. 131.
 
 HISTORIA PLACITORUM CORONA. 511 
 
 Of yonng hawks in the nest larciny may be committed, but not of 
 hawks eggs, but the takers are punisliable by fine and imprisonment 
 upon the statute of 11 H. 7. cap. 17. and 31 ^.8. cap. 12.(r) 
 
 Of wild swans, nor of their young, larciny cannot be committed, 
 but if they be made tame and domestic, or if they be marked and 
 pinioned, it is felony to take them or their young. 
 
 But it seems, that if they be marked, and yet flying swans, that 
 range abroad out of the precincts or royalty of the owner, it is not 
 felony to kill and take them, because they cannot be known to belong 
 to any: these several instances and differences may be collected from 
 Co. P. C.p. 109, 110. Dalt. cap. 103. (.s) and 7 Co. Rep. 15. b. Case 
 de Swans (§' libros ibi. 
 
 6. Larciny cannot be committed in some things, whereof, 
 the owner may have a lawful property, and such whereupon [ 512 1 
 he may maintain an action of trespass, in respect of the base- 
 ness of their nature, as mastiffs, spaniels, gray-liounds, blood-hounds, 
 or of some things wild by nature, yet reclaimed by art or industry, 
 as bears, foxes, ferrets, 4*c. or their whelps, or calves, because, tho 
 reclaimed, they serve not for food but pleasure, and so differ from 
 pheasants, swans, ^"c. made tame, which, tho wild by nature, serve 
 for food. 
 
 Only of the reclaimed hawk, in respect of the nobleness of its na- 
 ture and use for princes and great men, larciny may be committed, 
 if the party know it be reclaimed. 
 
 V, What shall be said the personal goods of any person, or of an- 
 other person. [12] 
 
 Every indictment of larciny ought to suppose the goods stolen to 
 be the goods of somebody. 
 
 An indictment of larciny of the goods ciijusdam ignoti is good, for 
 it is at the king's suit, and tho the owner be not known, the felony 
 must be punished. 21 H. 6. Enditement 12. 
 
 And yet 10 H. 6. Enditement 9. an 'md'xctmQUi quod A..verbe7'avit 
 B. and 20 jacks ,/^re/i7 20s.feionice cepil,he\d good without showing 
 whose they were. 
 
 But an indictment of ..^. that he is communis latro without show- 
 ing in particular what he stole, is not good. 22 Jissiz. 73. 
 
 An indictment, that bona domus Sj- ecclesise tempore vacationis, 
 
 (>■) By this statute it is made felony to take hawks eggs out of any nests within tlie 
 king's lands, but this is repealed by the general words of 1 Mar. cap, 1. 
 (s) New Edit. cap. 156. p. 499. 
 
 Ferrets, though tame and saleable, cannot be the subject of larceny. Rex v. Searing, R. 
 4f R. C. C. 351, 2 Russ. C. Sf. M. 153, and note 20, post, p 516. See^indlay v. Bear, 
 8S.SfR.51l. Norton v. Lodd, 5 N. H. Rep. 203. Cum. v. Chase, 9 Fich, R. 15. Wallis 
 T. Mease, 3 Binn. R. 546. Tibbs v. Smith, T. Raym, 33. Brock's case 4 Car. &■ Fay. 131. 
 Ward V. TJie People, 3 Hill, 395. 
 
 [12] See 2 East's P. C. 587. 2 Russ. on Crimes, 136. 1th ed. 3 Bac. Ab. Felony. 
 4 Bl. Com. 232. Hodges Cases, 2 East's P. C. 590. n. 1 Leach, 201. Lee v. Ridsun, 
 7 Taunt. R. 191.
 
 512 HISTORIA PLACITORUM CORONA. 
 
 or bona capellse in ciistodia J. S, felonicl cepit, is good, 7 E. 4. 14. 
 b. Co. P. C.p. 110. Stamf. P. C.p. 25. b. 8^ 95. b. 
 
 If a man steal bells, or other goods belonging to a church, he may 
 be indicted, quod felonice, Sj-c. cepit bona parochianorum de B. M. 31 
 Sf 32 Eliz. B. R. Hadman and Green versus Ringwood,{t) and yet 
 an action of trespass lies for the churchwardens in such case, qusere 
 bona S}- catalla parochianorum in custodid sua, or iji custodid A. B. 
 prxdecessorum suorum gardianoruni ecclesiss cepit <§' asportavit ad 
 daynnum parochianorum. T. 36 Eliz. B. R. Alet hod and Barfoot. 
 Dyer 99. 
 
 \i Jl. have a special property in goods, as by pledge, or a lease for 
 years, and the goods be stolen, they must be supposed in the indict- 
 ment the goods oi A. 
 
 If Jl. bail goods to B. to keep for him, or to carry for him, 
 (^513 ] and B. be robbed of them, the felon may be indicted for lar- 
 ciny of the goods of A. or B. and it is good either way, for 
 the property is still in A. yet B. hath the possession, and is charge- 
 able to A. if the goods be stolen, and hath the property against all the 
 world but A. 
 
 A. is indicted, that he stole the goods of B. and it appears in the 
 indictment, that B. was a feme covert at the time, the indictment is 
 i;aught, for they are the goods of her husband, and so if A. be in- 
 dicted for stealing the goods of B. and upon the evidence it appears, 
 that B. had neither interest nor possession in the goods, or was a 
 feme covert, the party ought to be acquitted, but then he may be 
 presently indicted de novo for stealing the goods of the husband or 
 true proprietor ; and so it once happened before me at Aylesbury 
 1667. in the case oi Ernes, who was convicted and executed upon a 
 second indictment. 
 
 Regularly a man cannot commit felony of the goods, wherein he 
 hath a property. [13] 
 
 If A. and B. be joint-tenants or tenants in common of an horse, 
 
 it) Cro. Eliz. 145, 179. 
 
 [13] To whatever extent, and for whatever purpose, any one has a property in or right 
 to a thing stolen, to such extent, and in respect to such purpose, it is stolen from him, 
 and a tlieft is from all the proprietors except in the case of theft by one of the owners, in 
 which case it can be a tlieft only from the others. Cowinnr v. Snow, 11 Mass. R. 415. 
 Where an owner, whether his property be absolute or modified, partial or of the entire 
 thing, fraudulently for his own benefit takes it from another in whose hands it is, with 
 intent to subject him to the loss, and despoil him of the value of the thing, the act is, in 
 its essential character, a theft ; and so it has been held in direct cases at the common 
 law; and it is now established beyond question, that an absolute owner may steal from 
 another what belongs to himself. See ante, page 504, note 2, and authorities there 
 cited. Report of the Penal Code of Mass. p. 11. Palmer v. The People, 10 Wend. R. 
 1G5. By the Slat. 7 4" 8 Geo. IV. FeeVs Act, c. 29, s. 45, the stealing of a chattel or a 
 fixture by the lessee is made larceny. The tenant in this case has the exclusive riglit of 
 actual possession under his contract; that is, one who is possessory owner may commit 
 larceny of the thing of which he is such owner in respect to the proprietary owner. 
 The indictment is as in any other case of simple larceny. 1 Archb. Peel's Acts, 406; 
 The People v. Wiley, 3 HiWs N. Y. R. 199.
 
 HISTORIA PLACITORUM CORONA. 513 
 
 and f^. takes the horse, possibly animo furandi,YQX this is not felony, 
 because one tenant in common taking the whole doth but what by 
 law he may do. [14] 
 
 Yet if ./?. take away the trees of B. and cut them into boards, B. 
 may take them away, and it cannot be felony; so if t^. take the 
 cloth of B. and make it into a doublet, B. may take it, and it cannot 
 be felony. M. 2 Eliz. Mof-e n. 61. p. 19. 
 
 It\y2. take the hay or corn of B. and mingles it with his own heap 
 or cock, or if ./^. take the cloth of B. and embroider it with silk or 
 gold, B. may retake the whole heap of corn, or cock of hay, or gar- 
 ment and embroidery also, and it is no felony, nor so much as a tres- 
 pass. H. 36 B/iz. B. R. Popham n. 2 p. 38. 
 
 Yet if t/?. bail goods to B. and afterwards animo furandi steals 
 the goods from B. with design probably to charge him for them in 
 an action of detinue, this is felony; quod vide 7 H. 6.43. a. Co. B.C. 
 p. 110. Stamf. P. a. p. 26. a. 
 
 Tlie wife cannot commit felony of the goods of her husband, for 
 they are one person in law, 21 H.%. Corone455. Co. P. C. 
 p. 110. and therefore, if she take or steal the goods of her f 514 ~\ 
 husband, and deliver them to B. who knowing it, carries 
 them away, this seems no felony in B. for it is taken, quasi by the 
 consent of her husband, (w) yet trespass lies against B. for such 
 taking, for it is a trespass, but in favorum vitae it shall not be ad- 
 judged a' felony, and so I take the law to be, notwithstanding tlie 
 various opinions. Dalt. cap. 104. p. 268, 269. ex lectura Cooke.{x) 
 
 But if the husband deliver goods to B. and the wife had taken 
 them feloniously from B. this had been felony in the wife, Dalt. 
 cap. 104. p. 268. for if the husband himself had taken them felo- 
 niously from B. it had been felony, as hath been said; but then it 
 must in both cases be a taking animo furandi. 
 
 But if a man take away another man's wife against her will citm 
 bonis viri, that is felony by the statute of Westm. 2. cap. 34. which 
 saith, Haheat rex sectam de bonis sic asportatis,{y) 13 Assiz. 6. 
 But if it be by the consent of the wife, tho against the consent of the 
 husband, it seems to be no felony, but a trespass, for it cannot be a 
 felony in the man, unless it be a felony in the woman, who consented 
 to it, 13 JJssiz. 6. but Ballon thinks it felony, ■^^i^■ supra. 
 
 Yet in some cases the principal agent mayl3e excused from felony, 
 and yet he, that is principal in the second degree, may be guilty, as 
 if a man put a child of seven years to take goods, and bring them to 
 him, and he carry them away, the child is not guilty by reason of 
 his infancy, yet it is felony in the other. 
 
 («) But in case B. were her adulterer, Mr. Ballon thinks it would be felony, for in 
 such a case no consent of the husband can be presumed. Dalton uhi infra. 
 (x) New Edit. cap. 157. p. 504. (y) 2 Co. Inslit. 434. 
 
 [14] See 2 East's, P. C. 557; Rose, on Crim. Ev. 514; Bramley'a case, Russ, & 
 Ry. 478; The- teople v. Gay, 1 HilVs R. 364.
 
 514 HISTORIA PLACITORUM CORONA. 
 
 If Jl. die intestate, and the goods of the deceased are stolen before 
 administration conjmitted, it is felony, [15] and the goods shall be 
 supposed to be bona episcopi de D. ordinary of the diocese, and if 
 he made B. his executor, the goods shall be supposed bona B. tho 
 he halh not proved the will, and they need not sliew specially their 
 title as ordinary or executor, because it is of their own pos- 
 [5153 session, ui which case a general indictment, as well as a 
 general action of trespass lies without naming themselves 
 executor or ordinary, and so for an administrator. 
 
 But if servants in the house imbezzle their master's goods after his 
 decease, this seems not to be felony at common law, but only tres- 
 pass, because the goods were quodammoclo in their custody ; and 
 therefore remedy is provided by the statute of 33 H. 6. cup. l.[16] 
 
 [15] See Davis's case, 2 S. C. Law Rep. 291; Smith's case, 7 Carr Sf Pay, 147; 
 ScoWs ca.se, Russ. Sc Ry. 13; Gaby's case. Id. 178; Wonson v. Sayward, 13 Rick. 
 R. 402. 
 
 [IG] The statute of 33 Hen. VI. c. 1. provides against larceny by household servants 
 of the goods of their master after the decease of the master. Tlie Slat. 21 Hen. Vlll. c. 7. 
 provides that it shall be felony in a servant " to whom any caskets, jewels, money, goods 
 or chattels shall be delivered to keep, to withdraw iiimself and go away with said caskets, 
 ^c, with intent to steal tlie same and delraud his master thereof, contrary to the trust 
 so put in him;" and also makes it felony in a servant who, " being in the service of his 
 master without the aSsent of his master, embezzles the said caskets, »Slc., and converts 
 the same to his own use with purpose to steal it;" reciting at the same time that it was 
 doubtful whether this was felony at tlie common law. Mr. Russell, vol, ^.p. 1217. Am, Ed, 
 1824, remarks that, " this statute is little resorted to at the present day. The clear maxim 
 of the common law is, that where a party has only the bare custody of the goods of 
 another, the legal possession remains in the owner, and the party may be guilty of tres- 
 pass and larceny in fraudulently converting the same to his own use. So that it has 
 been tliought to be more reasonable and consistent to consider this statute as in the 
 nature of a declaratory act." See Paradise's case, 2 East, P. C. 565. of a servant's taking 
 bills of exchange; Robinson's case, 2 East, P. C. 565. of a carter's taking a package of 
 goods which his master in whose general employment he was, entrusted to him to carry ; 
 •Shear's case, 2 Leach, 825 ; 2 East, P. C. 568. of a lighterman who sold part of a lighter- 
 load of oats, which he was sent to fetch from on board of the ship; Lavender's case, 
 2 Ritss. 1221. Am. Ed. 1824. of money given to a servant to leave with another; Chip- 
 chase's case, 2 Leach, 699. S. C. 2 East, P. C 567. of a clerk's stealing a bill of exchange 
 from the desk of which he had charge. See also Smith's case, 2 Riiss. 208; R. Sf R. 267. 
 Wilkinson's case, 2 Russ. 201. Wait's case, 2 Russ. 204; & C. 2 East, P. C. 570; S. C. 
 
 1 Leach, 33; Bazely's case, 2 East, P. C. 571; S. C. 2 Leach, 835; Hammon's case, 
 
 2 Russ. 202; S. C.2 Leach, 1083; Murray's case, 2 East, P. C. 683; Jenson's case, 
 Moody, 434; Clew's case, 4 Wash. C. C.R. 700; iHe^coZf s case, Moot/y, 433 ; Bull's c:ise, 
 2 East, P. C. 572 ; S.C. 2 Leach, 841; Bass's case, 1 Leach, 251 ; Carr's case, 2 Russ. 
 208 ; R. Sf R. 98 ; Leach's case, 3 Stark, N. P. C. 70 ; 2 Deac. Abr. 780 ; Hartley's case, 
 2 Russ. 2U9; R. S^ R. 139; Thome's case, 2 East, P. C. 622; Squire's case, 2 Stark, N. 
 P. 349 ; Hutchinson's case, R. Sf R. 412; Eastall's case, 2 Russ. 197 ; Commonwealth v. 
 Morse, 14 Mass. R. 217 ; People \. Norton, SCowen, 137; Dillenhack v. Jerome, 7 Cowen, 
 294 ; HasseU's case, 1 Leach, 3 ; Baker's case, 1 Dow. 4- Ry. N. P. C. 19 ; 1 Deac. Abr. 
 778; Robinson's case, 2 Russ. 198; 2 East, P. C. 565; Harding's case, R. Sf R. 125; 
 White's case, 2 Ti/ler, 352; McNamie's case. Rose. jBr. 481; Moody, '3&S; Hughe's case. 
 Moody, 370; 2 Deac. Abr. 1667; Abrahat's case, 2 East, P. C. 569; S. C.2 LeacA, 968; 
 State Y. Self, I Boy. 242; Atkinson's case, 2 Russ. 201; S. C. 1 Leach, 302; n. (a.) 
 Harris's case, 2 Russ. C. &( M. 209; Spenser's case, Russ. Sf Ry. 299; ^^'illiams's case, 
 7 C. Sf P. 338; Clay's case, 2 East, P. C. 580; Beachy's case, Russ. Sf Ry. 319 ; S. C. 
 2 Russ. C. Sf M. 110; Williams's case, 6 Car. Sf Pay. 626; Biscall's case, 1 Id. 454; 
 Wittingham's case, 2 Leach, 912; Headge's case, Id. 1033; Freeman's, case, 5 Carr, 4f 
 P. 531 ; Hayden's case, 7 Id. 445 ; Howell's case, /J. 325 ; Prince's case, Moorf. ^ Mai,
 
 HISTORIA PLACITORUM CORONA. 515 
 
 that if they appear not upon proclamation, they shall be attaint of 
 felony, but if they appear, they shall answer for it as a trespass. 
 
 Rut an indictment, quod invenit hominem mortiium, (§• felonict 
 furalus fuit diiaa tunicas without saying de bonis <§' cataUis of the 
 executor or ordinary, is not good, and therefore the party was dis- 
 charged. 11 i?. 2. Enditement, 27. 
 
 ./?. digged up a dead body out of the grave, and stole his shroud, 
 and buried him again, tiiis is reported by Mr. Dalfon, cap. 103. 
 p. 266. to be no felony, but a misdemeanor, for which the party was 
 whipt. And accordingly I have seen it reported to be held 16 Jac. 
 in Nottingham's case,(r) quia nullius in bonis, but see Co. P. C. 
 p. 110. in Maine's case(a) ruled by the advice of all the judges to be 
 felony, and in the indictment the goods shall be supposed the goods 
 of the executor, administrator, or ordinary. 
 
 But it is held, that if ^. put a winding-sheet upon the dead body 
 of B. and after his burial a thief digs up the carcase and steals the 
 sheet, he niay be indicted for felony de bonis 4' catallis J2. because 
 it transferd no property to a dead man. [17] 12 Co. Rep. 112. 
 
 VI. I come to the sixth consideration, who may be said a person 
 committing larciny, but of this I have at large treated before cap. 3, 
 S,'c. and therefore shall say but little here. 
 
 An infant under the age of discretion regularly cannot be guilty of 
 larciny, viz. under fourteen years, unless it appears by circumstances, 
 that he hath a discretion more than the law presumes. 
 
 A madman, non compos, or lunatic in the times of his 
 lunacy cannot commit larciny, but ought to be found not [ 516 ]] 
 guilty upon due evidence thereof. 
 
 A feme covert alone may be guilty of larciny, if done without 
 coercion of her husband. 27 ^ssiz. 40.[1S] 
 
 But it hath generally now obtaind, tliat she cannot be guilty of 
 larciny jointly with her husband, because presumed to be done by 
 coercion of her husband. Vide Dalt. cap, 104.(6) Stamf. P. C. 
 fol. 26. a. Sf librus ibi. 
 
 (s) This case is mentioned by Dalton in the place cited by our author, which in New 
 Edit, is cap. 156. p. 502. 
 
 (a) 12 Co. 112. V (fc) New Edit. cap. 157. p. 503. 
 
 21 ; Mellish's case, Russ. ^ Ry. 80; Thornley's case, Mood. 343; Hawton's case, 7 Car, 
 6f Pay. 281; Snowley's case, 4 C. Sf P. 3:t0 ; Sullen's case, Mood, 129; Walsh's case, 
 Russ. Sf i?y. 215; S. C. 4 Taunt. 258. 284; Hoggen's case. Id. 145; Nettleton's case. 
 Mood, 259 ; Hobson's case, Russ. ^- Ry. 56; Tnytor's case, Id. 63; HaWs case, Id. 463; 
 Jones's case, 7 Car. ^ Pay. 834; Rep. of the Penal. Code. Mass. 22. 
 
 [-17] As to stealing a human body, see 1 Cri7n. Law Com. Rep. 20. 2 East's P. C. 
 632. 2 Russ. on Crimes, 163. Rose, on dim. Ev. 517. 
 
 As to property in grave clothes, see 3 Inst. 110. Haynes' case, 12 Rep. 113. 
 
 Blackstone remarks {vol. 4. ;). 235.) that by the law of the Franks a person who dusf a 
 corpse up in order to strip it, was to be banislied from society, and no one suffered to 
 relieve his wants till the relutives of the deceased consented to his re-admission: and he 
 cites Montfsqiiieri, Sp. L. b. 30. c. 19. 
 
 [18] See ante, p. 44, notes; and see further WiJford's case, Russ. Sf Ry. 517. French's 
 case. Id. 491. Clarke's case. Mood. R 376, note. Willises case, id. 375. Solfries' case, 
 id. 243. Harrison's case, 2 East's P. C. 559. Turner's case, 1 Leach, C. C. 536. The 
 People V. Schuyler, 6 Cowen, R; 572. •
 
 516 HISTORIA PLACITORUM CORONA. 
 
 But this I take to be only a presumption till the contrary appear, 
 for I have always thought, that if upon the evidence it can clearly 
 appear, that the wife was not drawn to it by her husband, but that 
 she was the principal actor and inciter of it, she is guilty as well 
 as the husband, but stabilur prsesumptio, donee probetiir in contra- 
 rmm, neither is the book of 2 E. 3. Curone 160, to the contrary, but 
 in the book of 27 ^ssiz. 40. where she was indicted alone, inquiry 
 was made, whether it were by coercion of the husband. 
 
 And therefore, if .^. and B. his wife be indicted by these names of 
 larciny, the indictment is not void, for the husband may be con- 
 victed, tho the wife be acquitted upon the presumption of her hus- 
 band's coercion. 
 
 Again, the husband may be acquitted, and the wife found to have 
 done the felony alone, for every indictment is several in law ; or 
 again, Xho prima facie the wife cannot be guilty of larciny, no nor of 
 burglary, where the husband is party in the fact, (tho she may be 
 guilty of murder or manslaughter jointly with her husband) and 
 therefore prima facie the wife in such case must be acquitted, yet 
 for my part I think the circumstances may be such, that the wife 
 may be as well guilty in larciny or burglary, as her husband. 
 
 If a servant commit felony by the coercion of his nmster, yet it 
 doth not excuse the servant, tho it excuse the wife, as is before said, 
 for the wife is inseperably sub potestate viri, but it is not so with a 
 servant, for as he is not bound to obey his master's unlawful com- 
 mands, so he may recover damages for any wrong done him by his 
 master. Bali. cap. 104, p. 269.{c)ll9] 
 
 See Black. Com. Lib. iv. cap. 17. p. 229 to 244. and Foster 73, 123, 124, 366. and 1 Hawk. 
 
 P. C. Index tit. Larciny. 
 
 (c) New Edit. p. 504. 
 
 [19] Simple larceny must be in the first place an unlawful taking, which implies that 
 the goods must pass from the possession of the right owner, and without his consent, 
 and therefore where there is no change of possession, or a change of it by consent, or a 
 cliange from the possession of a person witiiout title to that of the right owner,* tliere can 
 in any of tliese cases be no larceny. And as tlie taking must be without consent of the 
 owner, so in general no delivery of goods from the owner to the offender upon trust can 
 ground a larceny. As if A. lends B. a horse, and lie rides away with him. Yet if the 
 delivery be obtained from the owner by a person having animus furandi at the time, and 
 who afterwards unlawfully appropriates tlie goods in pursuance of that intent, it is lar- 
 ceny; as if in the case above supposed, B. solicited tliC loan of the horse with intent to 
 steal him. {Major Semple^s case, 2 Leach, 469, 470.) But in such cases, bare non-de- 
 livery shall not of course be intended to arise from a felonious design; since that may 
 happen from a variety of other accidents. So a person who has received goods by delivery 
 from the owner, will nevertheless be found guilty of larceny by appropriating them, if 
 they were delivered under such circumstances as not to divest the owner of the legal 
 possession ; as when a servant embezzles his master's plate, {Christian''s Blacksione, vol. 
 iv. page 230, note ;) or the guest at an inn or tavern makes away with the articles of 
 which he has temporary use. Hawk, P. C. h. 1. c. 33. s. 6; 4 Bl. Com. 331. 
 
 Again, there must not only be a taking, hut a carrying away; cepit et asporiavit was 
 the old law Latin. A bare removal from the place in which he found the goods, though 
 the thief does not quite make off with them, is a sufficient asportation, or carrying away. 
 
 * But if a person has temporary title against the permanent owner, the latter may be 
 guilty of larceny in taking them. R. v. Wilkinson, R. Sf R. C. C. 470; 4 Bl. Com. 231.
 
 HISTORIA PLACITORUM CORONiE. 516' 
 
 As if a man be leading another's horse out of a close and be apprehended in the fact, or 
 if a guest stealing- goods out of an inn, has removed them from his chamber down stairs, 
 these have been adjudged sufficient carryings away to constitute a larceny. Qi Inst. 108, 
 109;) or if a thief intending to steal plate, takes it out of a chest in which it was, and 
 lays it down upon the floor, but is surprised before he can make his escape with it, this 
 is larceny. 
 
 Farther, this taking and carrying away must be of personal iroof/s. Lands, tenement?, 
 hereditaments, either corporeal or incorporeal, either freehold or less than freehold, can. 
 not in their nature be taken and carried away. And of things likewise that adhere to 
 the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be 
 committed by the rules of the common law; but the severance of them was merely a 
 trespass, which depended on a subtlety in the legal notions of our ancestors. These 
 things were parcel of the real estate, and therefore, while they continued so, could not by 
 any possibility be the subject of theft, being absolutely fixed and immovable; and if they 
 were severed by violence, so as to be changed into movables, and at the same time by 
 one and the same continued act, carried off by the person who severed them, they could 
 never be said to be taken from the proprieior in this their newly-acquired state of mobi- 
 lity, which is essential to the nature of larceny, being never as such in the actual or 
 constructive possession of any one but him who committed the trespass. He could not 
 in strictness be said to have taken what at that time were the personal goods of another, 
 since the very act of taking was what turned them into personal goods. But if the thief 
 severs them at one time, whereby the trespass is completed, and they are converted into 
 personal cliattels in the constructive possession of him on whose soil they are left or laid, 
 and comes again at another time when they are so turned into personalty, and takes 
 them away, it is larceny at th» common law ; and so it is if the owner or any one else 
 has severed them. So, upon nearly the same principle, the stealing of writings relating 
 to real estate is, at common law, no felony, but a trespass, {Rex v, Westbeer, Stra. 1137,) 
 because they concern the land, or according to our technical language, savour of the 
 realty, and are considered as part of it by the law; so that they descend to the heir 
 together with the land which they concern. Bonds, bills, and notes which concern mere 
 thoses in action, wore also at the common law, held not to be such goods whereof larceny 
 might be committed, being of no intrinsic value, (8 Rep. 33. b.) and not importing any 
 property in possession of the person from whom they were taken. By the common law, 
 also, larceny could not be committed of treasure trove, or wreck, till seized by the king, 
 or him who hath the franchise, for till such seizure, no one has a determinate property 
 therein; nor could it be committed, at the common law, of such animals in which there 
 is no property, either absolute or qualified, as of beasts that are fercE naturcB, and unre- 
 claimed, such as deer. Hawk. P. C. b. 1. c. 33. s. 25; ante, p. 11. 
 
 It is also said {Dalt. Just. c. 156,) that if swans be lawfully marked, it is felony at 
 common law to steal them, though at large in a public river; and that it is likewise felo- 
 ny to steal them, though unmarked, if in any private river or pond; otherwise it is only 
 a trespass. But of all valuable domesticated animals, as horses and other beasts of 
 draught, and of ail animals, domita natures, which serve for food, as neat or other cattle, 
 swine, poultry, and the like, and of their fruit or produce taken from them while living, 
 as milk or wool, (Dalt. 21 ; Crompt. 36 ; Hawk. P. C. b. 1. c. 33. s. 28. The King v. Mar- 
 tin, by all the judges, P. 17. Geo. III.) larceny may be committed at common law, and 
 also of the flesh of such as are either dornita or fer<B natura, when killed; (ante p. 511.) 
 while on the other hand, as to those animals which do not serve for food, and which, 
 therefore, the la*?!? holds to have no intrinsic value, as dogs of all sorts, and other creatures 
 kept for whim and pleasure, though a man may have a bare property therein, and main- 
 tain a civil action for the loss of them, {ante p. 512.) yet they are not of such estimation 
 as that the crime of stealing them amounts to larceny. 
 
 Lastly, the taking and carrying awjy, must be with intevt to deprive the right owner, 
 or as it is frequently expressed, animo furandi. (The civil law expresses this by the 
 words "lucri causa." 4 Inst. 1.1.) This requisite, besides excusing those who labor under 
 incapacities of mind or will, indemnifies also mere trespassers, and other petty oflenders. 
 As if a servant takes his master's horse without his knowledge, and brings him home 
 again — if a neighbor takes another's plow that is left in the field, and uses it upon his 
 own land, and then returns it — if under colour of owner of rent where none is due, I dis. 
 train another's cattle or seize them — all these are trespasses, but no felonies, {ante, 
 p. 509.) The ordinary discovery of a felonious intent is where the party doth it clan- 
 destinely, or being charged with the fact, denies it. But this is by no means the only 
 criterion of criminality, for in cases that may amount to larceny, the variety of cireum-
 
 516^ HISTORIA PLACITORUM CORON.^. 
 
 stances is so great, and the complication thereof so mingled, that it is impossible to 
 recount all those which may evidence a felonious intent or anvnum fnrandi ; wherefore 
 they must be left to the due and attentive consideration of the court and jury. 
 
 Hiving tiius considered the general nature of simple larceny, at common law, we now 
 arrive at its punishment. Thelt, by the Jewish law, was only punished with a pecuniary 
 fine and satisfaction to tiie party injured, (Exod. xxii.) And in the civil law tdl some 
 very late constitutions, we never find tlie punishment capital. The laws of Draco, at 
 Athens, punished it with death; but his laws were said to be written in blood; and Solon 
 afterwards ciiangcd tiie penalty to a pecuniary mulct. And so the Attic laws, in general, 
 continued, {I'etit. L. L. Attic. I. 7. tit. 5.) except that once, in a time of dearth, it was 
 made capital to break into a garden and steal figs; but this law, and the informers grew 
 BO odious, that from'them' all malicious informers were styled sycophants, a name which 
 we have much perverted from its original meaning. In England, the ancient Saxon laws 
 nominally punished theft with death, if above the value of twelve pence; but the criminal 
 was permitted to redeem his life by a. pecuniary ransom, as amongst their ancestors the 
 Germans, by a stated number of cattle. Tac. de Mor. Germ. c. 12. But in the niiith 
 year of Henry 1. this power of redemption was taken away, and all persons 'guilty of lar- 
 ceny, above the value of twelve pence,* were directed to be hung. So that stealing to 
 above this value (which was called grand larceny,) became a felony absolutely capital, 
 and so continued to our o.wn lime,t while petit larceny, that is theft to inferior amount, 
 (though also described as felony,) was punislied with imprisonment or whipping only.t 
 However, by the law relating to benefit of clergy, (see c.'AA.p. 517, as latterly modified;) 
 persons who committed simple larceny only, though to the amount of more than twelve 
 pence, or indeed to any amount whatever, were, in fact, excused the pains of death, pro- 
 vided it were the first offence, and provided tlie benefiDtof clergy had not been taken 
 away from the particular species of thefl, by some express statute as was very frequently 
 the case, (4 Black. Com. 237.) and when the capital punishment was thus taken away, 
 were formerly liable to be burnt in the hand, or whipped, or in more modern times, to be 
 whipped, or transported for seven years, which latter punishment might also, latterly, be 
 inflicted in lieu of the common law penalties, on persons convicted of petit larceny, (4 
 Geo. I. c. 11. 19 Geo. III. c. 74. 4 Black. Cam. 237.) AnA such was the state of the 
 law on this subject, as late as the year 1827, when by statute 7 t^ 8 Geo. IV. c. 29. ss. 3, 
 4. it was provided that every person convicted of simple larceny, of any amount, (all 
 distinctions between grand and petit larceny, being by the same statute abolished,) shall 
 be liable to be transported for seven years, or imprisoned for not more than two years: 
 such imprisonment to be with hard labor and solitary confinement, and (if the offender 
 be a male) to be accompanied with whipping at the discretion of the court. See chap. 44-. 
 note, p. 517. In certain cases, however, where the larceny relates to a subject for which 
 the policy of the law provides with more anxiety, the punishment is more severe. For by 
 74-8 Geo. IV. c. 29. s. 16. (amended as to punishment by 7 Will. IV. ^ I Vict. c. 90.) if 
 any person shall steal to the value often shillings, any goods or articles of silk, woollen, 
 linen, or cotton, or of any one or more of those materials, mixed with each other, or mixed 
 with any other material, whilst placed, laid or exposed during any stage, process, or pro- 
 gress of manufacture, in any building, field, or other place, he shall be transported for a 
 term not exceeding fifteen years, or less than ten years, or imprisoned for a term not ex- 
 ceeding three years, with hard labor and solitary confinement, if the court think-fit, during 
 
 * This sum, (says Blackstone, vol, iv. p. 237.) was the standard in the time of king 
 Athelsta n, a.nd he observes that afterwards, in the reign of king Henry 1. one shilling 
 was the stated value at the Exchequer, of a pasture-fed ox, {Dial, de Scucc. I. I. s. 7,) 
 and that if we should suppose this shilling to mean that solidus legalis mentioned by 
 Lyndeuode, (Prov. 1. 3. c. 13,) or the 72d_part of a pound of gold, it would be equal to 
 13s. I4d. of the present standard. 
 
 t The progressive reduction in the value of money, while death continued to be the 
 sentence for theft, to the same amount as before, justified the complaint of Sir H. Spel- 
 vian, (Gloss. 350,) that while every thing else living became dearer, the life of man liad 
 continually grown cheaper. 
 
 t 3 Inst. 218. Hawk. b. I. c. 33. s. 30. 4 Block. Com. 237. These denominations of 
 grand and petit larceny, are now at an end, by 7 tSf 8 Geo. IV. c. 29. s. 2. which gives to 
 thefts to the amount of twelve pence, and under, the same effect as to thefts of greater 
 amount. See a passage from Knighfs Hist, of England, B, I. c. 7. in a note at the end 
 of this volume.
 
 HISTORIA PLACITORUM CORONA. 516*^ 
 
 such imprisonment.* And by sect. 25, (amended as to punishment, by 7 Will.lV. Sfl Vict, 
 c. 90.) if any person shall steal any horse, mare, gelding-, colt, or filly; or any bull, cow, ox, 
 heifer, or calf; or any ram, ewe, sheep, or lamb; or shall wilfully kill any of such cattle, 
 with intent to steal the carcase or skin, or any part of the cattle so killed, he shall be 
 guilty, of felony, and be liable to the same punishments as last above particularized. t 
 
 The additional severity, in these instances, is owing to the difficulty tliere would 
 othervvi.se be in preserving goods so easily carried off. Upon which principle the Roman 
 law punished more severely than other thieves, the abifrii or stealers of cattle, {Ff. 47. 
 t, 14.) and the balnearii or such as stole the clothes, of persons who were washing in the 
 public baths, {lb. t. 17.) both which constitutions seem to be borrowed from the laws of 
 Athens, (Pott. Antiq. b. 1. c. 26.) And so, too, the ancient Goths punished with unrelent- 
 ing severity thefts of cattle, or corn that was reaped and left on the field. Such kind of 
 projierty which no human industry can sufficiently guard, being esteemed under the pe- 
 culiar custody of heaven. {Sliern. de Jure Goth. 1. 3. c. 5.) 
 
 The offijiice which we have been hitherto considering, is simple larceny as it existed 
 at comtnon law; but in connexion with this offence, and proper for consideration under 
 the same head, is the crime of simple stealing, {or theft) of things not the subject of lar- 
 ceny at. common law. For in progress of time it was found necessary to extend the 
 protection of the penal laws to many of those subjects of which the ancient law of 
 larceny took no account; and acts of parliament were accordingly passed from time 
 to time by which punishments w'ere imposed for thefts committed in respect of 
 various kinds of property so circumstanced, and though these statutes have been since 
 repealed, the same general object has been pursued in the 7 iSf 8 Geo. IV. c. 29, passed 
 " For consolidating and amending the laws in England relative to larceny, and other 
 offences connected therew-ith." By this act- provisions are made against stealing "valu- 
 able securities," such as bonds, bills, and the like, (7^8 Geo. IV. c. 29. s. 5,) and many 
 other subjects of property, of which the enumeration will be found in a note below,t so 
 that it may be laid down in general terms, that stealing has now become an offence liable 
 to punishment or penalty in regard to all movables whatever. We may also remark 
 with respect to the kinds of stealing thus created by statute in supplement to the ancient 
 law of larceny, that all the common law doctrines relative to larceny which we have 
 already had occasion to notice, are in general j^pplicable to thefts of this description also, 
 {Rex V. Si. John, T C. Sf P. 324.) though they are "not technically denominated larcenies, 
 (see Rex v. Gooch, S C Sf P. 293;) and that their punishment is in many cases identical. 
 In many instances, however, they do not amount like larceny at common law to a felony, 
 but to a misdemeanor only, and are visited with some lighter degree of punishment, 
 and there are several kinds of them not assignable to the class either of felony or misde- 
 meanor, but restrained b}' fixed pecuniary penalties only, recoverable in a summary way 
 by information before a justice of the peace. 
 
 We have seen that larceny may not only be simple, but combined with circumstances 
 of aggravation, which is described in our books as mixed, compound or complicated 
 larceny, (4 Bla. Com. 239 ; Hawk. P. C. B. 1. c.c. 33, 34 ;) and this is not only like simple 
 larceny felonious, but is felony of a more penal character. We will therefore now consider, 
 
 Larceny from a dwelling-house, shop, warehouse, or counting-house. — Larceny from the 
 
 * As to the former state of the law, with respect to stealing woollen cloth, linens, fus- 
 tians, calicoes, or cotton goods from the place of manufacture, see 22 Car. 2. c. 5. 15 Geo, 
 II. c. 27. 18 Geo. II. c. 27-51. Geo. III. c. 41. 4 Geo. IV. c. 53. 
 
 t The punishment of horse and cattle stealing by 7 4' '^ C'eo. IV. c. 29. s. 25. was 
 death, as it had previously been, (without benefit of clergy,) by the statutes (now repealed 
 bv 7 <^ 8 Geo. IV. c. 27.) of I Edw. VI. c. 12. 2 «^ 3 Edw. VI. c. 33. 31 Elizabeth, c. 12. 
 14 Geo. II. c. 6. 15 Geo. II. c. 34. Afterwards it was reduced by 2 & 3 Will. IV. c. 62. 
 to transportation for life, to which, by 3 ^ 4 Will. IV. c. 44. previous imprisonment with 
 ■^r withotit hard labour, might be superadded. 
 
 ' X See 7 c^r 8 Geo. IV. c. 29. s. 21. as to stealing records and judicial documents; s. 22. 
 stealing or destroying wills; s. 23. stealing documents of titles; s. 26. deer; s 30. hares 
 or conies; s. 31. beasts or birds; s. 33. pigeons; s. 34. fish; s. 36. oysters; s. 37. ores la 
 mines, (fee; s.s. 38, 39. trees or shrubs, &c. ; s.40. fences, stiles, gates, &c.; s. 42. plants, 
 fruits, &c.; s. 44. fixtures in houses, squares, or street fences ; 7 Will. IV. Sf 1 Vict. c. 87. 
 s. 8. as to plundering wrecks; 8 <^ 9 Vict. c. 47. as to stealing dogs. A variety of ante- 
 cedent statutes that had been passed with the same object of supplying the defects of the 
 ancient law in this particular, and that are noticed by Blackslone, vol, i\. p. 233, &c. are 
 now repealed by 7^-8 Geo, IV. c. 27.
 
 516'^ HISTORIA PLACITORUM CORONiE. 
 
 house, though it seems to have a higher degree of guilt than simple larceny, yet was not 
 at all distinguished from the other at common law, {Hawk. P. C. B. 1 c. 36.) unless where 
 it were accompanied with the circumstances of breaking the house by night, and then it 
 fell under anotlier description, viz. that of burglary. But afterwards, by several acts of 
 parliament, the history of vvliich is ingeniously deduced by a learned modern writer, 
 \Barr. on Statutes, 375, Sfc.) who has shown tiiem to liave gradually arisen from our im- 
 provements in trade and opulence, the benefit of clergy was taken from larcenies com- 
 mitted in a house in almost every instance, as also from those committed in shops, ware- 
 houses, coacli-houses or stables, so that the capital sentence to which they were subject as 
 larcenies took effect. These acts, however, are all now repealed, and the present law on 
 the subject is governed by 7 Sf 8 Geo. IV. c. 29. and 7 Will. IV. 6f 1 Vict. c. 86. By 
 the first of these acts amended as to punishment by 7 Will. IV. Sf 1 Vict. c. 90,* if any 
 person shall break and enter any dwelling-house and steal therein any chattel, money or 
 valuable security to any value whatsoever, or shall break and enter any building and 
 steal therein any chattel, money or valuable security, such building being within the 
 curtilage of a dwelling-house and occupied therewith, but not being part thereof accord, 
 ing to the provisions of the first-mentioned act, (7 S( 8 Geo. IV. c. 29. s. 13.) or shall 
 break or enter any shop,t warehouse or counting-house, and steal therein any chattel, 
 money, or valuable security, the offender in any of such cases shall be transported for a 
 term not exceeding fifteen years nor less than ten, or be imprisoned for a term not ex- 
 ceeding three years, to which imprisonment, hard labour, and solitary confinement may 
 be superadded if the court think fit. And it is further enacted by 7 & 8 Geo. IV, c. 29. 
 s. 12. (amended as to punishment by 7 Will. IV. c^- 1 Vict. c. 90.) and 7 Will. IV. Sf 
 1 Vict. c. 86. s. 5. that whoever shall steal in any dwelling-house any chattel, money or 
 valuable security, to the value in the whole of five pounds or more, or shall steal any 
 property in any dwelling-house, and shall by any menace or threat put any one being 
 therein in bodily fear, shall be guilty of felony, and liable to the same punishments as 
 last above particularized.! 
 
 Larceny from a church, or, (as it is sometimes called) sacrilege. By stat. 23'. Hen, 
 VIII. c. 1. and I Edw. VI. c. 12. it was felony without benefit of clergy to commit 
 larceny above the value of tvvelvepencc in a church or chapel, (post, p. 518.) But these 
 statutes are now repealed ; and by 7 Sf 8 Geo. IV. c. 29. s. 10. (amended as to punish- 
 ment by 5 c^ 6 Will. IV. c. 81. and 6 i^ 7 Will. IV. c. 4.) if any person shall break and 
 enter any church or chapel,§ and shall steal therein any chattel, or having stolen ahy 
 chattel in any church or chapel, shall break out of the same, he shall be transported for 
 life, or not less than seven years, or imprisoned for not more than three years, with hard 
 labour and solitary confinement at the discretion of the court or judge during the period 
 of imprisonment. , 
 
 Larceny from the person, which is either by privately stealing, or by open and violent 
 assault, usually called robbery. The offence of privately stealing from a man's person, as 
 by picking his pocket, or the like, privily, without his knowledge, was debarred of the 
 benefit of the clergy so early as by the statute 8 Eliz. c. 4.|| a severity which seems to 
 be owing to the ease with which offences are committed, the difficulty of guarding 
 against them, and the boldness with which they were practised (even in the queen's court 
 and presence) at the time when this statute was made, besides that this was an infringe- 
 
 * It had been previously amended as to punishment by 2 ^ 3 Will. IV. c. 62. and 
 3 S(4 Will.lV.c.U. 
 
 t To fall under this description the place must be a shop for the sale of goods, and not 
 a mere workshop. Reg. v. Saunders, 9 C. Sf P. 79. 
 
 t The former state of the law as to larceny from a house, shop, &c. was very compli- 
 Gated. It depended on statutes 5 ^ Q Edw. VI. c. 9. 3'.) Eliz. c. 15. 3 4" 4 W. Sf M. c. 9. 
 10 <^ 11 Will. III. c. 23; all which are now repealed by 7 (^ 8 Geo. IV. c. 27. By these 
 statutes the amount of the property stolen as being above twelve pence, or of the value 
 of five shillings or forty shillings constituted in the several cases respectiveljr a material 
 ingredient in the offence. • - . 
 
 (j As to what buildings come under this provision, vide Rex v. Wheeler, 3 Gar. ^ P. 
 585. Rex v. Richardson, 6 Car. Sf P. 335. Rex v. Nixon, 7 Car. & P. 442. Reg. v. 
 Evans, 1 Car. Sf M. 298. 
 
 II This, it will be observed, applies only to the case where the thing stolen was of the 
 value of more than twelve pence; for if it was below that value, so as to reduce the 
 offence to petit larceny, there was no need of the benefit of clergy, the sentence not being 
 capital. Hawk. P. C. b. 1. c. 35. s. 4.
 
 HISTORIA PLACITORUM CORONA. 516' 
 
 ment of property in the manual occupation or corporal possession of the owner, which 
 was an offence even in a state of nature: and therefore the saccularii, or cut-purses, 
 were more severely punished than common thieves by the Roman and Athenian laws. 
 (Ff. 47. 11. 7. Pott. Antiq. 1. 1. c. 26.) But this statute is now repealed by 7 4- 8 Geo. 
 IV. c. 27. and new provisions, of which we shall presently have occasion to speak more 
 at large, are made by 7 Will. IV. «Sc 1 Vict. c. 87. 
 
 Open and violent larceny from the person or robbery, the rapine of the civilians, is 
 ihe unlawful and forcible taking from the person of another of goods or money to any 
 value by violence or putting iiim in fear. Hawk. P. C. b. 1, c. 34, s. 2. 1. There 
 must be an unlawful taking, otherwise it is no robbery.* On the other hand, if the 
 thief having once taken a purse returns it, still it is a robbery. Rez v. Reot, 1 Leach, 
 C. C. 228. 2. It is immaterial of what value the thing taken is, a penny as well as a 
 pound, thus forcibly extorted makes a robbery. Hawk. P. C. b.l. c. 34, s. 16. 3. Lastly, 
 the taking must be by force or a previous putting in fear, which makes the violation 
 of the person more atrocious tlian privately stealing. For according to tiie maxim of 
 the civil law, (Ff. 47. 2-4, xxii.) qui vi rapuil fur improbior esse videtur. Tiiis pre- 
 vious violence, or putting in fear, is the criterion that distinguishes robbery from other 
 larcenies. For if one privately steals a chattel from the person of another, and aftel*. 
 wards keeps it by putting him in fear, this is no robbery, for the fear is subsequent: 
 {post p. 534.) Not that it is indeed necessary, though usual to lay in the indictment 
 that the robbery was committed hy putting into fear; it is sufficient if laid to be done 
 by violence. {Trin. Term, 3 Anne, by all the judges.) And when it is laid to be done 
 by putting into fear, tiiis does not imply any great degree of terror or affright in the 
 party robbed; it is enough that so much force or threatening by word or gesture be 
 used as might create an apprehension of danger, or induce a man to part with his pro- 
 perty without or against his consent. (Fosi. 128.) Thus if a man be knocked down 
 without previous warning,. and stripped of his property while senseless, though strictly 
 he cannot be said to he. put into fear, yet this is undoubtedly a robbery. Or if a person 
 with a sword drawn begs an alms, and I give it to him through-mistrust and appre- 
 hension of violence, this also falls within the definition of the same crime. Hawk. P. C. 
 
 b. 1, c. 34, s. 8.) So if under a pretence of sale a man forcibly extorts money from 
 another, neither shall this subterfuge avail him. But it is doubtful whether the forcing 
 a higgler or other chapman to sell his wares, and giving him the full value of them, 
 amounts to so heinous a crime as robbery. {^Ibid. s. 14.) This species of larceny was 
 debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1, and other subsequent 
 statutes, not indeed in general, but only when committed in a dwelling-house or in or 
 near the king's highway. A robbery, therefore, in a distant field was not punished 
 with death, [post p. 535,) but was open to the benefit of clergy till the statute 3 .^ 4 
 W. ^ M. c. 9, which took away clergy from both principals and accessaries before the 
 fact in robbery wheresoever committed. But all these statutes, as well as the 8 Eliz. c. 4, 
 with respect to privately stealing from the persons, are now repealed by 7 ^ 8 Geo. IV. 
 
 c. 27. And by 7 Will. IV. S^ 1 Vict. c. 87, provisions are now made against both 
 species of offences, with distinctions as regards robbery, suitable to the aggravations 
 with which that crime may have been committed. This statute enacts that whosoever 
 shall rob. any person, and at the time or immediately before or immediatehj after such rob- 
 bery, shall stab, cut, or wound any person, shall suffer death, and that whoever being 
 armed with any offensive weapon or instrument shall rob or assault with intent to 
 rob any person, or shall together with one or 7nore person or persons rob or assault 
 with iment to rob any person, or shall rob any person, and at the time of or imme- 
 dialdy before' or immediately after such robbery shall beat, strike, or use any other per- 
 sonal violence to any person, shall be guilty of felony and be transported for life, or not 
 less than fifteen years, or imprisoned! for not more than three years; that whoever shall 
 accuse or threaten of such abominable crime as in the act specified, or of any attempt or 
 solicitation tlifreto, and extort property by such intimidation, shall incur the like penalty; 
 that whoever shall rob any person, or steal any property from the person of another, 
 
 » A mere attempt to rob was held to be a felony so late as Henry IV's. time: post 
 p. 532; but afterwards it was taken to be only a misdemeanor until 7 Geo. II. c. 21, 
 which made it transportable felony. This statute was repealed by 4 Geo. IV. c. 54, which 
 is itself repealed by 7 ^ 8 Geo. IV. c.27. And as to the present law, vide 7 Will. IV. tV 
 1 Vict. c. 87. • i- ' J 
 
 t In any case in which imprisonment may be awarded under this statute, hard 
 labour and solitary confinement may be added. 7 Will. IV. Sf 1 Vict.c. 87, s. 10.
 
 516^ HISTORIA PLACITORUM CORONA. 
 
 shall be transported for a term not exceeding fifteen years nor less than ten, or be im- 
 prisoned for not more tiian three: that whoever shall assault any person with intent to 
 rob,* siiall be guilty of felony, and be imprisoned for not more than three years; and 
 •that whoever with menaces or force shall demand any property of any person with intent 
 to steal the same, shall incur the like penalty. In connexion also with the offence com- 
 prised in this statute of extorting money by threat of accusation, we may notice the 
 provision of the prior act of 7 t.y 8 Geo. IV. c. 29, s. 8,t by which it is enacted, that if 
 any person shall knowingly send or deliver any letter or writing, demanding of any 
 person with menaces, and without reasonable or probable cause any chattel, money, or 
 valuable security,! or shall accuse or threaten to accui^e, or shall knowingly send or de- 
 liver any letter or writing accusing or threatening to accuse any person of a crime 
 punishable by law with death, transportation, or pillory, or of any assault with, intent 
 to commit rape, or of attempt to commit rape, or of any such infamous crime as in 
 the act mentioned with intent to extort any ciiattel, money, or valuable security, such 
 offender sliall be guilty of felony, and be transported for life or not less than seven 
 years, or imprisoned (with or. without hard labour and solitary confinement) for not 
 mor-e than four years ; and, if a male, be once, twice, or thrice whipped, if the court 
 think fit, in addition to the imprisonment. - '' 
 
 Larceny by clerks, servants, or agents. — Special provision against larcenies by servants 
 was made by the statutes 33 Hen. VI. c. 1. and 21. Hen. VIII. c. 7. See ante, p. 51.j. 
 note 16. both which are now repealed by 7^8 Geo. IV, c. 27. But hy 7 Sf 8 Geo. IV. 
 c. 29. s, 46, it is provided that if any clcrk§ or servanlH shall steal any chattel, money, or 
 valuable security, belonging to, or in the possession or power of his master, he shall be 
 transported for a term not exceeding fourteen years, nor less than seven years, or im- 
 prisoned (with or without hard labour and solitary confinement) for a term not exceeding 
 three years, and if a male, once, twice or thrice whipped, if the court think fit, in addi- 
 tion to the imprisonment. In addition to which tliere .are separate provisions against 
 embezzlement, a crime distinguished from larceny, properly so called, as being commit- 
 ted in respect of property which is not at the time in the actual or legal possession of the 
 owner. A.s to this, it is enacted by the same statute, sect. 47, that if any clerk or ser- 
 vant, or any person employed for the purpose, or in the capacity of a clerk or servant, 
 shall by virtue of such employment, receive or take into his possession any chattel, money, 
 or valuable security for, or in the name, or on the account of his master,ir and shall frau- 
 dulently embezzle the same, or any part thereof, every such offender shall be deemed to 
 have feloniously stolen the same, and shall suffer the same punishment as last above par- 
 ticularized: and by sect. 49, that if any money or security for the payment of money, 
 shall be intrusted to any banker, merchant, broker, attorney, or other agent, with any 
 direction in writing, to apply such money, or any part thereof, or the proceeds, or any 
 part of the proceeds of such security, for any purpose specified in such direction, and h^,. 
 shall, in violation of good faith, and contrary to the purpose so specified, in any wise 
 convert to his own use or benefit such money, security or proceeds, or any part thereof,** 
 every such offender shall be guilty of a misdemeanor, and be transported for a term not 
 exceeding fourteen years, or less than seven years, or suffer such other punishment, by 
 fine or imprisonment, or both, as the court shall award, and that if any chattel or valu- 
 able security, or any power of attorney for the sale or transfer of any share or interest 
 in any public stock or fund of this country, or any foreign state, or in any fund of any 
 body corporate, company or society shall be intrusted to any banker, merchant, broker, 
 attorney, or other agent, for safe custody, or for any special purpose, without any autho-, 
 rity to sell, negotiate, transfer or pledge; and he shall, in violation of good faith, and 
 contrary to the object of the trust, sell, negotiate, transfer, pledge, or iii any manner 
 convert to his own use or benefit such chattel or security, or the proceeds of the same, op 
 any part thereof, or the share or interest in the stock or fund, to which such power of 
 
 "* As to this provision, vide Reg. v. Huxley, 1 Car. Sj M. 596. * 
 
 + Et vide as to letters threatening to kill, burn, &c. 4 Geo. IV. c. 54, si. 3. 
 
 I As to what is a threatening letter under this statute, vide Rex v. Pickford, 4 Car. Sf 
 P. 227. 
 
 § As to larceny by a clerk in a public office, vide Rex v. Lovell, 2 M. S^ Rob. 236. 
 
 II As to who is a setvant, within the meaning of this section, vide Reg, v. Haydon, 
 ICar.Sf P. 445. ^ 
 
 IT Embezzlement of money by a'servant not authorized to receive it, is not within this 
 section. Rex v. Thorley, I M. C. C. R. 343. ' 
 
 ** As to this provision, see Rex v. White, 4 Car, Sf Pay. 46.
 
 HISTORIA PLACITORUM CORONA. 516^ 
 
 attorney shall relate, or any part thereof, every such offender shall incur the same penal- 
 ties as are imposed in the case last before mentioned.* It is provided, sect. 50, however, 
 that this shall not affect any trustee, in or under any instrument whatever, or any mort- 
 gage of any property, real or personal, in respect of any act done by such trustee or 
 mortgagee, in relation to the property comprised in, or affected by any such trust or 
 mortgage, nor shall restrain any banker, merchant, broker, attorney, or otiier agent, from 
 receiving any money which shall be or become actually due and payable upon any valu- 
 able security, according to the effect and tenor thereof, in such manner as he might 
 otherwise have done, nor from selling, transferring, or otherwise disposing of any secu- 
 rities or effects in his possession, upon which he shall have any lien, claim, or demand, 
 entitling him by law so to do, unless such sale, transfer, or other disposal shall extend to a 
 greater number or part of such securities or effects than shall be requisite for satisfying 
 such lien, claim or demand. By the same statute, sect. 51, it is enacted, that if any factor 
 or agent, intrusted for the purpose of sale, with any goods or merchandize, or intrusted 
 with any bill of lading, warehouse keeper's or wharfinger's certificate, or warrant or 
 order, for delivery of goods or merchandize, or any of the said documents as a security 
 for any money or any negotiable instrument, borrowed or received by such factor or 
 agent at, or before the time of making such deposit or pledge, or intended to be there- 
 after borrowed or received, he shall incur the same penalties as in the two former cases, 
 but that no such factor or agent shall be liable to prosecution for depositing or pledging 
 any such goods or merchandize, or any of the aforesaid documents, in case the same 
 shall not be made a security for, or subject to, the payment of any greater sum of money 
 than tiie amount, which at the tinrc of such deposit or pledge, was justly due and owing 
 to such factor or agent, from liis principal, together with the amount of any bill or bills 
 of exchange, drawn by, or on account of, such principal and acceptor^ by such factor or 
 agent. 
 
 Larcenies in relation to the post-office. — By 7 Will. IV. ^- 1 Vict, c. 36. s. 25, every 
 person employed under the post-office who shall, contrary to his duty, open or procure 
 or suffer to be opened, or wilfully detain or delay, or procure or suffer to be detained or 
 delayed a post letter shall be guilty of a misdemeanor, and punished by fine or imprison- 
 ment, or both, as to the court shall seem meet. By sect. 26, every person so employed 
 who shall steal, or for any purpose embezzle, secrete, or destroy a post letter, shall be 
 guilty of felony, punishable with transportation for seven years or imprisonment not ex- 
 ceeding three years ; and if any letter contain any chattel, money, or valuable security, 
 then with transportation for life.t By sec/. 32, every person so employed who shall steal, 
 or for any purpose embezzle, secrete, or destroy, or wilfully detain or delay in the course 
 of conveyance or delivery by post any printed votes or proceedings in parliament, or atiy 
 printed newspaper, or other printed paper sent by post without covers, or in covers open 
 at the sides, shall be guilty of a misdemeanor, punishable by fine or imprisonment, or 
 both, as to the court shall seem meet. These provisions relate only to offences by per-- 
 sons employed in the department of the post-office ; but by sects. 27 and 28, er,ery person 
 who shall steal out of a post letter-bag or a post letter from a post letter-bag, or from a 
 post-office, or officer of the post, or a mail, or shall stop a mail with intent to rob or 
 search the same, shall be guilty of felony, and be transported for life.t By sect. 29, every 
 person who shall steal or unlawfully take away a post letter-bag, sent by a post-office 
 packet, or a letter out of any such bag, or shall unlawfully open any such bag, shall be 
 guilty of felony, and transported for a term not exceeding fourteen years. By sect. 30, 
 every receiver of a post letter, post letter-bag, chattel, money, or valuable security felo- 
 niously stolen under the post-office acts, knowing the same to have been so stolen, shall 
 be guilty of felony, and transported for life. By sect. 31, every person who shall fraudu- 
 lently retain, or wilfully secrete, or keep or detain, or being required by an officer of the 
 post-office, neglect or refuse to deliver up a post letter which ought to have been delivered 
 to any other person, or a post letter-bag, or post letter which shall have been sent and losti 
 shall be guilty of a misdemeanor, punishable with fine and imprisonment. And by sects. 
 41 Sf 42, it is provided generally, that every person convicted of an offence for which 
 transportation for life is awarded by that act, shall be liable to be transported either for 
 life or any time not less than seven years, or imprisoned for any time not exceedmg four 
 years; and that every person convicted of any offence punishable according to the post- 
 office acts by transportation -for any time not exceeding fourleen years, shall be liable to 
 
 * As to this sectiojy, vide Rex v. Nettleton, R. Sf M. 2,59. 
 
 + As to this section, vide Reg. v. Raihbone, 1 Car. Sf M. 220 ; Reg, v. Mence, lb. 234. 
 
 t As to these provisions, vide Reg. v. Harley, 1 Car. Sf Kir. 89.
 
 516^' HISTORIA PLACITORUM CORONA. 
 
 be transported for any time not exceeding^ fourteen years, or less than seven years — or 
 imprisoned for any time not exceeding three years; and that in all cases of imprison* 
 irient, the court may superadd hard labour and solitary imprisonment.* 
 
 Offences against tiie post-office in the United Stntes consist 
 
 First. Of robbing of the mail ; and Second, Of larceny or embezzlement from the 
 mail. 
 
 The act of March 3d, 1825,. provides that if any person shall rob any carrier of the 
 mail of the United States, or other person entrusted therewith, of such mail, or of part 
 thereof, such offender or offenders shall, on conviction, be imprisoned not less than five 
 years, nor exceeding ten years; and if convicted a second time of a like ofience, he or 
 they shall suffer death ; or if, in effecting such robbeiy of the mail the first time, the 
 offender shall wound the person having custody thereof, or put his life in jeopardy, by 
 the use of dangerous weapons, sucli offender or offenders shall suffer death. And if any 
 person shall attempt to rob the mail of the United Slates, by assaulting the person having 
 custody thereof, shooting at him, or his liorse or mule, or threatening him with dan- 
 gerous weapons, and the robbery is not effected, every such offender, on conviction there- 
 of, shall be punished by imprisonment, not less than two, nor exceeding ten years. And 
 if any person shall steal the mail, or shall steal, or take from, or out of, any mail, or 
 from or out of, any post-office, any letter or packet; or if any person shall take the mail, 
 or any letter or packet therefrom, or from any post-office, whether with or without the 
 consent of the person having custody thereof, and shall open, enibezzle, or destroy any 
 such mail letter, or packet, the same containing any article of value or evidence of any 
 debts due, demand, right or claim, or any release, receipt, acquittance, or discharge, or 
 any other article, paper, or thing mentioned, as described in the twenty-first section of 
 this act : or if any person shall, by fraud or deception, obtain from any person having . 
 custody th.ereof, any mail, letter, or packet, containing any article of value, or evidence 
 thereof, or either of the writings referred to, or next above mentioned, such offender or 
 offenders, on conviction thereof^ shall be imprisoned, not less than two, nor exceeding 
 ten years. ■ 
 
 And if any person shall take any letter, or packet, not containing any article of value 
 or evidence thereof, out of a post office, or shall open any letter or packet which shall' 
 have been in a post office, or in custody of a mail carrier, before it shall have been de- 
 livered to the person to whom it is directed, with design to obstruct the correspondence, 
 to pry into another's business or secrets, or shall secrete, embezzle, or destroy, any such 
 mail, letter, or packet, such offender upon conviction, shall pay for every such offence, a 
 sum not exceeding five hundred dollars and be imprisoned not exceeding twelve months. 
 (Act of 3(Z March, 1825, sect. 22.) Peters's Statutes at Large, Vol. IV.p. 107-108. 
 
 If any person shall rip, cut, tear, burn, or otherwise injure, any valise, portmanteau, or 
 other bag, used, or designed to be used, by any person acting under the authority of the 
 postmaster general, or any person in whom his powers are vested, in a conveyance of 
 any mail, letter, packet, or newspaper, or pamphlet, or shall draw, or break any staple, 
 or loosen any part, lock, chain or strap, attached to, or belonging to any such valise, 
 portmanteau,, or bag with intent to rob, or steal any mail, letter, or packet, newspaper or 
 pamphlet, or to render either of the same insecure, every such offender, upon conviction, 
 shall for every such offence, pay a sum not less than one hundred dollars, nor exceeding 
 iive hundred dollars, or be imprisoned not less than one year, nor exceeding three years, 
 at the discretion of the court, before whom such conviction is had. Every person who, 
 from and after the passage of this act, shall procure, and advise, or assist, in the doing or 
 perpetration of any of the acts or crimes by this act forbidden, shall be subject to thg 
 same penalties and punishments as the persons are subject to who shall actually do or 
 perpetrate any of the said acts or crimes according to the provisions of this act. Ibid, 
 sect. 23. 
 
 If any person employed in any of the departments of the post office establishment, shall ' 
 unlawfully detain, delay or open, any letter, packet, bag, or mail of letters, with which 
 he shall be entrusted, or which shall have come to his possession and which are intended to 
 be conveyed by post; or if any person shall secrete, embezzle or destroy, any letter or 
 packet entrusted to such persons as aforesaid, and which shall not contain any security 
 for, or assurance relating to money as hereinafter described, every such offender being 
 thereof duly convicted shall for every such offence be fiyed, not exceeding three hundred 
 dollars, or imprisoned not exceeding six months, or botii, according to the circumstances 
 
 * Stealing letters sent by the post was felony without benefit of clergy, by 7 Geo. III. c. 
 50. repealed by 7 Will. IV. ^ 1 Vict. c. 32.
 
 HISTORIA PLACITORUM CORONA. 516' 
 
 and aggravations of the offence. And if any person, employed as aforesaid, shall secrete, 
 embezzle, or destroy, any letter packet, bag, or mail of letters with which he or they 
 shall be entrusted or wliich shall have come to his or her possession, and are intended to 
 be conveyed by post, containing any bank note, or bank post-bill, bill of exchange, war- 
 rant of treasury of ihe -IJnited Slates, note of assignment of stock in the funds, letters of 
 attorney for receiving annuities or dividends, or for selling stock in the funds, or for 
 receiving the interest thereof, or any letter of credit, or note for, or relating to, payments 
 of moneys, or any bond, or warrant, draft, bill, or promissory note, covenant, contract, 
 or agreement whatsoever, for, or relating to the payment of money, or the delivery of any 
 article of value, or the performance of any act, matter or thing, or any release, acquittance, 
 or discharge of or from any debt, covenant or demand, or any part thereof; or any copy of 
 any record of any judgment, or decree, in any court of law, or chancery, or any execution 
 which may have issued thereon, or any copy of any other record, or any other writing 
 of value, or any writing representing the same; or if any such person employed as 
 aforesaid, shall steal, or take, any of the same out of any letter, packet, or bag, or mail of 
 letters that shall come to his or her possession, such person, shall on conviction for any 
 such offence be imprisoned, not less tiian ten years, nor exceeding twenty one years. And 
 if any person who shall have taken charge of the mails of the United States, shall quit or 
 desert the same before such person delivers it into the post-office kept at the termination 
 of the rout, or some known mail carrier, or agent of the general post-office, authorized to 
 receive the same, every such person so offending shall forfeit, and pay a sum not exceed- 
 ing five hundred dollars for every such offence. And if any person concerned in carry- 
 ing the mail of the United States, shall collect, receive or carry any letter, packet, or shall 
 cause or procure the same to be done contrary to this act, every such offender shall for- 
 feit and pay for every such offence, a sum not exceeding fifty dollars. Act 3d March^ 
 1825. sect. 21. 
 
 If any person shall buy, receive, or conceal, or aid in buying, receiving, or concealing 
 any article nientioned in the twenty-first section of this act, knowing the same to have 
 been stolen or embezzled from the mail of the United Slates, or out of any post-office, or 
 from any person having the custody of the said mail, or the letters sent, or to be sent 
 therein; or if any person shall be accessary after the fact, to any robbery of the carrier 
 of the mail of the United Slates, or other person entrusted therewith, of such mail, or of 
 part thereof^ every person so offending shall, on conviction thereof, pay a fine not exceed- 
 two thousand dollars, and be imprisoned and confined to hard labour for any time not 
 exceeding ten years. And such person or persons so offending may be tried and con- 
 victed without the principal offender being first tried, provided such principal offender 
 has fled from justice, or cannot be found to be put upon his trial. Sect, 45. Feters^ U. S. 
 Statutes at Large, ml. IV. p. lQl-8. 
 
 As to what constitutes a robbery of the mail and putting the life of the carrier or per- 
 son entrusted therewith in jeopardy, see U. S. v. Hare, U. S. C. C. Bait. May, 1818. 
 2 Wheeler's Cr. Cases, 12. U. S. v. Wood, Philadelphia, June, 1S18. U. S. v. Barnard, 
 Trenton, 181!}. U.S. v. Amenhiser, Bait. 1823, cited in Whartoii's Am. Crim. Laid, 
 574, note. 
 
 As to an indictment under the 23 section for advising to rob the mail, see U. S, v. Mills 
 7 Peters' S. C. Rep. 18. 
 
 As to what constitutes a dangerous weapon under the 22d section of the act, see U. S. 
 v. Wood, 3 W^ash. Rep. 440. 
 
 All persons present at the commission of the robbery consenting thereto, aiding, assist- 
 ing, or abetting therein, or in doing any act which is the constituent of the offence, are 
 principals. The word ' rob' in the 22d section is used in its common law sense. The 
 word 'jeopardy' means a well grounded apprehension of danger to life in case of refusal 
 to yield to threats or resistance. U. S. v. IVilson, 1 Baldw. R. 102. 
 
 It is unnecessary to give a particular description of a letter charged to have been 
 secreted and embezzled by a postmaster under the 21st section of the act of March 3d, 
 1825, nor to describe the bank notes particularly enclosed in the letters, U. S. v. Lan. 
 caster, 2 McLean, R. 431. It is enough to state the letter came to the hands of the post- 
 master in the words of the statute without showing where it was mailed, or on what 
 route it was conveyed. Id. To convict a person of stealing a letter, &c. who is employed 
 in the department, such employment must be distinctly alleged and proved. U. S.v. Nott, 
 1 McLean Rep. 499. 
 
 Offences under our post-office law are not felonies, but misdemeanors; and in such 
 cases less nicety in the form is required than in indictments for felonies in England. 
 U. S. v. Lancaster, cited supra. See also 17. S. v. Martin, 2 McLean's Rep. 256. 
 VOL. I. — 46
 
 516'' HISTORIA PLACITORUM CORONiE. 
 
 Larcenies from ships or docks, wharfs or quays. — By 1^8 Geo. IV. c. 29. s. 17, 
 (amended as to punishment, by 7 Will. IV. c^ 1 Vict. c. 90.) any person stealing any 
 goods or merchandize in any vessel, barge, or boat, in any port of entry, or discharge, or 
 upon any navigable river or canal,* or in any creek belonging to, or communicating 
 with, any such port, river, or canal, or stealing any goods or merchandize from any 
 dock, wharf, or quay, adjacent to any such port, river, canal, or creek, shall be trans- 
 ported for not more than fifteen years, or less than two years, or imprisoned for not more 
 than three years, with hard labour, (if the court thinks fit,) and solitary confinenient.t 
 
 Having now considered the several kinds of larcenies, whether simple or with aggra- 
 vation, we must refer, under the same head, to that offence so closely connected with 
 larceny itself, of receiving stolen property, knowing the same to have been stolen. This • 
 offence was, at common law, a misdemeanor only, but was afterwards made felony by 
 several statutes, now repealed, (by 7 tSf 8 Geo. IV. c. 27.) and by 7 ^ 8 Geo. IV. c. 29, 
 s. 54, it is provided, that if any person shall knowingly receive any chattel, money, or 
 valuable security, or other property whatever, the stealing or taking wliereof shall amount 
 to felony, either by common law or by virtue of that act, every such receiver shall be 
 guilty of felony,t and may be indicted either as an accessary after the fact, or for a sub- 
 stantive felony, and however convicted, shall be liable, at the discretion of the court, to 
 be transported for a term not exceeding fourteen years, nor less than seven years, or 
 imprisoned (with or without hard labour, and solitary confinement) for a term not ex- 
 ceeding three years, and if a male, to be once, twice or tlirice whipped, if the court think 
 fit, in addition to the imprisonment. By sect. 55, if any person shall knowingly receive 
 any chattel, money, or valuable security, or other property whatever, the stealing, taking, 
 obtaining, or converting whereof, is made an indictable misdemeanor, by the act, every 
 such receiver shall be guilty of a misdemeanor, and transported for seven years, or im- 
 prisoned, (with or without hard labour, and solitary confinement,) for not more than two 
 years, and if a male, once, twice, or thrice whipped, if the court think fit, in addition to 
 the imprisonment. And by sect. 60, where the stealing of any property whatever is pun- ■ 
 ishable by that act, on summary conviction, either for every offence, or for the first and , 
 second offences only, or for the first offence only, the guilty receiver shall be liable for 
 every first, second, or subsequent offence of receiving, to the forfeiture and punishment, 
 to wiiich a person guilty of a first, second, or subsequent offence of stealing or taking 
 such property is, by the said act, made liable. 4 Steph. Comm. B. VI. c. 5. 
 
 If any person, within any of the places under the sole and exclusive jurisdiction of the 
 United States, or upon the high seas, shall take and carry away with an intent to steal 
 or purloin the personal goods of another, such person so offending, his counsellers, aiders, 
 and abetters, (knowing of any privy to the offences aforesaid,) shall, on conviction, be 
 fined not exceeding the fourfold value of the property so sold, embezzled, or purloined; 
 the one moiety to be paid to the owner of the goods, and the other moiety to the in- 
 former and prosecutor, and be publicly whipped, not exceeding thirty-nine stripes. Act 
 30th April, 1790, sect. 16. I Peters' s St. at Large, 114. 
 
 By act 23d August, 1842, the punishment for the offences mentioned in the preceding 
 article, upon conviction thereof, shall be by fine not exceeding one thousand dollars, or 
 by imprisoninent not exceeding one year, or by both according to the nature and aggra-. 
 vation of the offence. 
 
 By the act of 28th February, 1839, the punishment of whipping and the pillory was 
 abolished. The offence of larceny is not punishable under this act, unless committed in 
 a place under tiie sole and exclusive jurisdiction of the United States; and, to bring the 
 case within the statute, there must be an averment of such sole and exclusive jurisdiction 
 in the indictment. U. S. v. Davis, 5 Mason''s C. C. R. 356. 
 
 Wiiere a larceny is committed in a place not under the sole and excliisiva.jurisdiction 
 of the United Stales, it may yet be punishable under tlic third section of the act of 1825, 
 ch. 276. Ibid. 
 
 Offences are punishable under that section according to the State laws where they are 
 committed, under circumstances or in places in which, before that act, no court of the 
 United States had authority to punish them. Ibid. 
 
 * The luggage of passengers, by steamboat, comes under the description of" goods," 
 witiiin this provision. Reg. v. Wright, 7 Car. S^- P. 159. 
 
 t Theft, on navigable rivers, to the value of 40s. was felony, without benefit of 
 clergy, by 24 Geo. II. c. 45. now repealed, by 7 iSf 8 Geo. IV. c. 27. 
 
 t It is immaterial that the intention with which he receives them is for the purpose 
 of concealment, and not for profit. R. v. Richardson, 6 Car. Sf P. 335. Rex v. Davis, 
 lb. 177.
 
 HISTORIA PLACITORUM CORONA. 516' 
 
 Larceny committed on board of an American ship in an enclosed dock in a foreign 
 port, is not punishable under the statute of 30th April, 1790, ch. 9, sect. 16. U. S. v. 
 Hamilton, 1 Mijson''s C. C. Rep. 152. 
 
 The feloniously stealing goods which had been cast away from a vessel wrecked at 
 Rockaway Beach, the goods when so taken having been above high-water mark in the 
 county oi Queen's, in the state of New York, was an offence under the 9tii section of the 
 act entitled, '• An act more effectually to provide for the punisiiment of certain crimes 
 against the United Slates," passed 3d March, 1825. U. S. v. Coombs, 12 Pelers^s R. 72. 
 
 Money, and bank-notes, and coin, are personal goods within the meaning of this sec- 
 tion respecting stealing and purloining on the high seas. U. S. v. Mouton, 5 Mason's 
 Rep. 537 ; see U. S. v. Davis, 5 Masojt's R. 356. 
 
 The taking, by the defendant, of an article delivered to him as a servant to remove 
 from one room to another, and converting the same to his own use, is larceny, and not 
 embezzlement. U. S. v. Clew, 4 Wash. C. C. R. 700. Lewer v. Com. 15 S. ^ R. 93. 
 
 If the finder of bank-notes convert them to his own use, with the full knowledge of 
 the owner, it is not larceny, but a civil injury. Porter v. Tennessee, Mart. S( Yerg. 226. 
 
 A bona fide finder of an article lost, as a trunk containing goods lost from a stage- 
 coach, and found on the highway, is not guilty of larceny by any subsequent act in 
 secreting or appropriating to his own use the article found. People v. Anderson, 14 
 Johns.. 294, Com. v. Snelling, 4 Binn. R. 379. 
 
 The finder of lost goods, is bound by the laws of Vermont to advertise them. If he 
 conceal or convert them, he is chargeable with larceny. State v. Jenkins, 2 Tyler, 379. 
 
 Larceny cannot be committed of goods and chattels found in the highway where there 
 are no marks by which the owner can be ascertained. Tyler v. People, Breese, 227. 
 
 One taking staves, though under a contract with the owner to have half for making 
 them, may be guilty of larceny. State v. Jones, 2 Dev. Sf Bat. 544. 
 
 If a person finds personal property on the highway, knowing, or having the means of 
 knowing the owner, and does not restore it, but converts it to his own use, such conver- 
 sion will constitute larceny. State v. Wetson, 9 Conn. Rep. 527. 
 
 Obtaining goods by a fraudulent purpose, the vender delivering them with an inten- 
 tion to part with the property in the goods, in no case constitutes a larceny. Mowrey v. 
 Walsh, 8 Cow. 238. 
 
 False pretences artd artifices in obtaining another's property by one entertaining a 
 felonious design, will constitute larceny, provided it does not appear that a temporary 
 trust or possession was extended to the party. Wilson v. State, 1 Port. 118. 
 
 A larceny may be committed of goods obtained from the ownej: by delivery if ob- 
 tained, onimo furandi. State v. Gorman, 2 iV. ^- M. 90. 
 
 It is constructive larceny in Pennsylvania to induce one by fraudulent means to part 
 with the property in goods; this description is confined to the possession of goods. 
 Lewer v. Commonwealth, \5 S. S^ R. 93. 
 
 Under an indictment for stealing a horse, the jury were charged that the question 
 was, tiie intention to steal at the time of the taking: an indictment as for obtaining 
 goods, &.C., under false pretences would not lie, it seems, unless there were a consent of 
 the owner to the taking. State v. Smith, 2 Tyler, 272. Id. 352. 
 
 Larceny may be committed on one's own property, where the intent is to charge an- 
 other with the value of it. Palmer v. People, 10 Wend. 165. The People v. Wiley, 
 3 Hill, R. 194. 
 
 Upon an indictment in Virginia for stealing a free mulatto boy, knowing at tlie time 
 that he was free, it was held, that the offence was complete under the statute, by kid- 
 napping without the actual sale: Held also, that the stealing a free negro with felonious 
 intent to appropriate him, was criminal, whether the person so stealing him knew him to 
 be free or not, and that an averment of knowledge in the indictment need not be proved, 
 but might be regarded as surplusage: Held also, that the consent of the boy, if given, 
 he being only of eight years of age, would not excuse the offence. DavenporVs case, 
 1 Leigh, 558. 
 
 A servant employed to drive the wagon of a common carrier cannot claim the exemp. 
 tion of his master in case of a fraudulent abstraction of goods entrusted to his care, which 
 would not amount to technical larceny in the master. Commonwealth v. Brown, 4 Mass. 580. 
 
 If a hostler in charge of a horse takes him away, animo furandi, it is a felony; if he 
 takes him only to use him, and then returns him again, it is a breach of trust. State v. 
 Self, 1 Boy, 212. 
 
 The act of South Carolina of March 5th, 1737, makes it larceny I9 steal a bank-note, 
 if it be proved to be a genuine bank-note. State v. Tillery, 1 N. S^M.^; State v. 
 Casados, ib, 91.
 
 SIG"* HISTORIA PLACITORUM CORONA. 
 
 The statute of Alabama, making " promissory notes" the subject of larceny, does not 
 include "bank-notes." An indictment, alleging the larceny of " bills of credit," is bad, 
 the State having no authority to issue sucii bills. Culp v. State, 1 Porter, R. 33. 
 
 An indictment will not lie for larceny of "bills of credit" on the United States' Bank 
 of amount less than such bank is authorized by its charter to issue. Jb. 33. 
 
 Invalid bonds, notes, &c. are not the subject of larceny. Wilson v. Stale, Jb. 118. 
 
 Money and bank-notes and coin are ■ personal goods within the meaning of the 
 16th section of the Crimes Act of 1790, c. 9, respecting stealing and purloining on the 
 high seas. 1 Peters's U. S. Stat, at Large, 114. U, States v. Moulton, 5 Mason, 537. 
 
 "Personal goods," under the act of Congress of 1790, c. 9, do not include choses 
 in action, the latter not being the subject of larceny at common law. U. States v. 
 Davis, 5 Mason, 356. 
 
 At common law a chose in action is not the subject of larceny. Culj) v. State, 
 1 Port. 33. 
 
 Doves, being animals /erce naturee, cannot be subjects of larceny, unless when irr the 
 custody of the owner, as in a dove-house. Commonwealth v. Chace, 9 Pick. 15. So of 
 bees. Wallis v. Mease, 3 Binn. R. 546. 
 
 A martin in a trap in the woods cannot be a subject of larceny while it remains in the 
 trap. Norton v. Ladd, 5 N. Hamp. R. 203. 
 
 A mere letter is not a subject of larceny, and taking it away is not a criminal offence. 
 Payne v. People, 6 Johns. 103. 
 
 An indictment lies for taking skins from an Indian camp in the absence of the In- 
 dians. Pennsylvania v. Becomh, Addis. 386. 
 
 Under the act of South Carolina of 1826, corn growing in a field is a subject of lar- 
 ceny although not previously severed from the soil. State v. Stephenson, 2 Bailey, 334. 
 
 Massachusetts. — For the statutes, see Mass. Rev. Stat. ch. 126. §§ 11. 12. 13. 14. 15. 16. 
 17. 18. 19. Ed. 1836. Sapp. to Rev Stat. c. 31. p. 112. ed. 1839. Where several pack- 
 ages of goods were delivered to a common carrier, to be transported in a body, an ab-. 
 straction of one entire package, constitutes a taking in the sense of larceny. Com. v. 
 Brown, 4 Mass. R.580. Dame v. Baldwin, 8 Jd. 518. So where a miller having received 
 barilla to grind, fraudulently retained part of it, returning a mi.xture of barilla and plas- 
 ter of Paris, it was held to be larceny. Com. v. James, 1 Pick. R. 375, So articles of 
 clothing on a dead body, cast ashore firom a wrecked vessel, are the subjects of larceny. 
 Morison v. Sayward, 13 Jd. 402. 
 
 A person stealing goods in one State and bringing them into another, may be indicted 
 in the latter for the larceny. Com. v. Culling, 1 Mass. R. 116. Com. v. Andrews, 2 Jd. 
 14. So also in JV. Y. see post. So also in Connecticut, Rex v. Peat, Root's R. 69. The 
 State v., Ellis, 3 Conn. R. 185. So in Vermont, The State v. Bartlett, 11 Ver7n, R. 650. 
 So in Ohio, The State v. Hamilton, 11 Ohio R. 351. Vide U. S. v. Davis, 5 Mason, 256.. 
 Sed aliter in N. C. The State v. Brown, 1 Hayes, 160. See also Siminons v. Co7n. 5 Binn. 
 R. 617, where the subject is much discussed. The State v. Knight, 1 Tdyl. R. 65. The 
 People v. Gardner, 2 Johns. R. 477. The People v. Schenk, Id. 479. This question is 
 still open to much difficulty. , In some States it has been settled by legislation. See post, 
 p. 516". 
 
 So also, may the receiver of such stolen goods, be indicted in the latter State for re- 
 ceiving them. And one aiding and abetting in a larceny in one county, and afterwards 
 concerned in the possession and disposal of the stolen property, in another county, though 
 the goods were removed to the latter county, without his agency or consent, may be 
 convicted of larceny in this latter county. Com. v. Dewitt, 10 Mass. R. 154. 
 
 The offence of breaking and entering ''a house not occupied as a dwelling house," in 
 the night time, and stealing therein property of less value than $100, is only a simple 
 larceny, and therefore to be punished with a niaxinmm of one year's imprisonment in 
 the State prison. Wilde v. The Com. 2 Mete. 408. So of .stealing in a dwelling house, 
 shop, &c. in the night time: though by ihc Rev. Slat, the same offence, if committed in 
 the day time, is made an nggraviilcd larceny. Com. \. Tuck, 20 Pick. R. 356. Hopkins 
 V. Com. 3 Mete. 460. Divoe v. Com. Jd. 316. Evans v. Com. 3 Id. 453. An indictment 
 for stealing in a dwelling house, shop, S(c. in the day time, property of less value than 
 $100, must contain the averment of day lime, or it will only be good as an indictment for 
 a simple larceny. Haggett v. Com. 3 Mete. 357. Hopkins v. Com. Id. 460.* 
 
 * It has been held in some cases, that when the thing stolen is not there in the usual 
 course, and is not such as is ordinarily kept there, stealing it, is not larceny, " in a dwelling
 
 HISTORIA PLACITORUM CORONA. 516" 
 
 In an indictment for hrccny, the articles alleged to be stolen, must be averred to be 
 *' of the goods and chattels," of the right owner, if known; or of the goods and chattels 
 of some person unknown. Corn. v. Morse, 14 Mass. R. 217, 218. Com, v. Manley, 12 
 Pick. if. 173, 
 
 On an indictment for larceny, if value is alleged of part of the articles stolen, and none 
 of the remainder, though charged to consist of coin, jiidsrment will be arrested as to that 
 part to which no value is ascribed. Com. v. Smith, 1 Mass. R. 245. 
 
 A count in an indictment, charging that t(ie defendant broke and entered a shop, with 
 intent to commit a larceny, and did then and there commit a larceny, is not bad for du- 
 plicity. Com. V. Tuck, 20 Fick. R. 356. 
 
 The same, of a charge of breaking and entering a dwelling-house, and committing a 
 larceny. Com. v. Hope, 22 Pick. R. 1. 
 
 An indictment for larceny, charging the goods stolen to be the property of yl. is not 
 supported by evidence that they were the property of ^. Sf B. who were partners. Com. 
 V. Trimmer, 1 Muss. jR. 476. 
 
 On a charge of shop breaking and larceny, possession of part of the stolen goods is 
 prima facie evidence, both of the larceny of the whole property stolen, and of the break- 
 ing and entering. Com. v. Millard, 1 Mass. R. 6. 
 
 The word " fo4^i7Za" is good in an indictment, as a. denomination of a subject of lar- 
 ceny. Com. v. Jones, 1 Pick. R. 375. 
 
 Under the siat. of 1784, c. 66. § 1. providing against the stealing of "any note or cer- 
 tificate of any bank, or any public office, securing the payment of money to any person, 
 or certifying that the same is due," an indictment was held sufficient which charged the 
 defendant with stealing a " bank note" of a certain value, without a more particular de- 
 scription of the note. Com. v. Richards, 1 Mass. R. 337. 
 
 An indictment under the same siat. c. 66. § 8. for breaking a "store" is not sufficient, 
 although the words of the stat. are, " warehouse, shop, or other building whatsoever," 
 unless it aver that the store is a building. Com. v. M'Monagle, 1 Mass.R. 517. Sed oliler, 
 under stat, 1804. c. 143. § 6. which contains the word store. Com. v. Lindsey, 10 Mass. 
 if, 153. 
 
 In an indictment for breaking and entering an office in the night time, under the last 
 mentioned stnt. c. 143. § 4, it is not necessary to aver that the office is " not adjoining 
 to, or occupied with a dwelling-house." Devoe v. Com. 3 Mete, R. 316. Evans v. Com. 
 Id, 453. fhillips v. Cmi. Id. 588, Sed vide also Com. v. Tack, 20 fick. R. 356. 
 
 Stealing in the night time, in any dwelling-house, &c., was not provided for in the 
 Rev, Statutes. (See Com. v. Tuck, cit. sup. and Hopkins v. Com. 3 Mete. R. 460.) but 
 this omission was supplied by the act of Feb, 18, 1843. See Tally v. Com. 4 Mete. 
 R. 357. 
 
 New York.— The statutes of New York will be found in 2 Rev. Stat. 679. §^ G3, 64, 
 65. 2 Id. 690, §§ 1, 66, 67, 68, 69, 70. 
 
 When the personal pro))erty of one is through inadvertence left in the possession of 
 another, and the latter animo furandi conceals it, he is guilty of larceny; knowing it to 
 be the property of another, his possession will not protect Jiim from the cliarge of felony. 
 The People v. McGarren, 17 Wend. R. 460. The People v. Cogdcll, 1 Hill R. 94. 
 
 To constitute larceny tiie possession of the property must be acquired animo furandi. 
 The People v. Anderson, 14 Johns. R, 294. 
 
 A mere intention existing afterward to convert the property, will not constitute the 
 offence of larceny. Id. 
 
 One who obtains the bailment of goods fraudulently, intending to deprive the owner of 
 his property, may be convicted of larceny under an indictment alleging that he felo- 
 
 house," &c., as linen left in a shop to be sent to a seamstress; Anony. 8 Mod. 165; or to 
 a laundress. 2 EasVs P. C. 642 ; or a watch left at a watchmaker's shop to be repaired; 
 Stone's case, I Leach, C. C. 334 ; 2 EasVs P. C. 643. & C; or a coachman's coat hung 
 up in a stable, that not being the usual place of keeping it; Sea's case, 1 Leach, C. C. 304; 
 2 East, I'. C. 643. .S. C ; or uncurrent money on board of a ship in port; Grimes's case, 
 2 East's P. C. 647; Foster, 78, 79; but such a construction seems to be inconsistent 
 with the plain meaning of the law, and the reason of the exception is not very apparent. 
 Where the thing stolen was left in a house by mistake, and was such as miglit in the 
 ordinary course, be in the house, the stealing of it from the house was held to be larceny 
 in a dwelling house, within the construction of the statute against such-larceny. Car- 
 roll's case, Mood. Cus. 89; Mass. Com. Rep. 25.(«)
 
 516° HISTORIA PLACITORUM CORONA. 
 
 niously stole, took, and carried away the property, &c. Cary v. Hefterling, 1 HilVs 
 iJ. 311. 
 
 In tiie prosecution of an indictment for a larceny, if the crime be established in respect 
 to a single article, though tlie indictment describe several, the defendant may be con- 
 victed. 3 HiWs R. 194. 
 
 A trial and acquittal for robbery is a bar to an indictment for larceny where the 
 property alleged to have been taken is the same. The People v. McGowan, 17 Wend. 
 R. 386. 
 
 The rule in such case is, that if the former indictment might have been sustained by 
 proof which would be sufficient to sustain the second indictment, n. prima facie case is 
 made out for the prisoner by the production of the record of acquittal, and without fur- 
 ther proof on the part of the prosecution, he is entitled to be discharged. Id. 
 
 On the trial of an indictment for stealing foreign bank bills, it is incumbent on the 
 prosecutor to produce at least prima facie evidence of the existence of such banks and of 
 the genuineness of the bills. The People v. Caryl, 12 Wend. R. SAl. ■=^ 
 
 As to the bills themselves, it is not necessary to prove by positive testimony that the', 
 names subscribed to them are in the handwriting of the officers of such^banks ; but it^ 
 should at least be proved by a witness familiar with the bills, that he believed them to be 
 genuine. M. ^ 
 
 By the Rev. Stat. 2 Rev. St. 698, § 4, it is enacted that every person who shall felo- 
 niously steal the property of another in any other state or county, and shall bring the 
 same into this state, may be convicted and punished in the same manner as if such lar- 
 ceny had been committed in this State; and in every such case such larceny may be 
 charged to have been committed in any town or city into or through which such stolen 
 property shall have been brought. See The People v. Burke, 1 1 Wend. R. 129. The 
 People V.' Gardner, 2 Johns. R. 477, and the remarks of the Ch. Just, on this latter case 
 in The People v. Burke. 
 
 The principle established by the N. Y. Stat, was applied without the intervention of a 
 statute in Com. v. Culling,! Mass. R. 116, and Com. \. Andrews, 2 Id.l'i. See this note, 
 p. 516". 
 
 The true construction of the Stat. Sess. 42. ch. 246, § 4. providing that every person 
 "wlio shall be a second time convicted of petit larceny shall be adjudged to imprisonment 
 in the State prison, is that the second offence must be committed after a conviction for 
 the first, in order to warrant an enhanced penalty. It is not enough that there be two 
 successive petit larcenies by the same person which are severally and successively prose- 
 cuted to conviction ; though the second indictment charge the first conviction as a part 
 of the crime. The People v. Butler, 3 Cow. R. 347. 
 
 An indictment for petit larceny, charging it as a second offence, is good, though in 
 respect to the first offence, it merely alleges that the defendant was convicted, &c. with- 
 out averring in terms a judgment or sentence, and though it does not specify the pro|)erly 
 to which the first offence is related, or the person from whom it was stolen: aliter, if the 
 indictment omits to aver that the defendant had been pardoned, or otherwise discharged 
 from the first conviction, before the commission of the second offence. Stevens v. The 
 People, 1 Hill's R. 261. 
 
 New .Tersev. — For the statute, see Elm. Dig. 107, 108. 
 
 If one takes the goods of another out of the place where they were put, though he is 
 detected before they are actually carried away, the larceny is complete. • The State V; 
 Wilson, Coze R. 439. 
 
 A prisoner cannot be tried by two justices of the peace on a charge for larceny, 
 "without an accusation in writing." See Elm. Dig. 107, § 32. See Statutes of the Slate 
 of N. J. revised in 1847, tit. VIII. Crimes and Punishments,/). 256. 
 
 Pennsylvania. — The SUdutcs of Pennsylvania wiU be found in the Act of April 5, 
 1790, sect. 3. 2 Smith's L. .^Sl. Stroud's Purdon, 956. 6th ed. Id. 1051. 7th ed. sects. 
 4, 5. 9. Act of 21 March, IBOG. 4 Smith's L. 334. Stroud's Purd. 958, sects I, 2. Act 
 of 30 January, 1810. 5 Smith's L. 81. Stroud's Purd. 958. 6th ed. 1054. 7th ed. as to 
 bank notes amended by Act of 10 March, 1817, sect. 1. 6 Smith's Zi.412. Stroud's Purd, 
 959, 6th ed. 1055, 7ih ed. The Act of 29 April, 1844, sect. 2. Pamph. L. 513, enacts 
 that in all cases where taxes are assessed and paid on dogs in Philadelphia and Alle- 
 gheny counUcs, the said dogs shall be considered as personal property. 
 
 If the owner.of goods part with the possession, for a particular purpose, and the person 
 wlio receives the possession avowedly for that purpose, has a fraudulent intention to
 
 HISTORIA PLACITORUM CORONiE. 516? 
 
 make use of the possession, as the means of converting the goods to his own use, and 
 does so convert them, it is larceny. But if the owner intends to part with the property, 
 and delivers possession absolutely, and the purchaser receives the goods for the purpose 
 of doing with them what he please, it is not larceny, although fraudulent means may 
 have been used to induce him to part with them. Lewer v. Com. 15 S. ^ R. 93. 97. 
 
 Taking is a material part of larceny, but it may be presumed from the possession of 
 the property. I'enn v. Myers, Add. R. 320. Id. v. Becomb, id. 386. 
 
 At common law, larceny cannot be committed of a dog. Nor does the 4th sect, of the 
 act of April, 1790, extend the crime beyond its ancient limits. Findley v. Bean, 
 8S. Sf R.51L But see the local act of April 29, 1844, § 2, sup. 
 
 Under the act of April 5th, 1790, an indictment for stealing bank notes must lay 
 them as promissory notes for the payment of money, and therefore an indictment for 
 stealing a "ten dollar note of the President, Directors and Company of the Bank of the 
 United States," is bad. Com. v. Boyer, 1 Binn. R. 201, 
 
 Under the Act of 1810, an indictment for stealing bank notes must aver in general 
 that they were issued by a bank incorporated by law, or name the bank, and aver tliat it 
 was incorporated; or show in some sufficient manner that the notes were lawful, and 
 therefore an indictment charging the defendant with stealing bank notes generally, 
 describing them as " promissory notes for the payment of money," is bad, Spangler v. 
 Com. 3 Binn. R. 533. 
 
 Under the act of Assembly of 1817, however, it is not necessary to state that the 
 bank was duly incorporated. McLaushlin v. Com. 4. Raw. R. 464. 
 
 An indictment for stealing three promissory notes for the payment of money, com- 
 monly called bank-notes, " on the Bank of the United States" was held to be good. 
 Id. 464. 
 
 An indictment for stealing "a bank-note of the Bank of Baltimore," without describ- 
 ing it a-s a promissory note for the payment of money, was held bad under the act of 
 1790. Com. v. McDowell, 1 Browne, R. 360. 
 
 County orders are not bills of exchange, and are not enumerated in the act of 
 5ih April, 1790. When a statute creates a felony, to authorize a judgtoent on con- 
 viction, the indictment must conclude contra formam statuti. Warner v. Com. 1 Barr. 
 R. 154. 
 
 ViRGiNTA.— For the statutes see Rev. Code, c, 171, §. 6; Supp. to R. C. 295. 308; 
 Rev. Code, ch. 152, §. 1; Rev. Code, ch. 154, §. 8: Rev. Code,ch. 160, §. 7. 
 
 A prosecution may be maintained under the Virginia act of 1806 for stealing a 
 bank-note of any other State. Cummings v. Commonwealth, 2 Virg. Cos. 128. 
 
 The Virginia act of 1806, which made it felony to steal any " bank-note," embraced 
 any available chose in action bearing that name; nor is the meaning of the term 
 restricted by the 8th section of the act of 1819. Pomeroy v. Commonwealth, lb. ^42. 
 
 In the construction of this act of 1806 it has been held, that a general description of 
 a bank-note, as one for a specified sum and current within the United States, without 
 mentioning the name of the bank by ^Evhich it was issued, is sufficient in an indictment 
 for the larceny thereof. Id. 128. 
 
 On a prosecution for larceny of bank-notes it is not indispensably necessary to pro- 
 duce them on the trial. Moore v. The Com. 2 Leigh, R.liil. 
 
 No other possession of bank-notes, &c , mentioned in this act, is necessary to render 
 them the subject of larceny than is required in the case of goods : and if the ex- 
 pression, " from the possession" means an actual possession, it can only apply to taking 
 by robbery. Angel v. The Com. 2 Virg.^ CaseSy 228. 
 
 I
 
 617 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER XLIV. 
 
 CONCERNING THE DIVERSITIES OF GRAND LANCINIES AMONG THEM- 
 SELVES IN RELATION TO CLERGY.[1] 
 
 Altho the punishment of all grand larciny by the law is death, («) 
 yet ill relation to clergy, which is a kind of relaxation of the severity 
 of the judgment of the law, there is difference made by acts of par- 
 liament between some larcinies and others. 
 
 By the antient privilege of the clergy, and by the confirmation and 
 
 (a) In aniient times it was in some eases punislied wiih the loss of a thumb, in others 
 wiih pillory, and the loss of an ear. Corone 434. Britt. 24. b. 
 
 [1] This has now become a title of curiosity only, the Stat. 7 & 8 Geo. IV. c. 28, 
 having enacted by Sect. 6, that benefit of clergy with respect to persons conticled of 
 felony shall be abolished : and by Sect. 7, tliat no person convicted of felony shall suffer 
 deatl), unless for some felony which was excluded trom the benefit of clerg-y before or on 
 the first day of the then session of Parliament, {Feb. 8, 1827,) or which should be made 
 punishable with death by some statute passed after that day. ( 
 
 This benefit of clergy constituted in former times so remarkable a feature in crimi- 
 nal law, and a general acquaintance with its nature is still so important for the illus- 
 tration of the books, that it may be desirable to subjoin farther notice on the subject. 
 It originally consisted in the privilege allowed to a clerk in orders, when prosecuted in 
 the- temporal court, of being discharged from thence and handed over lo the court 
 Christian, in order to make canonical purgation, that is, to clear himself on his own 
 oath, and that of other persons as his compurgators, {vide jRectics's Hist. Eng. L. vol. 2, 
 pp. 14, 134 ; 25 Edw. III. st. 3, 4,) a privilege founded, as it is said, upon the text of 
 Scripture, "Touch not mine anointed, and do my prophets no harm." In England 
 this was extended by degrees to all who could read, and so were capable of becoming 
 clerks. {Reeves nbi supra et vol. 4, p. 156.) But by 4 Hen. VII. c. 13, it was provided, 
 that laymen allowed their clergy should be burned in ihe'hand, and should claim it only 
 once; and as to the clergy, it became the practice in cases of heinous and notorious 
 guilt, to hand them over to the ordinary, absque purgntione facicnda, the effect of 
 wliich was, that they were imprisoned for life. 4 Bl. Com. 369. Afierwards, by 
 18 Eliz.c. 7, the delivering over to the ordinary was abolished altogether, but imprison- 
 ment was authorized in addition to burning in the hand. By 5 Ann. c. 6, the benefit of 
 clergy was allowed to those entitled to ask it, without reference lo their ability to read. 
 By 4 Geo. I. c. 11; 6 Geo. I. c. 23, and 19 Geo. III. c. 74, the punishment of trans- 
 portation was authorized in certain cases, in lieu of burning in the Jiand; and by the 
 act last mentioned the court might impose, instead of burning in the hand, a pecuniary' 
 fine, or (except in manslaughter) order the offender to be whipped. As to the naiure of 
 the offences to which the benefit of clergy applied, it had no application except in capital 
 felonies, and from the more atrocious of these it had been taken away by various sta- 
 tutes prior to its late abolition by 7 & 8 Geo. IV. c. 28, s. 6. As the law stood at the 
 time of- that abolition, chirks in order were, by force of the benefit of clergy, discharged 
 in, clergyable felonies without any corporal punishment whatever, and as often as they 
 ofiended, and the only penalty being a forfeiture of their goods; and the case was the 
 same with peers and peeresses, (as to whom see 4 & 5 Vict. c. 22,) but they could claim 
 it only for the first ofl'cnce. As to commoners also, they could have benefit of clergy 
 only for the first offence, and they were discharged by it from the capital punishment 
 only, being subject on the otlier hand, not only to forleilure of goods, but to burning in 
 the hand, whipj)ing, fine, irnprisoiiinent, or in certain cases transportation in lieu of the 
 capital sentence. 4 Bl. Corn. p. 371 ; 4 Sleph, Com. 436.
 
 HISTORIA PLACITORUM CORONA.. 517 
 
 special concession of the statute of 25 E. 3. cap. 4, the benefit of 
 clergy was to be allowed in all treasons and felonies touching other 
 persons than the king himself and his royal nnajesty. 
 
 Therefore as well in grand larciny, as in other felonies, clergy is 
 to be allowd, where it is not taken away by some subsequent act of 
 parliament. 
 
 And in all thdse cases, wherein it is so taken away, the indict- 
 ment of such larciny or other felony must bring the case within 
 the particular provision of those statutes, which in such cases takes 
 away clergy, otherwise it is to be allowd, tho upon the evidence it 
 may fall out, that the truth of the fact appears to be such, as is 
 within the special provision of those 'statutes, that so take away 
 clergy. 
 
 The statutes therefore, that take away clergy in some particular 
 larcinies, are these that follow: 
 
 I. By the statute of 23 H. 8. cap. 1. "All persons found guilty 
 of robbing any church or chapel, or other holy places, or of robbing 
 any person in his dwelling-house, the owner or dweller of the same 
 house, his wife, children or servants then being within, and put in 
 fear and dread by the same, or for robbing any person in 
 or near the highway, and those, that are found guilty of [518] 
 abetting, procuring, helping, or counselling thereof, are ex- 
 empt from the benefit of clergy, except such as are in the order of 
 sub-deacon." 
 
 But upon this statute, tho there must be a stealing of goods, there 
 need not be an actual breaking, (6) for the stealing in the house, and 
 putting the dweller, his wife or servants in fear, is robbery. 
 
 This statute extended only to a conviction by verdict or con- 
 fession, but the statute of 25 H. 8. cap. 3. extended it to a standing 
 mute, or challenging of above the number of twenty, or not directly 
 answering, and also in case of an arraignment of a prisoner for a 
 felony by bringing the goods he stole into one county, where he 
 had first stolen the goods in a foreign county, in one of those man^ 
 ners mentiond in the statute of 23 H. S. it gave power to the jus- 
 tices, upon examination of the fact, to put the prisoner from his 
 clergy, but herein these things are observable: 1. It did not give 
 power of examination, where the prisoner confessed the felony, but 
 where he put himself upon his trial. 2. These examinations need 
 rot be recorded. 3. It did not extend only to those cases, where 
 the prisoner was to be ousted of his clergy hy force of the statute 
 of 23 //. 8. and not to other cases, where he was to be ousted of 
 his clergy by any subsequent statute, and therefore upon a robbery 
 in a dwelling-house, where the owner, liis wife or servants were 
 within, and not put in fear, he could not be ousted of his clergy by 
 
 (6) In the case of robbing a church there must be an actual breaking to bring it 
 within this statute; but by 1 E. 6. cap. 12. it is not necissary, for by that statute all 
 felonious taking of goods out of churcli or chapel is ousted of cleigy in all cases, 
 except that of cliallenging above twenty, which defect is supplied by 3 & -^ W. S^ 31. 
 cap. 9.
 
 518 HISTORTA PLACITORUM CORONiE. 
 
 examination in a foreign county upon the statute of 25 H. 8. Anders. 
 Sep. n. 158. p. 114. Co. P. C. cap. 52. p. 115. 
 
 And therefore it was ruled in one Calebs case, a woman broke a 
 dwelUng-house in Kent in the day-time, none being there, and took 
 away goods above the value of five shillings, and under the value 
 of ten shillings, and carried the goods into Sussex, where 
 [[ 519 ] she was indicted of larciny, and upon exarhination it ap- 
 peard she had broke the house, and took the goods ui 
 supra, being above five shillings and under ten shillings, and the 
 jury found accordingly, and she was burnt in the hand, and dis- 
 charged, for a man in such a case should have had his clergy in the 
 county of Sussex, because tho the statute of 39 Eliz. cap. 15. take 
 away clergy in the proper county, yet the statute of 25 H. 8. as to 
 examination and taking away clergy in a foreign county extends 
 only to felonies put out of clergy by 23 ZT. 8. or 5 <§' 6 E. 6. cap. 10. 
 coram domino Bridgman in Sussex ex libra suo. 
 
 Again, the statutes of 23 H. 8. and 25 H. 8. did put accessaries 
 before in such cases from the benefit of their clergy, as well as the 
 principals, but as to that they are repeald by 1 E. 6. cap. 12. 
 
 But by the statute of 1 E. 6. cop. 12. tho the statute of 23 H. 8. 
 be re-enacted as to the principals in the cases before mentioned, and 
 also in cases of breaking houses to the intent to steal, (any person 
 being therein, and put in fear) if convict by verdict or confession, ot 
 standing mute, and not directly answering, yet it hath this general 
 clause, and iii all other cases offenders shall have benefit of their 
 clergy, and therefore by this act these changes were wrought. 
 
 1. In the cases, where clergy was excluded by this act, there is no 
 saving for persons in holy orders. 
 
 2. It repeald the statute of 25 H. 8. cap. 3. as to examination in 
 a foreign county, and for that reason the statute of 5 Ǥ' 6 E. 6. cap. 
 10. was made, whereby that statute was revived, and stands now in 
 force in every article thereof. 
 
 3. It restored clergy to accessaries before in all those cases, 
 wherein they were ousted of clergy by 23 Sf- 25 H. 8, and therefj[>re 
 the statute of 4 4' 5 Ph. Sf M. cap. 4. was made, whereby acces- 
 saries before in murder, or robbery in any dwelling-house, or in 
 or near the iiighways, are ousted of clergy upon conviction, out-, 
 lawry, standing mute, or challenging above twenty, or not directly 
 answering. 
 
 So that the statutes of 23 and 25 H. 8. stand at this day in force 
 with this addition, that persons in holy orders stand equally 
 r 5201 exempt from the benefit of clergy with others by the statute 
 of 1 E. 6. as to cases within that statute. 
 
 But if only a stranger were in the house, and neither the owner, 
 his wife, children or servants, this gives no discharge of clergy by the 
 statute of 23 // 8. and therefore there was provision in that case by 
 the ensuing statute. 
 
 II. But the statute of 1 E. 6. cap. 12. breaking of any house by- 
 night or by day, any person being in the house or put in fear, if it
 
 HISTORIA PLACITORUM CORONA. 520 
 
 were with an intent to steal, tiio nothing he stolen, a principal was 
 excluded from clergy in all cases, except outlawry and- challenging 
 above twenty. 
 
 And also in a foreign county, yet if upon examination it be so 
 found, he is ousted of clergy by the statute of 5 <§• 6 E. 6. cap. 10. 
 but the accessary before or after is not ousted of clergy by this 
 statute. 
 
 Ill, By the statute of 5 4' 6 E. 6. cap. 9. " If any person be found 
 guilty according to the laws of. the land for robbing any person or 
 persons in his or their dweUing houses, or dwelling-places, the owner 
 or dweller, his wife, children or servants being within the same 
 house or place, or in any place within the precincts thereof, such 
 offender shall not be admitted to clergy, whether the owner or 
 dweller, his wife or children, then or there being, shall be waking or 
 sieeping. 
 
 ." And also he, that robs any person in any booth or tent, in any 
 fair or market, his wife, children, or servant then being within the 
 booth or tent, shall be excluded from clergy. 
 
 This statute is of force, and of great and daily use, and therefore it 
 will be convenient to make some observations upon it. 
 
 Upon this statute tliese things are observable: 
 
 1. That it extends not to oust clergy in any case but upon con- 
 viction of the offender, either by verdict or confession, for a man 
 that confesseth is found guilty by his confession, but it extends 
 not to standing mute, challenging above twenty, or not directly 
 answering.(c) 
 
 And therefore it is considerable, whether, if a man be 
 attaint by outlawry, he may not be admitted to his clergy [521 ^ 
 as a clerk attaint, which, tho it avoids not the attainder, yet . 
 it may take off the execution, for clergy is allowable to a person 
 attaint, if the case be within clergy, Crompf. Jurisdic. of Courts, 
 126. b.(d) Dy. 205. a. b. and it is held, outlawry upon this statute 
 excludes not clergy. 11 Co. Rep. 29. b. Pouller^s case. 
 
 2. That yet by the statute of 4 <§• 5 P. cS* M. cap. 4, clergy is taken 
 away in this case from the accessary before, as well as in case of 
 standing mute and challenging above twenty, or not directly answer- 
 ing, for the statute of 4 <§• 5 P. 4' M. extends to accessaries before in 
 all cases of robbing in dwelling-houses, as well those within this 
 statute, as those upon the statute of 23 H. S. 
 
 8. It hath been held by good opinion, that this statute extends 
 only to him that actually enters the house and steals there, and that 
 therefore \{ ^. B. and C. come to a house in the day-time with an 
 intent to enter, and steal goods, and that ,./i. only breaks and enters 
 the house, and takes the goods, that J2. only shall be excluded of his 
 clergy, and B. and C. that were aiding and assisting should have 
 
 (c) But by 3 ^ 4 W. Sf M. cap. 9. it extends to all these cases, as also to the case of an 
 outlawry. 
 
 (d) Crompt. Justice 110, b.
 
 621 HISTORIA PLACITORUM CORONA. 
 
 their clergy: this was the opinion of divers jtidges at a meeting in 
 Serjeanis-In?i 30 Novemb. 1664. wiio grounded themselves princi- 
 pally upon Jiudley''s case,(^) upon the statute of 39 Eliz. hereafter 
 cited, but I think they are all to be excluded of their clergy upon 
 this statute of 5 c^' 6 E, G. and there cannot be .a stronger authority 
 in it, than the judgment of parUament in the statute of 4 (§• 5 F. ($' M. 
 cap. 4. whereby it is enacted, " That if any person shall maliciously 
 command, hire, or counsel any person to commit any robbery in any 
 dwelhng-house, he shall be excluded of clergy. 
 
 And, certainly he, that is present, aiding, and abetting, is more 
 than an-accessary hefore.,\iw\. then perchance the indictment must not 
 run generally, t^;a5/?re*e/z/, aiding, and abei ting, hut that B. andO. 
 did maliciously command, hire, or counsel A. to commit the fact, 
 l)y. 1S3. 6. 11 Co. Rep. 37. a P ou I ter^s case; tho, in my own 
 £ 522 2 opinion, the words maliciously present, aiding,and abetting, 
 do countervail the former, and much more, and it cannot be 
 -intended, that the statute meant to take away clergy from those that 
 maliciously counsel or command, which at most makes but an acces- 
 sary, and yet that he that is present and abetting, shall have his 
 clergy. 
 
 But, in my opinion, all may be indicted, quod fregerunt &(• intra- 
 verunt, 8fc. as in case of burglary or robbery, and it dift'ers from the 
 statute of 39 Eliz. and the rather, because the statute of 4 4' 5 P. S; 
 M. extends not to offenses made after by 39 Eliz. 
 
 4. This statute extends not to breaking of the house with an intent 
 to rob it, but there must be an actual robbing, or taking away goods. 
 
 5. The robbing by day or night is within this statute. 
 
 6. The dweller, his wife, children or servants must be within the 
 precinct of the house sleeping or waking, but it is not necessary they 
 should be put in fear, neither is it necessary they should be in the 
 same room where the robbery is done. 
 
 7. But it is not enough, that a stranger be in the house, unless the 
 owner, his wife, children, servants or some of them be in the house 
 at the time also, tho it be enough upon the statute of 1 E. 6. cap. 12. 
 ~ S. There must be not only an actual stealing of some goods in the 
 house, but an actual breaking of the house, for the statute speaks o-f 
 robbing, which imports more than a bare taking of goods. 
 
 t^ug. 14 Car. 1. Thomas Williams, Thomas Bates, and Richard 
 Harper having broken the lodgings of Sir PI. Hungate at Whitehall, 
 and taken thence several goods of Sir H. Hungate, Croke and 
 Crowley were advised with, to pen the indictment, who agreed these 
 points; 1. It must be laid for breaking tho king's mansion-house 
 called Whitehall,{f) and stealing the goods of Sir H. Hungate, for 
 all the lodgings in Whitehall were part of the king's house, and 
 ditfer'd from an inn of court, where each chamber is a seve- 
 [ 5233 '■''^1 mansion-house, because every one hatha several interest 
 in his ciiamber. 2. That upon the statute of 5 <5* 6 E. 6. 
 the indictment need only be, that he broke the king's house called 
 
 (e) Cro. Car. 473. by the name of Evans. (/) Sec Kel. 27.
 
 HISTORIA PLACITORUM CORONA. 523 
 
 Whitehall, and stole the goods of Sir //. Hitngaie, (\ivers of the 
 king's servants then being in the house, without saying, that any- 
 body was put in fear (which was necessary by the statute of 23 H. 
 8.) but merely upon the statute of 5 <§' 6 E. 6. and accordingly tl^e 
 indictment was drawn. 3. That upon an indictment uj)on 23 //. 8. 
 or upon 5 E. 6, there must be an actual brealung of the house, and 
 also a robbery or stealing of some thing. 
 
 4. That if a thief come into the house, the doors being open, and 
 then breaks open a chamber-door, and steals goods from thence, this 
 ig a breaking of the house within those statutes, and accordingly at 
 the gaol-delivery at the Old Bailey, 29 ^t/g. 14 Car. 1. those two 
 justices being present, they were indicted, and Harper being fled,tlie 
 other two were found gnilty; Williams was reprieved before judg- 
 ment, but Bates was executed, ex libro Twisclen. 
 
 Upon this latter resolution it seems, that Bayne^s case in Pop- 
 ham^s Rep. 36 4' 37 Eliz. n. 10 was somewhat too severe(^), where 
 one came into a tavern to drink, and stole a cup that was brought 
 them to drink in, the owner and his servants being in the house, and 
 upon this lie was ousted of his clergy upon tlie statute of 5 8,' 6 E. 6. 
 which case was doubted by the justices upon a meeting among them 
 Novemb. 1664. but it was then agreed, if two come into a tavern to 
 drink, the door being open, and divers of the family being in the 
 house, and one goes up stairs and breaks a chamber-door, and steals 
 goods, and both depart before the felony be discovered ; resolved by 
 us all, that clergy is taken away from him that breaks open the door, 
 if he be indicted upon the statute of 5 E. 6. but not from the other, 
 for the breaking of the door was an act of violence, and so the break- 
 ing of a counter or chest •,(A) for a chest vide postea. 
 
 But tho the breaking of the door, or perchance of a counter, may 
 be such an act, as may make it a robbery within the statute of 5 E. 6. 
 yea, and altho in that case before-mentioned, and in a case 
 upon a special verdict out of Cambridgeshire before-men- [[524'] 
 tioned, it was held the breaking of a chest was all one as to 
 this purpose with the breaking of a door, tho the chest were not fixed 
 to the freehold, quod videa ante cap. 43. yet I must needs say, that 
 the course at Newgate hath been always since my time, that the 
 breaking open of a chamber-door, and of -a counter or cupboard fixed 
 to the freehold, hath brought it within the statute of 5 E. 6. to oust 
 of clergy; yet when a party enters the doors open, and breaks up 
 only a chest or trunk, and steals thence goods, that is not such a rob- 
 bery, as is within the statute of 5 E. 6. to oust of clergy, and so was 
 the difference agreed at Newgate 1671. upon the robbery of the cook 
 o( Serjeants-inn in Fleet-street, by certain persons that came in to 
 eat, and slipt up stairs, and picked open a chamber-door, and broke 
 open a chest, and stole plate of good value: it was agreed, that the 
 picking open the lock of the chamber-door brought it within the 
 statute to oust clergy, but the breaking open of a chest or trunk only 
 
 ig) This case denied to be law, Kel. 68. (A) See Kel. 69.
 
 524 HISTORIA PLACITORUM CORONA. 
 
 would not oust clergy upon the statute of 5 E. 6. or 39 Eliz. and so 
 by Zee secondary was the constant course at Newgate in his time. 
 
 As to robbery in booths or tents in fairs and markets, within the 
 5 E. 6. cap. 12. H. A\ Eliz. B. R. the robbing of a shop in West- 
 minsieK-hall was ruled not to be within this statute to be ousted of 
 clergy. 
 
 If a servant opens a chamber-door in his master's house, and stesiis 
 goods, Sir N. Hyde, wiio was severe enough in cases criminal, 
 doubted whether this were within this statute to oust him of his 
 clergy: vide infra. 
 
 IV. The next statute relating to this matter of robbing in houses 
 is 39 Eliz. cap. 15. which recites, that the penalty of robbing of 
 houses in the day-time, no persons being in the house at the time of 
 the robbery committed, is not so penal as robbery in any house, any 
 person being therein at the time of the robbery committed, which 
 hath emboldened persons to commit heinous robberies in breaking 
 and entering persons houses, none being in the same, and enacts, 
 " That if any person shall be found guilty by verdict, con- 
 []525]] fession, or otherwise for the felonious taking away in the 
 day-time of money, goods, or chattels to the value of five 
 shillings or upwards, in any dwelling-house, or any part thereof, or 
 any out-house or out-houses belonging and used with the said dwell- 
 ing-house or houses, altho no person shall be in the said house or 
 houses at the time of the felony committed, every such person shall 
 be excluded from the benefit of clergy. 
 
 Upon this statute these things are observable: 
 
 1. That the indictment, whereupon such person is to be excluded 
 of the benefit of his clergy, ought precisely to follow the statute, viz. 
 it must be in the day-time, and no person being in the house, and 
 must appear to be so upon evidence. 
 
 2. And therefore, if either the indictment pursue not the statute, 
 or the evidence make not good the indictment, he is to have his 
 clergy, and therefore upon such an indictment he may be acquitted 
 of stealing against tlie form of the statute, and found guilty of simple 
 felony at common law, tho the indictment conclude contra formam. 
 statuti; and the same law it is, if an indictment be formed upon the 
 statute of 23 H. 8. or 5 4* 6 E. 6. for tho the indictments in those cases 
 be special, and conclude sometimes contra formam statuti, yet they 
 include felony at common law, and tho the indictment concluding con- 
 tra formam. statuti be good, it is not necessary, so as the circum- 
 stances required by the statute be pursued, for tlie statutes in these 
 cases make not the felony, but only exclude clergy, when the felony 
 is so circumstantiated, as the statute mentions, and is so expressed in 
 the indictment. ^ 
 
 .3. If the indictment be formed upon this statute, a« that- he broke 
 and entred the house in the day-time, and stole, no person being in 
 the honse, if it appear upon tho evidence, that the felony was coni- 
 juitted without these circumstances, as if it were committed in the
 
 HISTORIA PLACITORUM CORONA. 525 
 
 night, or not in the day, so that it is burglary, or if committed when 
 some of the family were in the house, in which case he had been 
 ousted of his clergy by the statute of 5 4* 6 E. 6. if the indictment 
 had been ,formed upon that statute, yet in such case the offender 
 being specially indicted upon the statute of 39 Eliz. shall be 
 found guilty of simple felony at common law, and shall not [ 526 ] 
 be ousted of his clergy by the statute of 23 //. 8. 1 ^. 6. 5 & 
 6 E. 6. or IS Eliz. cap. 7. because the indictment is not formed upon 
 those statutes, but only upon 39 Eliz. and if the circumstances of the 
 statute of 39 Eliz. upon which the indictment is formed, be not pur- 
 sued in the evidence, he must have his clergy, and so is the constant 
 practice, 
 
 4^ Altho this statute of 39 Eliz. in the body of the act speaks 
 only of stealing, yet in as much as the preamble speaks of robbery, 
 it hath been always taken, that upon this statute, as well as upon 
 the, statute of 5 E. 6. there must be these three things concur to oust 
 clergy : 1. There must be an actual stealing or taking away of 
 goods of some value upon the statute of 5 <^' 6 E. 6. and of goods to 
 the value of five shillings upon this statute, but it is not necessary, 
 that the goods be carried out of the house, for if he take them out of 
 a trunk or cupboard, and lay them in the room, and be apprehended 
 before he carry them away, it is a stealing within the statutes, and at 
 common law also, as was resolved by all the judges, uno dissentiente, 
 in a case out of Camhridgeshire upon a special verdict there found 
 upon an indictment upon the statute of 5 4* 6 E. 6. anno 1664.(/) 2. It 
 must be a stealing of goods in the house, and therefore he that steals, 
 or is party to the stealing them, being out of the house, is not by this 
 statute to be ousted of his clergy. 3. Upon this statute, as well as 
 upon the statute of 5 <§' 6 E. 6. there must be some act of force or 
 breaking.{k) 
 
 Now what shall be said such a force, as must bring the party 
 within this statute, hath been touched before, to which I add, 1. That 
 whatsoever breaking will make a burglary, if it were in the night, 
 will make such a force or breaking, as is within this statute 
 and that of 5 E. 6, to oust the thief of iiis clergy, as if he f 527 1 
 break open the outward or inward door of the house, pick 
 the lock of such door, draw the latch, break open the window, ^-c. 
 2. Some breaking or force will oust clergy upon the statutes of 5 8c 
 6 E. 6. and 39 Eliz. which will not make a burglary, if it were in 
 the night, as where he enters by the doors open, and breaks open a 
 
 (t) This was Simpson's case mentioned below, and is reported Kel. 31. 
 
 ik) Bui now by 10 i^- 11 W. 3. cap. 23. " Whoever by nig-ht or day shall in any shop, 
 ware-house, c6ach-liouse, or stable, privately and feloniously steal to the value of 5s. or 
 more, tho such shop he not broke open, nor any person therein, or shall assist, hire or 
 command any person to commit such offense, shall be excluded from the benefit of 
 clergy." Now repealed and supplied. 
 
 And by 12 Ann. cip. 7. "Whoever shall feloniously steal to the value of 40s. in any 
 dwelling-house or out-house thereto belonging, altho it be not broken, nor any person 
 therein, their aiders or assisters arc excluded from clergy." Repealed aqd supplied.
 
 527 HISTORIA PLACITORUM CORONA. 
 
 counter or cupboard fixed to the freehold, as was agreed in the Cam- 
 b?'idgeshire case hefore-mentiond. 
 
 7'. 16 Car. 2. Si mson's case, where the case was thus: a man 
 came into a dwelling-house, none being within, and the doors being 
 open, and broke up a chest, and took out goods to the value of five 
 shillings, laid tliem on the floor, and before he could carry them out 
 of the chamber, he was apprehended, and upon this matter specially 
 found he was ousted of his clergy upon the statute of 39 Eliz. for the 
 taking them out of the chest was felony by the common law, and tjie 
 statute of 39 Eliz. did not alter the felony, but only excluded 'clergy; 
 per omnes justiciarios Anglias. Ex lihro Bridgman. 
 
 But whereas in that case the breaking open of the chest was held 
 such a force or breaking, as excludes clergy upon that statute, I have 
 observed, that the constant practice at Newgate hath not allowed 
 that construction, unless it was a counter or cupboard fixed ; yet note, 
 this resolution of 16 Cur. was by all the judges of England then 
 present, and tho one dissented, 'he after came about to the opinion of 
 the rest, Ideo qusere. 
 
 T. 13 Car. 1 B. R. Eva}is and Finch{l) were arraigned ai New- 
 gate upon an indictment, that they at twelve of the clock in the day, 
 domiun mansionalern Hugonis Audely de interiuri templo, nulld 
 persona in eadeni domo existente,fregerunt, <5* 40/. from thence did 
 steal, a special verdict was found, that Evans by a ladder climbed 
 up to the upper window of the chamber of H. Audely, and took out 
 of the same forty pounds, and Finch stood upon the ladder in view 
 oi Evans, and saw Evans in the chamber, and was assisting to the 
 robbery, and took part of the money, and that at the time of the rob- 
 bery divers persons were in the Inner Temple-hall, and in 
 [528]] divers other parts of the house ; ruled, 1. That a chamber 
 in an inn of court is domus mansionalis within the statute 
 of 39 Eliz. of him who was the owner of the chamber. 2. That allho 
 this chamber was parcel of the Inner Temple, and other persons 
 were in the hall and other parts of the Inner Temple, yet no person 
 being in the chamber, this o tie nee was within the statute of 39 Eliz. 
 and so it differs from tlie case of Whitehall before-mentioned, where 
 the indictment was upon the statute of 5 4' 6 E. 6. 3, That in as much 
 as Evans was only in the chamber, and Finch entered not the cham- 
 ber, ^t»an.s had judgment of death, and i^/ncA had his clergy. ' 
 
 And the like law had been upon the statute of 5 c^* 6 E. 6. as is 
 before declared, for these statutes only exclude the parties, that actu- 
 ally take out of the dwelling-house, not those that are present and 
 asscnters,(7;z) as hath been also before declared(?i) upon the statute 
 of 1 Jac. of stabbing. 
 
 (Z) Cro. Car. 473. 
 
 (wj) But by 3 4f 4 W. S^ M. cap. 9. clergy is taken away from all, who comfort, aid, abet, 
 assist, counsel, hire, or command any jJorHon feloniously to break any dwelling-liouse; 
 shop, or ware-house thereto belonging, and filoniously to take away any ihoncy, goods, 
 SfC, to the value of 5s. or upwards, allho no person be within the same. 
 
 (n) Vide antea, p. 4C8.
 
 HISTORIA PLACITORUINI CORONiE. 528 
 
 And herein it differs from burglary and robbery, for therein all 
 persons, that are present, aiding, and assisting, are equally burglars or 
 robbers with him, that enters or aciually takes; but of this hereafter. 
 
 But this statute of 39 Eliz. takes not away the benefit of clergy, 
 where the offender stands mute, but only in the case of conviction by 
 verdict, confession, or otherwise according to the laws of the realm; 
 qusere of outlawry, for there the party is attaint indeed, but not found 
 guilty, for if he reverse the outlawry, he shall plead to the felony, (o) 
 
 And thus far for those larcinies, that relate to the dwelling-house 
 of any wherein clergy is excluded, 
 
 V. The next statute, that excludes from clergy, is the statute of 
 1 E. 6. cap. 12. and 2 Sf- 2 E. 6. cap. 33. which exclude clergy from 
 any person convict by verdict or confession of stealing any horse, 
 mare, or gelding, or wilfully standing mute. 
 
 But it takes not away clergy from accessaries 6e/bre or [529] 
 after. 
 
 VI. The statute of 8 Eliz. cap. 4. by which he that takes money 
 or goods feloniously from the person of any other, privily, without 
 his knowledge, is ousted of his clergy, if convict by verdict or con- 
 fession, or if he challenge above twenty peremptorily, or stands mute, 
 or will not directly answer, or be outlawed. 
 
 Upon this statute these things are observable: 1. It doth not alter 
 the nature of the felony, and therefore, if what he take away so be 
 not above the value of twelve-pence, it is only petit larcmy, as it was 
 before, and so differs from the case of robbery, Co. P. C. cap. 16. 
 p. 68. Crompt. de Pace, fol. 33. b. 2. The indictment must be pur- 
 suant to the statute, viz. quod felonict S^'C. clam <§' secrete a persona^ 
 ^'C. cepit, otherwise the offender hath his clergy. 3. It doth not oust 
 accessaries of their clergy, nor it seems doth it oust any of his clergy 
 but him, that actually picks the pocket, and not those that are present, 
 aiding and assisting, upon the reason of Evan's case before, for it 
 shall be taken literally. 
 
 By an act of this parliament, viz. * * * (^) 
 
 See table of the principal matters in Foster, Tit. Clergy. 
 
 CHAPTER XLV. [530] 
 
 CONCERNING PETIT LARCINY. 
 
 Petit larciny is the felonious stealing of money or goods not above 
 the value of twelve-pence without robbery, for altho that by some 
 opinions the value of twelve-pence make grand larciny, 22 ^ssiz. 39. 
 
 (o) But now by 3 &; 4 W. Sf M. cap. 9. clergy is expressly taken away in case of out- 
 lawry, or of stinding mute, <^c. 
 
 (/)) This was left unfinislied by our author, but I suppose the statute here meant is 
 22 Cflrf 2. cap. 5. which "All who shall feloniously steal woollen manufactures from the 
 tenters, or shall embezzle the king-'s naval stores, are excluded from clergy. 
 
 As to subsequent statutes, which take away clergy from larciny in dwelling-houses, 
 vide postea subjine cap. 48. 
 
 VOL. I. — 47
 
 530 HISTORIA PLACITORUM CORONA. 
 
 per Thorp, yet the law is settled, that it must exceed twelve-pence 
 to make grand larciny. West 1. cap. \5.{a) 8 E. 2. Coron. 404. [1] 
 
 The judgment in case of petit larciny is not loss of life, but only 
 to be whipt, or some such corporal punishment less than death, and 
 yet it is felony, and upon conviction thereof the offender Ibseth his 
 goods, for the indictment xnusfelonice. 27 H. 8. 22. 
 
 A party indicted of petit larciny and acquitted, yet if it be found, 
 he fled for it, forfeits his goods, as in case of grand larciny. • 8 E. 2. 
 Coron. 406. Sfamf. P. C.p. 184. a. 
 
 But in case of petit larciny there can be no accessaries neither be- 
 fore nor after. P. 9. Jac. 12 Co. Rep. 81. 
 
 If two or more be indicted of stealing goods above the value of 
 twelve-pence, tho in law the felonies are several, j'-et it is grand lar- 
 ciny in both. 8 E. 2. Coron. 404. 
 
 ■ But if upon the evidence it appears, that J2. stole twelve-pence at 
 one time, and B. twelve-pence at another time, so that the acts them- 
 selves were several at several times, tho they were the goods of the 
 same person, this is petit larciny in each, and not grand larciny in 
 either. 
 
 \i Jl. be indicted of larciny of goods to the value of five shillings, 
 yet the petit jury may upon the trial find it to be but of the value of 
 twelve-pence, or under, and so petit larciny. 41 E. 3. Coron. 451. 
 18 .assiz. 14. Starnf. P. C.p. 24, b. 
 
 If j3. steal goods of ^. to the value of six-pence, and at 
 fSSl] another time to the value of eight-pence, so that all put to- 
 gether exceed the value of twelve-pence, tho none apart 
 amount to twelve-pence, yet this is held grand larciny, if he be in- 
 dicted of them altogether, [2] Stamf. P. C. p. 24. collected from the 
 book of 8 E. 2. Coron. 415. Daii. cap. lOl. p. 259. (b) 
 
 But if the goods be stolen at several times from several persons, 
 and each a-part under value, as from ^. four-pence, from B. six- 
 pence, from C. ten-pence, these are several petit larcinies, and tho 
 contained in the same indictment make not grand larciny. 
 
 But it seems to me, that if at the same time he steals goods of »/S. 
 of the value of six-pence, goods o( B. of the value of six-pence, and 
 goods of C. to the value of six-pence, being perchance in one bundle, 
 or upon a table, or in one shop, this is grand larciny, because it was 
 one entire felony done at the same time, tho the persons had several 
 properties, and therefore, if in one indictment, they make grand 
 larciny.[3] ' « 
 
 (a) 2 Co. Instit. 190. (b) New Edit. cap. 154. p. 494. 
 
 [1] Tliis distinction between grand and petit larceny is now aboHshed by 7 & 8' Geo. 
 IV. c. 29, 8. 2. See liyland's note to 4 BL Com. 229. i'dth Land. Ed. 1836. 
 
 [2] Birdseye's case, 4 Carr. Sf Paij. 38G. Jones's case, Id. 217. 2 East's P. C. 740, 
 
 [3] It is manifest that the defendant micrht have three different defences as to the 
 taking of tlic property of ihrcc owners. Wi)uld not a sing-lc count, which compelled a 
 defondiint to make thcce distinct dflcnccs, as to three distinct pieces of property of three 
 different owners, be bad for duplicity. See Com. v. Andrews, 2 Mass. R. 409.
 
 HISTORIA PLACITORUM CORONiE. 531 
 
 If A. steal cJam (§« secretl out of the pocket of B. twelve-pence, 
 tho the statute of 8 Eliz. take away clergy from a pick-pocket, yet 
 it is but petit larciny ; quod vide supra p. 529. 
 
 And so if a man could possibly steal a horse of the value of 
 twelve-pence only, or under, or break a house in the day-time, and 
 steal goods only of the value of twelve-pence, the owner, his wife or 
 children being in the house, and not put in fear, this will be but petit 
 larciny, notwithstanding the statute of 5 4* Q E. 6. take away clergy, 
 for that statute altered not the nature of the offense, but takes away 
 qlergy, where clergy was before, namely where the offense was capi- 
 tal, as in case of grand larciny. 
 
 But if they were put in fear, then it would be robbery, how small 
 soever the value were, and so could not sink into the nature of petit 
 larciny 5 but of this in the next chapter.[4] 
 
 CHAPTER XLVI. [532] 
 
 OF ROBBERY. 
 
 Robbery is the felonious and violent taking of any money or goods 
 from the person of another, putting him in fear, be the value thereof 
 above or under one shilling. 
 
 In this case it is to be considered, 1. What is a felonious taking 
 
 [4] In Nkvv York, under the statutes, petit larceny is not a felony. Carpenter v. 
 Nixon, 5 HiWs Rep. 520. Ward v. The People, 3 HiWs Rep. 395. In it there are no 
 accessaries, but all concerned in the commission of the offence are principals. Id. 2 N. Y. 
 Rev. St. 690. 
 
 To constitute petit larceny the sum stolen must be under $25. Id. 
 
 In Pennsylvania, twenty shillings under the Act o£ April, 1790. Stroud's Purd, 956. 
 eik ed. ; 1052. ith ed. 
 
 In New Jersey, the same as in New York. Rev. Stat, of 1847, jj. 266. 
 
 In Virginia, to constitute petit larceny, the sum must be under $10. Sup, Rev. Code, 
 298. sue. 
 
 In South Carolina, in the case of The State v. Wood, 1 S. C. Rep. 29. it was ruled 
 that on an indictment for grand Lirceny the jury may find petit larceny. Chase, J, said 
 "he tiad been informed by his brethren thai the Abjection of the indictment being for 
 grand larceny, the verdict for petit larceny was unauthorized, had been often overruled ;" 
 and cited 2 East's P. C. 778. where it is so laid down. 
 
 In Tennessee, an indictment in the county court for petit larceny in stealing goods 
 of greater value than twelve-pence should conclude against the form of the statute. The 
 second section of the Act of 1807 has changed the nature of this offence in this as in 
 some other States, viz. that petit larceny shall consist in stealing property under the 
 v^lue of $10. At common law it consisted of stealing property under the value of 
 iwclvc-pencc, as stated in Hale's text. See The State v. Humphries, 1 Overton's (Tenn.) 
 R. 107.
 
 532 HISTORIA PLACITORUM CORONA. 
 
 from the person. [1] 2. Who shall be said a felonious taker from the 
 person of a man. 3. What violence or putting in fear is requisite to 
 make up robbery. 4. In what cases such a robber is admissible to 
 his clergy. 
 
 As to the first. 
 
 I. There must be in case of robbery (as also in all cases of larciny^ 
 something feloniously taken, for altho antiently an assault to the 
 intent to rob, or an attempt to rob was reputed felony, voluntas 
 reputabatur pro facto, 25 E. 3. 42, 13 H. '\. 7. per Gascoigne 
 27 Assiz. 38. yet the law is held otherwise at this day,(«) and for a 
 long time since the time of Edward III. and therefore if »^. lie in 
 wait to rob B, and assault him to that purpose, and require him to' 
 deliver his purse, yet if de facto he hath taken nothing from him, 
 this is not felony, but only a misdemeanor, lor which he is punisha- 
 ble by fine and imprisonment. 9 E. 4. 26. b. Stamf. P.C.p. 27. b. 
 Co. P. C. p. 68. 
 
 There is a double kind of taking, viz. a taking in law, and a taking 
 in fact. 
 
 If thieves come to rob ,/?. and finding little about him enforce him 
 by menace of death to swear upon a book to fetch them a greater 
 sum, which he doth accordingly, this is a taking by robbery, yet he 
 ■was not in conscience bound by such compelled oath, for the fear 
 continued, tho the oath bound him not, and in that case the in- 
 
 (a) Plowd. Com. 259. b. 
 
 [1] The takinjif must be from the person or in the presence of the prosecutor. U. S. v. 
 Jones, 3 Wash. R. 209. Com. v. Snelling, 4 Binn. R. 379. Rex v. Hamilton, 8 Car, 
 4- ^. 49. 
 
 Where it appeared 'that the prosecutor was with a third person, who had the prosecu- 
 tor's bundle, and who, when the prosecutor was forcibly attacked by the defendant, 
 dropped the bundle and ran to assist the prosecutor, when the prisoner took up the bun- 
 die and ran off, a learned judge is said to have doubted whether the offence was robbery. 
 Rex V. Fallows, 5 Car. &; P. 501. 
 
 It is essential that the property should be taken against the will of the party robbed. 
 Rex V. McDaniel, Foster Dis. 121. 
 
 The goods must also appear to have been taken animo furandi, as in cases of larceny. 
 Archb. Cr. P. 245. 
 
 There must also be an actual taking and carrying away. But it is immaterial 
 whether the taking were by force or upon delivery; and if by delivery, it is also imma- 
 terial whether the robber compelled the prosecutor to it, by a direct demand in tlic ordi- 
 dinary way or upon any colourable pretence. A carrying away must also be proved; 
 and where one meeting a man carrying a bed, told him to lay it down or he would shoot 
 him, and the man accordingly laid down the bed, but the robber, before he could take it 
 up so as to remove it from the place where it lay, was apprehended : the judges held that 
 the robbery was not complete. Rex v. Fnrrell, 1 Leach, C. C. 362. Rex v. Lapier, Id. 
 320. Fast. Dis. 128. Rex v. Mason, R Sf Ry. 419. Rex v. Davies, 2 EasVs l\ C. 709. 
 Rex v. Hall, 3 Car. cV P. 409. Rex v. Mncauky, 1 Leach, C. C. 287. Rex v. Baker, Id. 
 290. Rex V. Stewart, 2 EasCs P. C. 702. Rex v. Homes, Id. 703,* Rex v. Gosnil, 
 I C.Sf P. 304. 
 
 * It was held in the case of Com. v. Humphries,! Mass. R. 242. that an indictrnent 
 was good at common law which alleged the stealing, &c. by force and violence, but 
 omitted the averment that the party robbed was put in fear.
 
 HISTORIA PLACITORUM CORONA. 533 
 
 dictment need not be special, for that evidence will maintain a gene- 
 ral indictment of robbery, 44 E. 3. 14. b. 4 H. 4. 2. a. Co. P. C. p. 68. 
 Dall. cap. 100. p. 257.(6) who saith it was so adjudged also in P. 
 36 Eliz. 
 
 If »,'?. assaults B. and bids him deliver his purse, and B. delivers it 
 accordingly, this is a taking, and so it is if B. refuse, and then JJ. 
 prays him to give or lend him money, which B. doth accordingly, 
 this is robbery, for B. doth it under the same fear, Dal. cap. 100. 
 -44 Eliz. Cromp. 34. b. so it is if B. throw his purse or cloak in a 
 bush, and A. takes it up, and carries it away; so if B. flying from 
 the thief lets fall his hat, and the thief take it and carry it away, for 
 all is the effect of the same fear. Dalt. iibi supra. 
 
 So if A. without drawing his weapon requires B. to deliver his 
 purse, who doth deliver it, and ^. finding but two shillings in it 
 gives it him again, this is a taking by robbery. 20 Eliz. Crompt. 34. 
 Dalt. ubi supra. 
 
 If ^. have his purse tied to his girdle, B. assaults him to rob him, 
 and in struggling the girdle breaks, and the purse falls to the groiuid, 
 this is no robbery, because no taking ; but if B. take up the purse, 
 or if B. had the purse in his hand, and then the girdle breaks, and 
 striving lets the purse fall to the ground, and never takes it up again, 
 this is a taking and robbery. Co. P. C. p. 69. Dalt. cap. 100. Crompt. 
 fol. 35. 
 
 It is not always necessary, that in robbery there should be strictly 
 a taking from the person, but it snfRceth if it be in his presence, as 
 appears by some of the foriner instances, in case it be done with a 
 putting in fear : as where a carrier drives his pack-horses, and the 
 thief takes his horse, or cuts his pack, and takes away the goods: so 
 if a thief comes into the presence o{ Jl. and with violence, and putting 
 ^. in fear, drives away his horse, cattle, or sheep. Dalt. ubi supra. 
 Stamf. P. C. p. 27. a. 2 East's P. C. 556. 
 
 II. Who shall be said a person robbing or taking. 
 
 If several persons come to rob a man, and they are all present, and 
 one only actually takes the money, this is robbery in all. 
 
 Piidsey and two others, viz. Jl. and B. assault C. to rob 
 him in the highway, but C. escapes by flight, and as they [534]] 
 were assaulting him Jl. rides from Pudsey and B. and as- 
 saults D. out of the view of Pudsey and B. and takes from him a 
 dagger by robbery, and came back to Pudsey and B. and for this 
 Pudsey was indicted and convict of robbery, tho he assented not to 
 the robbery of Z). neither was it done in his view, because they were 
 all three assembled to commit a robbery, and this taking of the dag- 
 ger was in the mean time. 28 Eliz. B. R. Crompt. 34. 
 
 And so it is if ^,i. B. and C. come to commit a robbery, and j1. 
 stands centinel at the hedge-corner to watch if any come, and B. and 
 C. commit the robbery, tho *,i. was not actually present, nor within 
 view, but at a distance from them; and the like in burglary. \\ H. 
 4. 13. Co. P. C.p. 64. 
 
 (&) iVew Edit. cap. 153. p. 492.
 
 534 HISTORIA PLACITORUM CORONA. 
 
 III. What shall be said a putting in fear, or violent taking.[2] 
 Without putting in fear or violence it is not robbery, but only lar- 
 Giny,and the indictment must run, quod vi S,- armisapud B. in regid 
 via ibidem, S^-c. AOs. in pecuniis nurneralis fclonice S,- violentlr cepit 
 
 [2] Any threat calculated to produce terror is sufficient to consummate the offence. 
 Thus if a man takes another's cliild and threatens to des^troy him unless the other give 
 him money, this is robbery. Rex v. Reeve, 2 East, P. C. 735. Rex v. Donally, Id. 718. 
 
 So where the defendant, at the head of a mob, came to the prosecutor's house and 
 demanded money, threatening to destroy the house unless the money were given; the 
 prosecutor thereupon "gave him 5s., but he insisted on more, and the prosecutor being 
 terrified gave him 5s. more; the defendant and the mob took bread, cheese, and cider 
 from the prosecutor's house without his permission and departed: this was holden to be 
 a robbery. Rex v. Lemynons, 2 East, P. C. 731. Rex v. Brown, Id. 731. Rex v. Astley^ 
 Id. 712. Rex v. Winkworth, 4 Carr Sf P. 444. ' 
 
 It makes no matter wiiat pretences were employed to induce the owner to surrender 
 possession, if he was put in bodily fear. Merriman v. Chippenham, 2 East, P. C. 709. 
 4 Blac. Comm. 242. Rex v. Taplen, 2 East, P. C. 712. 
 
 If a robber take a purse of money from a person, and restore it to him immediately, 
 saying, "if you value your purse, take it back, and give me the contents," but is appre- 
 hended before the money is delivered to him, yet the crime is completed. Rex v. Peat, 
 1 Leach, C. C. 228. 2 East, P. C. 557. Rex v. Thompson, R. Sf M. 78. 
 
 Taking money from a woman at the time of an attempt to commit a rape, amounts to 
 jobbery, although there was no demand of money made by the prisoner, and it was 
 clearly his original intent only to commit a rape. Rex v. Bhichham, 2 East, P. C. 711. 
 
 So to take a man by the cravat and squeeze him against a wall, and in the mean time 
 abstract his watch from his fob without his knowledge, is a robbery, though the plaintiff 
 was not afraid, nor aware of the robber's intention. Com. v. Snelling, 4 Binn. R. 379. 
 
 Where money was given to one of the mob during the riots in London in 1780, upon 
 a knocking at the prosecutor's door in a menacing manner: held that it was robbery. 
 Rex V. Taplin, 2 East, P. C. 712. 
 
 Where persons, under pretence of an auction, got a woman into a house and compelled 
 her, by threats of carrying her before a magistrate and to prison for not paying for a lot 
 pretended to have been bid for by iier, to pay them one shilling through fear of prison, 
 and for the purpose of obtaining her liberation, but without any fear of any other personal 
 violence: Held, not robbery, but only duress. Rex v. Wood, 2 East, P. C. 732. 
 
 A woman went into a mock auction shop, and it was pretended that she had bid for 
 certain articles, and the prisoner threatened to take her to Bow-street and have her sent 
 to Newgate, unless she paid earnest for the articles, to avoid which, she paid one shil- 
 ling: Held, that this was not sufficient restraint to make this a robbery. Rex v. Newton, 
 Car. C. L. 285. 
 
 If the property be not taken by violence, nor parted with through fear, it is no rob- 
 bery, though there were sufficient legal and reasonable ground for fear, as upon a threat 
 to charge one with an unnatural crime. Rex v. Rcane, 2 East, P. C. 734. 2 Leach, 
 C. C. 616. 
 
 The crime of robbery may be committed by obtaining money from a man, by threat- 
 ening to charge him with having been guilty of sodomitical practices. Rex v. Jones, 
 1 Leach, C. C. 139. 
 
 This has, in many cases, been holden to be robbery, see Rex v. Hichnan, post.; Rex v. 
 -Egerton, post, even where it appeiired that the prosecutor parted with his money merely 
 through fear of losing his character or employment by such imputation. E.ttorting 
 money by this or like means has been made a felony in some Stales by statute. See 
 JWass. Rev. Stat.c. 125, sect. 17; N. Y. Rev. Stat. P. IV. c. 1,3, 5,sec<. 58. 
 
 It is equally a robbery to extort money from a person by threatening to accuse him 
 of an unnatural crifne, whether the party so threatened has been guilty of such crime or 
 not. Rex v. Gardner, 1 Car. Sf I'. 479. 
 
 If a man obtain property from another by accusing him of having been gfiilty of an 
 unnatural crime, it will amount to robbery, although the party was under no apprehen- 
 sion of personal danger, and felt no other fear than that of losing his character. Rex. v. 
 Hickman, 1 Leach, C. C. 278 ; 2 East, P. C. 728. 
 
 To constitute robbery, by taking money from another upon a threat of charging him
 
 HISTORIA PLACITORUM CORONA. 534 
 
 a persond; and therefore if the word violenter be omitted in the in- 
 dictment, or not proved upon the evidence, tho it were in iiltd via 
 regid Sf felonicc cepit a persond, it is but larciny, and the offender 
 shall have his clergy. Dy. 224. b. H. 17 Jac. in B. R.{c). Harman 
 
 (c) 3 Rol. Rep. 154. 
 
 with an unnatural crime, the money must be taken immediately upon the threat made, 
 and not alter the parties have separated and there has been time for the prosecutor to 
 deliberate and' procure assistance, and especially after he had consulted a friend who 
 was even present at the time when the money was paid, though the prosecutor parted 
 with his money fr^fn fear of losing his character. Rex v. Jackson, 1 East, F. C. 
 Add. xxi; 1 Leach, C. C. 193 n. ; 2 Leach, C. C. 618 n; and see Rex v. Cannon, 
 R. Sf R. C. C. 146; 2 Russ. C. Sf M. 87. 
 
 Parting with property upon charge of an unnatural crime, will not make the taking 
 a robbery, if it is parted with not from the fear of loss of character, but for the purpose 
 of prosecuting. Rex v. Fuller, R. Sf R. C. C. 408; 2 Russ. C. Sf. M. 88. 
 ■ Where money was obtained by calling a man a sodomite and threatening him, but 
 the money was parted with by the prosecutor not so much from fear of losing his 
 character, as from fear of losing his place: Held, by a majority of the judges, that it 
 was sufficient to constitute a robbery. Rex v. Elmstead, 2 liuss. C. Sf M. 86. 
 
 The parting with money or goods through fear of loss of character and service, upon 
 a charge of sodomitical practices, is sufficient to constitute robbery, although the party 
 has no fear of being taken into custody, nor any dread of punishment. Rex v. Eger- 
 ton, R. Sf R. C. C. 375; 2 Russ. C. Sf M. 87. See the cases cited and discussed in 
 SDeac.C.L. 1136. 
 
 Obtaining money from a woman by threatening to accuse her husband of an indecent 
 assault, is not robbing. Rex v. Edwards, 5 Car. Sf P. 518, S. C. nora. Rex. v. Edward, 
 1 .V. Sf Rob. 257. 
 
 If a bailiff handcuff a prisoner, under pretence of carrying him to prison with greater 
 safety, and by means of this violence extort money, he is guilty of robbery. Rex v. 
 Gascoigne, 1 Leach, C. C.2b0; 2 East, P. C. 709. 
 
 If a gang of poachers attack a gamekeeper and leave him senseless on the ground, and 
 one of them return and steal his money, &c.: — Held, that one only can be convicted of 
 the robbery, as it was not in pursuance of any common intent. Rex v. Hawkins, 3 Car. 
 Sf P. 392. 
 
 Sed aliter, if a number had associated themselves together, for the purpose of commit- 
 ting a robbery, altiiough one alone had perpetrated the act, as all would have been con- 
 structively present. State v. Heyward, 2 N. Sf M. 312. 
 
 A. had set wires in which game was caught : B. a gamekeeper found them, and took 
 them, with the game cauglit in them, for the use of the lord of the manor. A. demanded 
 them with menaces, and B. gave them up. The jury found that A. acted under a bona 
 fide impression that the wires and game were his property: — Held, that it was no rob- 
 bery. Rex V. Hall, 3 Car. Sf P. 409. 
 
 A. was attacked by robbers, who, after using very great violence towards him, took 
 from him a piece of paper, on which was written a memorandum respecting some money 
 that a person owed him: — Held, robbery. Rex v. Bingly, 5 Car. Sf P. 602. 
 
 Snatching an article from a man will constitute robbery, if it is so attached to his 
 person or clothes as to afford resistance. Rex v. Mason, R. Sf R. C. C. 419. 2 Russ. C. 
 Sf M. 69. 
 
 To snatch a diamond pin from the head-dress of a lady, with such force as to remove 
 it with part of the hair, from the place in which it was fixed, is a sufficient violence to 
 constitute robbery. Rex v. Moore, 1 Leach, C. C. 335. 
 
 To constitute the crime of highway robbery, the force used must be force with intent 
 to overpower the party, and prevent iiis resistance ; and if the force used is not with 
 that intent, but only to get possession of the property of the party attacked, it is not 
 highway robbery- Rex v. Gnosil. 1 Car. Sf P. 504. 
 
 Snatching property from the hand of another, is not sufficient force to constitute high- 
 way robbery. Rex v. Baker, 1 Leach, C. C. 290. 2 East, P. C. 702, 
 
 Indictment. — A servant was sent out by his master to receive money from his master's 
 customers, and, having received the money, he was robbed of it on his way home. Sem-
 
 534 HISTORI A PLACITORUM CORONA. 
 
 was indicted of the robbery of Halfpenny in the highway; and upon 
 the evidence it appeared, that Harmun was upon his horse, and 
 required Halfpenny to open a gap for him to go out, Halfpenny 
 going up the bank to open the gap, Harman came by him, and slipt 
 
 ble, that an indictment for this robbery, in which the money was laid to be the property 
 of his master, could not be supported, as the money had never been in the possession of 
 the master. Reg. v. Ruddick, 8 Car. S( P. 237. 
 
 And when in such a case, the objection was taken during the trial, the judge directed 
 the jury to be discharged, and a new indictment to be sent to the grand jury, containing 
 a count, laying the property in the servant. lb, 
 
 A. and B. were indicted for the offence of robbery. The jury foTind that A. took the 
 property of the prosecutor from him by violence, and that jB. was present during part of 
 the time, and that he was a party with A. to a design to bring the prosecutor to the place 
 where he was robbed by A, and to obtain property from him on a false charge of an 
 unnatural crime, but that he was not aiding or assisting in, or privy to, the taking of the 
 property from the prosecutor, by violence: Held, by all the judges, that in order to con- 
 vict jB. the indictment should have been framed on the statute 7 Will. IV. Sf I Vict.c. 87. 
 S. 4., and that he could not, since the passing of the statute, under the circumstances of 
 this case, be convicted on an indictment charging the offence of robbery. Reg. v. Taun- 
 ton, 9 Car. Sf P. 309. 2 M. C. C. R. 118. 
 
 An indictment for robbery need not have the word '• violently," but it must appear 
 upon the whole statement that violence was used. Rex v. Smith, 2 East, P. C. 784. 
 
 If a prosecutor declare, on an indictment of robbery, tiiat he parted with his property 
 without any fear of violence to his person or injury to his character, the prisoner cannot 
 be convicted. Rex v. Reane, 2 Leach, C. C. 616. 2 East, P. C. 734. Sed vide, Com. v. 
 Snelling, 4 Binn. R. 379. 
 
 An indictment for a robbery, on an unmarried woman, in her maiden name, is good, 
 although she marry before the indictment is found. Rex v. Turner, 1 Leach, C. C. 536. 
 
 An indictment for a highway robbery must state, that the assault was feloniously 
 made with an offensive weapon. Rex v. Pelseyman, 2 Leach, C. C. 563. 2 East, P. C. 783. 
 
 Evidence. — On an indictment for robbery, the declaration in articulo mortis, of the 
 party robbed, is not admissible in evidence. Rex v. Lloyd, 4 Car. Sf P. 233. 1 Greenl. on 
 Ev. § 156. 
 
 A. and B. were riding in a gig together, were robbed at the same time, A. of his 
 money, B. of his watch, and violence used towards both. There was an indictment for 
 the robbing of -4. and another indictment for the robbing of B. Held, that on the trial of 
 the first indictment, evidence might be given of the fact, of the loss of the watch by B., 
 and that it was found on one of the prisoners, but that no evidence ought to be given of 
 any violence offered to B. by the robbers. Rex v. Rooney, 7 Car. Sf P. 517. 
 
 Massachusetts — Robbery was always punished as a capital offence in this State, 
 until the passing of the Statute of 1804, c. 143, by which the punishment was reduced 
 to hard labour for life. This statute remained in force until the passing of Stat. 1818, 
 c. 124, when robbery, if committed under certain circumstances of aggravation, was 
 again punished with death. 
 
 The first case that occurred after the passing of the Statute of 1818, c. 124, was 
 77(6 Commonwealth v. Michael Martin, 17 Mass. Rep. 539, in which it was decided by 
 the unanimous opinion of the wiiole court, that to make robbery a capital offence within 
 the first section of the statute, it is sufficient if the party be armed with a dangerous 
 weapon with intent to kilt or maim the person assaulted, in case such killing or maim- 
 ing be necessary to his purpose of robbing, and that he have the power of executing 
 such intent. The prisoner wns indicted upon the first clause of the first section of tlie 
 statute tor the robbery of John Bray, "being then and there at the time of committing 
 the assault aforesaid, in manner and form aforesaid, armed with a certain dangerous 
 weapon, called a pistol, with intent him the said John Bray then and there to kill and 
 main." The defence set up was, that to constitute the crime of robbery a capital 
 offence within the statute, it must be proved that there was an absolute intent to kill or 
 maim the party robbed; at all events whether the robbery could be accomplished withr 
 out killing or maiming, or not; and that in the present case the fact of the prisoner's' 
 having left the party robbed, without killing or maiming him, or making an actual
 
 HISTORIA PLACITORUM CORONA. 534 
 
 his hand into his pocket, and took out his purse; Halfpenny not 
 suspecting the taking of his purse, until turning his eye he saw it in 
 Har'mayi^s hand, and then he demanded it, Harmun answered him, 
 Villain if thou speakest of thy purse, I will pluck thy house over 
 ■thine ears, and drive thee out of the country, as I did John Somers, 
 and then went away with his purse ; and because he took it not with 
 such violence, as put Halfpenny in fear, it was ruled to be but 
 stealth, and not robbery, for the words of menace were used 
 after the taking of the purse, wherefore he was found guilty [ 535 ] 
 only of larciny, and had his clergy. (d) 
 
 IV. As to the point of clergy in robbery. [3] 
 
 The statute of 23 H. 8. cap. l.(e) and 5 S,^ 6 E. 6. cap. 9. do not 
 oust robbery of. clergy in all cases, but only in two, viz. when the 
 robbery is committed in a mansion-house, the owner, his wife, chil- 
 dren or servants being in the house and put m fear,(/) or when 
 committed in or near the highway. 
 
 (d) But it should seem, that this was a private stealinor from the person of another, 
 and therefore, if above the value of twelve-pence, would have been ousted of clergy by 
 8 Eliz. cap. 4. if the indictment had been laid pursuant to that statute. 
 
 (e) This statute, and that of 25 H. 8. cap. 3. ousts clergy only in cases of conviction, 
 standitig mute, not directly answering, or challenging peremptorily above the number of 
 twenty, but does not extend to the case of an outlawry, but this seems to be includedin 
 the word attainted in 1 E- 6. cap. 12. however it is expressly provided for by 3 ^ 4 W. 
 Sf M. cap. 9. 
 
 (/) Being put in fear is necessary by the 23 H. cap. 1. (and also by 1 E. 6. cap. 12. 
 which perhaps is the statute intended by our author) but by 5 (^ 6 £. 6. cap. 9. all that is 
 requisite is, that the owner, Sfc. be in the house, tho not put in fear, for the expression 
 of that statute is, the owner, Sfc. being in the house, whether sleeping or waking. 
 
 attempt to do it, proved that there was no such intent, as by the statute constituted 
 an essential ingredient in the capital offence. This construction of the statute was not 
 adopted by the court; but they instructed the jury, that if they were satisfied from the 
 evidence that the prisoner armed himself with a loaded pistol with intent to kill of 
 maim the party whom he should rob, if such killing or maiming were necessary for his 
 purpose of robbing; and that when he assaulted and robbed Major Bray, he had the 
 power of executing such intent, and meant to do it, if he could not otherwise rob him, 
 the offence was capital according to the statute; and they accordingly found the prisoner 
 guilty. See the opinion of the court at large, delivered by Parker, C. J. in which the 
 above construction of the statute is unanswerably maintained. The Massachusetts 
 Statutes will be found in Rev. St. oh. 125, and Supp. 127. 
 
 In Pennsylvania. — To constitute robbery there must be a felonious taking of pro- 
 perty from the person of another by force, either actual or constructive; but if force be 
 used, it is not essential that the prosecutor should be either aware or afraid of the taking. 
 So decided, upon special verdict, in the case of The Commonwealth v. Snelling, before 
 cited, in which case it was observed, among other things, by TUghman, C. J. "If a man 
 is knocked down and rendered senseless, and in that situation his money is taken withr 
 out his knowledge, it shall not avail the thief to say that it was not taken against the 
 consent of the man whom he had rendered incapable of exercising the faculty of voli- 
 tion." " Fear is not an essential ingredient of robbery; force is sufficient." See Com- 
 monwealth v. Humphries, 7 Mass. Rep. 242. 
 
 To constitute the crime of robbery, it is not necessary that tlie taking should be from 
 the person of the owner, it is sufficient if it be done in the presence of the owner, as if 
 by intimidation he is compelled to open his desk or throw down his purse, and then the 
 money is taken in his presence. Wharton^s Digest, 151; U. States v. Jones, C. C. 
 April, 1819, cited by Wharton from MS. Report, (3 Wash. C. C. Rep. 209, S. C.) For 
 tke Lenn, Stats, see Stroud's Purd. *^Tit, Robbery and Larceny.^' 
 
 [3] See note ante, ch. 44. p. 517,
 
 535 HISTORIA PLACITORUM CORONiE. 
 
 And therefore Trin. 38 H. 8. Moore, n. 16. p. 5. A man indicted 
 of robbery in quddam via regid pedestri ducenf de London ad 
 Islington, and accordingly fonnd gnilty, had his clergy, for the words 
 of the statute are for rubbery in or near the highway he shall be 
 ousted of his clergy, and therefore the indictment and conviction 
 must be of a robbery in vel prope. altatn viam regiam, and it is not 
 sufficient to say only via regid or via regid pedestri. 
 
 For where any person is to be ousted of liis clergy by virtue of any 
 act of parliament, two things are always requisite. 1. Tliat the in- 
 dictment bring the fact within the statute, but need not conclude, 
 contra formam statuti. 
 
 2. That the evidence and finding of the jury likewise bring the 
 case wiihin the statute, otherwise the prisoner is to have his clergy. 
 
 But an indictment of a robbery in vel prope altam viam regiam, 
 tho in the disjunctive is usual at Newgate, for if it be either in or 
 near it, tho an indictment ought to be certain, yet this is not the sub- 
 stance of the indictment, nor that which makes the crime, but only to 
 ascertain the court as to the point of clergy to serve the statute. 
 
 A robbery is committed upon the Thames in a ship there 
 [ 536 ] lying at anchor below the bridge, on that side of the river 
 which is in Middlesex ; for this robbery Hyde and others 
 were indicted as of a robbery done in vel prope attain viamregiam, 
 and were ousted of their clergy, for the Thames is in truth alta via 
 regia the king's high stream; and if it were not, yet it is not far off 
 from it, and the statute says near not next. 
 
 By the statute of 25 H. 8. cap. 2.{g) clergy is ousted upon ex- 
 amination, if the original offense were committed in another county, 
 and excluded from clergy by 23 H.Q. cap. Land that statute extends 
 to robbery in a mansion-house, or in or near the highway. 
 
 ji. robs B. on the highway in the county of C. of goods to the 
 value only of twelve-pence, and carries them into the county of Z). it 
 is certain, that this is larciny in the county of D. as well as in the 
 county of C. but it is only robbery in the county of C. where the first 
 taking was, and for robbery he cannot be indicted or appeald in the 
 county of D. but only in the county of C. but he may be indicted of 
 larciny in the county of Z>. and it is certain, though the robbery were 
 but of the value of one penny, yet if./?, were indicted thereof in the 
 county of C. he should have had judgment of death, and been ex- 
 cluded from clergy. 
 
 Yet if A. be indicted of larciny in the county of Z). and the jury 
 find the value to be only twelve-pence, he shall only have the judg- 
 ment of petit larciny, and not suffer death, as he should have done, 
 if he had been indicted of robbery in the county of C. altho it appear 
 upon examination upon the trial in the county of D. that it was a 
 robbery; the like law is, if it had been a robbery in a dwelling-house 
 wiihin the statute of 23 //. 8. because it can be no more than petit 
 
 (ff) This statute was in effect repealed by 1 E. 6. cap. 12. but is revived by 5 ^f 6. E. 
 6,ca/j, 10.
 
 HISTORIA PLACITORUM CORON.^. 536 
 
 larciny in the county of Z>. it being found but of the vakie of twelve- 
 pence, and accordingly resolved by the opinion of all the justices, 
 31 Eliz. Moore, n. 139. pag. 550. for the statute of 25 H. 8. extended 
 to oust them of clergy, wliere clergy is demandable; but the 
 jury finding the value to be but twelve-pence, or under, no [ 537 ] 
 clergy is demandable, because petit larciny, but the party is 
 to be whipt only. 
 
 It hath been before observed cap. 44. that upon the statute of 29. 
 ' Eiiz. cap. 15..tho ^. and B. be both present and consenting to the 
 breaking and'entering of a house to rob, and „^. only enters into the 
 house, and B. stands by, ^. shall be ousted of his clergy, but B. 
 shall have his clergy,(A) because ..^. only entered the house, and the 
 words of the statute extend only to him that actually enters the house; 
 yet if./?, and B. be present, and consenting to a robbery in or near 
 the highway, or to a burglary, tho ^d. only actually commits the rob- 
 bery, or actually breaks and enters the house, and B. perchance be 
 watching at another place near, or be about a robbery hard by, 
 which he effects not, yet they are both robbers or burglars, and both 
 shall be ousted of their clergy, as in Pudsei/'s case: and the reason of 
 the difference is, because in this case both are robbers and burglars, 
 but in the former case both steal not in the house, but only ^. and 
 that statute binds up the exclusion of the clergy to stealing in the 
 house._ 
 
 Anno. 1672. at Newgate, Hyde and A. B. C. and D. conclude to 
 ride out to rob, and accordingly they rode out; but at Hounslow D. 
 parted from the company, and rode away to Colbrook; Hyde, Jl. B. 
 gind C. rode towards £^// a ?72, and about three miles from Hounslow, 
 Hyde, A. and B. assulted a man; but before he was robbed C. see- 
 ing another man coming at a distance, before the assault, rode up 
 to him about a bow-shot or more from the rest, intending either to 
 rob him, or to prevent his coming to assist, and in his absence Hyde, 
 Jl. and B. robbed the first man of divers silk stockings, and then rode 
 back to C. and they all went to Londo7i,and there divided the spoil : 
 it was ruled upon good advice, 1. That I), was not guilty of the rob- 
 bery, tho he rode out with them upon the same design, because he 
 left them at Hoiinsloiu, and fell not in with them, it may be he 
 repented of the design, but at least he pursued it not. 2. That C. tho 
 he was not actually present at the robbery, nor, as I remember, at 
 the assault, but rode back to secure his company, was guilty 
 as well as Hyde, A. and B. and thereupon C. as well as [ 538 ] 
 Hyde, J2. and B. had judgment of death, and was excluded 
 of clergy, the indictment being for robbery on the highway, accord- 
 ing to the resolution in Pndsey^s case, for they were all robbers on 
 the highway. 
 
 (h) But now by llie statute of 3 ^ 4 W. S^ M. cap. 9. he would not have his clergy, iqt 
 hy that statute clergy is taken away from all aiders, abetters, or astisters, ' .
 
 53S HISTORIA PLACITORUM CORONiE. 
 
 CHAPTER XLVII. 
 
 CONCERNING RESTITUTION OF GOODS STOLEN, AND THE CONFIS<fATION 
 OF GOODS OMITTED IN THE INDICTMENT OR APPEAL, 
 
 Altho this title Tnay seem to come more properly to be examined, 
 when we come to consider of the proceedings and judgment in crimi- 
 nal causes, yet in as much as it properly relates to larciny and rob- 
 bery of goods, it will not be amiss to take it up here as an appendix 
 to the four former chapters touching larciny and robbery. 
 
 There are three means of restitution of goods for the party, from 
 whom they were stolen, viz. 1. By appeal of robbery or larciiiy,[l] 
 3. By the statute of 21 H. 8. cap. 11. [2] And 3. By course of com- 
 mon law. 
 
 I. Upon an appeal of robbery or larciny, if the party were convict 
 thereupon, restitution of the goods contained in the appeal was to be 
 made to the appellant, for it is one of the ends of that suit. 
 
 And hence it is, that if in an appeal of felony or robbery the appel- 
 lant omit any of the goods stolen from him, they are forfeit, and con- 
 fiscate to the king, 45 E. 3. Cor on. 100. 
 
 And so it is, if he brings an appeal of robbery or larciny, 
 r 539] and it appears upon the trial, that indeed the goods were 
 the plaintiff's; but yet the appellee came to the goods not 
 by felony, but by finding or bailment or the like without felony, the 
 plaintiff forfeits these goods to the king for his false appeal. 3 E. 3. 
 Coron. 367. 
 
 But if the defendant in the appeal be convicted, he shall not only- 
 have judgment of death, but the plaintiff shall have a restitution of 
 his goods. 
 
 If./?, steals the goods of B. C. and D. severally, and B. brings his 
 appeal, and convicts the offender, yet before judgment C. and D. 
 may pursue their appeals, and he shall be arraigned also upon their 
 several appeals. 4 i?. 4. 11 «. 
 
 So if judgment be given against Ji. upon the appeal of B. yet if 
 the appeal of C. were begun before the attainder, ,^. shall be 
 arraigned upon the appeal of C. because he is to have restitution of 
 his goods thereby, yet by the book of 7 H. 4. 31. and 12 E. 2. 
 Coron. 379. it seems, that the second trial at the suit of C. is but in 
 nature of an iuqncst of office to entitle him to the restitution of his 
 goods, because as to the judgment of life he is already in law a dead 
 person, and the book of 4 E. 4. II. (a) speaks not in case of a judg- 
 ment, but only of a conviction or finding guilty ; qicsere, vide 44 
 
 («) That case was of a second appeal brought before the party had pleaded to the 
 first. 
 
 [1] This no longer exists. Sec 59 Geo. III. c. 4G. 
 
 [2] Now aincniled by 7 «fc 8 Geo. 1V.C.2U. § 58.; andsco 7 Car. Sf P. 481. 640.
 
 HISTORIA PLACITORUM CORONA. 539 
 
 E. 3. 44. yet vide Slamf. p. 66 and 107. it seems the attainder is no 
 bar to C. 
 
 But certain it is, that if ./?. be attaint at the suit of B. and then 
 and not before C. commences his appeal, Ji. shall not be arraigned 
 thereupon ; but if he be afterwards pardoned, then he shall be 
 arraigned at the suit of C. commenced after the attainder, 6 H. 4. 
 6. h. 10 H. 4. Coron. 227. But if the attainder were at the king's 
 suit for that very felony, for which C. brought his appeal after the 
 attainder, then it seems he shall not be put to answe? it. Stamf. 
 P. C.p. 106. 
 
 Now touching restitutions upon appeals, Stamf. Lib. III. cap. 10. 
 fol. 165. hath given us a full account, I shall follow his method partly 
 and summarily. 1. Where the plaintiff shall have restitution. 2. 
 When. 3. Of what things. 
 
 1. As to the first, where and in what cases the party 
 appellant shall have restitution. [ 540 ] 
 
 1. It must be upon fresh suit, and tho antiently the law 
 
 was strict herein as to the time and manner of the pursuit and appre- 
 hending of the felon, yet the law is now more liberal. 
 
 If the felon be taken by any others, as by the sheriff, yet if the 
 party robbed come within a year after, and give notice of the felony, 
 and enter his appeal, this is a fresh suit, if he used his diligence 
 shortly after the felony to have taken him. 7 H. 4. 43. b. 
 
 2. The appellant must proceed with his appeal to convict the 
 felon ; but yet in cases of impossibility of such conviction it is 
 sufficient that he used his endeavour; as if he takes the felon, and 
 imprison him, and he dies within the year, and before the appeal 
 commenced ; so if the party abjure or break prison after he is 
 taken, 12 E. 2. Coron. 380. so as the appeal be commenced within 
 the year and day, and that he made fresh suit, 26 ^ssiz. 32. or if 
 he challenge peremptorily above the number appointed by law, 
 stands mute of malice, or hath his clergy, (6) 8 H. 4. 1. or be 
 outlawed. 
 
 2. As to the second, when he shall have restitution. 
 
 He shall have restitution after judgment against the appellee, and 
 before execution made or prayed. 21 E. A. 73. b. 
 
 He shall have restitution after conviction of the principal, and 
 before conviction of the accessary, and after conviction of one of the 
 principals before conviction of the other, or tho the other be acquitted 
 upon his appeal. 21 E. 4. 16 a. 10 H. 4. Coron. 466. 
 
 But if A. steal severally the goods of B. and C. and he be con- 
 vict upon the appeal of B. yet C. shall not have restitution till he 
 be convict at his suit also, 4 E. 4. 11. supra, altho the felon be 
 convict at the suit of the appellant, yet he is not to have resti- 
 tution till the fresh suit be inquired, which is to be done by the 
 same jury that convicts the felon, if he plead to inquest, 
 but if he confess the felony, or stand mute, it shall be in- [ 541 ~\ 
 
 (6) 4 E. 4. 19. b.
 
 541 HISTORIA PLACITORUM CORONA. 
 
 quired by inquest taken ex officio by the judge. 1 H. 4. 5. a. 2. B: 3. 
 12. 3 H. 7. 12. b. 
 
 3. Of what things he is to have restitution. 
 
 If a felon waive the goods stolen without any pursuit after him, 
 those goods are not in law bona waiviata, nor forfeit to the king or 
 lord of a franchise; but if he waive them upon a pursuit of him, 
 then they are bonci, icaiviata, and forfeit to the king or lord of the 
 Hberty ; quod vide 5 Co. Rep. 109. a. Foxley^s case. 
 
 And this forfeiture is not like a stray, where tho the lord may 
 seize, yet the party, who is the owner, may retake them within the 
 year and day, but here the true owner cannot seize his own goods, 
 tho upon fresh suit within the year and day. 8 ^. 3. 11. a. Jivoiory 
 151. 3 E. 3. Cor. 162. 
 
 But yet this is not an absolute loss of the owner's goods, but 
 rather an expedient settled by law to drive the owner to convict 
 the felon by prosecuting his appeal, and therefore if he make fresh 
 suit, and prosecute his appeal, and the felon be thereupon convict 
 and attaint, and the fresh suit be inquired and found by verdict or 
 inquest of office, he shall have restitution of the goods so waived. 
 5 Co. Rep. 109. Fox ley's case, 3 E. 3. Coron. 162. 
 
 Bnt more of restitution under the next general, for it is regularly 
 true, that of what things the owner shall have restitution upon the 
 statute of 21 H. 8. he should have restitution upon a conviction in 
 an appeal at common law, and e converso, so that what is said upon 
 the statute, is applicable to restitution upon an appeal. 
 , II. By the statute of 21 H. 8. cap. 11. [3] it is enacted, "That if 
 any person do rob or take away the goods of any of the king's 
 subjects within this realm, and be indicted, arraigned, and found 
 guilty thereof, or otherwise attainted by reason of the evidence of 
 the party so robbed, or owner of the said money, goods or chattels, 
 or any other by their procurement, that then the party so robbed, or 
 owner, shall be restored to his money, goods or chattels, and the jus* 
 tices, before whom such person shall be so attainted, or 
 [^5423 found guilty by reason of the evidence of the party so 
 robbed, or owner, or by any other by their procurement, 
 have power to reward writs of restitution for the said money or 
 goods, or chattels in like manner, as tho any such felon or felons 
 were attainted at the suit of the party in an appeal. 
 
 This statute introduced a new law for restitution: for before this 
 statute there was no restitution upon an indictment, but only upon 
 an appeal. 22 E. 3. Coroii. 460. Samf. P. C.p. 167. a. 
 
 Tho the statute speak of the king's subjects, it extends to aliens 
 robbed; for tho they are not the king's natiiral-born subjects, they 
 are the king's subjects, when in England, by local allegiance. 
 
 If the servant be robbed of -the master's money, and the mas- 
 ter, or his servant by his procurement give evidence and convict 
 
 [3] Sec ante, note (2) p. 538.
 
 HISTORIA PLACITORUM CORONA. 542 
 
 the felon, the master shall have a writ of restitution, if it appear 
 upon the indictment and evidence it was the master's money, for 
 the statute gives restitution to the party robbed or owner. Stamf, 
 P. C.p. 167. 
 
 If r.'l. be robbed by B. and C. and B. only is convict of the rob- 
 bery by the evidence o{ ^. he shall have restitution, for so he should 
 have had in case of an appeal. 
 
 If t/1. be robbed of an ox by B. who sells him to C. who keeps 
 the money in his liands, and after kills the ox, and sells the flesh, or 
 if the money be seized in the hands of the thief, t^. may, if he 
 pleases, have a writ of restitution for the money. Noy^s reports, 
 Harrises case.(c) 
 
 So if money be stolen, and the thief taken, and the money seized, 
 he shall have restitution of the money. 
 
 The testator is robbed, the thief is convict upon the procurement 
 of the executor, he shall have restitution. 3 Eliz. Benl. S7. Dy, 201. 
 6 Co. Rep. 80. 
 
 It hath been a great question, if goods be stolen, and by the thief 
 sold in a market-overt, whether the thief being convicted upon the evi- 
 dence of the party robbed, he shall have restitution upon this statute 
 of the thing sold or not, the buyer not being privy to the felony: 
 those that held he should not, ground themselves upon the 
 book of 12 H. 8. 10. Mr. DaUon's opinion, cap. 111. p. [543] 
 229. (c^) upon the resolution in the case o{ market-overt, 5 Co. 
 Rep. S3, b. which was upon occasion of a writ of restitution,(e) where 
 it is held, that the sale in market-overt is a bar to the restitution; 
 and upon the statute of 31 Eliz. cap. 12. where it is specially pro- 
 vided, that notwithstanding a sale of a horse in market-overt the 
 owner may take him within six months after the felony upon proof 
 of his property, which evidenceth, that after the six months he shall 
 not have restitution ; and of this opinion wais //yr/e just ice (/) at the 
 sessions held after Trin. 13. Car. Brown ']\\s\\cq dissentienle. 
 
 But it seems he shall have restitution upon this statiUe, notwith- 
 standing the sale in market-overt of the goods stolen, and as to the 
 authorities, the 12 H. 8. 10. was before the statute of 21 //. 8. and 
 Mr. Daltoii^s opinion seems to be grounded upon it; the case of 
 market-overt, 5 Co. Rep. it is true seems to be against the restitu- 
 tion, tho the case fell off upon this, that the scrivener's shop was no 
 market-overt by the custom oi London. 
 
 As to the statute of 31 Eliz. to which I may add also the statute 
 of 1 Jac. cap. 21. that enacts, "No sale of stolen goods in London, 
 fVestminsler, or Southwark, or within two miles to a broker, shall 
 make any change or alteration of the property or interest:" These 
 statutes make nothing as to the case in question, for without question 
 the sale in market-overt changeth the property in those ca'ses, wherein 
 these and the like statutes have not enacted the contrary, and there- 
 fore the party cannot take them again from the buyer, unless in case 
 of brokers and stolen hoxses, ut supra : but this comes not to the 
 
 (c) Noy 128. {d) New Edit. cap. 164. p. 543. (e) 1 And. 344. (/) Kel. 35.
 
 543 HISTORIA PLACITORUM CORONiE. 
 
 question in hand, for here the act of parHament gives the restitution, 
 and that only where the felon is convicted; and this restitution is not 
 prevented by the sale in market-overt. 1. This act was made to 
 encourage persons robbed to pursue malefactors, and therefore they 
 
 have an assurance of restitution, and it would be small en- 
 [ 544 ]] couragement if a thief by sale in market-overt, which is 
 
 every day in almost every shop in London, should elude it. 
 
 2. It were against the common good, and would encourage offend- 
 ers to the common detriment, if this sale should conclude the owner. 
 
 3. The man that is robbed, is robbed against his will, and cannot 
 help it ; but the buyer of stolen goods may chuse whether he will 
 buy, or if he buy, may yet refuse to buy, unless well secured of the 
 property of the goods, or knowing the owner. 
 
 And if it be said, that the restitution shall be, as in case of an ap- 
 peal, and a sale in market-overt had barred a restitution in an appeal. 
 
 I answer, 1. That it is but gratis dictum, that a sale in a market- 
 overt had barred restitution in an appeal, for there is no authority 
 for it, but the only book, that I know in the case, is to the contrary, 
 viz. 2 Co. Inst it. p. 714. If ^. commit a robbery, the king's officer 
 seizeth the goods stolen, and sells them in market-overt, tlie party 
 robbed convicteth ^. upon his appeal, he shall have restitution notwith- 
 standing such sale, if he made fresh suit. 2. But suppose the appel- 
 lant should not have restitution, yet that restrains not restitution in 
 case of the statute of 21 i/. 8. for the words ./?.s though he had beefi 
 attaint in an appeal are not restrictive, but relative only to the man- 
 ner of the writ of restitution, which shall be such as in an appeal. 
 
 For authorities, 1. It hath been the constant practice at Newgate, 
 that sale in market-overt hath not been allowed against this writ of 
 restitution, and this Mr. Lee, the secondary there for above thirty 
 years, hath attested openly in the court there oftentimes before my- 
 self, and divers others:(g-) again, 2 Co. Instit. p. 714. lord Coke's 
 opinion was in these words, So that in this case also, {viz. upon the 
 statute of 21 H. 8. cap. 11.) the parly robbed, or owner, shall have 
 restitution notwithstanding any sale in market-overt, ^nA with this 
 agreed myself and justice Twisden upon consideration of this statute. 
 Upon this statute of 21 H. S. if the offender be convict 
 [ 545 ] upon the evidence of the party robbed, or owner, he shall 
 have restitution, tho there were no fresh suit, or any inquiry 
 by inquest tonchiiig the same, and this is constant practice, tho in 
 case of an appeal it be otherwise. 
 
 \i Jl. be robbed by B. of a silver cup, a piece of cloth, and other 
 things, and Ji. prefers an indictment only for one of them, as namely 
 the clolli, and convict the felon, he shall have restitution of no more 
 than what is contained in the indictment, and the goods omitted are 
 confiscate to' the king, as in case of goods omitted in an appeal. 44 E. 
 3. 44 (A) tamen qnrcre, for it is not really the party's suit. Vide 
 Dult. cap. IW.p. 2iiS.(/) 
 
 (g) See Kel. 48. 
 
 (A) Tliis is more directly proved Corone 100. (i) New Edit, ubi tvpra.
 
 HISTORIA PLACITORUM CORONiE. 545 
 
 If./?, have his goods stolen by B. and Jl. prefers a bill of indict- 
 ment, which is found, whereupon B. flies and is outlawed, ^. shall 
 have restitution, for he gave evidence upon the indictment, which, 
 tho it be not a conviction, is the ground of the outlawry, which is an 
 attainder. Dalt. uhi svpra. 
 
 A. and B. have their several goods stolen by C. Ji. prefers his bill 
 of indictment for his goods, C is thereupon convicted, notwithstand- 
 ing that conviction B. may prefer his bill, and C shall be thereupon 
 arraigned and tried, to the end that B. may have his restitution, 
 which he could not have by the conviction upon the indictment oi Ji. 
 because a distinct felony, tho most usually at the same sessions the 
 several indictments against the same person are tried by the same 
 \\\xs\ vide 4 ^. 4. 11. Shimf. P. C.foL 167. L 
 
 But suppose that C. be attaint on the indictment preferred by j2. 
 arak reprieved till another sessions, and then B. prefer a bill of indict- 
 ment for another robbery upon him by C. in this case C. may plead 
 to the country if he please, and upon conviction B. shall have restitu- 
 tion, for the court is not bound to take notice at another sessions, 
 that he is attaint, but he m^ if he please plead aiitrefoits attaint, 
 and refuse to answer, and then by the book of 44 E. 3. 44. in case of 
 an appeal he should have no restitution, but his goods should 
 be confiscate to the king, but I think that to serve the statute [ 546 1 
 of 21 H. 8. as to the point of restitution the court may and 
 ill reason ought to inquire by an inquest of office touching the rob- 
 bery of B. and being ascertained of it thereby to grant restitution, 
 tho they ought to give no new judgment of death upon such inquest, 
 at least, unless the prisoner had pleaded to the indictment not guilty, 
 and put himself upon the country: vide 4 E. 4. 11. Bait. cajj. 111. 
 p. 714, 115. ,{k) Sta?7if. P. C. p. 107. 
 
 And thus far of restitution by the statute of 21 H. 8. 
 
 III. Restitution by course of law is either by taking his goods, or 
 by action. [4] 
 
 1. As to retaking of goods stolen: if A. steal the goods of ^. and 
 
 (k) New Edit. cap. 164. p. 543. 
 
 [4] In a recent case it was held, that if goods have been stolen, or there be reasonable 
 ground for presuming that fact, the owner cannot maintain trover against tlie person 
 who bought them of the supposed thief, without he has done every tiling in his power to 
 bring the thief to justice. Gemson v. Woodfall, 2 C. Sf P. 41. 
 
 The owner can have no civil redress against the felon himself before conviction, as it 
 would be merging the felony in the civil action; and if he has no redress against the 
 felon himself he has none against persons who derive their title through him. Crosby v. 
 Long, 12 East's K. 40'J. And if the felon be paidoncd after conviction, or even if he be 
 hovajide acquitted, the owner may bring an action against him in trespass, or trover to 
 recover dam.iges; for the cFvil right was not merged in the public injury, but only sus- 
 pended till the prosecution was concluded. Id. 
 
 If the thing s^tolcn be converted inio money, the owner may, after having done all he 
 can to bring the offender to justice, have the produce instead of the specific chattel. 
 5 Rip. 10;). Keilw. 49. See, aUo, Horwood v. Smith, 2 T. H. 750, and Bishop v. Shel- 
 leto, 2 It. Sf Aid. 329 (n.) 
 
 'I'here is now a statute in England on the subject of the restitution of stolen goods, 
 entitled " An act to encourage tiie prosecution of offenders." 7 &, 8 Geo. IV. c. 2d, 
 VOL. I. — 48
 
 546 HISTORIA PLACITORUM CORONA. 
 
 B. take his goods of ./^. again to the intent to favour him or maintain 
 him, this is unlawful and punishable by fine and imprisonment, (/) 
 but if he take them again without any such intent, it is no offense. 
 Mich. 16 Jac. B. R. Higgins and Jindrews,{rn) but justifiable. 
 
 But after the felon is convicted, it can be no colour of crime to take 
 his goods again, where he finds them, because he hath pursued the 
 law upon him, and may have his writ of restitution, if he please. 
 
 2. By course of common law: A. steals the goods of B. viz. fifty 
 pounds in money, A. is convicted, and hath his clergy upon the pro- 
 secution of B. B. brings a trover and conversion for this fifty pounds, 
 and upon not guilty pleaded this special matter is found, and adjudged 
 for the plaintiff, because now the party hath prosecuted the law 
 against him, and no mischief to the commonwealth; but it was held, 
 that if a man feloniously steal goods, and before prosecution by in- 
 dictment the party robbed brings trover., it lies not, for so felo^es 
 should be healed. M. 1652. B. R. Dnwkes and Coverieigh;{n) vide 
 accordant Noyes reports,(o) Markham and Cob; but if the 
 [547 J plaintiff had not given evidence upon the conviction, it was 
 held, that the action lay not, b#t the goods were confiscate 
 to the king, and for want of that averment in the case of Markham, 
 judgment was given for the defendant in trespass. 
 
 CHAPTER XLVIIL 
 
 OF BURGLARY, THE KINDS, AND PUNJS5MENT. 
 
 I COME to those crimes that specially concern the habitation of a man, 
 to which the laws of this kingdom have a special respect, because 
 every man by the law hath a special protection in reference to his 
 house and d\velling.(fl) 
 
 And that is the reason, that a man may assemble people together 
 for the safeguard of his house, which he could not do in relation to 
 travel, or a journey. 21 H. 7. 39. a. 
 
 And upon the same reason it is, that not only by the statute of 24 
 H. 8. cap. 5. but even by the common law, if any come to commit 
 a felony upon me in my house, and I kill him, it is no felony, nor 
 inducelh any forfeiture; quod vide supra, p. 487. vide Sir Henry 
 
 (I) And so seems the practice of advertising a reward for brinjring- goods stolen, and 
 no questions asked, which 1 have lieard lord chancellor Macclisjield declare to be highly 
 criminal, as being a sort of compounding of felony, for the goods by that means return- 
 ing to the right owner, a stop is put to the inquiry and prosecution of the felon, and 
 theneby great encouragement is given to the commission of such offences. See postea, 
 cap. 56. 
 
 (m) 2 Rol. Rep. 55. (n) Style 346. (o) Noy 82. 
 
 (a) That this was the notion among the Romans also appears from Cicero in oratione 
 pro domo, cap. 41. Quid cnini sanctius, quid omni religione miinitius, qunm domus imiiis- 
 cujusque civium? hie ara sunt, hie soci,—hoc perfugiwn est ita sanctum omnibus, ut inde 
 abripi neminem fas sit.
 
 HISTORIA PLACITORUM CORONA. 547 
 
 Spelman Gloss, tit. Hamsecken, ^- ibidem tit. Biirglaria, whereby 
 it appears, that by the antient laws of Caniitiis,{b) and oi H. l.(c) 
 it was punished with death. 
 
 The common genus of offenses that comes under the name of 
 Hamsecken, is that which is usually called house-breaking, which 
 sometimes comes under the common appellation of burqla7-y, 
 whether committed in the day or night to the intent to com- [ 548 ~\ 
 mit felony, so that house-breaking of this kind is of two 
 natures. 
 
 1. That which in a vulgar and improper acceptation is sometimes 
 called burglary. And, 
 
 2. That which in a strict and legal acceptation is so called. 
 
 I. As to the former of these, kam,sacken, house-breaking, or burg- 
 lary in a vulgar acceptation is of several kinds. 
 
 1. Robbing any person by day or night in his dwelling-house, the 
 dweller, his wife, children, or serv-ants being in the house, and put in 
 fear; this requires that there be something taken, but it requires not 
 an actual breach of the house; but it is all one, whether he actually 
 breaks the house, or enters per ostia aperta, (or it is in truth robbery 
 either way, and from this offense clergy is taken away by the statute 
 of 23 H. 8. cap. 1. and 25 H. S. cap. 3. from the principal, and by the 
 statute of 4 4* 5 P. 4' M cap. 4. from the accessary. 
 
 2. Robbing a person by day or night in his dwelling-house, the 
 dweller, his wife or children being in the house, and not put in fear; 
 this requires, 1. An actual breaking of the house. 2. An actual taking 
 of something, but the persons need not ^e put in fear; and by the 
 statute of 5 (^' 6 E. 6. cap. 9. clergy is in this case taken from the 
 principal, that enters the house; and by the statute of 4 4' 5 F. 4* M. 
 cap. 4. from the accessary before. 
 
 3. Robbing a dwelling-house by day or night, and taking away 
 goods, none being in the house; this requires an actual breaking, and 
 an actual taking of something, and without the latter it is not felony, 
 but if accompanied with both, and the taking of goods be of the value 
 of five shillings, it is excluded from clergy by 39 Eliz. cap. 15. 
 
 4. A breaking of the house in the day or night to the intent to 
 steal or commit a felony,[l] any person being in the house, and put 
 
 (h) I. 61. reckons irruptio in d'omum among the scelera inexpialilia. 
 (c) I. 80. See Wilk. Leg. Anglo-Sax. p. 273. 
 
 [1] Whoever in the night time breaks and enters the dwelling-house of another, with 
 intent to commit murder, rape, arson, robbery, or larceny, within the same; or by day 
 or night enters the same witli such intent, and in the niglit, breaks with such intent any 
 apartment thereof; or in the night enters the same with such intent, and in the night 
 breaks out of such dwelling-house, or being an inmate therein, in the night breaks and 
 enters, with such intent, any apartment thereof, without any right or authority to enter 
 the same, at the time, is guilty of burglary. Mass. Penal Code. Tit. Biirglarij. 
 
 According to the law of England, there are six ways of committing Burglary: 
 ^ 1. By breaking and entry from without, with intent, &c. 
 
 "Si By entry from without, &,c. and breaking some apartment within, with intent, &c. 
 
 3. By breaking and entry of an inner apartment, by an inmate, with intent, «fcc.
 
 548 HISTORIA PLACITORUM CORONA. 
 
 in fear, tho nothing be actually taken, this is burglary by the common 
 law, if it is in the night, and felony by the statute of 1 ^. 6 cap. 12. 
 tho in the day, and is excluded from clergy by the statute of 1 E. 6. 
 whether by day or by night, but then it requires, 1. An actual break- 
 ing of the house, and not an entry /?er osl'ia aperta. 2. An 
 [549] entry with intent to commit a felony, and so laid in the in- 
 dictment. PouKer^s case, 11 Co. Rep. 31. b.[2'] 
 
 3. A putting in fear, but accessaries have clergy. [3] 
 
 II. Legal or proper burglary is of two kinds, viz. 1. Complicated 
 and mixed with another felony, as breaking the house, and stealing 
 goods, either with putting in fear or without putting in fear, some- 
 body in the house, or nobody in the house, which requires, 1. That 
 it be done in the night. 2. That there be an actual breaking. 
 
 2. Simple burglary, and that either, 1. With putting in fear, and 
 then the principal is excluded of clergy by the statute of 1 JS. 6. and 
 also by the statute of 18 Eliz. or, 2. Without putting in fear, and 
 then he is excluded of clergy by the statute of IS Eliz. 
 
 And this chapter speaks only of proper or legal burglaries, of those 
 improper burglaries I have spoken before. 
 
 Burglary is described by Sir Henri/ Spehnan{e) to be nocturna 
 diruptio alicvjiis hahiiaculi vel ecclesise, etiam murorum porta- 
 rumve civitatis aut burgi ad fdoniani perpctrandam. 
 
 My lord Coke P. C. cap. 14. p. 63. more fully describes it. "A 
 burglar is he, that in the night-time breaketh and entreth into a 
 mansion-house of another of intent to kill some reasonable creature, 
 or to commit some other fflony within the same, whether his felo- 
 nious intent he executed or not. 
 
 And accordingly the indictment runs, quod J. S. 1 die Julii anno 
 &.C. in nocte ejusdem diei vi & armis domum mansionaleni A. B. 
 
 (e) In verba burglaria. 
 
 4. By entry, with intent, &c., and breaking out. 
 
 5. By entry and actual commission of felony within, and breaking out. 
 
 6. By breaking and entry, and actual commission of felony within. 
 
 The first three and the sixth offences (12 East, 519.) are burglary at common law. 
 It is uncertain whether the fourth is burglary at common law or not. Hale denies it to 
 be burglary, ipage'554.) where the breaking out was with intent to escape only. The 
 general doctrine is, that both the breaking and entry must be with felonious intent. If 
 this case is not an exception, (and we are by no means ready to conclude that it is,) 
 breaking out, if a breaking at all, at common law, can be so only when the offender 
 pursues his felonious intent; as when he carries away something stolen, or pursues some 
 one with intent to murder, &c. But both the fourth and filth are burglary, by statute 
 17 Anne, c. 7. re-enacted in words a little varied in 7 & 8 Geo. IV. c. 29. s. 11. 
 
 " If any person sliall enter the dwelling-house of another with intent to commit felony, 
 or being in such dwelling-house, shall commit any felony, and shall, in either case, break 
 out of the said dwelling-liouse in the night time, snch person shall be deemed guilty of 
 burglary." Such is generally the state of the law of burgl.iry in England. Mass. Com. 
 Rep. See Rex v. Hanson, 1 Roofs Rep. .59. Tke Slate v. Wi'son, Coxe^s N. J. Rep. 441. 
 Com. V. Newell, 1 Mass. R. 247. Coin. v. Brown., 3 Rawle Rep. 207. 
 
 [2] State V. Wilson Coxa's, N. J. Rep. 441. Com. v. Newell, 7 Mass. R. 247. Rex v. 
 Hanson, 1 RooVs R. 59. 
 
 [3] As to clergy, see ante ch, 44. . '
 
 HISTORIA PLACITORUM CORONA. 549 
 
 felonice & burglariter fregit & intravit, ac ad tunc & ibidem unum 
 scyphum argenteuni &c. de bonis & catailis ejnsdeni Jl. B. in eadem 
 doriio invent' felonice & burglariter fiiratus fuit, cepit & asportavit; 
 or if no theft were actually committed, then ex intentione ad bona 
 & catalla ejiisdem A. B. in eadem dorno existent' felonice & bur- 
 glariter furandiim, capiendum & asportandum, or ea intentione ad 
 ipsum A. B. ibidem felonice interficiendiim contra pacem &c. 
 
 And note, that these several clauses in the indictment are essential 
 to the constitution of burglary, 1. That it be said noctanter, or in 
 nocte ejusdem diei(f) for if it be in the day-time, it is not 
 burglary. 2. That it be said in the indictment burglariter, [ 550^ 
 for it is a legal word of art, without which burglary cannot 
 be expressed with any kind of other word or other circumlocution, 
 and therefore, where the indictment is burgaliter instead of bur- 
 glariter, it makes no indictment of burglary, so if it be burgenter. 
 4 Co. Rep. 39. b.{g) 
 
 3. It must be fregit 4* intravit, for it is held, that breaking with- 
 out entring, or entring without breaking makes not burglary, sed de 
 hoc infra; yet Trin. 5 Jac. B. R. an indictment, quod felonicl §• 
 burglariter fregit dom,um mansionalern, Sf'C. was a good indict- 
 ment of burglary, and that the entry is sufficiently implied, even in 
 an indictment, by the words burglariter fregit, h\xi the safest and 
 common way is to say fregit S,' intravit. 
 
 4. It must be said domum niansionalem, where burglary is com- 
 mitted in a house, and not generally domum, (or that is too uncertain, 
 and at large. 
 
 5. It must be alleged, that he committed a felony in the same 
 house, or that he brake and entred the house to the intent to commit 
 a felony, but these things will be fuller examined, when we come to 
 particulars. 
 
 1. Therefore the time, wherein it must be committed to make it 
 burglary, must be in the night.[4] 
 
 (/) See 9 Co. 66. b. (g) See also 5 Co. 121. b. 
 
 [4] See 4 Bl. Com. 224. But now in England, as to what shall be held day and what 
 night, see 7 Will. IV. Sf 1 Vict. c. 86, s. 4, which enacts, that 9 o'clock in the evening 
 of one day until 6 o'clock in the morning of the succeeding day, shall be considered 
 night. ■ 
 
 Anciently, the day was accounted to begin only at sun-rising, and to end immediately 
 at sun-set, as stated by Lord Hale, infra ; but the opinion usually held was, that if there 
 be daylight, or crepusculum, twilight, enough to descern a man's face, it was no bur- 
 glary. 3 Inst 63; 2 EasVs, P.. C. 509. But tliis did not extend to moonlight, for then 
 many midnight burglaries would go unpunished. 4 Blue. sup. The brealiuig and en- 
 tering must both be committed in the night time. But the breaking may be committed 
 in one night, and the entering in another. Rex v. Jordan, 7 Car. Sf P. 432. The 
 breaking, however, must be with intent to enter, and the entry with intent to commit a 
 felony. Rex v. Smith, R. .^ i?. 417. 
 
 If there be daylight or twilight enough begun or left, whereby the countenance of a 
 person may be reasonably discerned, a breaking and entry is not burglary by the com- 
 mon law. 7 Dane's Ahr. 134. Hence an indictment, which alleged the crime to have 
 been committed between the hours of 12 at night and 9 of the succeeding evening, will
 
 550 HISTORIA PLACITORUM CORONA. 
 
 It hath been antiently held, that after sun -set, tho day-Hght be not 
 quite gone, or before sun-rising is noctanter to make a burglary, 
 halt. cap. 99. p. 352,{h) and accordingly cited by Crompt.fol. o2.b, 
 to have been judged by Portmaii, 3 E. 6.,(e) and the felons executed, 
 and 21 H. 7. Kelw. 15. a. 
 
 But the latter opinion hath been and still obtaineth, that if the 
 sun be set, yet if the countenance of a party can be reasonably 
 discerned by the light of the sun or crepusculum, it is not night, 
 nor noctanter to make a burglary; and with this agrees Co; P. C. 
 p. 63. and hence it is, that altho a town unwalled shall not be 
 amerced for the escape of a murderer, if the murder were com- 
 mitted in the night, yet if it- were done only in vespere diei,X\\Q 
 township shall be amerced. 3 E. 3. Coron. 293. And if a 
 {"551 ] a robbery be committed before sun-rising, or after sun-set, 
 and whilst it is so far day-light, that the countenance of a 
 man can be reasonably discerned by the light of the day, yet the 
 hundred shall be charged, otherwise where it is done in the night, 
 
 7 Co. Rep. 34. Milburn^s case: but this is not intended of moon- 
 light, for then midnight house-breaking should be no burglary; 
 and the word noctanter is to be applied to all that follows, viz, 
 fregit Si- intravit, if the breaking of the house were in the day- 
 time, and the entring in the night, or the breaking in the night, 
 and entring in the day, this will not be burglary, for both make 
 the offense, and both must be noctanter: vide CrompL 33. a. ex 
 
 8 E. 4. {k) ... . _ 
 
 But if they break a hole in the house one night, to the intent to 
 enter another night and commit felony, and accordingly they come 
 at another night, and commit a felony through the hole they so 
 made the night before, this seems to be burglary, for the breaking 
 and entring were both noctanter, tho not the same night; and it 
 shall be supposed, that they brake and entred the night when they 
 entred, for the breaking makes not the burglary till the entry. 
 
 2. There must be a breaking and an entry to make the burglary, 
 and therefore I shall speak of them both together.[5] 
 
 (h) New Edit. cap. 151. p. 486. 
 
 (i) See the like judgment per Fineux, Crompt. 33. a. 
 
 (k) This case does not fully prove the point it is brought for, for the resolution there 
 was only, that if thieves enter in by night at an hole in tlie wall, which was there before, 
 it is not burglary, but it docs not appear who made the hole. 
 
 be quashed for want of a noctanter. The State v. MatJier, N. Chipm. R. 32 ; The Slate v. 
 Bancroft, 10 Mass. R. 10.5; Th,' State v. (1. S. 1 rtjlcr, Vennt. R. 2'J5; Com. v. Cheta- 
 Her, 1 Dane^s Air. 134; sed vide Thomas v. The State, 5 How. {Miss.) Rep. 20. 
 
 [5] It is deemed an entry, when the tliief breaketli the house, and his body, or any 
 part thereof, as his foot or his arm, is within any part of the house, or when he puttcth 
 a gun into a window which he hath broki^n, (thoiigli the luind be not in,) or into a hole 
 of the house, whicfi he hatli made with intent to murder or kill, this is an entry and 
 breaking of the house; but, if he doth barely break the house, without any such entry at 
 all, this is no burglary. 3 Inst. 64. 2 East's I'. C. 4U0. 
 
 Thieves c;imc by night to rob a house. Tho owner went out and struck one of them; 
 another made a pass with a sword at persons lie saw in the entry, and in so doing, his
 
 HISTORIA PLACITORUM CORONA. 551 
 
 Antiently the law was so strict against burglary, that the very 
 coming to a house with intent to cotninit a burglary was held pun- 
 ishable with death, Cromp. 31. by Sir Anthony Brown; but that 
 obtains not now for law without a burglary committed. 
 
 Jiand was over the threshold. This was adjudged burglary by great advice. 2 EasVs P. 
 C. 490. • 
 
 In the case of George Gibbons, Old Bailey, June 1752, (Post. 107. 2 East's P. C. 490.) 
 ■which was indicted for burglary in the dwelling-house of John Allan, it appeared in 
 evidence, that the prisoner, in the night time, cut a hole in the window shutters of the 
 prosecutor's shop, which was part of his dwelling-house, and putting his hand through 
 the hole, took out watches and other things, which hung in the shop within his reach, but 
 no entry was proved, otherwise than by putting his hand through the hole. This was 
 held to be burglary, and the prisoner was convicted. Introducing the hand through a 
 pane of glass, broken by the prisoner, between an outer window and an inner shutter, 
 for the purpose of undoing the window latch, is a sufficient entry. R. v. Baily, R. Sf 
 R. 341. So would the mere introduction of the offender's finger. R. v. Davis, R. Sf 
 R. 499., and see ante, 533. 
 
 But an entry through a hole in the roof, left for the purpose of admitting light, is not 
 a sufficient entry to constitute burglary; for a chimney is a necessary opening and needs 
 protection; whereas, if a man choose to leave a hole in the wall or roof of his house^ in- 
 stead of a fastened window, he must take the consequences. R. v. Spriggs, 1 Moo. Sf 
 Rob. 357. Co7n. v. Stewart, 7 Dane's Abr. 136. 
 
 If the instrument with which the house is broken, happen to enter the house, but with- 
 out any intention on the part of the burglar to effect his felonious intent, (as for instance, 
 to draw out the goods,) with it, this will not be a sufficient entry to constitute a burglary. 
 Rex V. Hughes el at., 1 Leach, 496. See R. v. Roberts, 2 East's P. C. 487. 
 
 The prisoner raised a window, which was not bolted, and he tlirust a crow-bar under 
 the bottom of the shutter, (which was about half a foot within the window,) so as to 
 make an indentation on the inside of the shutter, but from the length of the bar, his hand 
 was not inside t^ie house. This was held not to be a sufficient entry to constitute a bur- 
 glary. R. V. Rust Sf Ford, R. S( M. 184. Car. C. L. 293. S. C. by the name of R. v. 
 Roberts. 
 
 Where the house was broken, but not entered, and the owner, for fear, threw out his 
 money, it was holden to be no burglary, though clearly robbery, if taken in the presence 
 of the owner. 2 East's P. C. 490. 
 
 Where thieves bored a hole through the door with a centre-bit, and part of the chips , 
 were found in the inside of the house, by which it was apparent that the end of the cen- 
 tre-bit had penetrated into the house; yet, as the instrument had not been introduced for 
 the purpose of taking the property or committing any other felony, it was decided, that 
 this was not sufficient to constitute burglary. R. v. Hughes, 2 East's P. C. 491. 
 
 If divers come in the night to do a burglary, and one of them break and enter, the 
 rest of them standing to watch at a distance, this is burglary in all. 3 Inst. 64. 
 
 A breaking may be actual or constructive : an actual breaking may be made by 
 breaking the substance of a door or window, as the glass or panels. Com. v. Slevenson, 
 8 Pick. R. 354. Rex v. McKearney, Jebb's Cas. 99. 
 
 By unfastening either door or window and opening it. Rex v. Robinson, Mood. C. C. 
 337. State V. Wilson, Coxe'sN.J. R. 439. Com. v. Stewart, 7 Dane's Abr. 136. 
 
 By breaking away the sides of an aperture, so as to enlarge it. Rex v. Robinson, Mood. 
 C. C. 327. 
 
 By raising a sash or trap-door, or pushing open a door. Rex v. Hyam, 7 C. Sf P. 441. 
 Rex V. Haynes, R. ^ R. 451. Rex v. Brown, 2 East's P. C. 487. Rex v. Callar, R. Sf 
 R. 157. Rex v. Russell, Mood. 377. Sed vide Rex v. Laurence, A C. Sf P. 231. 
 
 And it is a breaking, although there be an outside door or shutter to the same 
 opening, which is not broken. Rex v. Bailey, R. S^ R. 341. Rex v. Parses, 1 C. ^ P. 300. 
 Rex-w Roberts, 2 East's P. C. 487. nor even closed. Rex v. Haynes, R. 4" Ry. 451. 
 
 By breaking, removing, or opening the roof, wall, ceiling, floor, or any defence or 
 barrier against entry, which is parcel of the dwelling-house. 2 Russ. on C. 3. 
 
 But it seems the entering any aperture, found open, is not a breaking. Com. v. Steward, 
 7 Dane's Abr. 136. Rex v. Spriggs, cited sup. Rex v. L^is, 2 C. Sf P. 628.. 
 
 It is a constructive breaking, if aa entry is actually, made, and Jthe^means of entrance
 
 551 HISTORIA PLACITORUM CORONA. 
 
 Fregit, there is a double kind of breaking, 1. In law, and thus 
 every one that enters into another's house against his will, or to con:i- 
 mit a felony, tho the doors be open, doth in law break the house. 
 2. There is a breaking in fact an actual force upon the house, as by 
 opening a door, breaking a window, S,-c. 
 
 And altho, in the remembrance of some yet alive. Sir N. H.{1) 
 chief justice did hold, that a breaking in law ^as sufficient to make 
 a burglary, as if a man entred into the house by the doors 
 j^ 552 ] open in the night, and stole goods, that this is burglary, and 
 accordingly is Crompt. 32. a. 27 Jissiz 38. yet the law is, 
 that a bare breaking in law, viz. an entry by the doors or windows 
 open is not sufficient to make burglary without an actual breaking, 
 Co. P. C. p. 64. and so the law hath been generally taken to this day 
 in case of burglary.(m) 
 
 And these acts amount to an actual breaking, viz. opening the 
 casement, or breaking the glass window, picking open a lock of a 
 door with a false key, or putting back the lock with a knife or dag- 
 ger, unlatching the door that is only latched, to put back the leaf of 
 a window with a dagger, Dult. cap. 99. {n) Crompt. 33. a. and so is 
 common experience.[6] 
 
 To take down a pane of glass of a glass-window by taking out or 
 bending aside the nails that fasten it is a breaking of a house within 
 lliis law, because the glass-window is parcel of the house. 
 
 It was held by Manwood chief baron, that if a thief goes down a 
 chimney to steal, this is a breaking and entring, Crompt. fol. 32. b. 
 and hereunto agrees Mr. Ballon, p. 253.(o)[7] 
 
 (Z) Sir Nicholas Hyde, see Cro. Car. 65. 225. 
 
 (m) See Kd. 67 ^ 70. (n) New Edit. p. 487. ; 
 
 (o) The reason of this seems to be, because it is as much shut as the nature of the 
 things will admit. 
 
 are obtained by frightful noises, showing dangerous weapons, or attacks on the house. 
 Rex V. Swallow, 2 Kuss. C. ^ M. 8. 2 East's P. C. 486. 
 
 By any fraud or trick practised to obtain admission; as by abuse of process or legal 
 authority; or under pretence of business with some one within; or by fraudulently per- 
 suajding another tp give adnnssion; or by knocking or otherwise pretending a right or 
 lawful occasion to enter; or under any pretence of a similar character. Rex v. Gascoigne, 
 1 Leach, C. C. 284. McGregor's case, Hume's Crim. Law, 98. Browne's case, Jb. 4 BL 
 Com. 226. 
 
 [6] Pugh V. Griffiths, 7 Ad.' <^- El. 836 ; Rex v. Urdan, 7 Car. Sf P. 432 ; Rex v. 
 Wheldon^, 8 Car. ^ P. 247 ; Rex v. Hyams,! Car. S; Pay. 441. 
 
 [7] If Ihethief enter by the chimney, it is a breaking; for that is as much closed as 
 the nature of things will permit. 1 Hawk, c. 38, s. 4. 4 Bl. Com. 22B. 
 
 And it would be a burglarious breaking to constitute burglary, though the party does 
 not enter any of the rooms of the house. Thus in Rex v, Brice, R. Sf R. 450, the priso- 
 ner got in at a chimney and lowered liimsclf a considerable way down just above a man- 
 tel-piece of a room on the ground Hoor. Holroyd and Burroughs, JJ. thought this was 
 not a breaking and entering of tiie dwelling-house, on the ground that he was not within 
 the dwelling-liouse, till lie was below the chimney-piece. The rest of the judges, how- 
 ever, held otherwise; for that the chimney was part of the dwelling-house, that the get- 
 ting in at the top was a breaking of the dwelling-house, and that the lowering himself 
 was an entry therein. 
 
 There are two cases in the Scotch law, which are somewhat analogous to the entry
 
 HISTORIA PLACITORUM CORONA. 552 
 
 . There was one arraigned before me at Cambriclge for burglary, and 
 upon the evidence it appeared, that he crept down a chimney; I was 
 doubtful whether this were burglary, and so were some others; but 
 upon examination it appeared, that in liis creeping down some of the 
 
 into a chimney, which have been decided to be brealiings. The one where the defendant 
 entered a sewer, which issued from a cellar, and passed under ground. Hume's Crim. Law 
 of Scot. § 97 ; and tlie other, wliere he entered a paper-mill by tlie race-way of the water- 
 wheel. Id, note (3.) In the former case, it is not settled, whether the passing into the 
 sewer, or passing that part o.f it which enters the walls of the house, or, passing out of it 
 into the house constituted the offence. The latter could only apply in l)urglary, where 
 such a building had a covered communication with a dwelling-house. 
 
 Where the prisoner effected an entry by pulling down the upper sash cf a window 
 ■which had not been fastened, but merely kept in its place by the pulley-weight, the 
 judges held this to be a sufficient breaking to constitute burglary, even although it also 
 appeared that an outside shutter, by which the window was usually secured, was not 
 closed or fastened at the time. R. v. Huines and Harrison, R. Sf R. 451 ; and see R. v. 
 Hyams, 7 C. <^ P. 441. 
 
 Where an entry was first into an outer cellar by lifting up a heavy iron grating that 
 led into it, and then into the house by a window, and it appeared that the window, 
 which opened by hinges, had been fastened by means of two nails as wedges, but could, 
 notwithstanding, easily be opened by pushing; the judges held, that opening the window 
 so secured, was a breaking sufficient to constitute burglary. Rex v. Hall, R. Sf R. 355. 
 So where a party thrust his arm through the broken pane of a window, and in so doing 
 broke some more of the pane, and removed the fastenings of the window and opened it, 
 R. V. Robinson, R, ^ M. 327. And see R. v. Bird, 9 C. S^ P. 44. 
 
 But if a window thus opening on hinges, or a door, be not fastened at all, opening 
 them would not be a breaking within the definition of burglary. Even where the heavy 
 flat-door of a cellar which would keep closed by its own weight, and would require some 
 degree of force to raise it, was opened; it had bolts by which it might have been fastened 
 on the inside, but it did not appear it was so fastened at the time: the judges were 
 divided in opinion, whether opening of this door was such a breaking of the bouse as 
 constituted burglary. R. v. Cullan, R. Sf R. 157. It was holden in Brown's case, 
 (2 East, P. C. 487.) that it was. 
 
 It seems the only difference between these two cases is, that in Brown^s case there 
 was no interior fastenings, but in Cullan's there were, though not used. In a later case 
 it has been held by Bolland, B. that the lifting up of a trap-door covering a cellar which 
 was merely kept in its place by its own weight, and whicli had no fastenings, because it 
 being a new trap-door, they had not been put on, is not a sufficient breaking to consti- 
 lute a burglary. Rex v. Lawrence, 4 C. Sf P. 231. See R. v. Russell, R. Sf M. 377. 
 
 When the offender, with intent to commit a fielony, obtains admission by some artifice 
 or trick for the purpose of effecting it, he will be guilty of burglary, for this is a con- 
 structive breaking. Thus where thjeves, having an intent to roh, raised the hue and cry, 
 and brought ihe constable, to whom the owner opened the door; and when they came in 
 they bound the constable and robbed the owner ; this was held a burglary. So if admis- 
 sion be gained under pretence of business; or if one take lodgings with a like felonious 
 intent, and afterwards rob the landlord; or get possession of a dwelling-house by false 
 aflidavits without any colour of tiUe, and then rifie the house; such entrance being 
 gained by fraud, will be burglarious. 2 East's P. C. 485. So in A. Hawkins's case, 
 O, B. 1704, 2 East's P. C. 485, she was indicted for burglary; upon evidence it 
 appeared that she was acquainted with the house, and knew that the family were in the 
 country; and meeting with the boy who kept the key, she prevailed upon him to go 
 with her to the house by the promise of a pot of ale, robbed the house and went off; and 
 this being in tlie nisU time, it was adjudged that the prisoner was clearly guilty of bur- 
 glary. And see Doe. v. Carter, 8 T. R. 302. 
 
 A breaking may be also constructive, as where in consequence of violence commenced 
 or threatened in order to obtain entrance, the owner, citlier from apprehension of the 
 force, or with a view more effectually to repel it, opens the door through which the rob- 
 ber enters. But where no fraud or conspiracy is made use of, or violence commenced or 
 threatened in order to obtaiij an entrance, there must be an actual breach of some part
 
 552 HISTORIA PLACITORUM CORONA. 
 
 bricks of the chimney were loosened, and fell down in the room, 
 which put it out of question, and direction was given to find it bur- 
 glary; but the jury acquuted him of the whole fact. 
 
 In some cases there may be a burglary committed by a man with- 
 out an actual breaking. 
 
 Thieves come with a pretended hue and cry, and require the con- 
 stable to go along with them to search for felons, and whilst he goes 
 with them into a man's house, they bind the constable and dweller, 
 and rob him, this is burglary, (/?) Co. P. 0. p. 64. The hke hap- 
 
 (p) Because infraudem legis; for the same reason it is burglary, where the thieves 
 gain entrance by pretenses of business with one in the house, Kel. 42, or of executing 
 any process, or the like, Kel. 43, 44. 62. 82. 
 
 of the house, though it need not be accompanied with any violence as to the manner of 
 executing it. 2 East^s P. C. 486. 
 
 Some parts of the house must be broken, where the prisoner opened the area gate with 
 a skeleton key, and from the area passed into the kitchen through a door, which did not 
 appear to have been shut at the time,. the judges held that opening the area gate was not 
 a breaking of tlie dwelling, as there was no free passage in the time of sleep from the 
 area into the house. Rex v. Davis, R. Sf R. 322. 
 
 So breaking a door which formed part of the outward fence of the curtilage of a dwell- 
 ing-house, and which opened not in any building, but into a yard only, was holden not 
 to be a breaking of the dwelling-house; the premises consisted of a dwelling-house, 
 warehouse, and stables surrounding a yard; there was an immediate entrance to the 
 dwelling-house from the street, and a gate and gateway under one of the warehouses 
 leading into the yard; the prisoner entered the premises by breaking this gate: the 
 judges held that this was not burglary ; that breaking this gate, which was part of the 
 outward fence of the curtilage, and not opening into any part of the buildings, was not a 
 breaking of any part of the dwelling-house. R. v. Bennett, R. S( R. 289. 
 
 A shutter-box partly projected from a house, and adjoined the side of the shop win- 
 dow, which side was protected by wooden panelling lined with iron: — Held, that the 
 breaking and entering the shutter-box did not constitute burglary. R. v. Paine^ 
 7 Car Sf P. 135. . 
 
 A burglary may be committed by breaking on the inside, for though a thief enter a 
 dwelling-house in the night time through the outer door being left open, or by an open 
 window, yet if, when within the house, he turn the key or unlatch a chamber-door, with 
 intent to commit felony, this is burglary. {R. v. Johnson, 2 EasVs P. C. 488.) And 
 this may be done by a servant, who sleeps in an adjacent room, unlatching his master's 
 door, and entering his apartment with intent to kill him; (ante p. 544, 2 EasVs P. C. 
 488;) or to commit a rape upon his mistress; (Grrty's case, 1 5'i/a. 481.) But Lord Hale 
 doubts whether a guest at an inn is guilty of burglary, by rising in the night, open- 
 ing his own door, and stealing goods from other rooms ; (p. 554.) And it seems cer- 
 tain, that breaking open a chesi or trunk is nol in itself burglarious; {Post. 108, 109, 
 2 EasVs P. C. 488;) and according to the better opinion, the same principle applies to 
 cupboards, presses, and other fixtures which, though attached to the freehold, are in- 
 tended only the better to supply the place of movable depositories. (Post. 109.) And 
 Mr. J. Foster there says, " in questions between the heir and devisee and the executor;"- 
 (see 2 Vern. 508, 1 P. Wms. 94 ;) those fixtures may with propriety enough be con- 
 sidered as annexed to and parts of the freehold. The law will presume, that it was the 
 intention of the owner undrr whose bounty the executor clainieth, that they should be so 
 .considered, to the end that the house might remain to those who by operation of law or 
 by his bequest should become entitled to it, in the same plight he put it, or should leave 
 it entire and undefuced. But in capital cases I am of opinion that such fixtures which 
 merely supply the place of chests and other ordinary utensils of household should be con- 
 sidered in no other liglif than as mere movables partaking of the nature of those uten- 
 eils, and adapted to the same use. See 2 EasVs P. C. 489. 
 
 Unlocking and opening a hall door of a hou_se, and running away, is a sufficient break- 
 ing out of the hdusc. Rex v. Lawrence, i C. Sf P. 231. Sec R. v. Compton, 7 C. Sf P. 
 139.
 
 HISTORIA PLACITORUM CORONA. 553 
 
 peneJ in Black Fn/ars 1664, where thieves pretending that J3. har- 
 boured traitors, called the constable to go with them to apprehend 
 him, and tlie constable entring, they bound the constable, and rob- 
 bed ^3. and were executed for burglary, and yet in both cases tlie 
 owner opened the doors of his own accord, at the command of the 
 constable. Cromp. 32. h. 
 
 Tliieves come in the night to rob A. who, perceiving it, opens his 
 door, and issues out and strikes one of the thieves with a staff, an- 
 other thief having a pistol in his hand, perceiving others in the entry 
 ready to interrupt them, puts his pistol within the door over the 
 threshold, and shot, so that his hand was over the threshold, but 
 neither his foot, nor the rest of his body, and upon this evidence by 
 great advice it was adjudged burglary, and the thief hanged, and yet 
 he brake not the house, 26 Eliz. Cromp. 32. a. 
 
 If.-'?, the servant of B. conspire with C. to let him in to rob B. and 
 accordingly A. in the night-time opens the door or window, and lets 
 him in, this is burglary in C. but larciny in A. the servant, Dalt. 
 cap, 99. p. 253. (q) it seems it is burglary in both, for if it be burglary 
 in C. it must needs be so in A. because he is present, and aiding to 
 C. to commit this burglary. [8] 
 
 Ift^. enter the house of B. in the night-time, the outward door 
 being open, or by an open window, and when he is within the house, 
 turns a key of a door of a chamber, or unlatcheth a chamber door 
 to the intent to steal, this is burglary, tho the outward door were 
 open; and so it was adjudged upon a special verdict before me at 
 the sessions at Newgate 1672, by advice of many judges then also 
 present. 
 
 And so it is, if a thief be lodged in an, inn, and in the night he 
 stealeth goods, and goeth away, or if he enter into the house secretly 
 in the day-time, and there stayeth till night, and then steals goods and 
 goes away, this is not burglary, DalL iibi supra p. 253. and Cromp. 
 34. a. but if in either of the cases they had opened an inner chamber 
 dooTi and taken the goods, it had been burglary, agreed 1672.(r) 
 
 The servant lies in one part of the house, the master in 
 another, and the stair-foot door of the master's chamber is [ 554 ] 
 latched; the servant came in the night, and unlatched the 
 stair-foot door, and went up into his master's chamber with a hatchet 
 intending to kill him, and wounded him dangerously, but the master 
 escaped. (.9) Upon this special matter found at Winchester assizes, 
 by the advice of the greater number of the judges, exceptis paucis,{f) 
 it was adjudged burglary, and the offender was executed. T. \G Jac. 
 Hutt. Bep. the case of Hay don aiid JEdmutids.{u) 
 
 {(]) New Edit. p. 487. (r) Kel. 69. 
 
 ^s) In old times this would have been adjudged petit treason, for antiently where the 
 intent was so apparent voluntas reputabatur pro facto. Coron. 383. 
 
 {t) They all concurred, except Winch, who doubted. ((/) Hutt. 20. Kel. 67. 
 
 [8] Rex V. Johnson, 1 Car. Sf Marsh. 218 ; Rex v. Cornwell, 2 Stra. R. 860; 19 State 
 Trials, 782. note.
 
 554 HISTORIA PLACITORUM CORONA. 
 
 If a man enter in the night-time by the doors open, with the in- 
 tent to steal, and is pursued, whereby he opens another door to make 
 his escape, tliis I think is not burglary against the opinion of Dalt. 
 p. 25o.{x) out of Sir Francis Bacon, for fregit <§* exivit, non /regit 
 8c intravit.{y) 
 
 \{ Ji. be a lodger in an itm, and he goes up to his chamber to bed, 
 and the chamberlain pulls to the door and latcheth it, or Ji. himself 
 locks it, and in the night he riselh, openeth his chamber door, steals 
 goods in the house, and goes away, it may be a question, whether 
 this be burglary, it seems not, because he had a kind of special 
 interest in his chamber, and so the opening of his own door was no 
 breaking of the inn-keeper's house, for t/^. hath a special property in 
 his chamber; but if he had opened the chamber oi B. a lodger in 
 the inn to steal his goods, this had been burglary. 
 
 And in that case of a lodger, tho he hath a special interest in the 
 chamber, yet he being but a lodger, and in an inn, the burglary 
 must be supposed of the mansion-house of the inn-keeper :(z) vide 
 plus infra. 
 
 If A. enter into the house of B. in the night, by the doors open, 
 and breaks open a chest, and takes away goods without breaking 
 open of an inner door, this is no burglary, because the chest is no 
 part of the house. (a) 
 
 But if he breaks open a study or counting-house, or shop 
 [] 555 1 within the house, this is burglary, tho none usually lodge in 
 the study; and the same law seems to be, if he break open 
 a cupboard or counter fixed to the house ;(Z>) qusere. 
 
 3. Fregit <§' intravit. There must be an entry as well as a break- 
 ing, and both must be in the night, and with an intent to steal, other- 
 wise it is no burglary. [9] 
 
 t-^. intending to rob B. breaks a hole in his house, but enters not, 
 B. for fear, throws out his money to him, t--?. takes it and carries it 
 away, this is certainly robbery, and some have held it burglary, tho 
 Ji. never entred the house ; and so it is reported to have been ad- 
 judged by Saunders chief baron. Crompt. 31. b. tamen qusere.{c) 
 
 If t-^. breaks the house o{ B. in the night-time, with intent to steal 
 goods, and breaks the window, and puts in his hand, or puts in a 
 hook, or other engine to reach out goods, or puts a pistol in at the 
 window with an intent to kill, tho his hand be not within the window, 
 this is burglary. Co. P. C. p. 64. Vide infra. 
 
 (x) New Edit. p. 487. 
 
 (y) But now this doubt is settled by 12 Ann. cap. 7. whereby breaking' to get out is 
 put upon the same foot with breaking to get in. And see 7^8 W. IV. c. 29. s. 11. 
 
 (z) Kel. 83. 
 
 (fl!) Kel. 69. Put it is a felony, for which the offender is ousted of his clergy, by 3 ^T 
 AW.&; M. cap. 9. 
 
 (/») Kel. vbi supra. ' . ' . 
 
 (c) It was adjudged by Mountague chief justice C. B. and Saunders only related it 
 
 [9] Sed vide Pickering v. RuM, 1 Stark. iJ. 48; 4 Campb. R. 220. -S. C.
 
 HISTORIA PLACITORUM CORONA. 555 
 
 Bin if he shoots without the window, and the bullet comes in, this 
 seems to be no entry to make burglary; quasre.[lO] 
 
 ^. B. and C. come in the night by consent to break and enter the 
 house o{ D. to commit a felony, c/^. only actually breaks and enters 
 the house, and B. stands near the door, but actually enters not, C. 
 stands at the lane's end, or orchard gate, or field gate, or the like, 
 to watch that no help come to aid the owner or dweller, or to give 
 notice to the others, if help comes, this is burglary in them all, the 
 •/?. only actually brake and entered the house, and they all, in law, 
 are principals, and excluded from clergy by the statute of IS Eliz. 
 cap. 7. and so it is in robbery, as hath been said, 11 //. 4. 13. b. 
 Cromp 32. a. Co. P. C. p. 64. 
 
 lt\^. being a man of full age, take a child of seven or eight years 
 old well instructed by him in this villainous art, as some such there 
 be, and the child goes in at the window, takes goods out, and de- 
 livers them to t/2. who carries them away this is burglary 
 in ^. tho the child that made the entry, be not guilty by [ 556 1 
 reason of his infancy. 
 
 So if the wife, in the presence of the husband, by his threats or 
 coercion breaks and enters the house of B. in the night, this is bur- 
 glary in the husband, tho the wife, that is the immediate actor, is 
 excused by the coercion of her husband. 
 
 4. Domum mansionaletn : what shall be so said. [11] 
 
 [10] See note (5) •p. 551. It is essential to burglary that there should be an entry, 
 which may be made by introducing any part of the body into the house entered. Rex 
 T. Dams, R. Sf R. 499; Rex v. Bailey, Id. 341; Rex v. Parkts, 1 C. Sf f. 300; Rex 
 V. Roberts, 2 East's P. C. 487. By discharging or throwing any missile into the house, 
 or by introducing any instrument into the house, provided, that such instrument or 
 missile be used as a means of committing or attempting to commit a felony. Rex v. 
 Hughes, 1 Leach, C. C. 406 ; Pickering v. Rudd, 4 Camp. R. 220; Rex v. Rust, Mood. 
 C. C. 183. An entry may be by a door or window, although there be an inside door or 
 shutter to the same opening which is not broken, or an outside door or shuUer which is 
 not closed. Rex v. Bailey, Rex v. Parkes, and Rex v. Haines before cited. 
 
 [11] As to the Dwelling-house and Residence. — A dwelling-house includes, 
 
 1. All apartments under the same roof having a closed and covered communication 
 with the dwelling-house, whether the occupants of the apartments reside within the 
 dwelling-house or not. Sefton's case, R. ^ R.202; Com v. Chevalier, 1 Dane's Abr. 
 IM; CarreVs case, 1 Leach, 237 ; Rex v. Bailey, Moody, 23; Stock^s case, R. &• R. 185 • 
 2 Taunt. R. 3.39. ^ -/ } , 
 
 2. All apartments under the same roof, the occupant of which resides in the dwelling, 
 house, whether they have a closed and covered communication with the dwelling-house 
 or not. Rex v. Burrowes, Moody, 274. Kel. 84. Brown's case, 2 East, P. C. 501. 
 2 Russ. 22. 2 Leach, 1016. note. 
 
 3. Any building within the curtilage of the dwelling-house, although not under the 
 same roof, nor adjoining the dwelling-house, nor having any closed and covered comma- 
 nication with it, provided it be occupied with it. Gibson's case, 2 Eist, 508. Hancock's 
 case, R. Sf R. 170. LHhgo's case. Id. 357. Rex v. Chalking, Id. 334. Waller's case, 
 Moody, 13. Clayburn's case, R. S^ R. 360. . Thompson's case, 1 Lew. 32. 
 
 4. It seems that a build ng or apartment is not excluded from bein<r part of a dwelling, 
 house merely because held by a different title. 2 Russ. 1 6. 2 East, P. C. 494. contra 
 infra, p. 559. 
 
 But a dwelling-house does not include, 
 
 5. An adjoining building not being within the curtilage of, nor having any closed or 
 covered communication with the dwelling-house; although this may not be settled when
 
 556 HISTORIA PLACITORUM CORONA. 
 
 An indictment, quod felonice Sf hurglariter /regit <§• iniravit ec- 
 clesiani prochialem de D. ea intentione, Ǥ'C. is a good indictment of 
 burglary, for ecclesia is domus mansionalis, Co. P. C.p. 64. Dy. 99. 
 
 a.{d.) 
 
 (d) Lord Coke says it is the mansion-house of Almighty God, but this is only a quaint 
 turn without any argument, and seems invented to suit liis definition of burglary, viz. 
 the breaking into a ?na«s; on- house, whereas it appears from Spelinan loco supra citato, 
 and 22 Assiz, [)5. that it is not necessary to burglary, that a mansion-house be broken, 
 for the breaking of cliurches, the walls or the gates of the city is also burglary, and the 
 word mansionalis is only applicable to one kind of burglary, viz. the breaking of a private- 
 house, in which case it must be a dwelling-honse. 
 
 the occupant of the building resides in the dwelling-house. E<sginfon's case, 2 Leach, 
 913. 2 Russ. 57. Gibson's case, 1 Leach, 357. 2 East, P. C. 507. Brown's case, 
 2 East, 501. SomerviUe's case, 2 Deacon's. Abr. 1510. 
 
 G. Nor any other building not within the curtilage. Ellison's case. Moody, 336. 
 Hiles V. H'd. of Shrewsbury, 3 East R. 457. 
 
 7. Nor any building or apartment so occupied as to be the dwelling of another. 
 
 8. A building is within the curtilage of a dwelling-house when it is within the same 
 enclosure with it; (2 East, 493; 4 Black. Com. 225; Garland's case, 1 Leach, 144. 
 2 East, P. C. 493; Westicood's case, R. Sf R. 495; Parker's case, 4 John's R, 423;) or 
 when it is within an enclosure of which the dwelling-house makes part, and both open 
 into the enclosure; {Stallion's case. Mood. 398.) or when it makes part of an enclosure 
 surrounding the dwelling-iiouse, and opens into such enclosure; (Hancock's ca.se, R ^ R. 
 170.) pr when the dwelling-house or building make part of the enclosure; {Gibson's case, 
 2 East, P. C. 508; Lithgo's case, R. Sf R. 357; Walter's case. Moody, 13; Clayburn's 
 case, R. Sf R. 360; contra Ttcitty's case, 1 Hayw. 102; Wilson's lb. 242; Gunn's case, 
 
 1 Nott Sf McCord, 583.) and open into it, provided in each case that the enclosure is the 
 enclosure of the dwelling-house. See the Mass. Commissioners' Rep. Tit. " Burglary," 
 pp. 8, 9, 10, 13, 14, 15, where the subject is much discussed in the notes. 
 
 The breaking and entering, to constitute a burglary, must be into the dwelling-house 
 of another, that is to say, a house in which the occupier or his family usually reside, or 
 in other words, dwell and lie in. 
 . It has been said tliat a church may be the subject of burglary, (3 Inst. 64 ; Hale, infra, 
 p. 556.) but this seems questionable, (see 1 Hawk. c. 38. s, 17.) the act 7 & 8 Geo. IV. 
 c. 29. s. 11. merely mentions "dwelling-house." There is an express provision as to 
 breaking and entering into and stealing chattels in a church, 1 Sf 8 Geo. IV. c. 29. s. 10. 
 
 A house under repair, or a building intended for and constructed as a dwelling-house, 
 in whicii no one lives, though the owner's properly is deposited there, is not a place in 
 which burglary can be committed, for it cannot be deemed his dwellmg-house until he 
 has taken possession and began to inhabit it, (1 Leach, 185, Fuller's case, 2 Easl's-P. C. 
 498; 1 Leach, 196, n.; Elsmore v. St. Briavells, 2 M. Sf R. 514. 8 B. Sf Cress. 461. 
 S. C.) nor will it make any ditFurencc if one of the workmen engaged in the repairs 
 sleep there in order to protect it; (1 Leach, 186, in notis ;) nor though the house is ready 
 for the reception of the owner, and lie sent his property into it preparatory to his own 
 removal, will it become for this purpose his mansion. Rex v. Hallard, 2 East, P. C. 498. 
 R. V. Thompson, lb. 2 Leach, 771. 
 
 So if the landlord of a house purchase the furniture of his outgoing tenant, and pro- 
 cure a servant to sleep there in order to guard it, but without any intention of making 
 it his own residence, a breaking into the house will not amount to burglary. R.v. Davis, 
 
 2 LeacA, 876. Rex v. Smith, 2 East's P. C. 497. Rex v. Fuller, Id. 498. 1 Leach, 
 196.«. 
 
 Where neither the owner nor any of the family have slept in the house, it is not his 
 dwelling-house so as to maJie the breaking into it burglary, though he had used it for 
 ills meals and all purposes of his business. Rex v. Martin, R. Sf R. 108. 
 
 If a man dies in his leasehold house, and his executors put servants in it, and keep 
 them there at board and wages, burglary may be commuted in breaking it, and it may 
 be laid to be the executor's property. 2 East's P. C. 499. 
 
 It is not absolutely necessary to make it burglary that any person should be actually 
 within the house at the tii,ne the otfcnce is committed. For if the owner leaves it
 
 HISTORIA PLACITORUM CORONA. 556 
 
 If Jl. have a dwelling-house, and upon occasion he and all his 
 family are absent a night or more, and in their absence in the night 
 a thief breaks and enters the house to commit felony, this is burglary. 
 Co. P. C. ribi supra. 
 • So if./?, have two mansion houses, and is sometimes with his.fa- 
 
 animo rewrtendi, though no person resides there in his absence, it vCill still be his man- 
 sion, i Havok. C.51. s, II. 
 
 As if a man has a house in town and another in the country, and goes to the latter in 
 the summer, the nocturnal breaking into either with a felonious design will be buro-la- 
 rious. Fast. 77. Nulbrowti's case; 2 EasVs P. C. 406. Com. v. Brown, 3 Rawle R.2Q7. 
 so if he goes a journey. R. v. Murray, 2 EasVs P. C. 496. 
 
 And though a man leaves his liouse, and never means to live in it again, yet if he uses 
 part of it as a shop, and lets his servant and family live and sleep in anotiier part of it 
 for fear the place should be robbed, and lets the rest to lodgers, the habitation, by his 
 servant and. family, will be a habitation by him, and the shop may still be considered as 
 part of his dwelling-house. R. v. Gibbons, R. &{ R, 442. • 
 
 But where the prosecutor, an upholsterer, left the house in which he resided with his 
 family, without any intent of returning to live in it, and took a dwelling-house elsewhere, 
 but still retained the former house as a warehouse and workshop, two women employed 
 by him as workwomen in his business, and not as domestic servants, slept there to take 
 care of tlie house, but did not have their meals there, or use the house for any other 
 purpose than sleeping in it as a security to the house, the judges held that this was not 
 properly described as the dwelling-house of the prosecutor. Rex v. Pltuinagan, R. & R. 
 187. Forsythe v. The State, 6 Ham. 22. . 
 
 The occupation of a servant in that capacity, and not as tenant, is in many cases the 
 occupation of the master, and will be a sufficient residence to render it the dwelling- 
 house of the master. Rex v. Stock, R. 8^ R. 185. Rex v. Wilson, R. Sf R. 115. 
 
 Where the prisoner was indicted for burglary in the dwelling-house of J, B. ; J. B. 
 worked for one W. who did carpenter's work for a public company, and put J. B. into 
 the house in question, which belonged to the company, to take care of it, and some mills 
 adjoining. J. B. received no more wages after than before he went to live in the house. 
 It was held not rightly laid. R. v. Raulings, 7 Car. Sf P. 150. 
 
 If a servant live in the house of his master, at a yearly rent, the house cannot be de- 
 scribed as the master's house, though it is on the premises where the master's business 
 is carried on, although the servant has it because of his service. The servant is in such 
 a case the tenant of the master, who might have distrained for rent, and could not arbi- 
 trarily have removed him; and consequently, the occupation of the servant cannot be 
 deemed the occupation of the master. R. v. Jains et al. R. <^- M. 7. 
 
 Every permanent building, in which a party may dwell and lie, is deemed a dwelling- 
 house, and burglary may be committed in it. A set of chambers in an inn of court or 
 college is deemed a distinct dwelling-house for this purpose. 1 Hale, infra, 1 Hawk. c. 38. 
 s. 11. 
 
 So even a loft over a stable, used for the abode of a coachman, which he rents for his 
 ' own use, and that of his family, is a place which may be burglariously broken. Rex v. 
 Turntr, 1 Leach, 305. 
 
 So also burglary may be committed in a lodging-room, (1 Leach, 89,) or in a garret 
 used for a workshop, and rented together with an apartment for sleeping, and if the land- 
 lord does not sleep under the same roof, the place may be laid as the mansion of the 
 lodger. 1 Leach, 237. 
 
 But burglary cannot be committed in a tent or a booth, in a market or fair, even al- 
 though the owner lodire in it. (1 Hawk. c. 38. s. 35. infra 557,) because it is a temporary, 
 not a permanent edifice. But if it be a permanent building, though used only for the 
 purposes of a fair, it is a dwelling-house. Rex v. Smith, 1 M. Sf Rob. 256. T/ie State v. 
 Wilson, 1 Hayw. 242. State v. Twitty, Id. 102. Slate v. Carrier, 5 Day. R. 131. State 
 V. Brooks, 4 Conn. R. 446. State v. Bailey, 10 Id. 144. 
 , And all outhouses, within the same curtilage with the dwelling-house, occupied and 
 immediately connected, and communicating with it, may be the subject of burglary, and 
 t!ie burglary in such cases may be alleged to have been in the dwelling-house. Formerly 
 this was the case, in respect to all buildings within the curtilage. But by stat. 7 & 8
 
 556 HISTORIA PLACITORUM CORONiE. 
 
 mily at one, and sometimes at the other, the breach of one of them 
 in the absence of his family from thence is burglary, (e) 4 Co. Rejj. 40. 
 a. 39 Eliz. Dull. cap. 09. p. 254, (/) 
 
 If ./?. have a chamber in a college or inn of court, where he 
 
 (e) Even tho he liad never lodged in it, but v\;as removing his goods there in order to 
 lodge in it. Kel. 46. 
 
 (/) New Edit. p. 488. See also Poph. 52. Mo. 660. 
 
 Geo. IV. c. 29. s. 13,* "No building, although within the same curtilage with the 
 dwelling-house, and occu|)ied therewith, shall be deemed to be part of such dwelling- 
 house for the purpose of burglary, or for any of the purposes aforesaid, unless there shall 
 be a communication between such building and dwelling-house either immediate or by 
 means of a covered and inclosed passage leading from the one to the other." This pro- 
 vision made an important alteration in the law, as it previously stood, for no communi- 
 cation as that pointed out by the act was absolutely necessary at common law, to con- 
 stitute burglary. JVhere the prosecutor's liousc consisted of two rooms for living in, 
 another room used as a cellar, and a wash-house on the ground floor, and of three bed- 
 rooms up stairs, one of them over the wash-house, and the bed-room over the house-place 
 communicated with that over the wash-house, but there was no internal communication 
 between the wash-house and any of the rooms of the house, but the whole was under the 
 same roof, and the defendant broke into the wash-house, and was breaking through the 
 partition wall between the wash-house and the house-place ; it was holdeh that the de- 
 fendant was properly convicted of burglary in breaking the house. R. v. Burrows, R. Sc 
 M.274. 
 
 To be within the meaning of the statute, the building must be occupied with the house 
 in the same right, and therefore where a house let to, and occupied by A. adjoined and 
 communicated with a building let to, and occupied by A. Sf B., it was holden that the 
 building could not be considered a part of the dwelling-house of A. Rex v. Jenkins, R. 
 Sf R. 244. 
 
 If there be any doubt as to the nature of the building broken and entered, a count may 
 be inserted for breaking and entering a building within the curtilage. 
 
 Persons may temporarily lodge or sleep by night in a building for some particular 
 purpose, or on some special occasion, without thereby necessarily making the same, or 
 any part thereof a dwelling-house. The cases upon which this doctrine is founded are 
 as follows: Willia7n Fuller was indicted for burglary in the house of Mr. Holland. The 
 house was a new one, finished all but painting and glazing. A workman who was con- 
 stantly employed by Mr. Holland, but not one of his family, slept in it for the purpose 
 of protection; but no part of Mr. Holland's domestic family had yet taken possession of 
 it. 1782, 2 East, /'. C. 498; 2 Kuss. 17; 1 Leach, 186. vote. The prosecutor had 
 hired the house, and put sundry articles of merchandize into it, and on the night of the 
 offence, and six nights before, had procured two hair-dressers (none of his own family) 
 to sleep there to take care of the goods and merchandize; but neither he nor any 
 of his family had ever slept there. 1765, Harrises case, 2 East, P. C. 498; 2 Leach, 
 701. Davis was indicted for larceny in the house of Thomas Pierce. Pierce purchased 
 furniture of a tenant who had just left his house, for the use of his future tenants; not 
 intending to reside there himself He put in his man to take care of the furniture until 
 a new tenant should take possession. It does not appear that he was a domestic servant. 
 1800, Davis's case, 2 Leach, 876; 2 East, P. C. 499 ; 2 Russ. 17. 
 
 A tradesman removed to another house, and intending to keep the house which he had 
 Icfl as a warehouse and workshop, he put into it two women who worked with him at 
 his business as an upholsterer, to sleep there and take care of the house. 1810, Flana- 
 gan's case, R. Sf R. 187. 
 
 The exact point decided in these cases, was that the houses were not the dwelling- 
 houses of the prosecutor. But they are sometimes cited to show that the houses were 
 
 * The following decisions will show how the law was before the passing of this act. 
 Rex v. Lithgo, R. S( R. 357. Hex v. Cholking, R. Sf R. 334. Rex v. Clnyhurn, Id. 360. 
 Egginton's case, 2 East's' P. C. 424. 2 B. Sf l\ 508. 2 Leach, C. C. 913.5". C. Ry S( Mood. 
 C. C. 13. Brown's case, 2 East's P. C. 493. Garland's case. Id. 493. 1 Leach, 144. Rex 
 V. Westnard, R. Sf R. 495. Rex v. Bennett, Id. 289. Rex v. Duns, Idem. 322.
 
 HISTORIA PLACITORUM CORONJG. 556 
 
 usually lodgeth in term-time, and in his absence in the vacation his 
 chamber or study be broken open, 8fC. this is burglary, and the in- 
 dictment shall suppose it domus matisiGna/is Ji. Co. P. C.p. Q5. 
 14 Car. 1. Jludley's case before cited. (^) 
 
 {g) Cro. Car. 473. by the name of Evans and Finch. 
 
 not dwelling-houses at all, and the statement of some of the cases renders it probable that 
 such was the opinion of the court. 
 
 Upon the first three of these cases, the fifth report of the English Commissioners on 
 Criminal Law contains the following remarks, (p. 4.):—" In some of the cases in which 
 this point" (what constitutes a dwelling-house,) " has been discussed, the house was slept 
 in, not by the owner, but by a person employed by him for a particular purpose, viz. the 
 protection of the goods, and it was held, that as neither the owner nor any of his family 
 had slept there, the house could not be regarded as such a dwelling-house as could be 
 made the subject of burglary. We do not conceive that these decisions are supported by 
 just principles. It appears to us that every one who iiihabits, lodges in, or uses a house 
 as his dwelling in the night-time, is entitled to the piWection of the law; and that he is 
 equally so entitled, although his object in being there may be solely to protect the pro- 
 perty; and farther, that such protection ought equally to be afforded, whether the owner 
 or occupier himself lodge there, or employ an agent or servant to do so for the same pur- 
 pose. The fundamental principle of the law is the protection of the dwelling-house; the 
 proper and obvious tests for deciding whether a building be or be not a dwelling-house, 
 must consist in its having been actually used as such, and the continuing intention still 
 to use it as such. Upon the question, what kind of use ought to give the character of a 
 dwelling-house to a building, we conceive the proper answer to be, as regards the crime 
 of burglary, the protection of its inmates from violence during the season of natural 
 repose." 
 
 '' It cannot, however, be doubted, that to make the question of dwelling-house or no 
 dwelling-house to depend upon the particular duties to be performed by a party sleeping 
 in a house, would be inconvenient, and to deny protection because the agent employed 
 was not a domestic servant, or because he was placed there to discharge a particular 
 duty, would be unreasonable; and we have therefore ventured to suggest a more certain 
 rule." 
 
 The rules on this subject reported by the English Commissioners are as follows : — 
 
 Art. 14. The motive or object for using such building for the purpose in the last pre- 
 ceding article mentioned, (of lodging or dwelling therein by night,) shall not be deemed 
 material to the oiFence. 
 
 Art. 16. The mere casual occupation of any such building, -without the consent or 
 license of the owner or occupier thereof, that such building should be used, either con- 
 tinuously or at intervals, for the purpose of dwelling or lodging therein by night, shall 
 not constitute such building a dwelling-house. 
 
 As to Ownership in the House. — It is necessary to ascertain to whom the mansion 
 belongs, and to state it with accuracy in the indictment. If the rule, observes Mr. East, 
 (2 Easl^s, P. C. 499, 500,) by which to ascertain this ownership may be compressed with 
 sufficient discrimination into a small compass, I should say, generally, that where the 
 legal title to the whole mansion remains in the same person, there if he inhabit it either 
 by himself, his family or servants, or even by his guests, the indictment must lay the 
 offence to be committed against his mansion. And so it is if he let out apartments to 
 inmates who have a separate interest therein, if they have the same outer door or en- 
 trance into the mansion in common with himself But if distinct families be in the • 
 exclusive occupation of the house, and have their ordinary residence or domicile there 
 without any interfeitnce on the part of the proper Owner, or if they be only in possession of 
 parts of the house, as inmates to the owners, and have a distinct and separate entrance, 
 then the offence of breaking, &c. their separate apartments must be laid to be done 
 against the mansion-house of such occupiers respectively. 
 
 Nice questions frequently arise as to whether a party dwells in and occupies a house 
 
 in his own right or as the servant of another. A workman was employed at I5s. a 
 
 week wages, and a cottage free of rent and taxes for himself and family to dwell in, 
 
 upon an indictment for burglary, the judge at the trial held, that as the workman occu- 
 
 VOL. I. — 49
 
 556 HISTORIA PLACITORUM CORON.^. 
 
 So it is, if./?, hires a chamber in the house of B. for a certain time 
 wherein he lodgeth, and during the time contracted for, it is broken 
 open, &rc. this is burglary, and the indictment shall suppose it to be 
 domum mansionalem oi td.iji) 
 
 Qi) Chief Justice Keeling was of a different opinion, and thought in such case the in- 
 dictment ought to be laid for breaking domum mansionalem of B. for while there is but 
 one entrance, it is but one dwelling-house, tho there be several inmates, but otherwise it 
 is, if a man divides some rooms from the rest of the house, and make another door to 
 those rooms, Kel. 83. Sfc. 
 
 pied this cottage for his own benefit, and not for the use or benefit of his master, it wa9 
 well described as the dwelling-house of the workman; and upon a reference to the 
 judges, they were of the same opinion. R. v. Joblin, R. Sf R. 525; and see R.\. 
 Smythe, 5 Var. Sf P. 202 ; R. v. Jarvis, R.SfM.l. 
 
 Where a toll-gate house, erected by the trustees of a turnpike, as and for the dwelling- 
 house of the person who might be, employed to collect the tolls at a particular gate, was 
 broken and entered in the night-^me; and upon an indictment for the burglary it ap- 
 peared, that the trustees had let the tolls to Ward, and Ward had employed Ellis (at weekly 
 wages, with the privilege of living in the toll-house in question) to collect them, and that 
 Ellis dwelt in the house for that purpose, the indictment having described this as the 
 dwelling-house of Ellis, the judges held the description to be correct, for Ellis had the 
 exclusive possession, it was unconnected with any premises of Ward^s, and Ward did 
 not appear to have any interest whatever. Rex v. Camjield, R. Sf M. 42. 
 
 And where a servant lived rent-free in a house belonging to his master, and his master 
 paid the taxes, and his master's business was carried on in the house, but the servant 
 and his family were the only persons who slept in the house, and tiiat part of the house 
 in which his master's business was carried on was at all times open to those parts in 
 which the servant lived ; upon an indictment for breaking and entering that part of the 
 house in which the master's business was carried on, it was held, that it might be 
 described as the servant's house, but it was not decided that it might not also be 
 described as the house of the master. Rex v. Witt, R. Sf M. 248. 
 
 If a servant live in the house of his master at a yearly rent, the house cannot be 
 described as the master's house, though it be on the premises where the master's busi- 
 ness is carried on, and although the servant has it because of his service. Rex v. Jer- 
 vis, R. S( M. 7; and see R. v. Smythe, 5 Car. ^ P. 202. 
 
 G. Brown was indicted for burglary in the dwelling-house of M. Grdydon, and steal- 
 ing thereout oats. A second count stated it to be in the dwelling-house of T. Truinhall. 
 Graydon, a farmer, had a dwelling-house in which lie lived, a stable, cow-house, cottage, 
 and barn, all in one range of buildings in the order mentioned and under one roof, but 
 they were hot inclosed by any wall or court-yard, nor was there any communication 
 from one to the otlier within. TrumhalVs family resided in the cottage by agreement 
 witji Graydon when he went into his service ; but Trumbull paid no rent, only an abate- 
 ment was made in his wages on account of his family residing in tiie cottage. Some 
 corn having been missed out of the barn, Trumbull and another person put a bed in the 
 barn and slept there, and a few nights after they had so done, the prisoner unlocked the 
 barn-door and took away a quantity of oats. After conviction judgment was respited, 
 upon a doubt whether it could be considered as the dwelling-house either of Graydon or 
 Trumball; upon a reference it was agreed (Mick. T. 1787) by all the judges, that the 
 sleeping in the barn made no difference. But tiiey held, (Buller, J. doubling,) that this 
 was no more than a license to Trumball and servant to lodge in the cottage, and not a 
 letting it to him, and that the barn, as well as the rest of the buildings, being under the 
 same roof, continued parts of the mansion-house of Graydon. Ancf many of the judges 
 inclined to think, that if tliere had been a demise of the cottage to Trumball, the barrt 
 would still have continued part of Graydon's dwelling-house in point of law. G. Brown's 
 case, 2 EusVs P. C. 501. 
 
 So in another case, where the servant of three partners in trade had weekly wages and 
 particular rooms assigned to liim as lodging for himself and his family over the bank and 
 brewery office of his employer, with which his lodging communicated by a trap-door and - 
 a ladder, it was holden by the twelve judges that a burglary committed in the banking-
 
 HISTORIA PLA ITORUM CORONA. 557 
 
 But if, in the king's house at Whitehall, or in the great house 
 of any nobleman, there be apartments or lodgings assigned to the 
 jeweller, treasurer, steward, chaniberlain, Sfc. and any of these lodg- 
 ings be broken up burglarily, the indictment must suppose it to be 
 
 room was well laid as in the dwelling-house of the three partners. Hex v. Stockton and 
 others, 2 Taunt. 339. 2 Leach, 1015. Russ. Sf Rij. 185. S. C. nom. Rex v. Stock. 
 
 A gardener lived in the liouse of his master, quite separate from the dwelling-house 
 of bis master, and the gardener had the entire control of the house he lived in, and kept 
 the key, it was held that on an indictment for burglary, the gardener's house might be 
 laid either as his or his master's. Reg. v. Rees, 7 Car. Sf P. 568. 
 
 If a house be tenanted by a married woman, it must.'in all cases, be deemed the house 
 of her husband, and not of her, even although she live separate from her husband. Farr^s 
 case, Kd. 43. 2 East's P. C. 504. and see Boggett v. Frier, 1 East, 301. Rex v. Smyths, 
 5 Car. S( P. 202. 
 
 Where a married woman lived apart from her husband, upon an income arising from 
 property vested in trustees, for her separate use, the judges held that a house which she 
 had lived in, was properly described as her husband's dwelling-house, though she paid the 
 rent out of her separate property, and tlie husband had never been in it, Rex v. French 
 Russ. Sf Ry. 491. . , 
 
 Upon an indictment for burglary in the dwelling-house of George Gillings, it appeared, 
 that Gillings owned and had built the house in question, but had never lived in it, that 
 suspecting his wife of infidelity with one Websdale, they agreed to separate, and he told 
 her she might live in the house in question, and gave her a bed and bedding, &,c., for the 
 purpose; she afterwards lived and cohabited with Websdale in the house with the know- 
 ledge of her husband; Websdale paid the expenses 'of housekeeping, but never paid any 
 rent for the house to Gillings. The judges held that the house was properly described 
 as the dwelling-house of Gillings. R. v. Wilford, Russ. ^ Ry. 517. 
 
 A prisoner was indicted for breaking into the house of Elizabeth A, and stealing her 
 goods. There was a second count, laying the property of the goods in the Queen. It 
 was shown by proof of the record, that the husband of Elizabeth A. had been convicted 
 of felony, and it was also proved that he was still in prison, under the sentence, and that 
 the articles stolen were his before his conviction, and had remained in the house from 
 the time of his apprehension, and that the wife continued in possession of the house and 
 goods till they were stolen by the prisoner. It was held that the prisoner might be pro- 
 perly convicted of larceny on the second count, which laid the property of the goods in 
 the queen, although there had been no office found, and that he could not be convicted 
 of housebreaking, as that part of the indictment whicti laid the goods and the house to 
 be those of Elizabeth A. could not be supported. Reg. v. Whitehead, 9 Car. Sf P. 429. 
 
 A house, in part of which a man lives, and other parts of which he lets to lodgers, may 
 be considered and described as his house, though he has taken the benefit of the Insol- 
 vent Debtor's Act, and executed an assignment, including the house, if the assignee has 
 not taken possession: at least, no objection can be made, if in other counts it be stated 
 as the house of the assignee, and in others of the lodger, in whose room the offence 
 was committed. Rex v. Ball, R. Sf M. C. C. 30. 
 
 In the case of persons employed by the crown or public companies, the same rule pre- 
 vails as in other cases. If burglary be committed in tiie Invalid Office at Chelsea, in 
 Somerset House in Whitehall, in any of the public offices or royal palaces, the mansion 
 must be laid as the Queen's. 1 Leach, 324, and in notis, Rex v. Williams, ante p. 522. 
 
 The same principle applies to corporations, for if a burglary be laid to be in a dwelling- 
 house of one of the officers belonging to the African Company, it will be bad, although a 
 corporation cannot be resident. Kel. 37. 1 Leach, 324, in notis. 2 East's P. C. 504. 
 
 But it has been holden that if the agent of a trading company reside in the house of 
 his employers in town, it may properly be laid as his dwelling. Rex v. Margethe, 2 
 Leach, 930. 
 
 So a city hall may be described as the residence of the clerk to the company to whom 
 it belongs. Id. in notis. 
 
 The ground for these two last decisions is stated to be that the punishment of burglary 
 was intended to protect the actual occupant from the terror of disturbance during the 
 hours of darkness and repose, but it would be absurd to suppose that that terror, which is
 
 557 HISTORIA PLACITORUM CORONA. 
 
 domus mansionahs of the king, or of him that is truly lord or pro- 
 prietor of the house, for they have the use of the lodgings as servants 
 only, and not as owners: Hungale's case before cited. (?) 
 
 (i)p. 522. 
 
 of the essence of the crime could, from a breaking and entry in one place, produce an 
 effect in another. 2 Leach, 931. 
 
 J, Picket was indicted for burglary in the dwelling-house of the East India Company, 
 which is inhabited by their servants, and he was convicted and executed. O. B. April, 
 1765. 2 East's F. C. 501. 
 
 C. Maynard was indicted for burglary in the mansion-house of the master, fellows and 
 scholars of Bennet College in Cambridge. It appeared that he broke into the buttery of 
 the college, and there stole some money; and it was agreed by all the judges, upon a 
 reference to them, that it was burglary. C. Maynard's case, 2 East's P. C. 501. 
 
 If, by an actual severance, all internal communication be cut off, tlie partitions become 
 distinct houses, so that if one house is divided to accommodate the families of two part- 
 ners, though the rent and taxes of the whole are paid out of tlie common fund, each 
 part will be regarded as a mansion. R. v. Jones, 1 Leach, 537. 2 East's P. C. 504. 
 Tracy v. Talbot, Salk. 532. ■ . 
 
 But a house, the joint property of partners in trade, in which their business is carried 
 on may be described as the dwelling-house of all the partners, though only one of the 
 partners reside in it. Rex v. Athea, R Sf M. 329. 
 
 Where inmates have several rooms in a house of whicli they keep the keys and inhabit 
 them severally with their families, yet if they enter at one outer door with the owner, 
 these rooms cannot be said to be the dwelling-houses of the inmates, but the indictment 
 ought to be for breaking the house of tlie owner. But if the owner inhabits no part of 
 the house, or even if he occupy a shop or a cellar in it, but do not sleep therein, the 
 apartments of such shall be considered as their respective dwelling-houses. CarreWs 
 case, 1 Leach, 237. Trapshaw's case, 1 Leach, 427. and see 1 Hawk, c. 38. s. 26. 
 
 If the owner who lets out apartments in his house to other persons, sleep under the 
 same roof, and have but one outer door common to him and his lodgers, who are only in- 
 mates, all their apartments are parcel of the one dwelling-house of the owner. Kel. 84. 
 But if the owner do not lodge in the same house, or if he and the lodgers enter by differ- 
 ent outer doors, the apartments so let out are the mansion for the time being of each 
 lodger respectively, even though the rooms are let by the year. 2 East's P. C. 505. 
 
 Where a servant of the prosecutor dwelt in a part of the house, and the rest (excepting 
 the shop) was let off to lodgers ; the judges held tliat tiie shop, which was in the prose- 
 cutor's occupation, was properly described as the dwelling-house of the prosecutor. Rex 
 V. Gibbons, Russ. Sf Ry. 442. 
 
 Where the prosecutor having a dwelling-house with a shop adjoining it, with sepa- 
 rate entrances from the street, but the shop having a back door into a passage in the 
 house, let the shop to his son, who used it as a place of business only, and did not reside 
 there; a burglary having been committed in the shop, the judges held that it was 
 properly described in the indictment as the dwelling of the father. Rex v. Seytorif 
 Russ. Sf Ry. 202. 
 
 If the owner let off a part, but do not dwell in the part he reserves for himself, then 
 the part let off is deemed in law the dwelling-house of the party who dwells in it, whe- 
 ther it communicates internally with the oilier part or not ; but the part he has reserved 
 for himself is not tiie subject of burglary, it is not his dwelling-house, for he does not 
 dwell in it, nor can it be deemed the dwelling-house of the tenant, for it forms no part of 
 his lodging. 1 Leach, 89, 237, 437. 
 
 Where the coachman rented the loft over a coach-house and stables, and he and his 
 family resided in it, a burglary committed in it was liolden to be well laid, to have been 
 committed in the dwelling-house of the coachman. Rex v. Turner, 1 Leach, 305. 
 
 The governor of the workhouse at Birmingham, under a contract for seven years, with 
 the guardians and overseers of that place, occupied and dwelt in the governor's house 
 with the exception of one room, whicii the guardians and overseers reserved for them- 
 selves as an office, and three other rooms as store rooms: the clerk of the guardians and 
 overseers kept one key of the office, the governor another, for the purpose of securing 
 the effects in case of fire, and the room was cleaned and taken care of by the governoi''8
 
 HISTORIA PLACITORUM CORONiE. 557 
 
 And so it is, if t/^. comes to the inn of B. and there hath a chamber 
 appointed for liis lodging, and this chamber is broken up burglarily, 
 it shall suppose it to be domus tJiansionalis o{ B.ihe inn-keeper, be- 
 cause the interest is in him, and Ji. hath only the use of it for his 
 lodging, without any certain interest. 
 
 A tent or booth in a fair or market is not such a domus mansio' 
 nalis, wherein burglary may be committed, but robbery therein com- 
 mitted, the owner, his wife or servants being therein, is specially 
 exempted from clergy by the statute of 5 S^ 6 E. 6. cap. 9. before 
 mention'd. Co. P. C. p. 64. 
 
 If./?, have a shop parcel of his mansion-house, and it be broken 
 open m the night, S^c. it is a burglary, and the indictment shall sup- 
 pose, that he brake and entred donium mansionalem of A. for it is 
 parcel thereof. 
 
 But if .^. let the shop to B. for a year, and B. holds it, and works 
 or trades in it, but lodgeth in his own house at night, and this shop 
 
 servant, this office being broken and entered in the night time, ten of the judges held 
 that it could not be described as the dwelling-house of the governor. Rex v. Wilson, 
 Russ. Sf Ry. l\5. 
 
 So where the owner of a dwelling-house, warehouse, and counting-house within the 
 same curtilage, let his <lvvelling-house to his warehouseman, at a yearly rent, the count- 
 ing-house and wureliouse being broken and entered in the night time, the judges heJdt 
 that this was not burglary, that tlie counting-house and warehouse could not be described' 
 as the dwelling house of the master, because the dwelling-house was occupied by the 
 warehouseman as tenant and not as servant, nor could they be described as the dwelling- 
 house of the tenant, for they formed no part of his holding. Rex t. Jarvis, R. Sf M. Sea 
 R. v. Smythe, 5 Car. Sf F. 202. 
 
 If the owner let the whole of a dwelling-house, retaining no part of it for his or his 
 family's dwelling, the part each tenant occupies and dwells in is deemed in law to be the 
 dwelling-house of each tenant, whether the parts holden by the respective tenants commu- 
 nicate with each other internally or not. Thus, where the owners of a house divided a shop 
 into two by a partition, each having a door opening into the street, and let one of them 
 and some rooms in the house to Choice, and the other with the remainder of the house, 
 to Ryan, at the end of each shop was a door opening into a common passage that led to 
 one common staircase. Choice paid i^lOO a year, and the taxes for the whole house, for 
 his part. Ryan paid £80 a year for his : each had his separate family, separate kitchen, 
 &.C.; but the rooms occupied by each opened on the common staircase above-mentioned. 
 Upon an indictment for burglary, it appeared that the prisoner entered at the window of 
 the common staircase, unlocked the door of Ryan's shop, and entered it. The judges 
 held, that the place was rightly described in the indictment as the dwelling-house of 
 Ryan. Rex v. Baily, R. ^ M. 23. 
 
 One Richards let her dwelling-house to her son Josiah, and a warehouse communicat- 
 ing internally with the dwelling-house to Josiah and his younger brother, at a separate 
 rent. Josio/t lived in the dwelling-house, and constantly used the communication between 
 that and the warehouse, both brothers carried on tiieir joint business in the wareiiouse : 
 the warehouse being broken and entered in the night time, the judges held that it could 
 not be deemed a part of the dwelling-house, as the dwelling-house was holden under a 
 demise to Josiah alone, and he alone dwelt in it, and the warehouse was holden under a 
 distinct demise to liimself and his brother. Rex v. Jenkins, R. Sf R. 244. 
 
 Where a lodger occupied a sleeping-room on the first floor and a workshop in the 
 attic, and the rest of the house was occupied by other lodgers, a burglary in the work- 
 shop was holden by the judges to be well laid, to have been committed in the dwelling, 
 house of the lodger who rented it. Rex v. Carrell, 1 Leach, 237. 
 
 A man cannot be indicted for burglary in his own house; therefore, if the owner of a 
 house break and enter into the room of his lodger, and steal his goods, he can only be 
 convicted of the larceny. Kel. 84. 2 Easfs P. c'^ ^Q2, 506.
 
 557 HISTORIA PLACITORUM CORONA. 
 
 is broken open, S,'C. the indictment cannot be, that domum mansin- 
 nalem oi A.fregit, for it was severed by tlie lease daring the time, (a;) 
 but then whether he may be indicted for bnrglary as in the domus 
 mansionalis of B? and certainly it is agreed on all hands, if B. or 
 his servant sometimes lodge in the shop, it is burglary, and it shall be 
 supposed domtis mansionalis of B. and this is common experience. 
 But suppose he never lodges there, but only works or 
 \_ 558 ] trades therein in the day time, and he or his servants never 
 lodge there at night, whether this be a burglary to break 
 and enter this shop to commit a felony? 
 
 And certainly it was in this case antiently held burglary, M 37 Sf 
 38 Eliz. B. R. Calebs ca§e,(m) an indictment, quod shopam cujus- 
 dam Ricardi burglarittr et felonict f regit <§• intravit (§'C. it was ad- 
 mitted, for the matter, by the court of king's bench to be good ; but 
 doubted, whether it was good, because it was cujusdum Ricardi 
 without mentioning his sirname, and with this also agrees my lord 
 Coke in terminis, Co. P. C. p. 64. in these words. But a shop lohere- 
 in any person doth converse, being parcel of a mansion-house or 
 not parcel, is taken for a mansion-house. 
 
 But 7! 17 Juc. Hut ton'' s Rep. 33. it is ruled to be no burglary to 
 break open such a shop, and accordingly the practice hath always 
 gone at Newgate sessions since my time or observation, and to this 
 day it is holden no burglary to break open such a shop; but if the 
 shop keeper, or his servant, usually or often lodge in the shop at 
 night it is then donius mansionalis, m which a burglary may be 
 committed. 
 
 Domus mansionalis doth not only include the dwelling-house, 
 but also the out-houses, that are parcel thereof, as barn, stable, 
 cow-houses, dairy-houses, if they are parcel of the messuage, tho 
 they are not under the same roof, or joining contiguous to it; and 
 therefore, if such stable or out-house belonging to the dwelling- 
 house be broken- open in the night-time with intent to steal, it is bur- 
 glary, and with this agrees Co. P. C. p. 64, 65. Dalt. cap. 99. p. 254, 
 255. where for breaking open a back-house of Robert Castle^s, eight 
 or nine yards distant from the dwelling-house, only a pale reaching 
 between them, two were arraigned and condemned for burglary; 
 and so it was agreed by all the judges in the time of chief justice 
 Hydelast 1665, and the law was accordingly, and the contrary prac- 
 tice in one much blamed ; and altho it was said by some, that it had 
 not been so used, and that the statute of 4 S,^ 5 P. 4' M. cap. 4. dis- 
 tinguished between a dwelling-house and a barn, yet at 
 [^559 3 length all the judges agreed, that the felonious breaking of 
 a barn, parcel of a messuage, to steal corn, was burglary ac- 
 cording to my lord Coke, ubi supra, and with this agrees 2 E. 6. B. 
 Cor one ISO. 
 
 But if the barn, or stable, or cow-house be no parcel of the mes- 
 suage, as if a man takes a lease of a dwelling-house from t^. and of 
 
 y Qc)Kel. 84. (j«) Mo. 466.
 
 HISTORIA PLACITORUM CORONA. 559 
 
 a barn from B. or if it be far remote from the dwelling-house, and 
 not so near to it as to be reasonably esteemed parcel thereof; as if it 
 stands a bow-shot off from the house, and not within, or near the 
 dirtilage of the chief house; then the breaking of it is not burglary, 
 for it is not dumus mansionalis, nor any part thereof. 
 
 An indictment that noctanter clausum or cartilagium felonice ^ 
 burglaritlr /regit ad occidendum ox furandum is not good, and yet 
 22 ^ssiz. 95. burglary is defined to break houses, churches, walls, 
 courts, or gates in time of pes.ce.{n) 
 
 So that by that book it should seem, that if a man hath a wall 
 about his house for its safeguard, and a thief in the night break the 
 wall or the gate thereof, and finding the doors of the house open, he 
 enters into the house, this is burglary; but otherwise it had been, if 
 he had come over the wall of the court, and found the door of the 
 house open; then it had been no burglary. 
 
 5. To make up burglary, it must not be only to break and enter a 
 house in tlie night-time, but either a felony must be committed in the 
 house, or it must be to the intent to commit a felony.[12] 
 
 If the indictment be, quod domiim mansioixalem J. S. felonice 4' 
 burglariter fregit ^' intravit, <§• ad tunc <§• ibidem certain goods of 
 J. S. felonict 4* burglariter furatus fait, cepit Ǥ' asportavit, the 
 indictment compriseth two offenses, viz. burglary and felony, and 
 therefore he may be acquitted of burglary, if the case be so, upon 
 the evidence, and found guilty only of the felony, and then he shall 
 have his clergy. 
 
 Or he may be acquitted of the felony, but then qusere, 
 whether he can be found guilty of the burglary, because [560 J 
 tho where the indictment compriseth burglary and felony, 
 the indictment is good, tho it be not supposed in the indictment, that 
 
 (n) This was antiently understood only of the walls or gates of the city: vide Spel- 
 mati tra verba burglaria; if so, it will not support our author's following conclusion, 
 wherein he applies it to the wall of a private house. 
 
 [12] See ante, note [I] p. 548. The punishment for this offence in England is now 
 regulated by 7 Will. IV. 6f 1 Vict. c. 86, s. 3, by which it is enacted, "That whosoever 
 shall be convicted of the crime of burglary shall be liable, at the discretion of the court, 
 to be transported beyond the seas for the term of the natural life of such offender, or 
 for any term not less than ten years,- or to be imprisoned for any term not exceeding 
 three years." 
 
 To the punishment of imprisonment may be added hard labour, with or without soli- 
 tary confinement: such confinement not exceeding one month at any one time, nor three 
 months in any one year. Id. sect. 7. 
 
 For burglary and assaulting with intent to murder, <fec. the offender shall suffer 
 death. 7 Will. IV. Sf 1 Vict. c. 86, sect. 2; see Reg. v. Watkins, 2 Mood. C. C. 217; 
 Res^. X. Polbj, 1 Car. Sf Kir. 77. 
 
 For the U. S. Statutes see the act of March 3d, 1825, sect. 4; Peters^s Statutes at 
 Large, vol. 4, p. 1U7. For the statutes of Massachusetts, see Rev. Stat. c. 126, sects. 9, 
 10. For the statutes of New York, see 2 Rev. Stat. 668, s. 10, et seq. For the statutes 
 of Nero Jersey, see Statutes of New Jersey, 1847, Tit. Crimes and Piinishnents, § 33, 
 J?. 266. For the statutes of Pennsylvania, see Act of Slst May, 1718, Stroud's Piird. 
 144 Gth Ed., 155 1th Ed. Tit. Burglary. For the statutes of Virginia, see 1 Rev. Code, 
 eh. 17, s. 24.
 
 560 HISTORIA PLACITORUM CORONA. 
 
 it was ed intentione ad bona furandiim, for the act of theft being 
 charged at the same time, it is a sufficient evidence of his intention ; 
 but when he is acquitted of the felony, then, there being nothing ex- 
 pressly charged in the indictment, that burglariter /regit, SfC. ea 
 intentione ad bona ^'c. felonicl fiirandufn, it stands single as if the 
 indictment had been of single burglary, in which case the clause of 
 ed intentione ad furandum ^'C. had been necessary to complete a 
 single burglary. , 
 
 It seems therefore necessary in such case not only to charge him, 
 that in nocte S,- burglariter <^ felonice domurn, 8fc. fregit &,■' intra- 
 vit, Sf bona S^c. cepit, but also farther to say ed iyitentione ad bona 
 4' catalla fyc. in eddem domo existentia felonicl 8c burglariter 
 jfurandum, and to add also the particular felony, ^ ad tunc Sf 
 ibidem unum scyphuni argenteum <§'c. and then,tho he be acquitted 
 of the felony, the rest of the indictment stands good against him as 
 a simple burglary, and he may be convicted of it, tho acquitted of 
 the felony. 
 
 And I think that as the offenses of burglary and felony may be 
 joined in the same indictment, so three offenses may be joined in the 
 same indictment, and if he be acquit of the one, he may be con- 
 victed of the other two, and it may be of use to exclude a male- 
 factor of his clergy where the offense is great, as namely for bur- 
 glary, for felony, and for felony upon the statute of 5 <§' 6 E. 6. 
 cap. 9. for there may be an offense against that statute, which will 
 exclude from clergy, and yet not amount to burglary; and the form 
 of the indictment may run thus. Quod ^. prima die Februarii anno 
 regni domini Caroli &c. in nocte ejusdem diei vi & arrnis apud B, 
 felonice & burglariter domum mansionalem fregit & intravit ea in- 
 tentione ad bona & catalla ejusdem B. in eadem domo existentia 
 felonice & burglariter furandum, capiendum & asportandum, & ad 
 tunc & ibidem vi & armis unum scyphum argenteum ejusdem B. in 
 eadem domo existentem felonice & burglariter furatus fuit, cepit & 
 asportavit, ipso B. ac uxore, liberis & famulis suis in eadem domo 
 tunc existentibus, contra pacem, &c. 
 
 And note, that such an indictment need not conclude con- 
 [ 561 3 tra formam statuti, it is sufficient that it brings the case so 
 within the statute, as to exclude clergy; and so, upon the 
 statute of 23 H. 8. cap. 1. 
 
 And upon this indictment, if it falls out upon the evidence that he 
 is guilty of the burglary, but not guilty of the stealing, he may be 
 convict of the burglary, and so ousted of clergy, tho he be found not 
 guilty of the felony : again, tho he be found not guilty of the burglary, 
 because, it may be, the breach of the house was in the day-time, the 
 dweller, his wife or servants in the house, yet he may be found guilty 
 of the felony within the qualifications contain'd in the indictment 
 pursuant to the statute of 5 <^ 6 ^. 6. and so ousted of his clergy, for 
 that is not confined either to the day or night: again, if upon the 
 evidence it appears not to be burglary, because done in the day-time, 
 nor yet felony so qualified as is excluded from clergy, because either
 
 HISTORIA PLACITORUM CORONA. 561 
 
 there was no act of breaking, or if there were, yet the dweller, his 
 wife or servants were not in the house, he may be convict of common 
 larciny, and so have benefit of clergy. 
 
 And so much for burglary joined with larciny. 
 
 Simple burglary is where the breaking and entering is ed inten- 
 tione ad bona 4' catalla furandum, or ad inlerjiciendnni, 4'C. and 
 this clause, as it is usually added in cases of simple burglary, so it is 
 necessary, and hereupon these things are observable. 
 
 1. That altho the breaking and entring be charged to be done 
 burglariter, yet if the intention of that entry be either laid in the 
 indictment, or appears upon the evidence to be to the intent only to 
 commit a trespass and not a felony, as eel intenlione ad ipsuni A. ad 
 tunc Sf- ibidem verberandum., it is no burglary, but it must be laid 
 and proved to be ed intentione to steal or to kill, or to commit some 
 other felony, for tho the killing or murder may be the consequence 
 of beating, yet, if the primary intention were not to kill, the intention 
 of beating will not make burglary. Co. P. C. p. 65. 13 H. 4. 7. 6.[13] 
 
 2. That if a man in the night break and enters a house to the in- 
 tent to commit a felony, tho he attains not that intent, but 
 
 takes or steals nothing, this is burglary, and excluded from [ 562] 
 
 clergy. 22 Assiz. 39 <§- 95. Dy. 99. Crompt. 31. a. Coron. 
 
 264. Slamf. P. C. p. 30, a. Co. P. C. p. 63. and herein it differs from 
 
 robbery. 
 
 3. It seems, that the intention to commit a felony to make a burg- 
 lary must be an intention of such a fact, as was felony by the com- 
 mon law (and not of a felony newly made by act of parliament,) as 
 larciny, or homicide. 
 
 It hath been therefore doubted, whether the breaking of a house in 
 the night with intent to commit a rape be burglary or not, Crompt. 
 fol. 32. thinks it is not, because, made felony by the statute of Westin. 
 2. cap. 34.;(;j) but Dalt. cap. 99. p. 255.{q) thinks it would be burg- 
 lary; because, rape was felony by the common law, until the statute 
 of fVestm. 1. cap. 13.(r) which turned it into a trespass punishable 
 by two years imprisonment, and so the statute of Westm. 2. was but 
 a restitution of the common law, and a setting aside of the statute of 
 Westm. 1. and this seems to be the more warrantable opinion that it 
 is burglary; but of this hereafter. 
 
 Now as to clergy in case of burglary. [14] 
 
 If it be such a burglary, as is also joined with actual theft or rob- 
 bery, and that robbery or theft be so laid in the indictment, and 
 proved upon evidence, as answers the statute of 23 H. 8. cup. 1. or 
 1 E. 6. cap. 12. or 5 (§' 6 E. 6. cap. 9. whereof enough hath been said 
 before, then the principal in such burglary is in those cases, which 
 
 (/>) 2 Co. Instit. 433. (5) New Edit. p. 489. (r) 2 Co. Inst. 180. 
 
 [13] Rex V. Knight, 2 East's P. C. 510; Id. 513; Rex v. Smith, R. Sf R. 417; Res 
 V. Brice, Id. 450 ; The State v. Eaton, 3 Harringt. R. 554. 
 
 [14] See ante note at p. 519.
 
 562 HISTORIA PLACITORUM CORONA. 
 
 are within those statutes, ousted of his clergy, and the accessaries 
 ^before are ousted of their clergy by the statute of 4 Sr 5. P. 8f- M. cap. 
 4. but the accessaries after have their clergy, as hath been said; but 
 in case of simple burglary, or burglary with theft, laid to be only 
 felonice Sj' burglariter, the principal is ousted of clergy if outlawed 
 or convict by verdict or confession, but is not ousted of crergy in case 
 of standing mute, not directly answering, or challenging above twenty, 
 by the statute of 18 Eliz. cap. 7.{s) 
 
 But by the statute of 1 E. 6. cap. 12. "If the breaking of the 
 house be in the day, or night time with intent to rob or 
 [[ 563 ] steal, any person being in the house and put in fear, tho 
 nothing be stolen, yet he shall be ousted of his clergy, if con- 
 vict by verdict or confession, or stand mute, or challenge peremp- 
 torily above twenty ;"(/) for this statute extends to this special kind 
 of burglary, 11 Co. Rep. 36. h. Poulter^s case, tho nothing be stolen, 
 and so differs from the statutes of 23 and 25 H. 8. which require a 
 stealing, as well as a breaking the house. 
 
 But tho in case of robbery in any dwelling-house, and therewith 
 putting in fear, according to the statute of 23 H. 8. cap. 1. or with- 
 out putting in fear according to the statute of 5 (§' 6 E. 6, cap. 9- 
 the malicious commanding, hiring or counselling of such offense is 
 put out of clergy, if so specially laid in the indictment, Dy. 183. b. 
 by the statute of 4 <§' 5 P. Sf' M. cap. 4. yet such accessaries before, 
 are not oust of clergy in case of breaking a house to commit a rob- 
 bery putting in fear, tho the principal be ousted of clergy by 1 Eliz. 
 cap. 12. 
 
 But accessaries before or after are not ousted of clergy by this 
 statute, or the statute of 4 (§• 5 P. 4* M. cap. 4. 
 
 And this statute doth oust of clergy not only those that actually 
 break, or actually enter the house, but also all those that are, in law, 
 principals in burglary, all those that are present, aiding and assist- 
 ing, or that stand to watch at the field-gate, while the others of the 
 confederacy or company break and enter the house. 
 
 And so it differs from the case of robbing of a person in his dwell- 
 ing-house, none being within, upon the statute of 39 Eliz. cap. 15. 
 for that statute excludes from clergy only those persons that actually 
 enter into the house, and not those who, tho of the confederacy, and 
 present aiding and abetting, yet never entered the house; quod vide 
 supra. 
 
 But as to accessaries before or after^ they are not ousted of their 
 
 clergy by the- statute of IS Eliz. cap. 7. nor doth the statute of 
 
 4 <5' 5 P. <§* M. extend to oust accessaries before of clergy 
 
 [564] in cases of burglary ;(w) but in cases of robbing of houses 
 
 within the qualifications and circumstances of the statute 
 
 («) This defect is supplied by 3 ^ 4 W. S( M. cap. 9. 
 
 {t) This statute does not exclude those who challenge peremptorily above twenty; 
 this, according to our author's opinion, {vide postea, Lib. II. cap, 48.) was needless; but 
 they are since excluded by 3 i'^ 4 W. 8( M. cap. 9. 
 
 («) But they are since ousted hy 3 Sf i W. ^ M. cap. 9.
 
 HISTORIA PLACITORUM CORONA. 564 
 
 of 23 H. 8. cap. 1. or ^ ^- % E. 6. cap. 9. and not to burglary at 
 large. (j-) 
 
 And thus far concerning larciny, robbery and burglary, 
 which are felonies by the common law. [| 565 J 
 
 (x) Since our author wrote, there have been otlier statutes made to take away clergy 
 in cases of larciny committed in dwelling-houses, &c. 
 
 By 3^-4 W. <Sf M. cap. 9. " Clergy is ousted from those who shall feloniously take 
 away any goods in any dwelling-house, any person being therein and put in fear, or 
 shall rob any dwelling-house in the day-time, any person being therein; or shall comfort, 
 aid, counsel or command any person to commit any of the said offenses, or to break any 
 dwelling-house, shop or warehouse thereto belonging, and therewith used in the day- 
 time, and feloniously to take away any money or goods to the value of five shillings, 
 altho no person be within such dwelling-house, &c. or shall counsel, hire or command 
 any person to commit any burglary, if they be convicted, stand mute, or challenge 
 peremptorily above twenty." 
 
 The design of this clause was to deprive the accessaries before of the benefit of the 
 clergy ; but this statute not mentioning booths nor out-houses, leaves the accessaries in 
 such cases to their clergy. 
 
 The same statute enacts, " That persons indicted for a crime, of which being convict 
 they should not have their clergy by any former statute, shall not have it if they stand 
 mute, or will not answer directly, or challenge peremptorily above twenty, or be out- 
 lawed. 
 
 " Persons indicted of felony for stealing of goods, «Stc. if convicted, stand mute, will 
 not directly answer, or challenge peremptorily above twenty, shall lose their clergy, 
 if it appears upon evidence or examination, that the goods were taken in another county 
 in sucii a manner, whereof, if convicted by a jury of that county they should not have 
 their clergy." 
 
 This part of the statute helps the several former acts, which were defective either as 
 to the point of standing mute, or challenging peremptorily, or being outlawed. 
 
 By 10 4" 11 IF. 3. cap, 23. "All persons, who by night or by day shall in any shop, 
 ware house, coach-house or stable privately and feloniously steal any goods, wares or 
 merchandizes of the value of five shillings, or more, tho such shop, &c. be not broke 
 open, and tho the owner, or any other person be not therein, or that shall assist, hire or. 
 command any person to commit such offense, being thereof convict or attainted by ver- 
 diet or confession, or being indicted thereof shall stand mute, or challenge above twenty, 
 shall be excluded from the benefit af clergy." 
 
 The uses of this statute are these, 
 
 1. By the former statutes (except the case of a booth in a fair or market, by 5 & 6 
 E. 6.) it was necessary, in order to take away clergy, that the robbery should be in a 
 dwelling-house, whereas this statute extends to shops, ware-houses, &c. tho they should 
 not be adjoining to, or be any part of, a mansion-house. 
 
 2. The former statutes required there should be an actual breaking or putting in fear, 
 otherwise it would not be a robbery, which is the stealing intended by 39 Eliz. cap. 15. 
 as appears from the preamble of that statute; but by this statute, if the goods stolen be of 
 the value of five shillings, the offender is ousted of clergy as to a shop, ware-house, 
 coach-house, or stable, tho there be no breaking or putting in fear. 
 
 3. By 23 H. 8. and 1 E. 6. clergy was' not taken away, unless there were some per- 
 son in the house put in fear, nor by 5 &, 6 £. 6. unless some of the family were in the 
 house or booth ; nor by 39 Eliz. unless it were in the day-time, and no person in the 
 liouse; so that if the offence were committed when any person was in the house, if not 
 put in fear, nor one of the family, or when no body was in the house, if it were in the 
 night-time, in neither of those cases was clergy taken away by those statutes; but this 
 statute takes it away in both those cases as to shops, &c. 
 
 But still this statute omitted to mention dwelling-houses or out-houses, wherefore, to 
 supply this omission, another statute was made, viz. 
 
 12 Ann. cap. 7. by which it is enacted, "That if any person shall feloniously steal any 
 money, goods, or chatties, &c. of the value of forty shillings in any dwelling-house or 
 out-house thereto belonging, altho it be not broken, nor any person therein, or shall assist 
 any person to commit such offense, and shall be convicted by verdict or confession, or 
 stand mute, or will not answer directly, or shall challenge peremptorily above twenty, he 
 shall be debarred from the benefit of clergy." See ante, note at p. 519^ 
 
 But both these statutes seem defective as to persons outlawed.
 
 565 HISTORIA PLACITORUM CORONA. 
 
 There are two exceptions, that are added hereunto; 
 
 1. The first is really true, namely when it is tempus belli within 
 the kingdom, and one enemy either steals, robs, or plunders the house 
 or goods of another, and therefore the book of 22 */issiz. 95. adds to 
 the definition of burglary in time of peace, for in time of war,tho these 
 kinds of offenses committed by those of the same party, or those that 
 are not in hostility one to another are felonies, yet in time of war, 
 when done by an enemy, they put on another name, as acts of hos- 
 tility, misprisions, and the Hke. 
 
 Jiisque datum sceleri. 
 
 2. The second is only supposititious, namely when it is done in 
 case of necessity,(3/) as a poor person that in case of necessity for 
 hunger shall break and enter a house for victuals under the value of 
 twelve-pence, which is added as an exception to burglary, by Crompt. 
 fol. 33. a. and Dalt. cap. 99. p. 255, 256 (c) for tho I do agree a 
 judge ought to be tender in such cases, and use much discretion and 
 moderation, yet this must not pass for law, for then we shall in a little 
 time let loose all the rules of law and government, and burglaries, 
 robberies, yea murders themselves shall be excusable under pretense 
 of necessity, and we shall fall within the wild doctrine of the Jesuiti- 
 cal casuists, who of late in France and elsewhere, upon those general 
 misapplied maxims of Quicquid necessitas cngit, defendit, and in 
 
 casu extreme necessitatis om,nia sunt commu7iia, have. 
 [] 566 ~\ advised servants and apprentices, that it is lawful in point 
 
 of conscience to steal from their masters, or rob them in case 
 they make them not sufficient allowances of meat, drink, or clothes : 
 where laws are settled, there are other remedies appointed for the 
 I'elief of servants against oppressing masters, and of the poor, by 
 complaint to the magistrates without violating the established laws 
 of kingdoms or states.(*) 
 
 {y) See Grot, de jur. belli ac pads, Lib, II. cap. 2. §§ 6 & 7. 
 
 (z) New Edit. p. 489. 
 
 (*) What our author here observes is undoubtedly true, that the plea of necessity ought 
 not in such cases to be allowd, and the reason is, because the law supposes, that no man 
 can in a well governd coinroonwealth be driven to such a necessity ; this supposition i^ 
 the more reasonable in England, where there are so many laws, and such large sums 
 yearly collected for the relief of the poor, as are more than sufficient for that purpose, if 
 rightly applied; yet such is the neglect in the execution of those laws, that it were to be 
 wished some expedient were found out to render that relief more speedy and effectual, 
 lest, while the necessity be real, the relief be only supposititious, which our author himself 
 tliought was oil-times tiie case, notwithstanding the provisions of the law ; {see his preface 
 to his discourse touching the provision for the poor,) which makes it reasonable it should 
 be allowed as an argument for mercy, tljo not as a plea in justification.
 
 HISTORIA PLACITORUM CORONiE. 566 
 
 CHAPTER XLIX. 
 
 OP ARSON, OR WILFUL BURNI:NG OF HOUSES. 
 
 The felony of arson or wilful burning of houses is described by my 
 lord Coke, cap. 15. p. 66.' to be the malicious and voluntary burn- 
 ing the house of another by night or by day. 
 
 This was felony at common law,(«) and one of the highest nature, 
 and therefore by the statute of Westm. 1. cap. 15. such offenders 
 were not replevisable;(6) and by Brilon{c) the offenders herein were 
 burnt to death, but as to that the law is changed, they are to be 
 hanged. H. 7 E. 2. Coram liege Rot. 88. Norf.{d) 
 
 By the statute of 8 H. 6. cap. 6. dispersing of bills of 
 menace to burn houses, if money be not laid down in a cer- [] 567 ] 
 tain place, was made high treason, if the houses were burned 
 accordingly: vide Rot. Par. 15 H. 6. n. 23. but as to the treason it 
 is repeald^y the statute of 1 E. 6. cap. 12. and 1 Mar. cap. 1. but 
 the felony remains still in case the houses be burned. (e) [1] 
 
 In cases of wilful burning of houses the indictment runs, Quodfe- 
 lonice, voluntarih <§• malitiosh com,bussit dornum without saying 
 domum ynansionalem,, as in case of burglary. Co. P. C.p. 67. 
 
 And to examine this felony these things are inquirable, viz. 
 
 (a) 3 H. 7. 10. a. (b) 2 Co. Instil. 188. (c) cap. 9. 
 
 ■' (d) By the laws of Elhelstan it was capital, incendiariis capitis paena esto; vide Leg. 
 Ethehtan, I. 6. and by the laws of Cnute it was one of those capital offenses for which 
 no ransom was allowd. Leg. Canuti, Z. 61. 
 
 (e) But since by the 9 Geo. I. cap. 22. it is made felony without benefit of clergy, 
 knowingly to send any letter without a name subscribed, or signed with a fictitious 
 name demanding money, venison or other valuable thing. This statute is amended by 
 Stat. 27, Geo. 2. c. 15. knowingly to send any letter without a name, or with a fictitious 
 name, demanding money, venison, or any other valuable thing, or threatening (without 
 any demand) to liill any of the king's subjects, or to fire their houses, out-houses, barns, 
 or ricks, is made felony without benefit of clergy. Vide 1 &l8 Geo. IV. c. 29, s. 8. Archb. 
 PL Sf Ev. in Crim. Law, 606. 
 
 [1] The English statutes in force at present are: 7 Wm. IV. Sf 1 Vict. c. 89. § 3. 5 &. 
 6 Vict. c. 38. § 1. 7 & 8 Vict. c. 62. § 1, 3, 4. The statute 7 &, 8 Geo. IV. c. 27, wholly 
 repeals the statute 23 Het,. VIII. c. 1. 43 Eliz. c. 13. 22 & 23 Car. II. c. 7. 9 Geo. I. 
 c. 22. (The Black Act) 9 Geo. III. c. 29 &, 52 Geo. III. c. 130; and the statute 9 Geo. 
 
 IV. c. 31, wholly repeals the statute 43 Geo. III. c. 58. (Lord Ellenborough's Act.) These 
 statutes do not alter the nature of the offence, or create any new offence, except that they 
 extend to the burning of other buildings than dwelling-houses, or out-houses parcel there- 
 of. See Burn's Just. Vol. I. Tit. Burning, Q9th Ed. 1845. See Re^. v. Jones, 1 Car. Sf 
 Kir, 303. 2 Mood. C. C. 308. Reg. v. England, 1 Car. Sf Kir, 533. Reg. v. Paice, I Id. 73. 
 
 For the United States Statutes, see the Act of March 3, 1825. sects. 1, 2. 11, 3 Story's 
 
 V. S. Laws, c. 276. p. 1999. Peters's Statntes at Large, vol. 4, p. 106. 
 
 For the Massachusetts statutes, see Rev. Stat. c. 126. sects. 1, 2, ,3, 4, 5, 6, 7, 8. 
 
 For the New York statutes, seeJiev. Stat. 657. sects. 9 & 10. 2 Id. 666. sects. 1, 2, 3, 
 4, 5, 6, 7, 8, 9. 
 
 For the statutes of New Jersey, see Statutes of New Jersey, (1847,) Tit. " Crimes and 
 Punishments,'" p. 265. 
 
 For the statutes of Pennsylvania, see Stroud's Purd. Dirr. Tit. '■'■ Arson," p. 80. 6 Ed. 
 p. 83. 1 Ed. 
 
 For the statutes of Virginia, see Rev. Code, ch, 171. sect. 5.
 
 567 HISTORIA PLACITORUM CORONA. 
 
 1. What shall be said domiis. 2. What domus of another. 3. What 
 a malicious and wilful burning. 4. What kind of felony this is. 
 5. Whether and how clergy is allowable. 
 1. What shall be said domus.\2'\ 
 
 [2] The building in respect of vvhich the offence is committed, must come within the 
 ordinary and estabiisiied meaning of the words used in the statutes. Tlie mere using 
 the building for a particular purpose, does not necessarily alter the nature of the build- 
 ing. Elsmore v. St. Briavells, 2 Man. S( Ry. 514; Q B. Sj Cr. 461. -S. C. An open build- 
 ing in a field, at a distance from and out of sigiit of the owner's house, though boarded 
 round and covered in. Rex v. Ellison, Mood. C. C. 336 ; a cart-hovel, consisting of a stub- 
 bled roof supported by uprights, in a field at a distance from other buildings, Rex v. Par- 
 rntt, 6 Car. Sf P. 402 was held not to be within the statute of 7 W. IV. ^1 Vict, 
 c. 89. But an open shed in a farmyard, covered with straw as a roof, was. Rex v. 
 Stallion, 1 Mood. C. C. 398; Rex. v. Hvvghton, 5 Car. Sf P. 555; Rex v. James, 1 Car. 
 Sf Kir. 303. A school-room, which was separated from a dwelling-house by a narrow pas- 
 sage, about a yard wide, the roof of vvhicli was partly overhung by that of the dwelling- 
 house, the two buildings, together with some others, and the court which enclosed them, 
 being rented by the same person, wa.s ruled to be well described as an out-house. Rex 
 V. H inter, Russ. Sf Ry. 295. 
 
 As to how far the burning of part of a dwelling-house, &c. (under 9 Geo. I. c. 22.) may 
 be an offence, see North's case, 2 EasVs P. C. 1021. 
 
 A common gaol was holden to be a house within the same statu||^ Donnevan's 
 cases, 2 Bl. Rep. 682 ; 2 EasVs P. C. 1020. S. C. But where a prisoner set fire to his 
 cell, for the purpose of effecting his escape, and such intent was shown, it was held in 
 New York not to be arson. The People v. Cottrell, 18 Johns. R. 115; so also in Vir- 
 ginia, Com. V. Posey, 4 CalVs R. 109. 
 
 A cotton-mill was held to be within the meaning of the 9 Geo. III. c. 29. s. 2 ; Anon. 
 2 Russ. 493. Burning a school-house is arson within the statutes of Connecticut and 
 Maryland. State v. O'Brien, 2 Root i2. 516 ; Jones v. Huvgerford, i G. Sf J. 402. But 
 is no crime at common law. Wallace v. Young, 5 Monr. 156. 
 
 Cases in burglary are referred to in the books to settle what is a dwelling-house, with 
 respect to arson. 7 Dane's Abr. 134; 2 EasVs P. C. 1020; Rex v. McDonald, 2 Lew. 
 C. Cas. 46; 2 Russ. on Crimes, 489. note t 
 
 1. A dwelling-house, at common law, includes all buildings, and apartments under the 
 Same roof, occupied with it for any purpose whatsoever. Thus, a wash-room {Burrows's 
 case, Moody's Cas. 274,) under the same roof with the main dwelling, having no internal 
 communication with it, was held to be part of it. And where the principal dwelling 
 and a stable, cow-house, cotlage, and barn stood in a line adjoining each other under the 
 same roof, in the order of which they are named, the barn was part of the dwelling- 
 house. Brown's case, 2 East, P. C. 501. 
 
 2. A dwelling-house includes all buildings and apartments under the same roof, how- 
 ever and by whomsoever occupied, which have a closed and covered communication with 
 it. Thus a son living elsewhere had a shop under the same roof with his father's house, 
 having a communication with it through the cellar, and the shop was held to be part of 
 the father's house. (Sef ton's case, R. S( R. 102.) A tenant had a sleeping-room on the 
 first floor and a work-shop in the garret, {Currell's case, 1 Leach, 237,) and two tenants 
 iiad each a dwelling-house and shop in the same building, having a communication be- 
 tween the apartments; the shop and workshop were held to be part of the dwelling-house. 
 {Rex V. Baily, 1 Mood. 23.) The same point was also settled in Stock's case, R. Sf R, 
 185; and in Com. v. Chevalier, 7 Dane Abr. 134. 
 
 3. A dwelling-house comprehends all buildings within its curtilage occupied with it 
 for any purpose, although not under the same roof, nor adjoining to it, nor having any 
 closed or covered communication with it — as a school-room, {Rex v. Winters, R. Sf R, 
 295;) a warehouse, {Walter's case, Mon. 13; Lithgo's case, R. <^ R. 357;) chambers over 
 a press, shop passage and lumber-room, {Rex v. Hancock, R, ^ R, 170;) a workshop, 
 {Rex V. Chalking, R. S^- R. 334;) a goose house, {Rex v. ilayburn, R. S( R. 360;) a barn, 
 stable, cov.'-hous^e, sliecp-house, dairy-house, and milk-house. 3 Inst. 67. 
 
 4. It comprehends adjoining buildings, used by its occupants for domestic purposes, 
 although not within the curtilage. "All out-buildings, as barns, stables, dairy-houses, 
 adjoining the house, are looked upon as part of it." (I Bac. Ab. Burg. E.) "Out-houses 
 adjoining to a dwelling-house, and occupied as a parcel thereof, though there be no com-
 
 HISTORIA PLACITORUM CORONA. 567 
 
 It extendeth not only to the very dwelling-house, but to all out- 
 houses, that are parcel thereof, tho not contiguous to it, or under the 
 same roof; as in case of burglary, the barn, stable, cow-house, sheep- 
 house, dairy-house, mill-house. Co. P. C. p. 67. 11 //. 7. 1. b.{f) 
 
 (/) The words of the book are, because the ham was adjoining to the house, it was 
 holden to be felony; to make which serve our author's purpose we are not to understand 
 (hereby its being contiguous, but being so near the house, as to be parcel thereof. 
 
 . men enclosure or curtilage, may still be considered as parts of the mansion." (2 East, 
 P. C. 493.) In Rex v. Brown, (2 East, P. C. 5U1,) the principal dwelling-house, stable, 
 cow-house, cottage, and barn adjoining each other, were held to be one dwelling, and 
 although the level of the roof was uniform throughout, yet it is plain that they were 
 distinct buildings. But where an occupant of a dwelling-house occupies an adjoining 
 building for other than domestic purposes, it is not a part of the dwelling-house. This 
 was so held in Egginton''s case, (2 Leach, 913;) the principal building was a manufac- 
 tory, occupied by a firm, and the dwelling-house of one of the partners was in one of the 
 wings. As there was no communication between them, the manufactory was held to be 
 no part of the dwelling-house. See ante chap. 48. p. 556, note [II]. 
 
 The question whose house a dwelling-house is in respect to arson, has been much dis- 
 cussed. In Holme's case, (2 East, P. C. 1027, & C. Cro. Car. 376 ; & C. William Jones, 
 351,) it was held, that the malicious burning of his own house by a lessee for years, 
 whereby the buildings of others were in danger of being burnt, was not a felony; that 
 is, was not arson, but was a high misdemeanor, of which the offender was convicted, 
 and for which he was punished under an indictment for a felony. It has been doubted 
 whether he ought to have been convicted under such an indictment, but no question has 
 been made of his being indictable for a misdemeanor. In Harris's case, (2 East, 1023,) 
 Mr. Justice Foster expressed the opinion, that the burning of a house by the rever- 
 sioner, which was occupied by a tenant under a lease, is not the burning of the 
 dwelling-house of another. In tiie same case it was held, that where the widow was 
 entitled to dower to whom it had not been set off, and a house which had belonged to 
 her husband subject to a mortgage, being occupied by a lessee, was burnt by her, it was 
 arson. In Spalding's case, (2 East, P. C. 1025, decided 1780,) after the preceding, it 
 was held not to be arson where the mortgagor, being in possession, set fire to his house, 
 for the purpose of defrauding insurers, as it was not the dwelling-house of another. See 
 Breeme's case, (2 East, P. C. 1026, S, C 1 Leach, 220,) the burning of his own house 
 by a lessee for years, was held not to be arson, because it was not the dwelling-house of 
 another. In this case arson is said to be an offence against the possession. In Ped. 
 ley's case, (2 East, 1026; S. C. Cald. 218; 1 Leach, 242, A. D. 1782,) it was held, that 
 a house occupied under a lease for three months, was tliat of the lessee. In this case it 
 is said also, that "arson is an offence against the possession of another." In Gowan's 
 case, (2 East, P. C, 1027, A. D. 1786,) where a pauper burnt the house in which he 
 was put by the parish-officers, for which he paid no rent and in which he had no right, 
 it was held to be arson; that is, it was held to be the house of another: in other 
 words, it was held that the parish were the occupants. In Rickman's case, (2 East, 
 1034, A. D. 1789,) in which the indictment did not allege whose house was burnt by 
 the defendant, it was held to be a material omission. It .was a house occupied by 
 the overseers of the poor for the accommodation of paupers, by one of whom it was 
 burnt, but it was not known in whom the legal estate was. It was held that it might 
 have been alleged to be the house of the overseers of the poor, or of persons un- 
 known. The doctrine as laid down by Mr. East, (P. C. vol. 2, p. 1034,) is, that the 
 house must be alleged in the indictment to be that of the person " who may be said to 
 occupy suo jure." This is precisely the doctrine as to burglary, in respect to which a 
 dwelling-house is that of the occupant. In a case subsequent to those above cited, viz. 
 {Glavjield's case, 2 East, P. C. 1034, A. D. 1791,) a dwelling-house belonged to the oc- 
 cupant of the house, and the out-buildings and farm also belonged to her, and she also 
 occupied a part of the out-buildings with her son, who separately occupied other out- 
 buildings with tlie farm, of which he took upon himself the sole management at his 
 own risk of loss or profit. One of the out-buildings in use of both, and another in use of 
 tlie son only, were burnt. It was held, that the indictment must allege one building to
 
 567 HISTORIA PLACITORUM CORONiE. 
 
 But if the barn or out-hoiise be not parcel of a dwelling-honse, it 
 is not felony, unless the barn have hay or corn in it,(,^) and then, 
 tho it be no parcel of a dwelling-house, it is felony, 4 Co. Rep. 20. a. 
 Barhani's case; but if the barn have only hay in it, and not corn, 
 the offender shall have his clergy, but if it hath corn in it, he shall 
 be excluded of clergy, tho not parcel of a dwelling-house. Co. P. C. 
 p. 69. 
 
 The burning of a frame of a house was no felony by the 
 j] 568 ]] common law, but was made felony by the statute of 37 H. 8. 
 cap. 6. but that stands repeald, by 1 E. 6. cap. 12. and 1 Mar. 
 cap. 1. ' 
 
 The burning of a stack of corn was no felony by the common law, 
 but the attempting of it was made felony by the statute of 3 & 4 E. 6. 
 cap. 5., (A) but that is repeald by 1 Mar. cap. l.{i) 
 
 But by the statute of 43 Eliz. cap. 13. the wilful and malicious 
 burning of any barn, or stack of corn, or grain within the counties of 
 Nor/ htimber land, Cumberland, Westmorland, or Eurham, is made 
 felony without benefit of clergy.(it) 
 
 11. What shall be said the house of a7iother.[3'] 
 
 ig) But by 22 &, 23 Car. 2. cap.l, " It is felony maliciously to burn in the night-time 
 any rick or stack of corn, hay or grain, barns or other out-houses, or buildings, or kilns 
 whatsoever." So that now, tho the barn be empty, it is felony ; and by 9 Geo. 1. cap. 22. 
 clergy is taken away from the offender. 
 
 (A) This statute does not make the attempt felony generally, but only where divers 
 persons to the number of twelve are assembled for that purpose, and continue together 
 for the space of an hour after proclamation to depart, or where any above the number of 
 two, and under twelve, shall after proclamation, as aforesaid, in a forcible manner at- 
 tempt the same. 
 
 (i) But it is made felony by 22 & 23 Car. 2. cap. 7. and by 9 Geo. I. cap. 22. it is 
 felony without benefit of clergy to set fire to any house, barn, or out-house, or to any 
 hovel, cock, mow, or stack of corn, straw, hay or wood. 
 
 {k) By 1 Geo. I. cap. 48. it is felony maliciou?ly to set on fire any wood, underwood, 
 or coppice. By this statute clergy is not taken away;T>ut by 9 Geo. I. cap. 22. it is 
 felony without benefit of clergy to cut down or destroy any trees planted in any avenue, 
 orchard, garden, or plantation. See Archb. Crim. Law, Tit, " Arson,"^. 312, 10 Lond. Ed. 
 
 be the building of both, and the other to be that of the son. Here it was held, that the 
 building was that of the occupant. 
 
 In Margaret WalUs^s case, {Moody, C. C. 334, cited 2 Deac. 1496,) it was ruled, that 
 in an indictment for arson, a dwelling-house may be described as in possession of the 
 actual occupier, though his possession be wrongful. In Hohnes^s case, {Cro. Car. 376,) 
 it was held, that possession is a sufficient title. So in The People v. Van Blarcum, 
 2 Johns. jR. 105. ' 
 
 In X.hG English \^\v this question, as to whose a dwelling-house is in respect to arson, 
 which, as Mr. East remarks, (2 East, P. C. 1034,) had been one of great nicety ip 
 English jurisprudence, is excluded by the statute of 7 & 8 Geo. IV. c. 30, s. 1, by which 
 it is enacted, that " if any person shall unlawfully and maliciously set fire to any house, 
 whether the same shall then be in possession of the offender, or in possession of any 
 other person, with the intent to injure or defraud any person, shall suffer death." This 
 provision makes the crime the same, wiicther it be committed by day or night, and 
 whether it be the dwelling-house of the offender or of another. The burning of other 
 buildings is put upon the same footing in the same section. Mass. Corn. Rep. Tit, 
 ^^Arson and Malicious Burning.''^ 
 
 [3] At common law, the offence could not be committed by a party in burning his 
 own house; and a person seized in fee, or but possessed for years of a house standing by
 
 HISTORIA PLACITORUM CORONA. 568 
 
 A tenant for years of a house sets fire to his own house, thereby 
 intending maliciously to fire the house of B. if he burn his own house, 
 and also thereby burn the house of B. this is felony; but if he burn 
 not the house oi B. according to his design, but only burn his own. 
 house, this is not felony, but a great misdemeanor, for which he was 
 set in the pillory, fined, and perpetually bound to the good beha- 
 viour, and yet it was of a house in the city of London, and laid that 
 he did it eci intentione to burn th? houses of others. M. 10 Car. 1. 
 B. R. Croke 377. Holme's case, adjudged. 
 
 III. It must be a burning of a house of another, [4] therefore if./?, 
 sets fire to the house of B. maliciously to burn it, but either by some 
 
 itself, at a distance from all otiiers, could not commit felony in burning the same. So a 
 man so seized or possessed of a house in a town, who burned his own with intent to 
 burn his neighbour's, but in the event burned his own only, was not guilty of felony : it 
 was, however, certainly an offence highly punishable in regard to the malice thereof^ 
 and the great danger to the public which attended it, and the offender was liable to be 
 severely fined and imprisoned during the Queen's pleasure, and set on the pillory, and 
 bound to his good behaviour. 1 Hawk. c. 29, s. 3; Breeme's case, 1 Leach, 220, Ath ed.; 
 Holme's case, Cro. Car, 376. cited in the text supra. 
 
 The frequent commission of the latter offence, and the very serious mischief that re- 
 sulted from its being merely a misdemeanor, at last attracted the attention of the legis- 
 lature; and the party who would occasion by burning his own possessions an injury to 
 another, the extent of which in many cases cannot be calculated, is now guilty of a felo- 
 ny : formerly, by 43 Geo. III. c. 58, usually called Lord Ellenborough's Act, and now 
 by 7 Will. IV. & 1 Vict. c. 89, s. 3. 
 
 The burning must be done unlawfully and maliciously to constitute the offence ; for 
 if it be done by mischance or negligence, it is no felony. (3 Inst. 67.) As if an unquali- 
 fied person, in sporting, happen to set fire to the thatch of a lioiise; or even if a man 
 were shooting at tlie poultry of another, by which means the house is fired, that is, pro- 
 vided he did not mean to steal the poultry, but merely to commit a trespass, for other- 
 wise the first intent being felonious, the party must abide all the consequences. 2 EasVs 
 P. C. 1019. 
 
 [4] If a man, by wilfully setting fire to his own house, burn also the house of one of 
 his neighbours, it will be felony. Rex v. Robert, 2 EasVs P. C. 1031. Rex v. Isaac, Id. 
 The law in such case implies malice, particularly if the party's house were so situate 
 that the probable consequence of its taking fire was tliat the fire would communicate to 
 the houses in its neighbourhood. Per Parke, J, in Sweetapple v. Jesse, 5 B. Sf Ad. 31. 
 2 Nev. Sf Man. 41. S. C. Bait's case, 3 City Hall Rec. 85.; sed vide Bliss v. Tobey, 
 
 2 R. SfR. 325. Curtis v. Godley Hundred, 3 B. Sf Cr. 248. 
 
 Neither a bare intention to burn a house, nor even an actual attempt to do it by put- 
 ting fire to part of a house, will constitute the offence, if no part of it be burned; but if 
 any part of the house, &c. be burned, the offence will be complete, notwithstanding the 
 fire be afterwards put out, or go out of itself. 2 East's P. C. 1020. The State v. Sandy, 
 
 3 Iredell, R. 570. 
 
 Where it was proved that the floor near the hearth was scorched, and it was in fact 
 charred in a trifling way, that it had been at a red heat, though not in a blaze, it was 
 held that the offence was complete. Reg. v. Parker, 9 Car. Sf P. 45. 
 
 But in another case, where it appeared that a small fagot was set on fire on the 
 boarded floor of a room, and that the fagot was nearly consumed, that the boards of the 
 floor were scorched black, but not burnt, and that no part of the floor was consumed, it 
 was held that the offence was not complete. Rex v. Russ., 1 C. Sf Marsh, SiL Rex v. 
 Taylor, 1 Leach, C. C. 49. Rex v. Judd, 2 T. R. 255. 
 
 The cases lay down the doctrine generally that it is sufficient if the house be on fire. 
 3 Inst. 66. 4 Bl. Com. 222, Chitiy's note. 2 EasVs P. C. 21. s. 4. Rex v. Taylor, cited 
 supra. The People v. Cotteral, 18 Johns, R. 115. But in all the cases where this gene- 
 
 VOL. I. — 50
 
 5^8 HISTORIA PLACITORUM CORON.E. 
 
 accident or timely prevention the fire takes not, this is no felony, tho 
 it were a malicious attempt, for the words are incendit and combus- 
 sit, but if he had burned part of the house, and the fire is quenched, 
 
 ral doctrine was laid down, there was an evident intent to burn down the house. Sed 
 quare, whether tliis be not too broadly stated in point of principle. 
 
 The attempt to commit arson is a misdemeanor at common law, and as such may be 
 punished severely. Rex v. Jngleton, 1 Wils. R. 139. Burns^ Just. vol. 1. tit. ^^ Aiteinpts." 
 
 The burning must be with intent to injure some person who is not identified with the 
 defendant. Rex V.March, R. Sf M. 182. Rex v. Farrington, R. i^- R. 207. Rex v. Gibson, 
 Id. 138. Jervis's Arch. Cr. Law, 9 ed. 320. 
 
 As to the forin of the Indictment. — In describing the building, it is sufficient to use the 
 langjuage used by the act calling it a house, &.c. according to the fact. 2- EasVs P. C' 
 lOS'S. Rex v. North, Id. Rex v. Donnevan, 2 Wm. Bl. 682. 2 EasVs P. C. 1020. 
 1 Uach, C. C. 69. S. C. Rex v. Winter, R. Sf R. 298. 
 
 The name of the owner of the house must be stated in the same manner as in burglary. 
 Rex v. Standjield, 2 East's P. C. 1034. The Com. v. Wade, 17 Pick. R. 395. The State 
 V. Roe, 12 Venn. R. 93. It is necessary, therefore, to determine the party to whom the 
 premises belong. When any doubt is entertained on the subject, the difficulty may be 
 obviated by the insertion of several counts to correspond with the evidence. 3 Chit. 
 Cr. L. 1126. 
 
 If the premises be described as in the possession of A. B. proof that they are in the 
 possession of the tenants of A. B. will support the indictment. Rex v. Ball, R. Sf M. 
 C. C. 30. The People v. VarMarcum, 2 Johns. R. 105, 
 
 So if the possession of a house be obtained wrongfully, it may be described as the 
 house of the wrongful occupier. Rex v. Wallis, Mood. C. C. 334. The People v. Gates, 
 15 Wend. R. 159. 
 
 The parish in which the building is situated must be stated according to the fact; a 
 variance will be fatal. Rex v. Woodward, Mood. C. C. 323. 
 
 A variance between the day stated in the indictment, as that on which the offi^nce 
 was committed, and the day proved will be immaterial. Where the indictment alleges 
 the offence to have been committed in the night-time, and it was proved to have been 
 committed in the day-time, the judges held the variance to be immaterial.. Rex v. Min. 
 ton, 2 East, P. C 1021. 
 
 It is necessary to aver that the defendant " feloniously, unlawfully, and maliciously," 
 set fire, &c. 2 EasVs P. C..1021. Rex v. Turner, R. Sf M. C. C. 239. Chapman v. 
 Co7n. 5 Whart. R. 427. 
 
 It was not necessary to aver in an indictment on the statute 9 Geo. I. c. 22. for setting 
 fire to a hay-stack, that the stack " was thereby burnt." Rea: v. Salmon, R. Sf R. C. C. 
 26. 2 Rvss. Cr. c^- M. 294. S. C. 
 
 In an indictment on the same statute for the same offence, it is no answer to the charge, 
 that the prisoner had no malice in spite to the owner of the stack; nor that the stack 
 stood upon his ground, if it was not his property. Id. 
 
 An indictment for setting fire to a barge, the property of another, ought to contain 
 an averment that it was done with an intent to injure the owner. Rex v. Smith, 
 4Car.Sf P. 569. • - . 
 
 An indictment on the statute oflSfS Geo.lV.c. 30. §§2. 17. for setting fire to a barn 
 and a stack of straw, charged the offences to have been committed " feloniously, volun- 
 tarily, ar\i\ maliciously," instead of feloniously, wnZaw/wZZf/, and maliciously, held bad. 
 The prisoners had set fire to a stack of stubble, (which in Camhridgeshire is called 
 • haulm;) they were indicted on a first indictment for setting fire to a "stack of straw:" 
 i/e/</, that this was not straw. And on their being again indicted. for setting fire to 
 " a stack of straw called hauhn," the judge intimated that to convict them upon such a 
 count would not be safe: and the verdict in consequence was taken upon other counts 
 charging the setting fire to a barn and a wheat stack. Rex v. Reader, 4 Car. Sf P. 245. 
 Ry. 4- M. C. C. 239. S. C. 
 
 An indictment on the same stat. § 17. charged a party with setting fire to a "stack of 
 barley of the value of Jfl 00 of R. P. W.:" Held good, although the words of the statute 
 creating the offence use " any stack of corn or grain :" Held also, that the words 
 " R. P. W." sufficiently stated the property. Rex v. Swatkins, 4 Car. Sf P. 548. .
 
 HISTORIA PLACITORUM CORONA. 569 
 
 or goes out before the whole house be burned, it is felony. Co. P. C. 
 p. 66. Dalt. cap. 105.(/)[5] 
 
 It must be a wilful and maliciotis burning, otherwise it is not 
 felony, but only a trespass. 
 
 And therefore \( ,j1. shoot unlawfully in a hand-gun, suppose it be 
 at the cattle or poultry of ^. and the fire thereof sets another's house 
 on fire, this is not felony, for tho the act he was doing were unlaw- 
 ful, yet he had no intention to burn the house thereby, against the 
 opinion oi Dalt. cap. 105. p. 270. (m) 
 
 But if ^. have a malicious intent to burn the house of B. and in 
 setting fire to it burns the house of B. and C. or the house of B. es- 
 capes by some accident, and the fire takes in the house of C. and 
 burneth it, tho ^. did not intend to burn the house of C. yet in law 
 it shall be said the malicious and wilful burning of the house of C. 
 and he may be indicted for the malicious and wilful burning of the 
 house of C. Co. P. C. p. 67.(n) 
 
 An infant of about fourteen years of age or under may be guilty 
 of malicious burning of houses, if by circumstances it can appear he 
 knew it to be evil. [6] 
 
 Before me at Norfolk, a boy about the age of fourteen years was 
 arraigned upon two several indictments for malicious and wilful 
 burning of two several houses, t^e first was his own father's, and it 
 appeared, that when he had secretly carried fire into the barn and 
 fired it, he falsly charged another with the fact, and upon the boy's 
 accusation he was imprisoned, till it appeared clearly he was not the 
 offender: this boy was afterwards together with his father and his 
 other children entertained at a neighbour's house in charity, and 
 the boy watching opportunity, when none were in the house but a 
 child in the cradle, carried fire out of the kitchen into a room of fur- 
 zes, and set fire in it and went out, and thus burnt a second house, 
 and the child in the cradle; for both these he was questioned, and at 
 length confessed freely the whole circumstances of both facts; 
 he was indicted, and upon his arraignment pleaded, and upon [ 570 ]] 
 his trial craftily insisted, that he was under fourteen years 
 of age; but I directed the jury, that it appeared by the circumstan- 
 ces, that his malice supphed his age, for it appeared, that he under- 
 stood the evil of the first offense when he did it so secretly, and yet 
 charged another wrongfully j but if there had been any doubt of the 
 first burning, yet he could not but be conusant that the second burn- 
 ing was a great crime, when he saw another formerly charged by 
 him with the first burning committed as for felony; but yet for my 
 farther satisfaction, and in respect the boy seemed very little, I took 
 farther examination touching his age, and his father, being by, freely 
 
 {I) New Edit. p. 506. (?n) Pnd. 
 
 (n) See the case of Coke and Woodburne, State Tr. Vol. VI. p. 222. 
 
 [5] See ante note No. [2]. [6] See ante p. 26, note [2].
 
 570 HISTORIA PLACITORUM CORONA. 
 
 confessed and was content to swear, that he was above fourteen and 
 near fifteen years of age, and he was convicted and executed. 
 
 IV. What felony this is. 
 
 And it seems unquestionable, that the burning of a dwelling-house,. 
 or any part thereof, or any out-house part thereof, was a felony at 
 common law, and so was also the burning of a barn with hay or corn 
 in it, tho not parcel of a dwelling-house, but standing at a distance. 
 Co. P. C. p. 67. 11 H.7.1.b.[l] 
 
 V. But as to the point of the not allowance of clergy therein, th6re 
 may be some matters to be examined : certain it is, that at this day 
 clergy is not allowable to a party convicted of wilful and malicious 
 burning of a dwelling-house, or of a barn with corn ; quod vide 11 
 Co. Rep. 34. Coulter'' s case adjudged per omnes Justic. Plow. 
 Com. 475. Co. P. C. p. 67. and the constant practice hath been to 
 deny clergy to those convict of this crime; quod vide in the reso- 
 lution of Poulter^s case. 
 
 And the statute of 4 <5- 5 P. 4' M. cap. 4. takes away clergy from 
 all accessaries before to the offenses of wilful burning any dwelling- 
 house, or of any barn then having corn or grain in the same;- and 
 surely they took the law to be, that the principal was by law ousted 
 of his clergy, or otherwise they would not have ousted the accessary 
 of his clergy. • 
 
 But then the question remains, what it was that ousted the prin- 
 cipal of his clergy. 
 
 By the statute of 23 H. 8. cap. 1. clergy was ousted from 
 [571] all persons found guilty of wilful burning of any dwelling- 
 houses or barn, wherein auy grain or corn should happen to 
 be, and from all persons found guilty of abetting, aiding or coun- 
 selling thereof, viz. accessaries before; except persons in order of 
 subdeacon, or above. 
 
 The statute of 1 ^. 6. cap. 12. as to divers offenses therein par- 
 ticularly mentiond, which are for the most part also included in the 
 statute of 23 H. 8. carried the exclusion of clergy farther, viz. as to 
 standing mute, or not directly answering, but mentions not at all 
 wilful burning of houses, or barns with grain; and enacted, that in 
 all other cases of felony persons indicted shall have their clergy, as 
 they should have had before 1 H. 8. 
 
 So that by the act of 1 E. 6. clergy was restored to burning of 
 houses and barns with corn, notwithstanding the statute of 23 H. 8. 
 or any other statute made since the first year of Henry VIII. and if 
 the ousting of the principal in arson from his clergy rested upon the 
 statute of 23 H. S. then the statute of 1 E. 6. had restored him to his 
 • clergy. 
 
 The solution therefore of this matter is upon two accounts. 
 
 [7] See Slate v. Stewart, 6 Conn. R. 47; Sampson v. Com. 5 W. Sf S. Rep. 385; 
 Com. V. Vanshriack, 16 Mass. R. 105; Com. v. Macomber, 3 Id. 254; Com. v. Squire,' 
 1 Metcf. R. 258; Com. v. Wade, 17 I'ick R.S'JS.
 
 HISTORIA PLACITORUM CORONiE. 571 
 
 1. Some have thought that the wilful burning of houses was not 
 within clergy by the conrimon law, nor by the statute of 25 E. 3. 
 cap. 4. because it was an hostile act,(o) and therefore, as until the 
 statute of 4 H. 4. cap. 2. Insidiatores viarum <§• depopulatores 
 agrorum joined with another felony, and so found, were ousted of 
 their clergy, because savouring of acts of hostility, so incendiatores 
 doni one 771 were even by the common law ousted of clergy before the 
 statute of 23 H. 8. and so are not restored to clergy by the general 
 clause of the statute of 1 E. 6. and this I remember was delivered as 
 the reason of the exclusion of clergy from wilful burning by ]Mr. At- 
 torney Not/, S Car. 1. in the king's bench, and seemed to be assented 
 to by the court. 
 
 But I think this will hardly help the matter, 1. Because tho 
 possibly clergy might not be allowd at common law to 
 MMJful burning, yet the statute of 25 E. 3. cap. 4. p7'o [ 572 ]] 
 ckro extends clergy to all treasons and felonies touching 
 other persons than the king himself, and his royal majesty. 2. 
 Because then as well a burning of a barn with hay, as a barn 
 with corn, would be excluded from clergy, for the one is"as hostile 
 as the other. 
 
 2. Others have thought that the statute of 4 4- 5 P. 4' M. cap. 4. 
 taking away clergy from the accessaries before, doth take away by 
 necessary consequence the clergy from the principal, for it were not 
 reason to think the accessary before, should be in a worse condition, 
 than the principal offender, and therefore virtually and implicatively, 
 and by necessary consequence it takes away clergy from the princi- 
 pal in all those cases, where it takes it from the accessary before; 
 and besides, if the principal had his clergy, the accessary could 
 not be arraigned, and this I think is true, tho this case needs not this 
 help. 
 
 But I think, and so is the book of 1 1 Co. Rep. 34, 35. that the statute 
 of 25 H. S. cap. 3. which extends to take away clergy in all those cases 
 which were within 23 H. 8. cap. 1. and particularly recites that of 
 burning houses and barns with grain, and farther extends that exclu- 
 sion to standing mute, not directly answering, challenging above 
 twenty, I say that statute of 25 H. 8. was in great part repealed by 
 the statute of 1 E. 6. and is entirely revived by the statute of 5 <5' 6 
 E. 6. cap. 10. not only as to the point of ousting clergy upon exami- 
 nation, (/?) but also as to the exclusion of clergy in those cases men- 
 tioned in the act of 25 H. 8. wherein burning of houses and barns 
 with corn is expresly mentioned, so that consequently this statute of 
 
 (o) And so interpretatively a felony touching the person of the king himself, which by 
 that statute vvas ousted of clergy. 
 
 (/)) This relates to the second clause of the 25 H. 8. cap. 3. whereby it is provided that 
 if aoy persons be indicted in one county for stealing- goods in another, and stand mute, 
 or challenge peremptorily above twenty, or will not directly answer, they shall be put 
 from their clergy in like manner, as if they had been tried and found guilty in the same 
 county, where the offense was committed, if it appear to the justices by the evidence or 
 on examination, that it was such a felony, as if found guilty thereof in the county where 
 conimitted, they would have lost their clergy by the 23 H. 8. cap. 1.
 
 572 HISTORIA PLACITORUM CORON.E. 
 
 5 Sr 6 E. 6. reviving the statute of 25 H. 8. repeals the generahty of 
 that clause in 1 E. 6. whereby clergy was let in, in all cases there 
 
 not enumerated. 
 [ 573 ]] And consequently the periods of this case of clergy in 
 
 wilful burning stand thus. 
 
 1. Before 23 H. 8. clergy was allowable therein by force of the 
 statute of 25 E. 3. pro clero. 
 
 2. After 23 H. 8. until 25 H. 8. clergy was allowable for the ac- 
 cessary in all cases, and for the principal in all cases, but finding hitn 
 guilty. 
 
 3. After 25 H. 8. until 1 E. 6. clergy was taken away from the 
 principal as well where he stands mute, not directly answers or chal- 
 lenges above twenty, as where he is found guilty. 
 
 But the accessaries as well before as after were to have clergy. 
 
 4. After 1 E. 6. till 5 S>^ 6 E. 6. when the statute of 25 H. 8. was 
 revived, both principal and accessaries had their clergy in all cases 
 of burning. 
 
 5. After 5 8,^ 6 E. 6. till 4 (§- 5 P. (S* M. cap. 4. the principal was 
 excluded in all cases, wherein he was excluded by the statute of 25 
 H. 8. as well where he stood mute, challenged above twenty, did 
 not directly answer, as where found guilty. (§-) 
 
 But the accessaries before, as well as after, had their clergy. 
 
 6. By the statute of 4 4' 5 F. S)' M. cap. 4. until this day, accessa- 
 ries before are excluded of clergy in all cases, but accessaries after 
 have their clergy. 
 
 But yet there still remain two doubts. 
 
 1. Whereas the statute of 4 <§• 5 P. c^- M. cap. 4. extends to oust 
 clergy from the accessary, as well if he be attainted as convicted, and 
 consequently if outlawed, he shall not have clergy, because it is an 
 attainder; the statute of 25 H. 8. extends only to finding guilty, 
 challenging above twenty, standing mute, or not directly answering, 
 and it seems in attainder of the principal by outlawry he shall have 
 his clergy; therefore quasre, whether an attainder by outlawry ousts 
 the principal of clergy upon the statute of 23 or 25 H. 8. 
 
 2. Whereas the statute of 4 <§• 5 P. <§• M. cap. 4. hath no 
 [ 574 3 exception of persons in the order of sub-deacon; but acces- 
 saries before are ousted of their clergy in all cases by that 
 statute, tho in orders. 
 
 Yet by the statute of 25 H. 8. which is relative to the statute of 
 23 H. 8. principals in the order of sub-deacon, or above, have their 
 clergy in the case of arson, for by the statute of 23 H. 8. clergy is 
 saved to men in orders, where found guilty; and by the statute of 
 25 H. 8. in cases of standing mute, <§'c. they are ousted of their clergy 
 as if found guilty, in which case men in orders had their clergy, and 
 so the revivmg of the statute of 25 H. 8. by that of 5 <5' 6 E. 6. lets 
 in men in orders to their clergy in case of arson, wliich seems to 
 make this absurdity, that the principal in arson shall have the beiie- 
 
 {q) By 3 &. 4 W. Sf M. clergy is taken away in case of outlawry also.
 
 HISTORIA PLACITORUM CORON.^. 574 
 
 fit of dergy if in orders, but the accessaries before, tho in orders, 
 are excluded by the general penning of the act of 4 4' 5 P. <§• M. 
 
 And herein tfiere will arise a difference as to men in orders, in re- 
 lation to the benefit of clergy, between the case of being principal in 
 wilful burning of houses, and the case of being principal in robbery 
 in or near the highway, or robbing in a dwelling-house, putting the 
 dweller in fear, or murder of malice prepense ; for the act of 1 E. 6. 
 cap. 12. excludeth them from their clergy generally without exception 
 of men in orders, tlio they were excepted by the statutes of 23 and 
 25 U.S. 
 
 But this statute of 1 E. 6. making no mention of burning of houses, 
 the exclusion of them from clergy, if resting upon tiie statute of 25 
 H. 8. revived by 5 4- 6 E. 6. excepts them. [8] 
 
 [8] The State v. Seaborn, 4 Dtp. R. 305 ; Com. v. Posey, 4 CaWs Rep. 109. See ante 
 chap, 44, p. 517, note [1.] 
 
 CHAPTER L. [ 575 ] 
 
 CONCERNING FELONIES BY THE COMMON LAW,[1] RELATING TO THE 
 BRINGING OF FELONS, TO -JUSTICE, AND THE IMPEDIMENTS THERE- 
 OF, AS ESCAPE, BREACH OF PRISON, AND RESCUE; AND FIRST 
 TOUCHING- ARRESTS. [2] 
 
 I COME now, according to the method propounded, to consider those 
 felonies that relate to the public justice of the kingdom in bringing 
 malefactors to their due punishment, and the impediments thereof, 
 and they are principally three, viz. 1. By the party arresting or 
 
 [2] As to Arrests, see vol. 2, ch. 10, 11, 12, 13, and notes thereto. 
 
 [1] "Felonies in England, comprised originally every species of crime which occa- 
 sioned the forfeiture of lands and goods. At common law, in addition to the crimes 
 more strictly coming under the head of treason, the chief, if not the only felonies, were 
 murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. 
 By statutes, however, running from the earliest period, new felonies were, from time to 
 time, created; till finally not only almost every heinous offence against person or pro- 
 perty was included within the class, but it was held that whenever judgment of life or 
 member was affixed by statute, the offence to which it was attached, became felonious by 
 implication, though the word felony was not used in the statute." In this country, with 
 a few exceptions, the common law classification has obtained; the principal felonies 
 being received as they originally existed, and their number being increased as the exi- 
 gencies of society prompted. In New York, however, felony by the revised statutes is 
 construed to mean an offence for which the offender, on conviction, shall be liable by law 
 to be punished by death, or by imprisonment in a State prison. {Rew Stat. N. Y. Part 
 IV. Chap. II. Title 7. s. 30.) And in Virginia it comprehends all offences below trea- 
 son which occasioned a forfeiture of property at common law, all -so denominated by 
 statutes, and all to which statutes have annexed capital punishment or confinement in 
 the penitentiary, excepting thpse which, though subjected to. the latter punishment, are
 
 575 HISTORIA PLACITORUM CORONA. 
 
 imprisoning, as voluntary escapes. 2. By the party arrested, and 
 imprisoned, as breach of prison. 3. By a stranger, as rescue of 
 felons. 
 
 And in this order I shall examine these offenses ; but as a neces- 
 
 or may be declared misdemeanors by the statutes Grating them." Barker v. Com. 2 Vir- 
 ginia Cases, 122; Whart. Am. Crim. L. 1, 2. 
 
 J'elony is supposed to come from tlie Saxon fel, which signifieth fierce or cruel ; of 
 which the verb fell signifieth to throw down or demolish, and the substantive of that name 
 is used to signify a mountain rough and uncultivated. But the same word, with a little 
 variation, runneth througli most of the European languages, and signifieth more gene- 
 rally, an offence at large; and the Saxon word faellan, signifieth to offend, diTid fellnisae, 
 an offence or failure ; and altliough felony, as it is now become a technical term, signi- 
 fieth in a more restrained sense an offence of a higii nature, yet it is not limited to capi. 
 tal offences only, but still retaineth somewhat of this larger acceptation; for petit larceny 
 is felony, although it is not capital Burn's Just. Tit. "Felony," 29iA Ed. 
 
 According to Sir Henry Spelman's observation, it signifieth such an offence for which, 
 during the feudal institution, a man should lose or forfeit his estate; which he derives 
 of two northern words, fee, which signifieth the fief, feud, beneficiary, estate; and Ion, 
 which signifies price or value. 
 
 Upon the whole, the only adequate definition of felony seems to be this, viz. " an 
 offence which occasions a total forfeiture of either lands or goods, or both, at the common 
 law, and to which capital or other punishment may be superadded according to the de- 
 gree of guilt. 4 Bl. Com. 94, 95. 
 
 The idea of felony is, however, so generally connected with that of capital punishment, 
 that it seems hard to separate them, and to this usage the interpretations of law now con- 
 form. For if a statute makes any new offence /e/ony, the law implies it shall be punished 
 With death, (viz. by hanging,) as well as by forfeiture. See 1 Hawk. c. 41. s. 4; 2 Id. 
 c. 48. 
 
 Where the statute declares that the offender shall, under the particular circumstances, 
 be deemed to have feloniously committed any act, it makes the offence a felony, and im > 
 poses all the common and ordinary consequences attending a felony. Rex v. Johnson, 
 3 M. Sf Sel. 556. And though a statute make the doing of an act felonious, yet, if a 
 subsequent act make it penal o.nly, the latter is considered as a virtual repeal of the for- 
 mer. 1 Hawk. c. 40. s. 5. 
 
 All felonies are several, and cannot be joint, so that a pardon of one felon cannot dis- 
 charge another; but the felony of one man may be dependent upon that of another, and 
 the pardon of the one, by a necessary consequence, enure to the benefit of the other, as 
 in cases of principal and accessary, &.c. 
 
 The Massachusetts Commissioners, in their Report, enumerate as felonies within the 
 provisions of their code, treason, murder, arson, rape, malicious burning, carnal abuse of 
 a female child under ten years of age, burglary, robbery, larceny, kidnapping, child- 
 stealing, and the offence of assault, or assault and battery in the first degree. And in a 
 note they add that the meaning oi" felony as by them defined, is limited to the use of the 
 word in their code, and is not to be confounded with the common law signification of 
 the same term, ''whatever tiiat meaning may be, for it is a matter of no little difficulty 
 to settle it." Rep. tit. " Explanation of Terms." 
 
 Wliere one is found guilty of acts which amount to a felony, though not charged to 
 be done feloniously, he cannot be sentenced as for a misdemeanor. Commonwealth v. 
 Ivingshury, 5 Mass. 106. Commonwealth v. Rohy, 12 Pick. 496. Commonwealth v. 
 Macomber, 3 Mass. 254. 
 
 If acts amounting only to a misdemeanor are charged to be done feloniously, the 
 accused cannot be convicted of the misdemeanor. Commonwealth y. Newell, 7 Mass. 
 245. But see Com. v. Sijuire, 1 Met. 258. The People v. Jackson, 'S HiWs IS. Y. Rep, 
 92. The People v. White, 22 \Yend. 175. 
 
 Statutes are to be construed so as not to multiplj' felonies, unless such construction is 
 supported by express words or necessary implication. Commonwealth v. Mucomher, 
 3 Mass. 254. 257, Commonwealth v. Barlou^, 4 Mass. R. 439. It would be such an im- 
 plication if the statute provided for tlie punishment of accessaries after the fact to the 
 offence in question as distinct oft'enders. Ih. 
 
 A conviction, judgment and execution upon one indictment for a felony not capital, is
 
 HISTORIA PLACITORUM CORONA. 575 
 
 sary preliminary thereunto, I shall first consider of arrests and im- 
 prisonment for capital offenses, by whom it may be done, and where 
 lawful. 
 
 Arrests of malefactors are of two kinds, 1. Either by persons 
 thereunto by law deputed, or 2. By private persons. 
 
 And the former is again of two kinds. Either, 1. By process of 
 law, or 5. Virtute officii. 
 
 The former again is of two kinds, 1. Either by process in the 
 king's name, 2."0r by warrant in the name of a judge or justice 
 thereunto authorized, and that either in writing or ore ienus. 
 
 I shall pursue this order, and 
 
 I. Shall begin with the first of these, namely, arresting by virtue 
 of the king's writ. 
 
 V Regularly no process issues in the king's name and by his writ to 
 apprehend a felon or other malefactor, unless there be an 
 indictment, or matter of record in the court upon which the [ 576 ] 
 writ issues. 
 
 Aniiently the process upon an appeal or an indictment of felony 
 was only one Capias, and thereupon an Exigeyit. 22 ^Issiz. 81. 
 
 By the statute of 25 E. 3. cap. 14. there are to be a Capias and an 
 ^lias with a command to the sheriif to seize the goods of the felon, 
 and then an Exigent. 
 
 But it should s'eem by the book of 8. H. 5, 6. that this, statute ex- 
 tended not to felony of death, but that there should be only one 
 Capias, and then an Exigent. 
 
 a bar in Tennessee to all other indictments for felonies not capital, committed previous to 
 such conviction, judgment and execution. Crenshaw v. The Slate, Mart. Sf Yerg. 122. 
 
 Under an indictment for horse-stealing, it was held that to constitute a felony there 
 must be a trespass in the original taking. The State v. Braden, 2 Overton, 68. 
 
 In New York, if a prisoner confined in the county prison, on a conviction of petit 
 larceny, break prison, it is a felony for which he may be sentenced to imprisonment 
 in the !^tate prison for a period not exceeding fourteen years. The People v. Duell, 
 3 Johns. 449. 
 
 It is felony for a man who elopes with another's wife, to take his goods, though at the 
 solicitation of the wife. The People v. Schuyler, 6 Cow. 572. 
 
 It is very much to be doubted whether a person ought ever to be convicted of a felony 
 on the uncorroborated testimony of a prosecutor, who claims the property in question to 
 which the defendant also claims title. Where the transaction was attended with none 
 of the usual concomitants of larceny, as concealment, for example, the court, upon con- 
 viction, ordered a new trial. The State v. Kane, 1 McCord, 482. 
 
 In tliis country, where conviction of a felony does not work a forfeiture, a civil action 
 is not merged in a felony. Robinson v. Culp, Const. Rep. 231. 
 
 It seems that one guilty of a felony should be proceeded against criminally before a civil 
 action can be brought, because he should not be convicted of a felony except on a direct 
 charge of a crime. lb. 
 
 Wild bees remaining in the tree where they have lived, are not the subject of felony, 
 though the tree is on the land of another who has confined them in it. Waliis v. Mease, 
 3 I'invey R. .546. 
 
 A slave in South Carolina can commit a felony. The State v. Wright, 4 McCord, 358. 
 
 A mere solicitation to commit a felony is an offence, whether it is committed or not. 
 The People v. Bush, 4 HiWs N. Y. Rep. 133. 
 
 It has been held in New York that petit larceny is not a felony. Carpenter v. Nixon^ 
 5 Hill R. 260. Ward v. The People, 3 Id. 395.
 
 576 HISTORIA PLACITORUM CORONA. 
 
 Bat by the statute of 6 H. 6. cap. 1. if A. de B. in comitahi S. 
 be indicted in the king's bench in Middlesex, there shall go out one 
 Capias into Middlesex, another into S. and each shall have six 
 weeks at least between the T^e^/eand return, and upon Non iiwentus 
 returned then an Exigent. 
 
 But if he be not named of another county, then it seems only one 
 Capias shall issue, where the party is indicted, and upon that an 
 Exigent: this statute was made during the king's pleasure; but by 
 the proviso in the statute of 8 //. 6. cap. 10. it seems to be made 
 perpetual. 
 
 By the statute of 8 //. 6, cap. 10. if./?, de B. in com. S. be indicted 
 or appealed in com. IV. before justices asssigned, there shall go out 
 first a Capias in Com. fV. and upon No7i inventus returned, a Capias, 
 with proclamations in com. S. having three months at least between 
 the Teste s.nd return, or otherwise no Exigent to issue; but the prd- 
 cess in the king's bench is excepted. 
 
 But this statute only extends, where the party is indicted in another 
 county, than where conversant. 
 
 By the statute of 5 E. 3. cap. 11. justices of oi/er and terminer 
 may issue process against felons in a foreign county, and these 
 processes ought, or at least may and are most fit to issue in the 
 king's name under the Teste of the chief judge, for which pur- 
 pose all clerks of assizes have a special seal, and issue their pro- 
 cess in the king's name in case of felony, where they go to the 
 outlawry, tho some other warrants are made in the name of the 
 judge. . 
 
 And in all cases the king's writs are directed to the 
 (]577] sheriff, and he executes the writ himself, or by his warrant 
 under seal to the bailiffs. 
 
 And upon these writs the sheriff or his bailiff may break open 
 doors to take the offenders, for they are for the king and preserva- 
 tion of the peace, and therefore include a no7i omit tas propter uli- 
 quam libertatem; quod vide 5 Co. Rep. 92. a. 
 
 And in this case the sheriff or his bailiff may require any per- 
 sons present to assist him in execution of the writ, and he that 
 refuseth to assist him, is indictable and punishable by fine and im- 
 prisonment. 
 
 II. The second kind of arrest is by warrant under tlie seal of the 
 justices thereunto authorized, as justices of oi/er and terminer, or of 
 gaol-delivery, or justices of peace. 
 
 And herein these things are considerable: 1. What are the essen- 
 tials of such a warrant, without which it is void in law. 2. Who 
 may grant a warrant to apprehend a felon. 3. To whom, and 4. In 
 what order or method it is to be granted, or 5. Executed, and in 
 what case. 
 
 1. As to the first of these. 
 
 It is necessary that such warrant express the name of the party to 
 be taken: for a wari-anl granted with a blank and sealed, and after
 
 HISTORIA PLACITORUM CORON.^. 577 
 
 filled up with the name of the party to be taken is void in law. 
 Dalt. cap. 117.;;. 329.(«) 
 
 It must be under seal, tho some have thought it sufficient if it be 
 in writing subscribed by the justice, Dalt. cap. 117. /;. 358. vide 2. 
 Co. Inslit. supra statutum de fraiigentibus prisonain, p. 591. and 
 the faiUng in these things will make the warrant void, and subject 
 the officer to a false imprisonment; tho in some cases, the want of 
 (due formality may be blameable in him that makes the warrant, 
 yet it will not therefore subject the officer to a false imprisonment, if 
 the matter be within the jurisdiction of him that makes it; as for 
 instance, 
 
 A warrant by a justice to apprehend J. S. to answer such matters 
 as shall be objected against him, ex parte domini regis, without ex- 
 presshig the certainty of the crime, this is not regular, Lamhard' s 
 justice QS, 96. 2 Co. Instit. 591. 615. tho Mr. Dalt. cap. 
 117, p. 329. gives instances of such warrants granted by [578] 
 Po/^/^f/m chief justice. 
 
 And therefore, if before commitment a person so apprehended 
 should be removed into the king's bench by Habeas Corpus, upon 
 such a warrant, or should be committed upon such a general Mit- 
 timus, he should be discharged; or in case he should be rescued 
 upon such an apprehension by such a warrant, or be voluntarily let 
 go by him that apprehends him, (tho it may be the true cause of the 
 warrant were felony,) yet it not being expressed in the warrant, such 
 an escape or such a rescue would not be felony. 
 
 Yet it may excuse the officer in false imprisonment, if the true 
 cause were felony, or any misdemeanor within the cognizance of 
 him that makes the warrant, for it is but an erroneous, not a void 
 warrant, and it is not reasonable to suppose the officer should be 
 conusant of the formalities of law, or advise with counsel upon all 
 occasions, whether the warrant were in strictness of law regular, 
 especially in such a case where the error of this nature hath been 
 seconded with common practice; but of this more hereafter. 
 
 2. As to the persons, that may grant a warrant for apprehending 
 a felon. 
 
 The chief justice of the king's bench or any other judge of that 
 court may issue a warrant in his own name, for the apprehending 
 and bringing before him any person touching whom oath is made of 
 a felony committed, or of suspicion of felony upon him, into any 
 county of England and JVales, for they are intrusted with the con- 
 servation of the peace through all England, and are more than 
 justices of peace or oyer and terminer; and this hath been usual in 
 all ages. . 
 
 But to avoid the trouble to the country in bringing up offenders 
 they usually direct their warrants to apprehend the parties, and 
 bring them before some justice of peace near adjoining, either to be 
 examined or bound over to the sessions, and farther to be proceeded 
 against according to law. 
 
 (a) New Edit. p. 574.
 
 578 HISTORIA PLACITORUM CORONiE. 
 
 And thus their warrants ought to run in cases of surety of the 
 peace or good behaviour against a person in another county, than 
 where they are, by reason of the statute of 21 Jac. cap. 8. 
 
 Justices of oyer and terminer may also issue their war- 
 r 579 ~\ rants in the counties within their commission for apprehend- 
 ing felons or other malefactors, or for surety of the peace 
 within their limits ; qiisere, whether they may not issue their warrants 
 for any indicted of felony within their precincts, tho tiiey are abroad « 
 in a foreign county, by the statute of 5 E. 3. before mentioned? 
 
 Justices of peace may also issue their warrants within the precincts 
 of their commission for apprehending persons charged of crimes 
 within the cognizance of the sessions of the peace, and bind them 
 over to appear at the sessions, and this, tho the offender be not yet 
 indicted. 
 
 And therefore the opinion of my lord CoJce, 4 Inst it. 111. is too 
 strait-laced in this case, and, if it should be received, would obstruct 
 the peace and good order of the kingdom; and the book of 14 H. 8. 
 16. upon which he grounded his opinion, was no solemn resolution, 
 but a sudden and extrajudicial opinion, and the defendant had liberty 
 to mend his plea as to the circumstance of time, to the end it might , 
 ^be judicially settled by demurrer, which was never done; and the 
 constant practice hath obtained contrary to that opinion; quod vide 
 Dalt. cap. 117.(6) 
 
 And whereas my lord Coke^ ubi supra, s^Jiih also, that a justice of 
 peace upon oath made by A. of a felony committed, and that Ji. sus- 
 pects B. and shews his cause, cannot issue a warrant to bring B. 
 before him for farther examination, and thereupon commit or bind 
 him over to the assizes or sessions, because it must be the proper sus- 
 picion of Ji. himself, and Ji. may arrest him upon the score of his. 
 own suspicion, but not by warrant of the justice; I think the law is 
 not so, and the constant practice in all places hath obtained against' 
 it, and it would be pernicious to the kingdom if it should be as he de- 
 livers it, for malefactors would escape unexamined and undiscovered; 
 for a man may have a probable and strong presumption of the guilt 
 of a person, whom yet he cannot positively swear to be guilty. 
 
 Therefore I think, that if Ji. makes oath before a justice of peace 
 of a felony committed in fact, and that he suspects B. and 
 [ 580 ] shews probable cause of suspicion the justice may grant his 
 warrant to apprehend B. and to bring him before him, of 
 some other justice of peace to be examined, and to be farther pro- 
 ceeded against, as to law shall appertain; and upon this warrant the 
 constable, or he to whom the warrant is directed, may arrest him, 
 and if occasion be may break doors to take him, if within a house, 
 and will not upon demand render himself, as well as if it were an 
 express and positive charge of felony sworn by JI. against'him, and 
 so hath common practice obtained notwithstanding thatopmion: vide 
 statute IVestm. 1 cap. 15.(c) 13 E. 4. 9. a. 
 
 (6) New Edit. p. 57G. (c) 2 Co. Inst. p. 185.
 
 HISTORIA PLACITORUM CORONiE. 580 
 
 But a general warrant upon a complaint of a robbery to apprehend 
 all persons suspected, and to bring them before, ^-c. was ruled void, 
 and false imprisonment lies against him that takes a man upon such 
 a warrant, P. 24 Car. l.upon evidence in a case of justice Swallow^ s 
 warrant before justice Roll. 
 
 If A. hath committed treason, tho the justices of the peace have 
 no cognizance of it as treason, yet they have cognizance of it as a 
 felony, and as a breach of the peace, and therefore a justice of peace 
 upon information upon oath may issue his warrant to take him, and 
 may take his examination, and commit him to prison. 
 
 Jl. commits a felony in the county of B. and then goes into the 
 county of C. upon information given to a justice of peace of the 
 county of C he may issue his warrant to take him, may take his 
 examination, and commit him to gaol in the county of C. from 
 whence he may he removed by Habeas Corpus to the county of B. 
 for his trial. 
 
 If ^^. commit a felony in the county of B. and upon a warrant 
 issued against him by a justice of peace in the county of B. he is pur- 
 sued and flies into the county of C. and there is taken, he must not 
 by virtue of that warrant be carried to a justice of peace of the county 
 oi B. where he committed the felony, but to a justice of peace in the 
 county of C. where he was taken. 
 
 But if A. were taken by the warrant in the county of B. and break 
 away into the county of C. and be there taken upon fresh 
 suit by them that first took him, he may be either brought [ 581 ] 
 to a justice of the county of C. where he was last taken, or 
 before the justice of the county of ^. by whose warrant he was first 
 taken ; for in supposition of law he was always in custody: vide du- 
 bitahtr, 13. E. 4. 9. a. 
 
 If./?, be in commission of the peace in the county of i?. and hap- 
 pen to be in the county of C. and there complaint is made to him of 
 a felony in the county of B. where he is in commission, as he can- 
 not issue a warrant out to apprehend the party, so neither can he im- 
 prison in the county of C. because an act of jurisdiction, but he may 
 take an oath of a party robbed in pursuance of the statute of 27 Eliz. 
 or he may take an examination, or information, or recognizance in a 
 foreign county, but cannot compel them by imprisonment. P. 7 Car. 
 1. Croke, n. 3 Helyar\s case,((/) Dalt. cap. 6. and 117.(e) 
 
 But if./?, be a justice of peace in two adjacent counties, tho by 
 several commissions, as the recorder oi London is, nothing is more 
 usual for him, that whilst he lives in one county to send .his warrants 
 to apprehend malefactors in another, and to send them to Newgate, 
 which is the common gaol of both counties, London and Middlesex. 
 
 3. Touching the persons to whom a warrant may be directed. 
 
 The justice that issues the warrant, may direct it to a private per- 
 son if he please, and it is good ; but he is not compellable to exe- 
 cute it, unless he be a proper officer. 14 H. 8. 16. Dalt. cap. 117. 
 p- 332.(/) 
 
 (d) Cro. Car. 211. (e) New Edit. p. 25 ^ 575. (/) New Edit. p. 577.
 
 581 HISTORIA PLACITORUM CORONiE. 
 
 The warrant is ordinarily directed to the sheriff or constables, and 
 they are indictable, and subject thereupon to a fine and imprisonment 
 if they neglect or refuse it. 
 
 If directed to the sheriff, he may make a warrant to his baihff fo 
 execute it. 
 
 If to a constable, tithing-man, <5'C. he must execute it himself, and 
 may not substitute another ; but he may call any persons to assist him, 
 and they are bound to assist him, and are indictable if they neglect 
 or refuse to assist : vide Dalt. ubi supra. 
 
 If directed to the constable oi D. he is not bound to'ex- 
 [ 582 ] ecute the warrant out of the precincts of his constablewick, 
 but if he doth it out of his constablewick, it is good; and so 
 it was ruled in Norfolk in an action of trespass. 
 
 4. Touching the order in granting it. 
 
 1. It is convenient, tho not always necessary, to take an informa- 
 tion upon oath of the person that desires the warrant, that a felony 
 was committed, that he doth suspect or know J. S. to be the felon ; 
 and if suspected, then to set down the causes of his suspicion. 
 
 2. If the charge of the felony be positive and express, theft it is fit 
 to bind the party by recognizance to prosecute, before the warrant 
 be issued. 
 
 But if it be only a charge of suspicion, and the business requires 
 farther examination, then it is neither necessary nor fit to bind over 
 the party to prosecute; for possibly upon the bringing in of the party 
 accused, and farther examination of the fact, there may be cause to 
 discharge him, and thus I think Mr. Balton to be intended, ca/j. 117. 
 J). 334.(^) the case before chief justice Flemming. 
 
 3. The warrant may issue to bring the party before the justice that 
 granted the warrant specially, and then the officer is bound to bring 
 him before the same justice; but if the warrant be to bring him be- 
 fore any justice, then it is in the election of the officer to bring him 
 before what justice of the county he thinks fit, and not in the election 
 of the prisoner. 5 Co. Eep. 59. b. Foster's case. 
 
 5. Touching the demeanor of the officer in executing the warrant. 
 If it be a warrant for felony, or a warrant for the surety of the 
 
 peace, the officer may break open the door, if he be sure the offender 
 is there, if after acquainting them of the business, and demanding the 
 prisoner, he refuses to open the door, tho the party be not indicted; 
 and this is the constant practice against the opinion of my lord Co/ce, 
 4 Inst. 177. guod vide Dalt. cap. 117. p. 333. (A) 
 
 And so it is if the warrant be only upon suspicion of 
 [ 583 ] felony, as hath been said before, for in both cases the pro- 
 cess is for the king, and therefore a Non omittas is implied, 
 and he that diligently considereth the statute of West. 1. cap. \5.{i) 
 and the statute of 2 ^'3 P. <§• M. cap. 10. will find that an imprison- 
 ment may be tnade by the justice, as well for suspicion of felony, as 
 for an absolute charge of felony, and that as well before indictment 
 as after. 
 
 (g-) New Edit. cap. 169. p. 579. (Ji) New Edit. p. 578. (0 2 Co. Inst. 185.
 
 HISTORIA PLACITORUM CORONA. 583 
 
 And by the book of 13 E. 4, 9. a. A man that arrests upon sus- 
 picion of felony, may break open doors, if the party refuses upon 
 demand to open them, and much more may it be done by tiie justice's 
 warrant. 
 
 If the officer be demanded he must show his warrant, but if he 
 doth it virtiite officii as a constable, 4'c. it is sufficient to notify that 
 he is the constable, or that he arrests in the king's name. Dalt. iibi 
 supra, 6 Co. Rep. 54. a. 9 Co. Rep. 69. a. Mackally^s case. 
 
 Lastly, What is to be done after the warrant served, and when 
 the person accused is brought before the justice thereupon. 
 
 If there be no cause to commit him found by the justice upon 
 examination of the fact, he may discharge him. 
 
 If the case be bailable, he may bail them. 
 
 If he have no bail, or the case appears not to be bailable, he must 
 commit him. 
 
 And being either bailed or committed^ he is not to be discharged 
 till he be convicted or acquitted, or delivered by proclamation. Co. 
 P. C. cap. 100.77.209. 
 
 And this leads me to the Mittimus, or the warrant to the gaoler 
 to receive him; and this is the ground of the felony in case of a 
 breach of prison. 
 
 ^ly lord Coke, 2 Inst. 591. makes three essential parts of the 
 Mitti?nus. 
 
 1. That it be in writing sealed by the justice that commits, and 
 without this part the commitment is unlawful, the gaoler is liable to 
 a false imprisonment, and the wilful escape by the gaoler, or breach 
 of prison by the prisoner, makes no felony. 
 
 But this must not be intended of a commitment in a court 
 of record, as the king's bench, gaol delivery, or sessions of [ 584 ] 
 the peace, for there the record itself, or the memorial thereof, 
 which may at any time be entered of record, are a sufficient warrant 
 without any warrant under seal. 
 
 2. That it express the cause for which he is committed, namely 
 felony, and what kind of felony. 
 
 This seems requisite to make the voluntary escape or breach of 
 prison felony, and also it is necessary upon return of the Habeas 
 Corpus out of the king's bench, because that is in nature of a writ 
 of right or writ of error to determine, whether the imprisonment be 
 good or erroneous. 
 
 But it seems not to make the commitment absolutely void, so as 
 to subject the gaoler to a false imprisonment, but it lies in averment 
 to excuse the gaoler or officer, that the matter was for felony. 
 
 And also upon such a general warrant without expressing any 
 felony or treason, or surety of the peace, the constable cannot break 
 open a door. T. 9 Jac. B. R. 1 Bulstrode 146. Foster's case. 
 
 3. That it have an apt conclusion, viz. There to remain till 
 deliver d by law. 
 
 But if the conclusion be irregular, I think it makes not the warrant
 
 584 HISTORIA PLACITORUM CORONA. 
 
 void, but the law will reject that which is surplusage, and the rest 
 shall stand. 
 
 And therefore if the cause be expressed, and the conclusion irregu- 
 lar, as till farther order s^iven by a justice, yet a breach of prison 
 under such a warrant will be felony, yea, if the party be removed by 
 Habeas Cojyus, tho the conclusion be irregular, yet if the matter 
 appears to be such, for which he is to remain in custody, or be bailed, 
 he shall be bailed or committed as the case requires, and not dis- 
 charged ; but the idle conclusion shall be rejected. 
 
 And therefore I do think that such a warrant is a good justification 
 in a false imprisonment, tho the right conclusion be omitted, or tho 
 the wrong conclusion be inserted, if the matter of the Mittimvs be 
 otherwise sufficient to charge him in custody, and therefore it is a 
 lawful warrant notwithstanding the omission or incongruity 
 r 585 1 of the conclusion, so as to make the voluntary permission of 
 an escape or the breach of prison felony. 
 
 By the statute of 23 H. 8. cap. 2. the felons are to be sent to the 
 common gaol:(/) and by the statute of 4 jE. 3. cap. 10. the sheriffs 
 and gaolers are bound to receive them, whether committed by jus- 
 tices, or attached ex officio by constables. 
 
 Previous to the commitment of felons, or such as are charged 
 therewith, there are required three things, 1. The examination of 
 the person accused, but without oath. 2. The farther information 
 of accusers and witnesses upon oath. 3. The binding over of the 
 prosecutor and witnesses unto the next assizes or sessions of the 
 peace, as the case requires. 
 
 1. The examination of the person accused, which ought not to be 
 upon oath, and these examinations ought to be put in writing, and 
 returned or certified to the next gaol delivery or sessions of the peace, 
 as the case shall require, by the statute of 2 (§' 3 P. (§• M. cap. 10. 
 and being sworn by the justice or his clerk to be truly taken, may be 
 given in evidence against the offender.(A^) 
 
 And in order thereunto, if by some reasonable occasion the justice 
 cannot at the return of the warrant take the examination, he may by 
 word of mouth command the constable, or any other person, to de- 
 tain in custody the prisoner till the next day, and then to bring him 
 before the justice for further examination; and this detainer is justi- 
 fiable by the constable, or any other person without showing the 
 particular cause for which he was to be examined, or any war- 
 
 (i) And not elsewhere; so that it sliould seem that commitments to New Prison or 
 the Gate-house are irregular; see 2 Co. Inst. 43. Cro. Eliz 830. and of this opinion was 
 chief justice Holt, in the case of Kendal and Roe, State Tr, Vol. IV. ^. 862. See also 
 5 H. 4. cd-p. 10. which ordains, "That none be imprisoned by justices of the peace, save 
 only in the common gaol." \) Co. Rep. 119. b. 
 
 (k) Altlio tlfey be not evidence against any other person named in them; it was there- 
 fore very irregular in the chief justice to refuse reading the examinations of Slern and 
 Boroski at their trial; see State Tr. Vol. III. p. 470. But qucere by scrjeant TVi/son, if- 
 the chief justice was not right in such rcfusiil? For by ihe opinion of some judges now 
 livin-j-, the statute datli not extend to the examination of the party accused, unless he 
 signed his examination, but only to the witnesses or persons accusing.
 
 HISTORIA PLACITORUM CORON^E. 585 
 
 rant in scrip/is. T. 37 Bliz. Hot. 244. B. R. Broughton and 
 
 Marshaw.{l) 
 
 But the time of the detainer must be reasonable, therefore 
 a justice cannot justify the detainer of such a person sixteen [ 586 ] 
 or twenty days in order to such examination. (m) 
 
 2. He must take information of the prosecutor or witnesses in 
 writing upon oath, and return or certify them at the next sessions 
 or gaol-deUvery, and these being upon the trial sworn to be truly 
 taken by the justice or his clerk, (S*c. may be given in evidence against 
 the prisoner, if the witnesses be dead or not able to travel. 
 
 3. Before he commit the prisoner, he is to take surety of the pro- 
 secutor to prefer his bill of indictment at the next gaol delivery or 
 sessions, and likewise to give evidence; but if he be not the accuser, 
 but an unconcerned party that can testify, the justice may bind him 
 over to give evidence ; and upon refusal in either case may commit 
 the refuser to gaol. Slamf. P. C. p. 163. a. Dalt. cap. 116. p. 326. (ti) 
 2 (§• 3 P. <5- M. cap. 10. and Dalt. cap. 20. p. 55.(o) 
 
 And thus far of arrests by warrant in writing. 
 
 Next come to be considered arrests by command ore tenus, or by 
 order. 
 
 The chief justice, or other justice of the king's bench, may com- 
 mand ore tenus the marshal or any of his deputies, commonly called 
 tipstaves, to arrest any person, and such command is a good justifi- 
 cation in false imprisonment brought; altho 1. It be not in writing. 
 2. Altho no cause is expressed in the command, but only generally 
 to answer such things as shall be objected against him ex parte domini 
 regis. 3. And tho the command be ita quod habeas corpus coram 
 capitali justiciario, Sf-c. quandocunque, 4'C. for it shall be intended, 
 when the party complains. 4. Altho the defendant declares not in his 
 justification what he did with him in the mean time. P. 11 Car. B. 
 R. Throgmorton and Allen., adjudged upon a demurrer.(*) 
 
 Altho, as hath been said, a justice cannot grant a warrant to ap- 
 prehend all persons suspected, but must name their names, yet I have 
 known in the king's bench upon a riot committed in the 
 night by persons disguised, and whose names have not been ["587 1 
 known, the court hath made an order to apprehend persons 
 that the party, who was injured, suspects, and to bring them into 
 the court to be examined, and such order of the court is a good war- 
 rant for the sheriff" or constable to do it ; but what is thus done in the 
 highest court of ordinary justice, is not to be a pattern for particular 
 justices or inferior jurisdictions. 
 
 I have now done with arrests by writs or warrants. 
 
 I come in the next place to arrests, ex officio, without any warrant. 
 
 (Z) This case is reported in Moore, 408. by the name of Broughton and MuhJioe. 
 {m) See the case ofScamge and Tateham, Cro. Eliz, 829. where it was adjudged, that 
 the time of detainer must not exceed three days, 
 (n) New Edit. cap. 168. p. 572. 
 (0) New Edit. cap. 40. p. 106. («) 2 R. A. p. 558. 
 
 VOL. I. — 51
 
 687 HISTORIA PLACITORUM CORONA. 
 
 If an affray be made in the presence of a justice of peace, or if a 
 felon be in his presence, he may arrest him, and detain him ex officio 
 till he can make a warrant to send him to gaol, but then the warrant 
 must be in writing to the gaoler, P. 23. Car. B. R. SandforcTs case, 
 and so he may by word command any present to arrest. Dalt. cap. 
 in. p. 32S.{p) 
 
 A constable may ex officio arrest a breaker of the peace in his view, 
 and keep him in his house, or in the stocks, till he can bring him be- 
 fore a justice of peace. 
 
 So if ,d. be dangerously hurt, and the common voice is, that B. 
 hurt him, or if C. thereupon comes to the constable, and tells him that 
 B. hurt him, the constable may imprison him till he knows whether 
 t/?. dies or lives, T. 43 Eliz. B. R. Dumbletoi's case, or can bring 
 him before a justice. 
 
 So if a felony be committed, and */?. acquaint him that B. did it, 
 the constable may take him and imprison him, at least till he can 
 bring him before some justice of peace. 
 
 But if there be only an aftVay, and not in view of the constable, it 
 hath been held he cannot arrest him without a warrant from the jus- 
 tice; but it seems he may to bring the offender before a justice, tho 
 not compellible. 
 
 Lastly, I come to the authority of every private person in relation 
 to arrests of felons. 
 
 \i A. commit a felony, B. who is a private person, may arrest him 
 
 for that felony without any warrant; nay farther, if .^. will 
 
 [ 588 3 i^ot suffer himself to be taken, but either resists or flies, so 
 
 that he cannot be taken, unless he be slain, if B. or any in 
 
 assistance in that case of necessity kill him, it is no felony; de quo 
 
 antea,p. 481. 
 
 If A. commit a felony in the sight of B. and B. uses not his best 
 endeavours to apprehend him, or to raise hue and cry upon him, it is 
 punishable by fine and imprisonment. Co. P. C. p. 53. 
 
 If Ji. strike B. dangerously in the presence of C. C. may justify 
 the imprisoning of ^d. till he can bring him before a justice, or de- 
 liver him to the constable, tho it be not felony till death. 
 
 If a hue and cry be levied upon a felony, and come to the town, 
 B. the constable, and those of the town are bound to apprehend the 
 felon if in the town, or if not in the town, then to follow the hue and 
 cry, otherwise they are punishable upon an indictment. Co. P. C. 
 cap. 52. 
 
 If the constable in pursuit of a felon require the aid of J. S. he is 
 bound by law to assist him, and is finable for his neglect.(y) 
 
 If a felony be committed in fact, and v^. suspects B. did it, and 
 hath probable cause of suspicion, .^. may arrest i?. for it, and justify 
 it in an action of false imprisonment. 2 E. 4. 8, b. 
 
 The causes of suspicion are many, as common fame finding goods 
 upon him, and many more, de quibus vide Dalt. cup. llS.(r) 
 
 (jP) New Edit. cap. 169. p. 574. (5) 13 //. 7. 10. b. (r) New Edit. cap. 170.
 
 HISTORIA PLACITORUM CORONA. 588 
 
 If a felony be committed, and A. suspects B. and B. being in his 
 house refuse to open the doors, or render himself, it seems A. may 
 break open the doors to take him; and so may the constable, if A. 
 acquaint him therewith, especially if A. be present, 13 ^. 4. 9. a. 
 tho (as hath been said) my lord Coke,A Inst. 111. be to the contrary; 
 yet the common practice and opinion hath obtained in that case 
 against my lord Coke, Dalt. cap. 9S. p. 249. ,(5) cap. 78. p. 204.,(/) 
 7 E. 3. 16. b. 
 
 There are special cases where a constable having received informa- 
 tion of the misdemeanors following, or any private person 
 without a warrant may arrest and break open doors to arrest [ 589 ] 
 if they within refuse to open them upon demand, or to deliver 
 up the party. 
 
 1. Where a felony or treason is committed, and the offender is 
 within the house. 
 
 2. Where a felony or treason is committed, and a man suspects 
 J. S. who is in the house, and hath probable cause of such suspicion, 
 tho the party be not indicted. 7 E. 3. 16. b. 13. E. 4. 9. a. 
 
 3. Where A. hath dangerously wounded B. and then A. flies into 
 the house, whether it were done in the presence of the constable, or 
 him that arrests, or not. 7 E. 3. 16. b. Crompt. 171. a. 
 
 4. Where there is an affray made in a house, and the doors are 
 shut, and are refused to be opened, during such affray the constable 
 or any other may break open the doors to preserve the peace, and 
 prevent blood shed; but after the affray, it cannot be done without 
 a warrant, unless a man be dangerously wounded or killed in the 
 affray. 
 
 Yet to avoid question in these cases, it is best to obtain the warrant 
 of a justice, if the time and necessity will permit. 
 
 When a private person hath arrested a felon, or one suspected of 
 felony, he may detain him in custody till he can reasonably dismiss 
 himself of him; but with as much speed as conveniently he can, he 
 may do either of these things. 
 
 1. He may carry him to the common gaol, 20 E. 4. 6. b. but that 
 is now rarely done. 
 
 2. He may deliver him to the constable of the vill, who may either 
 carry him to the common gaol, vide 4. E. 3. cap. 10. or to a justice of 
 peace to be examined, and farther proceeded against as case shall 
 require. 10 E. 4.(w) 17 6. 
 
 3. Or he may carry him immediately to any justice of peace of the 
 county where he is taken, who upon examination may discharge, 
 bail, or commit him, as the case shall require. 
 
 And the bringing the offender either by the constable or [590] 
 private person to a justice of peace is most usual and safe, 
 because a gaoler will expect a Mittimus iov his warrant of detaining. 
 
 And thus far of arrests. 
 
 («^ New Edit. p. 482. (0 New Edit. p. 426.. 
 
 (u) This is the same year with 49 H. 6, and is so printed in the year-book.
 
 590 HISTORIA PLACITORUM CORONiE. 
 
 CHAPTER LI. 
 
 OF FELONY BY VOLUNTARY ESCAPES, AND TOUCHING FELONY BY 
 ESCAPES OF FELONS. 
 
 Having in a former chapter said somewhat of arrests, it remains 
 that somewhat be said touching those felonies that relate to the es- 
 cape of persons arrested or imprisoned. 
 
 And these escapes are of three kinds, 1. By the person that hath 
 the felon in his custody, and this is properly an escape; and 2. When 
 the escape is caused by a stranger, and this is ordinarily called a res- 
 cue of a felon. 3. By the party himself, which is of two kinds, viz. 
 1. Without any act of force, and this is a simple escape. 2. With an 
 act of force, viz. by breach of prison. 
 
 As to the Jirst, touching an escape separate by the person that 
 hath a felon in custody, which is properly an escape; and this is of 
 two kinds, voluntary and negligent. 
 
 And Jirst concerning the voluntary escape. 
 
 A voluntary escape is when any person having a felon lawfully in 
 
 his custody voluntarily permits him to escape from it, or go at large, 
 
 and this is felony in case the person be imprisoned for felony, and 
 
 treason in case the person be imprisoned for treason ; for the 
 
 [ 591 ] latter enough hath been said before; touching the former in 
 
 this place. 
 
 And altho Mr. Stamford^ Lib. I. cap. 26, 27, 28, 29, 30, 31. hath 
 collected almost all that can be well said in this case, yet I shall pro- 
 ceed distinctly herein. 
 
 And therein I shall as near as I can, observe this order. 
 
 1. I shall consider who shall be said a felon, whose escape makes 
 a felony in him that voluntarily suffers it;i 2. What shall be said a 
 having of such a felon in his custody. 3. Who shall be said a per- 
 son lawfully having such a felon in his custody. 4. What shall be 
 said a voluntary escape of such a felon out of his custody. 5. Who 
 shall be said voluntarily to suffer such a felon to escape. 6. What 
 is the offense of such a voluntary permission of an escape, and where, 
 and how punishable. 
 
 And tho I apply these particulars to a voluntary escape, yet many 
 of them are applicable unto, and useful for the learning of a negli- 
 gent escape. 
 
 I. Who shall be said a felon, whose voluntary escape is felony in 
 him that so permits it. 
 
 If ..:?. gives B. a mortal wound, and before B. dies the constable 
 takes Jl. into custody, either with or without a justice's warrant, and 
 then lets him voluntarily escape before B. is dead, and then B. dies 
 tho as between A. and B. or »^. and the king, this is is a felony from 
 the stroke given, and the attainder of Jl. as to the forfeiture of his 
 lands relates to the stroke; yet this is no felony in the constable, but
 
 HISTORIA PLACITORUM CORONA. 591 
 
 only a misdemeanor punishable by fine and imprisonment. 11 //. 4, 
 12 b. Ploivd. Com. 258. b. 
 
 If ^. be indicted for felony, and taken by Capias, or by the warrant 
 of a justice, or by the constable 6,-c. and committed to prison, and the 
 gaoler suffers-.^, to escape voluntarily, this is the escape of a felon, 
 tho -'?. be not attainted at the time of the escape, but the gaoler shall 
 not be arraigned thereupon till after the attainder of t^. de quo infra. 
 
 If a felony be in fact committed, and the constable takes A. upon 
 suspicion of felony, and after voluntarily suffers him to go 
 at large, tho A. be not then indicted, yet this is a felonious [ 592 ]] 
 escape in the constable, tho 42 Assiz. 5. be othervvise,(«) yet 
 44 Assiz. 12 Dy. 99. a. 43 E. 3. 36. a. accord.{b) 
 
 And altho the constable be well assured after the arrest by him 
 made, that A. was not the person that did it, yet he may not by the 
 law discharge him, but must bring him before a justice, who may 
 upon due circumstances discharge, bail, or commit him, as he sees 
 cause ; but the constable, if he discharges him, is finable. 
 
 But if the constable after the arrest finds certainly, that there was 
 no felony committed, it is held he may discharge him both without 
 danger of felony, (which is true,) and without any danger of fine 
 and imprisonment, 13 H. 7. Kelw. 34. a. b. but then it is at his peril, 
 if in truth there were a felony committed, and the party be guilty; 
 sed de his vide infra, Dalt. cap. 106./?. 271. accords. {c) 
 
 If A. be committed for petit larceny, and so it -appears by the 
 charge of his Mitlirrms, and the gaoler lets him at large, this is a 
 contempt, for which he shall be fined, but not felony in the gaoler; 
 so if he were convicted of petit larceny before the escape. Stamf. 
 P. C. Lib. I. cap. 21. p. 33. b. 8. E. 2. Coron. 430. 
 
 So if a man be originally committed for manslaughter /?er2/?yb;'/?^- 
 niiim or se defendendo, or were convict only se defendendo ov per 
 infortunium, and afterwards the gaoler suffers him voluntarily to 
 escape, it is no felony; but if the commitment or indictment were 
 for manslaughter, tho in truth it were but se defendendo, yet prima 
 facie a voluntary escape is indictable as felony, tho in eventu it may 
 fall out otherwise; de quo infra. 
 
 If A. be indicted of murder for the death of B. and par- 
 doned or acquitted within the year, but left in jail till the [ 593 ] 
 year be elapsed, upon the statute of 3 H. 7. cap. 1. that the 
 wife may bring her appeal if she pleases, and after that acquittal, and 
 within the year, the gaoler suffers him voluntarily to escape, it is 
 
 (a) That was the case of a negligent (not a voluntary) escape, and for that reason 
 could not be felony, tho it is there given as a reason, why it sliould not be adjudged an 
 escape, because the thief was not taken with the mainouvre, nor at the suit of the pariy, 
 nor indicted of felony. 
 
 (&) This case is plainly the same with 44 Assiz. 12. and seems to be the case of a 
 voluntary escape; it does not report any resolution of the court, but only says, that the 
 bailift's who let the thief go, altho he were not indicted, were charged with an escape; 
 and a qucore is added at the end of the case: and as to the case in Dijer, that was not 
 the case of the person arresting letting the thief go, but of a third person's rescuing him, 
 and that is said to be felony, altho he was not indicted. See 1 £. 316. 6. 
 
 (c) New Edit. p. 511.
 
 693 HISTORIA PLACITORUM CORONA. 
 
 felony prima facie, and the gaoler may be indicted for it as felony; 
 but if the wife brings not her appeal within the year, or bringing her 
 appeal «/?. is acquitted, the gaoler ought to be acquitted : vide infra, 
 JHoivd. Com. 476. b. 
 
 If ^. commits felony, and being convicted prays his clergy and 
 the court take time to advise upon it till another sessions, and in the 
 mean time he is left in gaol, as he ought to be, and the gaoler volun- 
 tarily suffer him to make his escape, this is felony in the gaoler, for 
 such a prisoner stands yet under a conviction of felony, and there- 
 fore is not by law bailable; but if the felon be retaken, and hath his 
 clergy, the felony in the escape is purged, and the gaoler is not 
 indictable after, or if indicted before the clergy allowed, he is to be 
 acquitted. 
 
 If ^. be indicted of felony, and hath his clergy, but is continued 
 for six months in custody for his farther correction, according to the 
 power given by the statute of IS Eliz. cap. 7. and the gaoler suffer 
 him to escape voluntarily, it is a misdemeanor punishable by fine 
 and imprisonment, but no felony. 
 
 If a man be delivered to the ordinary as a clerk convict upon his 
 own confession, or as a clerk attaint, in which cases he ought not to 
 be admitted to purgation, and the ordinary notwithstanding admit 
 him to his purgation, and set him at large, this, at common law, had 
 been a misdemeanor fineable; but it seems it had not been felony ill 
 the ordinary ; for in those times there was a pretension, that a clerk 
 was not within the temporal jurisdiction; but the law concerning 
 purgation is altered since by the statute of 18 Eliz. cap. 1. and other 
 statutes; de quo infra, 21 Jlssiz. 12. 9 E. 4. 28. 
 
 Thus far what shall be said a felony. 
 
 11. What shall be said to be a having in custody. 
 
 Every man is bound by law to pursue and take a felon; and if he 
 makes not pursuit, he is fineable. 
 
 But if ./^.commits a felony in the presence of B. and B. 
 [ 594] never takes him, nor attempts it, this is not felony in B. for 
 B. had him not in his custody. 
 
 So it is if .^. commits a felony, and B. receives him knowing him 
 to be a felon, and then B. voluntarily suffers him to depart, tho the 
 receipt makes him accessary after, yet it is no escape by B. because 
 he never arrested him, and so had him not in custody. 9 H. 4. \.{d) 
 
 If./?, being acquit of felony, judgment is given, that he shall go 
 free paying his fees, tho the gaoler lets him go before fees paid, it is 
 not felony, for by that judgment he is no longer in custody as a felon. 
 21 //. 7. 17. 
 
 If the constable arrest a man for felony, and bring him to the 
 gaol, and the gaoler refuse to receive him, yet in law he is in the 
 custody of the constable, and if he lets him go, he is chargeable in an 
 escape. 10 //. 4. 7. a. Escape 8. 
 
 If A. have a franchise to Iiave the custody of felons in his gaol [for 
 
 («/) 24 6. '
 
 HISTORIA PLACITORUM CORONA. 594 
 
 three days,](e) and then to deliver over to the sheriff or county-gaol, 
 and after the three days he offers him to tlie county-gaol, and the 
 gaoler do not receive him, he yet remains a prisoner to Jl. and if he 
 suffers a voluntary escape, it is felony, 27 Jis^iz. 27. yet in both 
 these cases the gaoler is punishable for not receiving the felon by 
 4 E. 3. cap. 10. 
 
 If A. arrest /?. of felony, and deliver him to the constable or to 
 the vili, and they receive him, Jl. is discharged of the custody, and 
 the escape after is chargeable upon the constable or vill, and if the 
 constable or vill deliver iiim to the sheriff or his gaoler, and he re- 
 ceive him, the constable and vill are discliarged of the custody, and 
 the sheriff or gaoler is chargeable wuh the escape after. 3 E. 3. 
 Coron. 328. 337. 
 
 As touching escapes without arrests, they belong not to this title of 
 voluntary escapes; sed hsec vide infra <§• supra. 
 
 If A. the sheriff of B. hath a felon in gaol, and then C. is made 
 sheriff, till the prisoner be turned over by indenture to the new sheriff, 
 the custody of him remains in J2. and he or his gaoler is 
 chargeable for a negligent escape, and his gaoler chargeable [ 595 ] 
 for a voluntary escape. 
 
 If the bailiff of a franchise, that hath a gaol, hath the custody of 
 a felon, he is chargeable for his escape, and not the sheriff or his 
 goaler. 
 
 III. Who shall be said a person lawfully having the custody of a 
 felon: this hath been touched in the former section, but now shall be 
 farther prosecuted. 
 
 If Ji. a meer private man knows B. to have committed a felony, 
 he may thereupon arrest him of felony, and he is lawfully in the cus- 
 tody of./?, till he be discharged of him by delivering him to the con- 
 stable or common gaol ; and therefore if he voluntarily suffers him 
 to escape out of his custody, tho he were no officer, nor B. indicted, 
 it is felony in A. 
 
 So it is, if a felony be in fact committed, and A. hath a probable 
 cause to suspect B. and accordingly suspects and arrests him, B. is 
 lawfully in the custody of .^. for suspicion of felony; and if he volun- 
 tarily lets him escape, it is felony in A. in eventit, viz. if B. proves 
 really guilty of the felony. 
 
 And accordingly if A. deliver the party so arrested to the con- 
 stable's custody, he is lawfully in his custody, and if he suffer the 
 escape voluntarily, it is felony in eventu. 44 Assiz. 12. 
 
 If a justice of peace make a Mittimus to the gaoler for felony 
 with an unapt conclusion, as //// the justice give order for his 
 delivery, whereas it should be till he be delivered by due course of 
 law, tho this warrant be not formal, yet the felon is lawfully in his 
 custody, and if he let him voluntarily escape, it is felony, for he is 
 sufficiently ascertained of the crime with which he is charged. 
 
 (e) These words are not in the original MS. but yet are plainly supposed in the argu- 
 ment, and are mentioned in the case here quoted by our author, viz. 27 Assiz. 27.
 
 595 HISTORIA PLACITORUM CORON^E. 
 
 And it seems to me, if the Mittimus be general and contain no 
 certain cause, the the gaoler is not bound to receive him upon such 
 a Mittimus, yet if he be acquainted what the crime is for which he 
 is committed, if he suffer him voluntarily to escape, it is felony. 
 
 For if a private person or a constable arrests a man for felony, and 
 carry him to the common gaol, (as he may do by law, IS E. A. 9. 
 and the gaoler is bound to receive him by the statute (/) of 
 r 596 ] 4 E. 3. cap. 10. if the constable or person that delivers him, 
 acquaints the gaoler it is for felony, it is at the peril of the 
 gaoler if he lets him escape, and yet there is no Mittimus in that 
 case, but a notice ore tenus. 
 
 The stocks is the prison of the constable, and so long as he is in 
 the stocks he is in the constable's custody, and therefore if the con- 
 stable wilfully let a felon escape out of the stocks, and go at large, 
 it is felony in the constable, unless it be to bring him to a justice, or 
 to a safer or more convenient custody. 
 
 IV. What shall be said a voluntary escape of a felon in custody, 
 for it must be voluntary escape to make felony. 
 
 If the prisoner be rescued, or rescue himself against the will of 
 him that hath him in custody, this is no voluntary escape, nor is the 
 gaoler, &c. punishable for the same. 
 
 If the prison be fired, and the gaoler lets out the prisoners, there 
 being no other means to save their lives, and uses the best means he 
 can by his officers and irons to keep them safe, and this without 
 fraud, or if enemies force him to open the prison doors, and he doth 
 it to save his life, it excuseth from felony. 
 
 And if it be done by rebels, tho this excuse not the gaoler or 
 sheriff in civil actions, but he is liable to an action of debt, or upon 
 the case for the escape, because the sheriff hath his remedy over, yet 
 it excuseth the gaoler from felony, and also from a fine, if it be vis 
 major, quam cui resisti potest. 
 
 If a justice of peace bail a person not bailable by law, it ex- 
 cuseth the gaoler, and it is not felony in the justice, but a negligent 
 escape, for which he is fineable at common law, 25 E. 3, 39. ,(^) 
 and by the justices of gaol-delivery by the statute of 1 <§- 2 P. fy M. 
 cap. 13. 
 
 And the like in case of a sheriff, under-sheriff, constable, bailiff 
 of a liberty bailing one that is not by law bailable, it is not a volun- 
 tary escape, at least unless done by design to deliver the prisoner 
 for ever, but it is a negligent escape punishable at common 
 [597 ] law, or according to the statute of 3 E. 1. cap. 15. by loss of 
 office, fine, and three years imprisonment. 
 
 And therefore I think, that if a justice of peace bail a person, that 
 .confesseth a felony before him, it is no voluntary escape, but fineable 
 
 (/) This statute obliges the gaoler to receive felons by the delivery of the constables 
 or townships, but says nothing as to the delivery by private persons. 
 
 {<r) In the last edition of the year-books, which is in this place mispag-ed, it is 
 25 E. 3. 82. a.
 
 HISTORIA PLACITORUM CORONA. 597 
 
 as above, for it is error scientise, 2 R. 3. 10. contrary to the opinion 
 of Crompf. 39. a. Dull. p. 276. (A) 
 
 If a gaoler voluntarily licence a felon to wander out of the bounds 
 of the prison and to return again, if the prisoner returns again to the 
 gaol before the gaoler be indicted, so as he be iii custody, it is held 
 by some this will not excuse a voluntary escape as to the point of 
 felony, but certain it is that it is punishable as a misdemeanor, and 
 if he had never returned, it had been such an escape, as would have 
 been felony, tho perchance the licence were special to go out and 
 come in at night. 22 E. 3. Coron. 242. 8 E. 2. Coron. 431. because 
 he cannot apportion his own wrong and breach of duty. 
 • V. In whom the voluntarv escape shall be. 
 
 In all civil causes the shernf is to be responsible, or the gaoler at 
 election, as if the gaoler, or bailiff of a sheriff suffer either voluntarily 
 or negligently an escape of a person imprisoned for debt, the sheriff 
 is chargeable with an action upon the escape, for the gaoler or bailiff 
 is the sheriff's officer or minister, and gives him security. 14 E, 3. 
 cap. 10. 19 i/. 7. cap. 10. 
 
 But if the gaoler being placed there by the sheriff voluntarily 
 suffer a felon in liis custody to escape, this, in os much as it reacheth 
 to life, is felony only in the gaoler that was immediately trusted with 
 the custody, not in the sheriff. 
 
 But whether the escape was voluntary or negligent, yet the sheriff 
 may be indicted for it so as to subject him to a great fine and impri- 
 sonment for the offense of his gaoler, tho not fo make him guilty of 
 felony. Dalt. cap. 106.;?. 213.[i) Doctor and Sludenl A2.{k) 
 
 For the escape must be voluntarily permitted in him that permitted 
 it, which could not. be in the high sheriff, tho it were such in the 
 gaoler, for he was not privy to it, and therefore could not 
 do Wfelonicl, but it was a negligent escape in him in trusting [ 598 T 
 such a person with the custody of his prisoners, that would 
 be false to his trust, and therefore the sheriff shall pay, but not cor- 
 porally suffer, for the miscarriage of his gaoler. 
 
 But if the gaoler were a gaoler in fee, as antiently constables of 
 castles were, the sheriff should not answer in any kind for the default 
 of such gaoler or constable: but now by the statutes of 14 E. 3. cap. 
 10. and 19 ^. Leap. 10. gaols of counties are rejoined to the counties. 
 
 But for escapes committed by gaolers of gaols in particular fran- 
 chises, as the Gale-house at Westminster belonging to the dean and 
 chapter of Westminster., escapes there permitted concern not the 
 sheriff, but the particular gaoler and lord of the franchise. 
 
 VI. How and in what manner, and before whom felonious escapes 
 shall be determined, tried and adjudged. 
 
 It is to be known, that I may say it once for all, altho the felony 
 for breaking of prison may be heard, tried and determined before the 
 felony, for which he was committed, as shall be said; yet in case of 
 a felony for the wilful escape or rescue, of a person committed to 
 
 Qi) New Edit. p. 512. (i) New Edit. p. 509. {k) Dialog. 2. cap. 42.
 
 598 HISTORIA PLACITORUM CORONA. 
 
 prison for felony, tho the party that voluntarily permits such iescape, 
 or rescues the prisoner, may be indicted for these offenses as felonies 
 before the principal felony in him that escapes or is rescued be tried, 
 yet he shall not be arraigned or put upon his trial, till the principal be 
 convicted or attainted; and the reason is, because possibly the person 
 escaping may be found not guilty, or if guilty, yet of such a fact as 
 is not capital ; as of petit larciny, se dcfendendo, per infortunium^ 
 in which case the rescuer or officer ought to be discharged: nay, if 
 the principal person be only convict and not attaint, but hath his 
 clergy, I think the gaoler or rescuer shall never be put to answer to 
 the escape or rescue, but be discharged, as the accessary, where the 
 principal hath his clergy, shall be discharged thereby; for the rescuer 
 and officer, that permits the escape, are% kind of accessaries.[l] 
 
 But in these cases the gaoler or rescuer may be fined and 
 [ 599 '\ imprisoned for their misdemeanor, but shall not be charged 
 with felony, where the principal is discharged. 2 Co. Instit. 
 p. 592. 
 
 Again, it is to be remembered, that there is a voluntary escape be- 
 fore indictment, and a voluntary escape of a party indicted of felony. 
 
 1. If the party tliat escapes were not indicted at the time of the 
 escape voluntarily permitted, the indictment of the gaoler (and so in 
 case of a rescue) ought to surmise, that de facto a felony was com- 
 mitted, and that the person escaping was imprisoned for that felony 
 or suspicion of it. 
 
 And I need not say this must be proved upon the evidence against 
 the gaoler, for, as I said before, the gaoler cannot be arraigned till 
 the principal be attainted by verdict, confession, or outlawry, and the 
 record of such attainder must be shewed or proved. 
 
 2. But if the party that escaped were indicted, and so taken by 
 Capias^ and then escape, tho, as I said before, the gaoler or rescuer 
 cannot be arraigned and tried till the principal be attainted, yet the 
 indictment for the escape or rescue need not surmise a felony done, 
 but only recite the substance of the indictment against him that 
 escapes. 1 E. 3. 16. 6. 2 E. 3. Coron. 158. 
 
 And the like law is in case of felony for breach of prison. 2 Co. 
 Instit. p. 590. 
 
 Again it is to be known, that as to the voluntary suffering of an 
 escape or rescuing of a felon, tho the felony be not within clergy, yet 
 the escape or rescue are within clergy, and tho the prisoner were in- 
 dicted or attainted of several felonies, yet the escape or rescue of such 
 a prisoner makes but one felony, and he shall be indicted but of one 
 escape; but if Ji. and B. be indicted of one felony, and the gaoler 
 voluntarily suffer both to escape, the gaoler may be indicted severally 
 for both. 
 
 The means of bringing an officer to judgment cannot be barely by 
 the calling of the record of the prisoners over, as is usually done in 
 
 [1] See note, post p. 605.
 
 HISTORIA PLACITORUM CORONA. 599 
 
 the king's bench, because tho this may be a sufficient cause to con- 
 vict of a negligent escape, yet it cannot appear thereby that it is vo- 
 luntary; the marshal or gaoler may be fined upon a record 
 thereof made, but he cannot be convict of a felony, 39 H. G. [ 600 ] 
 33. but there must be an indictment or presentment of the 
 felonious and voluntary escape. 
 
 And tho by the statute of Westm. 1. cap. 3.(/) amercements upon 
 the country for the escapes of felons cannot be set but by the justices 
 in Eyre., or by the king's bench, 21 Jlssiz. 12. 27 Assiz. 27, or, as it 
 seems, by justices of general oyer and terminer; yet the hearing and 
 determining of escapes is at this day within the jurisdiction of justices 
 of peace, or any other justices, by the statutes of 1 R. 3. cap. 3. 31 
 E. 3. cap. 14. 
 
 And thus far concerning voluntary escapes of felons, where it is 
 felony and where not. 
 
 In the next chapter I shall say something concerning negligent 
 escapes, tho this hath been before, cap. 50. in part handled. 
 
 CHAPTER LII. 
 
 TOUCHING NEGLIGENT ESCAPES. 
 
 Negligent escapes of felons are not felony, but punishable by fine 
 upon the parties that suffer them. 
 
 These negligent escapes are of two kinds, 1. By an officer or some 
 particular person or persons, that hath a felon in custody, 2. Or by 
 vills or townships, whether the felon be taken and in custody, or not 
 taken. 
 
 I. First as to negligent escapes by officers or particular persons 
 these things are considerable. 
 
 1. What shall be said a negligent escape. 2. What the conviction 
 of such negligent escape. 3. What the punishment of it, and by 
 whom. 
 
 As to the first of these, what shall be said a negligent 
 escape hath been partly before described, only some things [ 601 ] 
 I shall add. 
 
 If a prisoner for felony break the gaol, this seems to be a negligent 
 escape, because there wanted either that due strength in the gaol that 
 should have secured him, or that due vigilance in the gaoler or his 
 officers to have prevented it, and therefore it is by law lawful for the 
 gaoler to hamper them with irons to prevent their escape,(a) and if 
 
 (/)2 Co. Instit. 165. 
 
 (o) Arid therefore this liberty can only be intended, where the officer has just reason 
 to fear an escape, as where the prisoner is unruly or makes any attempt to that purpose; 
 bat otherwise, notwithstanding the common practice of g-aolers, it seems altogether un- 
 warrantable, and contrary to the mildness and humanity of the laws of Ev^land, by 
 which gaolers are forbid to put their prisoners to any pain or torment; see Co. P. C.
 
 601 HISTORIA PLACITORUM CORONiE. 
 
 this should not be construed a negligent escape, gaolers would be 
 careless either to secure their prisoners, or to retake them that escape, 
 if he should in such a case be exempt from pecuniary punishment; 
 and we see by daily experience in civil cases of men in execution or 
 arrested for debt, if they break prison the sheriff is changeable. 
 
 But if a private person arrest a felon, and he escapes by force from 
 him without any default in him, tho the township shall be amerced, 
 as shall be said, yet it seems it excuseth the party, for he being a pri- 
 vate person cannot raise power to take or detain a fejon. 
 
 But if a sheriff, bailiff, constable, or other ofiicer hath the custody 
 of a prisoner bringing him to the gaol, it seems that a simple escape 
 by the rescue of the prisoner himself doth not excuse him a toto, 
 though it mayff ^a«/o, because he may take sufficient strength to his 
 assistance; but if he be rescued before he be brought to gaol, qtissre, 
 whether it be not an excuse of an escape, as in case where a man is 
 arrested upon a mesne process, and in carrying to gaol be rescued, the 
 return of the rescue excuseth the sheriff, 39 Eliz. C. B. Croke,n.22. 
 Conyer^s case; but it is no excuse if he be taken in execution 
 \_ 602 ~\ and rescued, for there the sheriff shall be answerable not- 
 withstanding the rescue, but it seems the rescue is no excuse 
 in case of felony. 3 E. 3. Coron. 328. 337.(6) 
 
 And upon the same reason it is, that if a felon be attaint and be 
 carried to execution, and be rescued from the sheriff, the sheriff is 
 punishable notwithstanding the rescue, for there is judgment given, 
 and the sheriff should have taken sufficient power with him, and 
 therefore in that case the township is not fineable: vide 21 ^ssiz. 54. 
 
 If a prisoner for felony be in gaol and escape, and the gaoler pur- 
 sue after him, he may take him seven years after, tho he were out of 
 his view, 13 ^. 4. 9. a. 14 H. 7. 1. a. but that will not excuse the 
 gaoler from a negligent escape, tho it may excuse a lanto; for if the 
 gaoler hath once lost the view of his prisoner, tho he take him after, 
 it is an escape, but if he retake him' upon a fresh pursuit, and hath 
 still the view of him, it is no escape, nor punishable. 8 E. 2. Coron. 
 400. 22 E. 3. Coro}i. 236. M. 28. E. 3. RoL 32. Bex Hertf. Casus 
 Jihbatis Sancti Jllbani. M. 45. E. 3. Rot. 17. in dors. Rex Essex. 
 
 But if a man be arrested for felony, and in bringing to gaol by this 
 sheriff's baililT or constable he makes his escape, and they follow him 
 and keep the view of him, but cannot take him without killing him, 
 whereby he is kild in the pursuit, yet the sheriff or constable, or town- 
 ship, that let him escape, shall be fined for the escape, because tho 
 the party be kild in the fresh pursuit, he cannot now be brought to 
 
 p. 34 <.Sf 35. Custodes ganlnrum pmnam sibi cnminissis non auireavt, nee eos torqnennt vel 
 redimant^ sed ornni savitid remold piHatrque adhibild judicia debite exequantur, Flet. 
 Lib. I. cap. 26. and llic Mirror of Justices, cap. 5. § 1. n. 54. says, It is an abuse that 
 prisoners should be charged with irons, or put to any pain before they be attainted of felo- 
 ny ; and lord Coke in liis comment on tlic statute of Westm. 2. cap. ll. is express, that by 
 the common law it might not be dune. 2 Instit. 381. 
 
 {b) 'I'licse cases, as also Couier^ case licrc mentiond, prove nothing particularly as to 
 a rescue, but only in general, that a shcritF shall be liable in case of an escape.
 
 HISTORIA PLACITORUM CORONA. 602 
 
 judgment, and yet by his flight, if presented by the coroner, he for- 
 feits his goods. 3 E. 3. Coron. 328 and 346. 
 
 If a felon escape out of the gaol by negligence, tho the gaoler be 
 fined for it, he may retake the felon at any time after, for the felon 
 shall not take the advantage of his own wrong, or the gaoler's pun- 
 ishment, but his retaking shall not discharge the gaoler's fine, and 
 so is the book to be intended. 13 E. 4. 9. a. 
 
 2. Touching the conviction of a negligent escape. 
 
 The proper way of conviction is by presentment and trial [ 603 ] 
 thereupon. 
 
 Yet where the prisoners be of record in a court, if the gaoler being 
 called cannot give an account where a prisoner is, this is a conviction 
 of an escape, but seems not to be presently a conviction of a volun- 
 tary escape, unless the gaoler confess it: vide 27 H. 6. 7. 39 H. 6. 33. 
 so in some cases the coroner's roll is a conviction of an escape, vide 
 3 E. 3. Coron. 352. so if the dozeners present a felon taken and de- 
 livered to the sheriff by the vill, but shew not what sheriff. 3 E. 3. 
 Coron. 345. (c) 
 
 Where an officer is to be charged either with a voluntary or neg- 
 ligent escape, the bare presentment of the escape by the grand inquest 
 or the dozeners in Eyre, or upon a commission of Oyer and Terminer, 
 or in the king's bench, is not alone sufficient to convict the officer, 
 because upon his conviction, tho but of a negligent escape, he is to 
 be fined. 
 
 But if the dozeners in Eyre or in the king's bench present the es- 
 cape of a felon, whereby the vill is to be amerced, because this is but 
 an amercement, and the justices may [not in this case(f/)] set a fine 
 but an amercement, de minimis non curat /eo*, and therefore the pre- 
 sentment is not traversable: vide 3 E. 3. Coron. 291. <^' ibidem 3 E. 3. 
 Coron. 328. 346. Stamf. P. C. Lib. I. cap. 33. fol. 35. b. 
 
 An escape is presentable in a leet, but they cannot set a common 
 fine or amercement there, but it ought to be sent to the next Eyre, 
 4'C. or may be removed into the king's bench by Certiorari, and 
 there the common fine or amercement set; and this by the statute of 
 Westm. 1. cap. 3. 
 
 3. As to the punishment of a negligent escape by an officer or 
 other that hath the felon in custody, it is by fine and imprison- 
 ment. 
 
 If the felon be attainted, it is said that the fine is to be an [ 604 ] 
 hundred pounds, and if he be only indicted, then an hun- 
 dred shillings, Stamf. P. C. p. 35. but the fine in truth is more or 
 less according to the quality of the offense, and sometimes of the 
 
 (c) The words of the book are, " When the dozen present, that a felon is taken for 
 felony and delivered to the sheriff, they adjudge it for an escape in Eyre, if they do not 
 say to what sheriff by name, for a man may inquire his rolls to see whence the prisoner 
 comes, ^c. and if they do not find in the sheriff's roll, that he was charged with him, or 
 if they do not find how he got out of his custody according to the law of the land, it 
 shall be adjudged an escape in the sheriff. 
 
 (<f ) Tiiese words are wanting in the MS, but the sense of the place seems plainly to 
 require them.
 
 604 HISTORIA PLACITORUM CORONA. 
 
 offender: vide 3 E. 3. Coron. 370. a bishop fined one hundred 
 pounds for an escape. 
 
 Communia Scaccario, M. 36 E. 3. n. 5. The constable of a castle 
 under the duke of /,«nc«5/er permitted a negligent escape: It was 
 ruled, 1. That in default of the constable the duke of LancasteVy 
 that put him in, should be fined, 2. That tho the duke were dead, 
 yet his executors should be fiued,(e) and they were fined five pounds 
 for negligent escape. 
 
 II. I come to those fines, that are for escapes of felons either before 
 or sometimes after arrest. 
 
 And this is that which is set upon vills, towns, cities, and some- 
 times upon hundreds and counties, and is usually called escapium, 
 and those that have franchises to be quit de murdro, latrocinio, 
 escapiis, are intended of those common fines set upon vills or hun- 
 dreds for those offenses, and then he that hath such a liberty granted 
 by the king to be quit de escapiis, hath a discharge for the rate or 
 portion of such a common fine or amercement that comes to his 
 share; and this franchise or liberty generally granted to be quit de 
 escapiis extends not to voluntary escapes by officers or others, but as 
 I said to the rate or portion chargeable upon them by such common 
 fine or amercement for negligent escapes. 
 
 If a murder, manslaughter, or killing of a man se defendendo be 
 committed in a vill not inclosed in the day-time, and the murderer, 
 4'C. be not taken, the vill shall be amerced, altho it be done after sun- 
 set, before day-light be gone. 22 E. 3. Coron. 238. 3 E. 3. Cordon. 
 293, 302. 3 H. 7. cap. 1. 
 
 And if the murder be committed in a town inclosed in the day or 
 night, and the murderer or manslayer escape, the town shall be 
 amerced, because by the statute of Winchester, they ought to keep 
 their gates shut from sun-set to sun-rising. 3 E. 3. Coron. 299. 
 3 H. 7. cap. 1. 
 
 If a felony be committed in a vill, and they take the 
 r 605 3 felon, and commit him to four men to carry him to gaol, 
 and they suffer him to escape, the vill shall be amerced. 
 3 E. 3. Coron. 34G. 
 
 If a felony be committed in a vill, and the felon taken by them 
 of the vill, and he escape from them to the church of the same 
 vill, and from thence before abjuration he escapes again, the vill 
 shall be amerced for two escapes at common law, for they should 
 have kept him in the church till abjuration, Ǥ-c. 8 E. 2. Coron. 422. 
 
 But if a person attaint, as they are carrying him to execution, 
 escape to a church, and from thence make an escape, the vill were 
 notamerceable, because he could not abjure being attaint, and the-ro- 
 fore the vill were not bound to watch him, 27 Jlssiz. 54. vide Rot. 
 Pari. 45 E. 3. n. 25. 50 E. 3. n. 183. But now abjuration and 
 sanctuary are ousted,(/) and with it much of this old learning of 
 escapes is antiquated. 
 
 (e) See 2 Co. Instil. 382. (/) By 21 Jac. cap. 28.J. 7.
 
 HISTORIA PLACITORUM CORONJii. 605 
 
 If a prisoner for suspicion of felony be bronglit to the hundred 
 court, and the court grant him Hberty to seek his voucher or war- 
 rant, and he escape, the hundred shall be amerced. 3 E. 3. Cornn. 
 316. and so it is if a manslaughter be committed out of any vill. 
 Stnmf. P. C. 34. a. 
 
 If the vill answers not the amercement for an escape, the hun- 
 dred shall be distrained^ and if the hundred answer not, the 
 county shall be charged therewith and distrained. Stamf. P. C. 
 p. 34. b. 
 
 And thus far touching escapes both voluntary and negligent.[l] 
 
 [1] An escape is, where one that is arrested gaineth his liberty before he is delivered 
 by the course of law. Terms de la Ley. 
 
 Escapes are of three kinds. 1. By a person who has the offender in his custody; this 
 is properly called an escape. 2. Caused by a stranger ; this is commonly called a res- 
 cue. 3. By the party himself; either without force, which is simply an escape, or with 
 force, %vhich is prison-breaking. 
 
 Escape by the party himself. — As all persons are bound to submit themselves to the 
 judgment of the law, and to be ready to be justified by It, whoever in any case refuses 
 to undergo that imprisonment which the law thinks fit to put upon him, and frees him- 
 self from it by any artifice before such time as he is delivered by due course of law, 
 is guilty of a high contempt, punishable with fine and imprisonment. 2 Hawk. c. 17. 
 s. 5. 4 Blac. Com. 129. 
 
 Escape suffered by a private person. — It seems to be a good general rule, that wher- 
 ever any person hath another lawfully in his custody, whether upon an arrest made by 
 himself or another, he is guilty of an escape, if he suffer him to go at large before he 
 hath discharged himself of him, by delivering over to some other who by law ought to 
 have the custody of liim. 2 Hawk. c. 20. s. 1. 
 
 And the law is generally the same, in relation to escapes suffered by private persons, 
 as by officers. Id. 
 
 Escape suffered by an officer. — Whenever an officer, having a party lawfully in his 
 custody on a charge of felony, voluntarily permits him to escape, the officer is involved 
 in the legal guilt of the crime charged on his prisoner. 2 Hawk. c. 19. s. 40. 
 
 Where he negligently permits a prisoner to escape, he is guilty of a misdemeanor, and 
 he is guilty in this degree if a prisoner in his charge commits suicide. Dalt. J. c. 159. 
 
 It is laid down, that whoever, de facto, occupies the office of a gaoler, is liable to an- 
 swer for a negligent escape, and that it is no way material whether his title to the office 
 be legal or not. 2 Hawk. c. 19. s. 28. 
 
 It appears to have been holden, that it is an escape in the constable to discharge a 
 person committed to his custody by a watchman, as a loose and disorderly woman, and 
 a street-walker, although no positive charge was made. Rex v. Bootie, 2 Burr. 864. 
 
 What is an escape, and what a negligent or voluntary one. — In order to make an 
 escape there must be an actual arrest ; and therefore if an officer, having a warrant to 
 arrest a man, see him shut up in a house, and challenge him as his prisoner, but never 
 actually have him in his custody, and the party get free, the officer cannot be charged 
 with an escape. 2 Hawk. c. 19. s. 1. 
 
 The arrest must be also justifiable ; for, if it be either for a supposed crime, where no 
 Buch crime was committed, and the party neither indicted nor appealed, or for such a 
 slight suspicion of an actual crime, and liy such an irregular mittimus as will neither 
 justify the arrest nor imprisonment, the officer is not guilty of an escape, by suffering 
 the prisoner to go at large. 2 Hawk. c. 19. s. 2. 
 
 And as the imprisonment must be justifiable, so it must be also for a criminal offence 
 Jd. s. 3. 
 
 The imprisonment must also be continuing at the time of the escape; and its continu- 
 ance must be grounded on that satisfaction which tlie public justice demands for the 
 crime committed. So that if a prisoner lie acquitted, and detained only for his fees, it 
 will not be criminal to suffer him to escape, though the judgment were that he be dis-
 
 605 HISTORIA PLACITORUM CORONA. 
 
 charged paying his fees; .he being detained, not as a criminal, but only as a debtor: but 
 if a person convicted of a crime be condemned to imprisonment for a certain time, and 
 also '' until he pays his fees," and he escape after such time has elapsed, without paying 
 them, perhaps such escape may be criminal, for it was part of the punishment that the 
 imprisonment be continued till the fees should be paid. 2 Hawk. c. 19. s. 4. 1 Russ. 
 C. c^ M. 531. 
 
 Also, it is an escape in some cases to suffer a prisoner to have greater liberty than by 
 the law he ought to have; as to admit a person to bail who by law ought not to be 
 bailed, but be kept in clos^ custody. 2 Hawk. c. 19. s. 5. 
 
 So if a gaoler or other officer shall license his prisoner to go abroad for a time, and to 
 come again, this is an escape, even though the prisoner return again. Dult. c. 159. 
 
 If the gaoler so closely pursue the prisoner who flies from him, that he retakes him 
 without losing sight of him, the law looks on the prisoner so far in his power all the time, 
 as not to adjudge such a flight to amount at all to an escape: but if the gaoler once lose 
 sight of the prisoner, and afterwards retake him, he seems in strictness to be guilty of aa 
 escape. 2 Hawk. c. 19. s. 6. But it must be by a known officer of the law. 
 
 T. Hill, a yeoman warden of the tower, and Dod, the gentleman gaoler there, were 
 indicted for the negligent escape of Colonel Parker, committed to the tower for high 
 treason. Lord Lucas, the constable of the tower, had committed the Colonel to the care 
 of the defendants, to be kept in the house of the defendant. Hill. The judges present, 
 (O. B. January, 1694,) were of opinion, that the defendants were not such officers as 
 the law took notice of, and therefore could not be guilty of a negligent escape. It was • 
 merely a breach of trust to Lord Lucas, their master. 
 
 Upon the same principle, S. Stick, a warder of the tower, who was indicted at the 
 same session for the negligent escape of Lord Clancarty, was acquitted. Wherever an 
 officer, who hath the custody of a prisoner, charged with and guilty of a capital offence, 
 doth knowingly give him his liberty, with an intent to save him from his trial or execu- 
 tion, tills is a voluntary escape. 2 Hawk. c. 19. s. 10. A negligent escape is, when the 
 party arrested or imprisoned doth escape against the will of liim that arrested or impri- 
 soned him, and is not freshly pursued and taken again before he hath lost sight of him. 
 Dalt. c, 159. If a constable or other officer shall voluntarily suffer a thief, being in his 
 custody, to go into water to drown himself, this escape is felony in the constable, and 
 drowning is felony in the thief; otherwise if tlie thief shall suddenly, without the agserit 
 of the constable, kill, hang, or drown 'himself, this is but a negligent escape in the con- " 
 stable. Id. . '_ 
 
 If an officer hath arrested a man by virtue of a warrant, and then taketh bis promise 
 that he will come again, and so I^tteth him go, the officer cannot, after arrest, take him 
 again by force of his former warrant, for that this was by consent of the officer. But if 
 he return, and put himself again under the custody of the officer, it seems that it may be 
 properly argued that the officer may lawfully detain him, and bring him before the jus- 
 tice, in pursuance of the warrant. Dalt. c. 169; 2 Hawk. c. 13. s. 9. 
 
 But if the party arrested had escaped in his own wrong, without the consent of the 
 officer, now, upon fresh suit, the officer may take him again and again so often as he 
 escapeth, although he were out of view, or that he shall fly into another town or county, 
 and bring him before the justice upon whose warrant he was first arrested. Dalt. c. 169. 
 p. 405. And it is said, generally, in some books, that an officer who hath negligently 
 suffered a prisoner to escajie, may retake him wherever he finds him, without mention- 
 ing any fresh pursuit; and indeed since the liberty gained by the prisoner is wholly 
 owing to his own wrong, there seems to be no reason he should ta^e any manner of ad- 
 vantage from it. 2 Hawk. c. 19. s. 12. 
 
 And wherever a person is^Iawfully arrested for any cause, and afterwards escapes, and 
 shelters himself in a house, the doors inay be broken open to take him, on a refusal of 
 admittance. 2 Hawk. c. 14. s. 9. It is perhaps the better opinion, that wherever a pri- 
 soner, by the negligence of his keeper, gets so far out of his power that the keeper loses 
 sight of him, the keeper is punishable for the escape, notwithstanding he took him im- 
 mediately after; and it is clear that he cannot excuse himself from an escape by killing 
 a prisoner in the pursuit, though he could not possibly retake him; but must in such 
 case be content to submit to such punishment as his negligence shall appear to deserve. 
 2 Hawk. c. 19. s. 13. 
 
 In the case of Ryland v. Lavender, 2 Binff. G5; 9 Moore, 71. S. C. the defendant, aa 
 gaoler, covenanted with the sheriff, among other things, to attend the quarter sessions, 
 and to remove prisoners, under writs of habeas corpus, without permitting them to 
 escape. The defendant being engaged at the quarter sessions, the shcrifl", upon a Writ
 
 HISTORIA PLACITORUM C0R0N7E. 605 
 
 of habeas corpus for the removal of a prisoner, directed his warrant to the defendant, and 
 " W. W. by me (the slieritf) for this time only thereto specially appointed." W. W , who 
 was the defendant's turnkey, proceeded with the prisoner towards the place of destina- 
 tion. Tlie prisoner having- escaped, tlie court of C. P. held that the sheriff having spe- 
 cially directed the warrant to W. W., the defendant was not liable upon his covenant. 
 
 ' Indictment for an Escape'. — The indictment for an escape, whether negligent or volun- 
 tary, must show that the party was actually in tiie defendant's custody for some crime, 
 or upon some commitment on suspicion; and it is not sufficient to say that he was in the 
 defendant's custody, and charged with such crime; for that is no allegation that he was 
 in custody upon that charge. 2 Hawk. P. C. c. 97. s. 4. It should show that the pri- 
 soner went at large, and the time when the offence was committed for which the party 
 was in custody; not only that it may appear that it was prior to the escape, but also that 
 it was subsequent to the last general pardon. An indictment for a voluntary escape, 
 must allege that the defendant feloniously and voluntarily permitted the prisoner to go at 
 large, and must also show the species of crime for which the party was imprisoned ; for 
 it will not be sufficient to say in general that he was in custody for felony, &.c. It is 
 questionable, however, whether such certainty, as to the nature of the crime, be necessary 
 in an indictment for a negligent escape, as it is not, in such a case, material whether 
 the person who escaped were guilty or not. 1 Russ. 374 ; Chitt. Coll. Stat. tit. Escape. 
 
 Evidence, Trial, and Conviction for an Escape. — It seems to be clear, that a keeper 
 who voluntarily suffers another to escape who was in his custody for felony, cannot be 
 arraigned for such escape as for felony, until the principal be attainted, for that the 
 felony of the prisoner shall not be tried between the king and the keeper, because the 
 prisoner is a stranger thereunto; yet he may be indicted and tried for it as a mis- 
 prision before the attainder of the principal offender. 2 Hawk. c. 19, s. 26; 2 Inst. 
 591,592. 
 
 By the 4 Geo. IV. c. 64, s. 44. "And, to the intent that prosecutions for escapes, 
 breaches of prison, and rescues, may be carried on with as little trouble and expense as 
 is possible, be it enacted. That any offender escaping, breaking prison, or being rescued 
 therefrom, may be tried either in the jurisdiction where the offence was committed, or 
 in that where he or she shall be apprehended and retaken; and in case of any prosecu- 
 . tioii for any such escape, attempt to escape, breach of prison, or rescue, either against the 
 offender escaping, or attempting to escape, or having broken prison, or having been res- 
 cued, or against any other person or persons concerned therein, or aiding, abetting, or 
 assisting the same, a certificate given by the clerk of assize, or other clerk of the court 
 ill which such offender shall have been convicted, shall, together with due proof of the 
 identity of the person, be sufficient evidence to the court and jury of the nature and fact 
 of the conviction, and of the species and period of confinement to which such person was 
 sentenced." The certificate, to make it evident under this enactment, must set forth the 
 effect and substance of the conviction. Kex v. Watson, R. Sf R. 468. 
 
 Punishment of an Escape. — If a felon escape before arrest, it is not punishable as a 
 felony; but for the flight he forfeits his goods when presented. HaWs Sum. 111. 
 
 Wherever a person is found guilty upon an indictment or presentment of a neglis:ent 
 escape of a criminal actually in his custody, he is punishable by fine and imprisonment, 
 according to the quality of the offence. 2 Hawk. c. 19, s. 31 ; c. 20, s. 6. 
 
 And it seems to be tl)€ better opinion, that the sheriff is as much liable to answer for 
 a negligent escape suffered by his bailiff as if he had actually suffered it himself, and 
 that the court may charge either the sheriff or the bailiff for such an escape; and if a 
 deputy gaoler be not sufficient to answer a negligent escape, his principal must answer 
 for him. 2 Hawk. c. 19, s. 29 ; Rex v. Fell, 1 Ld. Raym. 424. 
 
 It seems to be generally agreed, that a voluntary escape suffered by an officer amounts 
 to the same kind of crime, and is punishable in the same degree, as the offence of which 
 the party was guily, and for which he was in custody; whether it be treason, felony, or 
 trespass, (2 Hawk. c. 19, s. 22.) if the cause be expressed in the commitment. 2 Inst. 52. 
 
 But yet a voluntary escape is no felony, if the act done were not felony at the time of 
 the escape made, as in case of a mortal wound given, and the party not dying till after 
 the escape; but the officer may be fined to the value of his goods. Dalt. c. 159. 
 
 Also a voluntary escape suffered by one who wrongfully takes upon him the keeping 
 of a gaol, seemfe to be punishable in the same manner as if he was never so rightfully 
 
 VOL. I. — 52
 
 605 HISTORIA PLACITORUM CORONA. 
 
 entitled to such custody ; for that the crime is in both cases of the same ill consequence 
 to tlie public: and there seems to be no reason that a wrongff'ul officer should have 
 greater favour than a rightful, and that for no other reason but because he is a wrongful 
 one. 2 Hatok. c. 19, s. 23. 
 
 But it seemetli to be clear that no one is punishable as for felony for the voluntary 
 escape of a felon, but the person only who is actually guilty of it; and therefore that the 
 principal gaoler is only finable for a voluntary escape suffered by his deputy ; for that no 
 one shall suffer capitally for the crime of another. Jd. s. 27. 
 
 The Mutiny Act in general enacts. That if any offender, under sentence of death by 
 court martial, shall obtain a conditional pardon, (viz. on transportation,) all the laws in 
 force touching the escape of felons under sentence of death shall apply to such offender, 
 and to all persons aiding, abetting, or assisting in any escape, or intended escape of any 
 such offender, or contriving any such escape, from the time when an order (for his trans-, 
 portation) shall be made by a justice or baron, and during all the proceedings had for- 
 the purposes mentioned in the act. 
 
 The 52 Geo. III. c. 156, provides against the aiding of the escape of prisoners of War. 
 
 The offence of aiding a prisoner of war to escape is not complete, if such prisoner is 
 acting in concert with those under whose charge he is merely to detect the defendant, 
 who was supposed to have assisted in the escape of other prisoners, and such prisoner 
 having no intention to escape. Rex v. Martin, Russ. Sf R. C. C. 196. 
 
 Aiding in attempting to Escape. — The mere aiding an attempt of persons confined to 
 make an escape, though no escape should ensue, is made highly penal by stat. 16 Geo. II. 
 c. 31, s. 1, which enacts, "that if any person shall assist any prisoner to attempt his 
 escape from any gaol, though no escape be actually made, if such prisoner were then 
 attainted or convicted of treason, or felony, (excepty petty larceny,) or lawfully com- 
 mitted to or detained in any gaol for treason, or felony, (except petty larceny,) ex- 
 pressed in the warrant of commitment or detainer, he shiill be guilty of felony, and 
 be transported for seven years: and if such prisoner were then convicted of, committed 
 to, or detained in a gaol for petty larceny, or any other crime, not being treason or 
 felony, expressed in the warrant of commitment or detainer, or was then in gaol upon 
 any process for debt, damages, costs, or sum of money, amounting to lOOZ. he shall be 
 guilty of a misdemeanor, and be liable to fine and iniprisonmeiit." 
 
 Sect. 3. " If any person shall assist any prisoner to attempt to escape froln any con- 
 stable, or other officer or person who shall have the lawful charge of him in order to 
 carry him to gaol, by virtue of a warrant of commitment for treason or felony, (except 
 petty larceny,) expressed on such warrant; or if any person shall assist any felon to 
 attempt his escape from on board any boat, sliip, or vessel, carrying felons for trans- 
 portation, or from the contractor for the transportation of such felons, or his agents, or 
 any other person to whom such felon shall have been lawfully delivered in order for 
 transportation, he shall be guilty of felony, and be transported for seven years." All 
 prosecutions on this act to be commenced within a year after the offence committed,' . 
 
 The stat. 16 Geo. II. c. 31, does not extend to cases where an actual escape is madej 
 but must be confined to cases of an atteinpt, without effecting the escape itself. Mr. J. 
 Buller, in delivering the opinion of the judges, (O. B. June, 1726,) observed, "The 
 statute purports to be made for the further punishing of those persons who shall aid ancT 
 assist persons attempting to escape, and makes the offence felony; it creates anew 
 felony; but the offence of assisting a felon in making an actual escape was felony 
 before, and therefore does not seem to fall within the view or intention of the legis- 
 lature when they made this statute." Rex v. Tilley and others, O. B. April Sess. 1795; 
 2 Leach, 662 ; see also Rex v. Burridge, 3 /'. Wms. 439 ; Rex v. Young and Chissell, 
 Winchester Lent Ass. 1801, coram Le lilanc, J. 
 
 It is a misdemeanor, iiidiotable at common law, to aid a person to escape from cus- 
 tody, though ho be confined under the remand of tho commissioners for the relief of 
 insolvent debtors, and not on any criminal charge. Reg. v. Allan, 5 Jar. 296. 
 
 • Delivering instruments is within the act, though the prisoner has been pardoned of 
 the offences of which he has been convicted, on condition of transportation. Rex v. 
 ^haw, R. ^ R. C. C. 526. ' ■ 
 
 The stat. 4 Geo. IV. c. 64, s. 43, enacts, that " if any person shall convey or cause to 
 be conveyed into any prison to which this act shnll extend, any mask, vizor, or other 
 disguise, or any instrument or arms proper to fiicilitatc tiie escape of any prisoners, and 
 the same shall deliver, or cause to be delivered, to any prisoner in such prison, or to any 
 other person there, for the use of any such prisoner, without the consent or privity of
 
 HISTORIA PLACITORUM CORONA. 605 
 
 the keeper of such prison, every such person shall be deemed to have delivered such vizor 
 or disg^uise, instrument or arms, with intent to aid and assist such prisoner to escape or 
 attempt to escape; and if any person shall, by any means whatever, aid and assist any 
 prisoner to escape, or in attempting to escape from any prison, every person so offend, 
 ing-, whether an escape be actually tnade or not, shall be guilty of felony, and being 
 convicted tiiereof, shall be transported beyond the seas, for a term not exceeding four- 
 teen years." See Burn's Just. Tit. ^Escape,'' 29 Land. Ed. 1845. 
 
 In the several States of the United Slates, with but a few partial exceptions, severe 
 penalties are prescribed against both keeper and prisoner, in case of escape. At com- 
 mon law it is held that every liberty given to a prisoner not authorized by law is an 
 escape. Colby v. Sampson, 5 Mass. 310. 312. 
 
 It is not necessary to prove negligence in the defendant: the law implies it, (see post, 
 600.) but if the escape were not in fact negligent, if the defendant by force rescued him- 
 self, or were rescued by others, and the defendant made fresh pursuit after him, but 
 without effect: all tliis must be shown upon the part of the defendant. It is enough also 
 to prove that the warrant on which the prisoner was convicted was legal, it is not requi- 
 site for the prosecutor to prove that he actually committed the offence with which he 
 was charged. 2 Hawk. c. 28. s. 16. 
 
 On a charge against the prisoner for breach of prison the same principle obtains, 
 though if he can prove that no such offence was ever actually committed, or that he was 
 arrested and detained without any reasonable cause of suspicion against him, (see post, 
 610, 611,) or if he have been subsequently indicted for the offence and acquitted, this 
 will be a sufficient defence to the indictment for breach of prison. 
 
 A person confined in a jail, who attempts to escape by breaking of the prison, in con- 
 sequence of which a fellow prisoner, confined for felony, escapes, is guilty of an offence 
 within the New York act, and may be punished by imprisonment in the State prison. 
 T/ie People v. Rose, 12 Johnson, K, 339. 
 
 Aiding and assisting to escape from jail a person committed on suspicion of having 
 beet* accessary to the breaking the house of <S. with intent to commit felony, is not in- 
 dictable under a repealed statute of New York. Sess. 24, c. 58. s. 12, 13. 1 N. Y. Rev. 
 Laws, 411.) because the prisoner was not committed on any distinct and certain charge 
 of felony. The People v. Washburn, 10 Johns. R. 160. 
 
 Lying in wait near a jail, by agreement with the prisoner, and carrying him away, 
 is not an offence against the same statute, but it is a misdemeanor at common law. The 
 People V. Tompkins, 9 Johnson, R. 70. Whart. Am. Crim. L. 551. 
 
 CHAPTER LIII. [ 606 ] 
 
 CONCERNING RESCUES OF PRISONERS IN CUSTODY FOR FELONY. 
 
 Rescue of a person imprisoned for felony is also felony by the com- 
 mon law. 
 
 To make a rescue a felony, 1. It is necessary that the felon be in 
 ctisiodi/, or under arrest for felony, and therefore if A. hinder an 
 arrest, whereby the felon escapes, the township shall be amerced for 
 the escape, and ./?. shall be fined for the hindrance of his taking; but 
 it is not felony in A. because the felon was not taken. 3 E. 3. Co- 
 ron. 333. Slarnf. P. C. p. 31. a. 
 
 2. Again, to make a rescue felony, tlie party rescued must be under 
 custody /or felony or suspicion offeloni/, and it is all one, whether 
 he be in custody for that account by a private person, or by an officer 
 or warrant of a justice, for where the arrest of a felon is lawful, the 
 rescue of him is a felony. 
 
 It seems that it is necessary that he should have knowledge that
 
 606 HISTORIA PLACITORUM CORONA. 
 
 the person is under arrest for felony, if he be in the custody of a pri- 
 vate person. 
 
 But if he be in the custody of an officer, as constable or sheriff, 
 there at his peril he is to take notice of it; and so it is if there be 
 felons in a prison, and ^d. not knowing of it, breaks the prison, and 
 lets out the prisoners, tho he knew not that there were felons there, 
 it is felony, and if traitors were there, it is treason. P. 16 Car. 1. 
 Croke p. 583. Bensfead^s case per omnesjtisticiarios. 
 
 A return of a rescue of a felon by the sheriff against ^. is not suf- 
 ficient to put him to answer for it as a felony, without indictment or 
 presentment, by the statute of 25 E. 3. cajj. 4. 1 H. 7. 6. a. per cu- 
 riarn, 2 ^. 3. 1 Coron. 149. 
 
 As in case of an escape, so in case of a rescue, if the party 
 [] 607 ]] rescued be imprisoned for felony, and be rescued before in- 
 dictment, the indictment must surmise a felony done as well 
 as an imprisonment for felony or suspicion thereof; but if the party 
 be indicted and taken by a Capias and rescued, then there needs 
 only a recital that lie was indicted prout, and taken and rescued. 
 
 But tho the rescuer may be indicted before the principal be con- 
 victed and attainted, yet he shall not be arraigned or tried before the 
 principal be attaint for the reason given, cap. 51. 
 
 The rescuer of a prisoner for felony, tho not within clergy, yet 
 shall have his clergy. 
 
 Vide plus capite proximo, for many things there said are applica- 
 ble to the case of a rescue.[lj 
 
 [1] Rescue is the forcibly and knowingly freeing' another from an arrest or imprison- 
 ment ; and it is generally the same otFence in the stranger so rescuing as it would have 
 been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one 
 apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misde- 
 meanor also. But here likewise, as upon voluntary escapes, the principal must first be 
 attainted or receive judgment before the rescuer can be punished : The State v. Cuth- 
 bert. Chart. R. I'S; 4 Steph. Com. 256; and for the same reasons; because, perhaps in 
 fact it may turn out that there has been no offence committed. See 4 Blac. Com. 131. 
 
 Rescous is an ancient French word, coining from rescourer, that is recuperare; to 
 recover; and signifies a forcible setting at liberty, against law, a person arrested by the 
 process or course of law. 1 Inst. 160. 
 
 Rescue is a common law felony, if the party rescued be a felon. Rex v. Haswell, R. 
 ^ R. 458. It is a misdemeanor if the party rescued be guilty of a misdemeanor. See 
 a case of Rex v. Stakes, 5 C. Sf P. 14!S; 1 Russ. C. Sf M., by Greaves, 435. If the party 
 rescued be guilty of high treason, the rescuer would be guilty of high treason. 2 Hawk. 
 c. 21. s. 7. 
 
 It is said that the rescue of a prisoner in, any of the superior courts comraifted by the 
 justices, is a great misprison, for which the party and the prisoner, if assenting, will be 
 liable to be punished even by imprisonment for life, arid forfeiture of goods and chattels; 
 though no stroke or blow were given. 1 East, P. C. c. 8. s. 3; Rac. Ah. Rescue, (E). 
 
 A liindrancc of a person to be arrested, that has committed felony, is a misdemeanor, 
 but no felony. Hale's Sum. 1 16; 2 Hawk. c. 21. s. 7 ; R. Sf R. 458. 
 
 Altliough a prison breaker may be arraigned for that offence, before he be arraigned for 
 the crime for which he was imprisoned, yet he who rescues one imprisoned for felony, 
 cannot, according to the better opinion, be arraigned for such offence, as for a felony, till 
 the principal ofFender be attainted; but he may be immediately proceeded against fbr a 
 misprison, if the queen pleases. 2 Hawk. c. 2\. s. 7. Therefore, if the principal die be- 
 fore the ;ittaindcr, lie shall be fined and imprisoned. Hale's Sum. 116. 
 
 An indictment of rescous must set forth tiie nature and cause of the imprisonment,
 
 HISTORIA PLACITORUM CORONA. 607 
 
 and the special circumstances of the fact in question. 2 Hawk. c. 21. s. 5. The word 
 recussit, or something equivalent to it, to show that the rescue was forcible, and ag-ainst 
 the will of the officer. Kex v. Burridge, 3 P. Wms. 483; 5 Burns^ Just. p. 121. tit. 
 "Rescue." 
 
 By I S( 2 Geo.lV. c. 88, entitled, "An Act to amend the Law of Rescue," sect. I. 
 rescuingf persons charged with felony, is punishable with seven years transportation, or 
 imprisonment for not less than one year, and not more than three years. And by sect. 
 II. assaultinor any lawful officer to prevent the apprehension or detainer of persons 
 charged with felony, is punisliable with two years imprisonment in addition to other 
 pains and penalties incurred. See 5 Geo. IV. c. 84. s. 22. This section is, however, re- 
 pealed by 9 Geo. IV. c. 31. as to punishment , 
 
 An indictment for a rescue, must show that the person rescued was lawfully in cus- 
 tody, and set out the writ and warrant. 1 Stark. Cr. PI. 156; Archb. Crim. PI. 550. 
 10 Lond.Ed. 
 
 An indictment for a rescue from a constable, must state the charge made before the 
 magistrate, the warrant and its delivery to the constable, and that the party was in cus- 
 tody under the warrant. Archb. Cr. PI. 309. 551 ; Rex v. Osmer, 5 EnsVs Rep. 304. 
 
 By 9 Geo. IV. c. 4. § 13. entitled the Mutiny Act, persons under sentence of death by 
 court martial, having obtained a conditional pardon, escaping out of custody, and all par- 
 ties aiding such escape, are punishable as felons. Rex v. Stanley, R. Sf R. C. C. 432; 
 see Ryland's note, 4 Bl. Cum. 131. 21 Land. Ed. 
 
 CHAPTER LIV. 
 
 CONCERNING ESCAPES AND BREACH OF PRISON, BY THE PARTY 
 HIMSELF THAT IS IMPRISONED FOR FELONY. 
 
 At common law it was held, that if any imprisoned for a misde- 
 meanor, tho not felony, had broke the prison and escaped, it had 
 been felony. Bract. Lib. II. (a) Stamf. P. C. p. 30. b. 2 Co. Instit. 
 p. 589.{b) 
 
 Bnt by the statute of 1 E. 2. de frangentibus prisonam 
 the severity of the common law is moderated, viz. Nullus [ 608 ] 
 de castero, qui prisonam fregerit, snbeat judicium vitse vel 
 membrorum pro fractione prisonae tantum, nisi causa, pro qua captus 
 & imprisonatus fnerit, tale judicium requirit, si de ilia secundum le« 
 gem & consuetudinem terras fuerit convictus, licet temporibus prse- 
 teritis aliter fieri consuevit.[l] 
 
 (o) This should be Lib. III. Tract. 2. de Corona, cap.9.f. 124. a. In this place Bracton 
 carries the matter very far; for he says, tho the party were innocent, and had only con- 
 spired to escape, he was ultimo supplicio pvniendus. 
 
 (b) But this severity is complained of as an abuse, IMirror, cap. 5. § 1. and it was the 
 opinion of Billing, chief justice, and the rest of the judges, 1 //. 7. 6. a. that a rescue of 
 a felon was felony at common law, but not in the person himself, till the statute of 1 E. 2. 
 This lord Coke says must be intended, where others break the prison without his privity. 
 2 Inst. 589. 
 
 [1] Breach of prison by the offender himsdf, when committed for any cause, was 
 felony at the common law, ante p.. ^S8, or even conspiring to break it. But this severity 
 is mitigated by the slat, de frangentibus prisonam, 1 Ed. II. cited by Hale supra, which 
 enacts, tiiat no person shall have judgment of life or member for breaking prison, unless 
 committed for some capital offence. So that to break prison and escape, when lawfully
 
 608 HISTORIA PLACITORUM CORONA. 
 
 Upon this statute, therefore, to make a felony by breach of prison 
 these things must concur: 1. The party must be in prison. 2. He 
 must be in prison for felony. 3. He must break that prison. Many 
 of these things have been discussed before. I shall resume and add 
 "what shall be necessary for the explication of this felony. 
 
 I. What is a prison, and who shall be said a person in prison. 
 
 If a man be imprisoned for felony in the prison of a franchise, and 
 breaks and escapes, this is a breaker of prison, and it is as to this 
 purpose the king's prison, (c) tho the franchise or profit be the lord's. 
 2 B. 3. 1 Coron. 149. Stamf. P. C. 31. a. 2 Co. Instit. 5S9. 
 
 So at common law when sanctuary was in use, if a felon had esr 
 caped to a church, and there had been watched by the vill where the 
 church is, and he had broken the church and escaped, this had been 
 a felony within this statute. Stamf. P. C. p. 30. b. 3 E. 3. Coron. 290. 
 
 Whether the breach of the prison of the ordinary by a clerk con- 
 vict or attaint before purgation had been felony, vide Stamf. P. C. 
 p. 31, 33. but that learning is now antiquated, because by the statute 
 of 18 Eliz. cap. 7. the prisoner is not now delivered to the ordinary; 
 and therefore I shall not farther examine it. 
 
 (c) Stamford in the place here mentioned thinks it is not the king's prison, and there- 
 fore at common law the breaking of it would not be felony; but by the statute of 1 E. 2. 
 it matters not whetiier it be the king's prison or no, for it speaks de prisona generally, 
 and not de prisona nostra; however, as it must be intended a legal prison, which cannot 
 be without a grant from the crown, our author's construction is very reasonable, that all 
 such prisons should be taken as to this purpose to be the king's prisons. 
 
 committed for any treason or felony, remains still felony as at common law; and to 
 break prison, whether it be the county gaol, the stocks, or other usual place of security, 
 when lawfully confined upon any other inferior charge, is still punishable as a high mis- 
 demeanor by fine and imprisonment. 4 Blac. Com. 130. 
 
 An actual breaking is the gist of this offence, and must be stated in the indictment. 
 It must also appear that the party was lawfully in prison, and for a crime involving 
 judgment of life or member; it is not enough to allege that he feloniously broke prison. 
 2 Inst. 591. 1 Russ. C. Sf M. 381. 
 
 If lawfully committed, the party breaking prison is within the statute, although he 
 may be innocent; as if committed by a magistrate upon strong suspicion. 2 Inst. 590 
 1 Russ. C. S( M. 378. 
 
 A person confined in a gaol by virtue of a void warrant, may lawfully liberate himself 
 by breaking the prison, using no more force tiian is necessary to accomplish this obj6ct; 
 nor is it a crime or misdemeanor in such person, that while his sole object was to libe'- 
 rate himself, other persons lawfully confined for atrocious crimes in tlie same room with 
 him, in consequence of such prison breach, made their escape. Tlte State v. Leach, 
 7 Conn. R. 752. 
 
 To constitute a felonious prison breach the party must be committed for a crime 
 which is capital at the time of the breaking. 1 Russ. C. 6f M. 370. Calebs case, Plowd. 
 401. A constructive breaking is not sufficient, tlicrefore, if a person goes out of prison 
 without obstruction, it is only a misdemeanor : post p. 611. 
 
 An actual intent to break is not necessary. Tho statute extends to a prison in law 
 as well as to a prison in fact. 2 Inst. 589. 
 
 Prison breach, or rescue, is a connnon law felony, if the prisoner breaking prison or 
 rescued is a convicted felon; and it is punishable at connnon law by imprisonment, and 
 under 19 Geo. III. c. 74, s. 4, by tlirce times whipping. 
 
 Throwing down loose bricks at the top of a prison-wall, placed there to impede 
 escape and give alarm, is prison breach, though they were thrown down by accident 
 Hex V. Haswdl, R. Sf R. C. C. 458.
 
 HISTORIA PLACITORUM CORONA. 609 
 
 If a person be taken for felony, and put in the stocks and break it, 
 i\ns is a' breaking of prison, and felony within the law. Dt/. 99. a. 
 2 Co. Inst. 589. ^Stamf. P. C. p. 30 b. 
 
 ' So it is if the constable or any other secure a felon in the house 
 of him that makes the arrest, or in the house of any other, and he 
 break it and escape, it is felony. 
 
 Yet farther, if ./^. arrest B. for felony or suspicion of felony, there 
 being de faclo a felony committed, and being in the hands of ./^. he 
 violently rescueth himself and escapeth, this is a breach of prison and 
 a felony, for so are the words of my lord Coke, 2 Instit. 5S9. " Nota, 
 He that is in the stocks, or under lawful arrest, is said to be in prison, 
 tho he be not infra carceris parietes.^' And Stamford ubi siiprft 
 p. 30. b. Et 77ota quant a ceo que chescun que est soubs arrest pour 
 felony est prisoner auxy bien hors de gaol come deins, issint que sil 
 soit iorsque in cippes in le haut street ou hors de cippes in le posses- 
 sion d' ascun, que lui aver arrest, & faite escape ceo est debrusenient 
 de prison in le prisoner, which must be intended, as it seems, of a 
 violent escape, viz. rescuing himself out of custody. 
 
 II. What shall be said a being in prison for such a cause, as re- 
 quires jfff//c/«w vilx vel menibroriim. 
 
 It seems it is intended only of capital offenses, as felony, and there- 
 fore if a man be committed for petit larciny,or homicide 5e (/^/en^en- 
 do, or per infortunium, and breaks prison, this is not felony, for the 
 principal offense non requirit tale judicium. 2 Co. Instit. 590. 
 
 But if the commitment expresses larciny above value or raan- 
 . slaughter, tho de facto it were but petit larciny, or per infortunium 
 .or se defendendo, and possibly would appear so upon the evidence, 
 yet this escape will be felony. 
 
 Touching my lord Coke's opinion of the form of the Mittimus^ 
 that it must particularly express the nature of the felony, and must 
 have an apt conclusion, I have said enough before; I think it is suffi- 
 cient if it be generally for felony, although it want that regular con- 
 clusion {fi/i he be delivered by due course of common laiv); yet these 
 defaults will not excuse the breach of prison from felony: but possibly 
 if it express no cause, the case may be otherwise, because 
 the substance of the Mittimus must be recited in the indict- f 610 1 
 ment. 
 
 For it is very plain, that antiently there were more felons commit- 
 ted to the common gaol without Mittimus in writing than were with 
 it; such were all the commitments by constables, watchmen, and pri- 
 vate persons arresting for felony and bringing to the common gaol ; 
 and Mittimus's were not of so antient a date as justices of peace, 
 and they were not before 1 E. 3.{d) and yet breach of prison by 
 felons was felony even from 2 E. \. and not only from 1 E. 2. 
 
 It is therefore enough if the gaoler have a sufficient notification 
 of the nature of the offense, for which he was committed, and the 
 prisoner of the offense whereof he was arrested, and commonly they 
 know, their own guilt, if they are guilty, without much notification. 
 
 {d) See 1 £.3. cap. 16.
 
 610 HISTORIA PLACITORUM CORONA. 
 
 And again, by what hath been said, breach of prison is not only 
 ■where the felon is formally committed to gaol by a Mittirnus, but 
 if he be put in the stocks, kept in the constable's house, nay, under 
 the custody of him that makes the arrest, and he break prison, 
 it is a felony, tho in these cases there neither are nor can be Mitli- 
 mus's. 
 
 If ./?. arrest B. for suspicion of felony, and carry him to the com- 
 mon gaol, and there deliver him, as he may do, 13 E. 4. 9. a, 
 4 E. 3. cap. 10. and he break prison, if he be indicted upon it there 
 must be an averment in the indictment, that there was a felony com- 
 mitted, and ./?. having probable cause did suspect B. and arrested 
 him and committed him, and that he broke the prison, and this must 
 be all proved upon the evidence. 
 
 But if ^. be indicted or appealed and taken by Capias, and com- 
 mitted, and break prison, there needs no averment or proof that a 
 felony was done, but only that there was an indictment or appeal, 
 and a Capias thereupon, because all appears by matter of record. 
 2 Co. Instit. 590. 
 
 But a lawful commitment may be for suspicion of felony, and this 
 is within this statute; yet no person can be indicted barely 
 roil 3 of suspicion of felony, but of the felony itself. 43 E. 3. 
 Coron. 454. 44 Jlssiz. 12. 2 Co. Instit. 592. 
 
 If a felony be made by act of parliament subsequent to 1 E. 2. 
 and a person be committed for such a felony and break prison, yet 
 this is felony. 2 Co. Instit. 592. 
 
 III. What shall be said a breaking of prison by a person commit- 
 ted for felony to make a felony. 
 
 If the prison be fired by accident, and there be a necessity to break 
 prison to save his life, this excuseth the felony; but if the prison 
 were fired by the prisoner himself, or by his procurement, the break-' 
 ing to save his life is nevertheless felony, for it was a necessity of hi^ 
 own creating. 2 Co. Listit. 590. 
 
 If the gaoler set open the prison doors, and the felon escape, this 
 may be a felony in the gaoler, but is no breach of prison to make 
 felony in the prisoner. 
 
 If A. be arrested or imprisoned for felony, and B. and others 
 without the consent o{ J3. rescue Ji. this is felony in the rescuers, 
 but not felony in */l. But if A. were of confederacy with B. to 
 do it, then it is felony in B. as a rescue, and in A. as a breach of 
 prison. 
 
 And so it is if B. had broke the prison doors, and they being 
 open, A. had gone away, this had been felony in B. but not felony 
 in A. unless it were done by his confederacy, or procurement, for %/2. 
 did not actually break prison. 2 Co. Instit. 589. 1 H. 7. 6. a. 
 
 IV. Touching the proceeding for felony by breach of prison. 
 
 A. is committed for felony, or suspicion thereof, and breaks prison, 
 he may be indicted, arraigned, convicted, and have judgment for the 
 escape, aliho the principal felony be not tried, and he may be not
 
 HISTORIA PLACITORUM CORONA. 611 
 
 guilty of the felony; and so it differs from the case of a rescue or 
 escape before, and the reason is, because here it is the same person, 
 there they are divers, and therefore in the latter case the principal 
 felony shall be first tried. 2 Co. Instit. 592, 
 
 And yet I hold, that if .^. be indicted of felony and committed, 
 and then breaks prison, and then be arraigned of the prin- 
 cipal felony and found not guilty, now Ji. shall never be [ 612 ] 
 indicted for the breach of prison ; or if indicted for it before 
 the acquittal, and then he is acquitted of the principal felony, he may 
 plead that acquittal of the principal felony in bar to the indictment 
 for the felony for breach of prison. 
 
 And so it was pleaded by myself in the case of one Mrs. Samford, 
 who was severely prosecuted by the earl of Leicester, upon a sus- 
 picion that she had stolen his jewels; for tho while the principal 
 felony stood untried, it stood indifferent whether she were guilty of 
 the principal felony, or rather the breach of prison was a presump- 
 tion of the guilt of the principal offense, yet now it be cleared, that 
 she was not guilty of the felony, she is now in law as a person never 
 committed for felony, and so her breach of prison is no felony. 
 
 The felony of breach of prison is a felony within clergy, tho the 
 principal felony for which the party was convicted were out of 
 clergy, as robbery or murder. 
 
 CHAPTER LV. 
 
 OP PRINCIPALS AND ACCESSARIES IN FELONY, AND FIRST OF ACCES- 
 SARIES BEFORE THE FACT. 
 
 Having gone through the considerations of the offenses of treasons, 
 and also of felonies at the common law, it will be seasonable in this 
 place to consider of those different relations of principals and acces- 
 saries, whereof tho much hath occasionally been mentioned, yet I 
 shall now proceed to the discussion of this matter distinctly and apart, 
 and shall put together all the learning that occurs to me concerning 
 this matter. 
 
 In the highest capital offense, namely, high treason, there 
 are no accessaries neither before nor after, {ox all consenters, [ 613 ~\ 
 aiders, abettors, and knowing receivers and comforters of 
 traitors, are all principals, as hath been said, 3 H. 7. 10. a. Stamf. 
 P. C. p. 40. a. Co. P. C. jK 20. 
 
 But yet as to the course of proceeding, it hath been and indeed 
 ought to be the course, that those who did actually commit the very 
 fact of treason, should be first tried before those that are principals 
 in the second degree, because otherwise this inconvenience might 
 follow, viz. that the principals in the second degree might be con- 
 victed, and yet the principals in the first degree may be acquitted.
 
 613 HISTORIA PLACITORUM CORONA. 
 
 which would be absurd: vide SomerviWs case(a) before, cap. 22. 
 p. 23S.[1] 
 
 In cases that are criminal, but not capital, as in trespass, mayhem, 
 ox prsemunire, there are no accessaries, for all the accessaries before, 
 are in the same degree as principals, Slamf. Lib. I. cap. 48. Sf libros 
 ibi; and accessaries after, by receiving the offenders, cannot be in 
 law under any penalties as accessaries, unless the acts of parliament 
 (hat induce those penalties, do expressly extend to receivers or com- 
 forters, as some do. [2] 
 
 Note the word maintainers in the statute of 27 E. 3. cap. 1. and 
 16 i?. 2. cap. 5. denotes the maintainers of the oftense, and not (as it 
 seems) of the parties. 
 
 It remains, therefore, that the business of this title of principal and 
 accessary refers only to felonies, whether by the common law, or by 
 act of parliament. 
 
 As to felonies by act of parliament, regularly if an act of parliament 
 enact an offense to be felony, tho it mentions nothing of accessaries 
 before or after, yet virtually, and consequentially those that counsel 
 or command the offense are accessaries before, and those that know- 
 ingly receive the offender are accessaries after, as in the case of rape 
 made felony by the statute of fVestmijist. 2. cap. 34.(6) Stamf. P. 
 C. Lib. I. cap. 47. 11 H. 4. 14. in case of multiplication, Co. 
 [ 614 ] P. C. cap. 20. tho Dy. 88. makes it a qusere. 
 
 But if the act of parliament that makes the felony, in ex- 
 press terms comprehend accessaries before, and make no mention of 
 accessaries fz/^e/-, namely, receivers or comforters, there it seems there 
 can be no accessaries after, for the expression of procurers, counsel- 
 lers, abettors, all which import accessaries before, make it evident, 
 that the law makers did not intend to include accessaries after, which 
 is an offense of a lower degree than accessaries before, as the statute 
 of 8 ^. 6 cap. 12. for stealing of records, the statute of 33 H. 8. cap. 8. 
 for witchcraft, ^-c. Stamford's P. C. ubi supra. 
 
 It is true my lord Coke, P. C. cap. 19./;. 72,73. denies the opinion 
 of Stamford, and affirmS', that tho the statute of 8 H. 6. cap. 12. 
 
 (a) 1 And. 109. But it was ruled in that case, that upon that branch of treason, which 
 relates to tlie compassing the death of the king, there is no need that tlie principal in the 
 first degree, {viz. lie who undertook to do the act) should be first tried, for the movers or 
 procurers are guilty of compassing the death of the king, altho he that was procured 
 should never assent thereto. 
 
 (6) 2 Co. Instit. 434. 
 
 [1] A person is not constructively present at an overt act of treason, unless he be 
 aiding and abetting at the fact, or ready to do so if necessary. U. States v. Burr, 
 4 Cranch, 492. 
 
 [2] See Foster, 341 ; Hawk. P. C. h. 2. c. 290; 3 Inst. 21 ; Dalton, c. 161; Common. 
 wealth V. Gillespie, 7 S. Sf K. 4G9 ; U. S. v. Morrow, 4 Wash. C. C. R. 733 ; U. S. v. 
 Mills, 7 I'eters, 38; Ward v. The Slate, G Hill, 144; Commonwralth v. Macomher, 
 3 Mrtss. 3.56; Wlntaker v, Enrrlish, 1 Bay. 15; Commonwealth \. Barlow, 4: Mass. 4XQ; 
 State V. Arden, 1 Bay. 488; Comm. v. Knapp, 9 I'icU. 497; Chanet v. Parker, 1 Rep, 
 Con. Ct. 333. The crime of an accessary before the fact to murder is murder. People 
 V. Mather, 4 Wendell, 229; State v. Arden, 1 Bay, 488; State v. Westjield, I Bailetj, 
 132.
 
 HISTORIA PLACITORUM CORONA. 614 
 
 mention only accessaries before^ yet virtually and consequentially 
 accessaries after are included, as well as in felonies at common law; 
 but he neither allegeth any reason or authority for that opinion, and 
 therefore the authorities being equal, the greater reason seems to be 
 with Stamford's opinion, Expressum facit cessare tacitiun, and no 
 weight can be laid upon the statute of 3 H. 7. cap. 2. for that in ex- 
 press terms makes accessaries before and after to stand as principals. 
 
 And upon the same reason it is, that many of these acts of parha- 
 ment mentioned before, cap. 22. p. 236. that make certain offenses, 
 their counsellers, abettors, and procurers, to be treason, do not es:tend 
 to make receivers guilty of treason, tho if the act had been general 
 that such an offense shall be treason, it had consequentially made 
 knowing receivers as well as abettors guilty of treason : vide Co. P. 
 C. cap. 64. p. 1 38. 
 
 Tho generally an act of parliament creating a felony renders con- 
 sequentially accessaries before and after within the same penalty, yet 
 the special penning of the act of parliament in such cases sometimes 
 varies the case. 
 
 The statute of 3 H. 7. cap. 2. for taking away maidens, S^c. makes 
 the offender, and the procuring and abetting, yea, and wittingly re- 
 ceiving also, to be all equally principal felonies, and excluded of clergy. 
 
 Again, the statute of 27 E/iz. cap. 2. makes the coming 
 in of a Jesuit treason, the receiving or relieving of him felony, [ 615 ] 
 the contributing of money to his relief a. prasmunire, so that 
 acts of parliament may diversify the offenses of accessary or principal 
 according to tlie various penning thereof, and so have done in many 
 cases. 
 
 And thus much as to accessaries to felonies made by act of par- 
 liament, which being general directions may be applicable almost to 
 all cases. 
 
 I come to consider of principals and accessaries in felony, and their 
 differences among themselves, and with relation to felonies at com- 
 mon law. 
 
 By what hath been formerly delivered, principals are in two kinds, 
 principals in the first degree, which actually commit the offense, prin- 
 cipals in the second degree, which are present, aiding, and abetting 
 of the fact to be done.[3] 
 
 [3] The presence need not be an actual standing within sight or hearing of the act; an 
 active co-operation in the crime at the time of its commission completes the felony. As if 
 several persons set out together or in small parties upon one common design, be it murder 
 or other felony, or for any other purpose unlawful in itself, and each takcth the part as. 
 signed him, some to commit the fact, others to watch at proper distances and stations to 
 prevent a surprise, or to favour, if need be, the escape of those who are more immediately 
 engaged. They are all, provided the fact be committed, in the eye of the law, present at 
 it; for it was a common cause with them, each man operated in his station at one and 
 the same instant towards the same common end, and the part each man took tended to 
 give countenance, encouragement, and protection to the whole gang, and to insure the 
 success of their common enterprise. Foster, 350. 
 
 In case of stealing in a shop, if several are acting in concert, some in the shop and 
 some out, and the property is stolen by one of those in the shop, those who are on the 
 outside are equally guilty as principals in the offence of stealing in a shop. Rex v. Go. 
 gerleij, Russ. Sf R. C. C. 343 ; and see Rex v. Owen, 1 Ry. S^ ^^C. C. 9G ; Rex v. Borth.
 
 615 HISTORIA PLACITORUM CORONA. 
 
 So that regularly no man can be a principal in felony, unless he be 
 present, unless it can be in case of wilful poisoning, wherein he that 
 layeth or infuseth poison with intent to poison any person, and the 
 person intended, or any other take it in the absence of him that so 
 
 wiclc, 1 Dou^l. 207. So if one keeps guard while others commit the act, he is construe- 
 tively present, and liable as a principal. Slate v. Town, Wright's Ohio i?. 75. If several 
 act in concert to steal a man's goods, and he is induced by fraud to trust one of them in 
 presence of the others, with the possession of such goods, and another of tliem entices 
 him away, that the man who has the goods may carry them off, all are guilty of felony 
 as principals. Rex v. Standley, Russ. Sf R. C. C. 305. See State v. Coleman, 5 Porter, 32. 
 All persons aiding and abetting the personating a seaman are principals; the oifence is 
 not confined to tlie person only who personates the seaman. Rex v. Potts, Russ, S( R. 
 C. C. 353. So in simony, all are principals. Baker v. Rogers, Cro. Eliz. 789. • 
 
 If one encourages another to commit suicide, and is present abetting him while hedoes 
 so, such person is guilty of murder as a principal, and if two encourage each other to 
 murder themselves and one does so, the other being present, but the latter fail in the 
 attempt upon himself, he is a principal in the murder of the first; but if it be uncertain 
 ■whether the deceased really killed himself, or whether he came to his death by accident 
 before the moment when he meant to destroy himself, it will not be murder in either. 
 Rex V. Dyson, Bvss. Sf R. C. C. 523; and see Rex v. Russell, Moody, C. C. 356; Reg. v. 
 Alison, 9 C. Sf P. 418. See Com. v. Bowen, 13 Mass. 359. 
 
 All those who assemble themselves together wiih an intent even to commit a trespass, 
 the execution whereof causes a felony to be committed; and continue together abetting 
 one another, till they have actually put their design into execution: and also all those 
 who are present when a felony is committed, and abet the doing of it, are principuls. 
 And where persons combine to stand by one another in a breach of the peace, with a 
 general resolution to resist all opposers ; and in the execution of their design, a murder 
 is committed, all the company are equally principals in the murder, though at the time 
 of the fact, some of them were at such a distance as to be out of view. Reg. v. Howell, 
 9 Car. Sf P. 437. See also Com. v. Daily, 4 Penn. L. J, 156. Co7n. v. Hare, 4 Penn. 
 L. J. 259. 
 
 To constilute the offender a principal, it is not necssary that he should be prelent 
 during the whole of the transaction, it is sufficient to show that he originally assented to 
 the felony, and was present aiding and abetting when the offence was consummated, 
 although he was not at the inception. As where the servants of A. feloniously removed 
 goods in A.^s warehouse, from one part of it to another, and B. several hours afterwards 
 assisted in removing the goods from the warehouse, he was held a principal, since it was 
 a continuing transaction. Rex v. Atwell, 2 East, P. C. 768. , 
 
 If several combine to forge an instrument, and each executes by himself a distinct part 
 of the forgery, and they are not together when the instrument is completed, they are 
 nevertheless all guilty as principals. Rex v. Bingley, Russ. S( R. C. C, 446; sed vide 
 Rex v. Kelly, Russ. Sf R. C. C. 421 ; and id. 332. infra. As if A. counsel B, to make the 
 paper, C. to engrave the plate, and D. to fill up the names of a forged note, and they do 
 Bo, e;ich without knowing that the others are employed for that purpose. B. C. and D, 
 may be indicted for the forgery, and A. as an accessary. Rex v. Dale, Moody, C. C. 307. 
 For if several make distinct parts of a forged instrument, each is a principal, though he 
 do not know by whom the other parts are executed, and though il is finished by one alone 
 in tlie absence of the others. Rex v. Kirkwood, Moody, C. C. 304. 
 
 Persons not sufficiently near to give assistance, are not principals. Thus where 
 Brighton uttered a forged note at Portsmouth, the plan was concerted between him and 
 two others, to whom he was to return when he had passed the note, and divide the pro- 
 duce. The three had before been concerned in uttering another forged note, but at tho 
 time this note was uttering in Portsmouth, the other two stayed at Gosport. The jury 
 found all three guilty; but on a case reserved the judges were clear that as the other two 
 were not present, nor suiliciently near to assist, they could not be deemed principals, and 
 therefore they were recommended for a pardon. Rex v. Soares, Atkinson and Bughton, 
 2 East, P. C. 974; Russ. t^ li- C. C. 25. *'. C. and see R. v. Stewart and others, Russ. 
 Sf R. C. C. 3G3; Rex v. Badcock, and others, Russ. & R. C. C. 249; Rex v. Manners, 
 7 C. Sf P. 801. 
 
 Going towards a place where a felony is to be committed in order to assist in carrying 
 off the property, and assisting accordingly, will not make a man a principal if he were
 
 HISTORIA PLACITORUM CORONA. 615 
 
 at such a distance at the time of the felonious taking as to be unable to assist in it. Rex y, 
 Kellij, Kuss. Sf R. C. C. 421. 
 
 Where H. and -S. broke open a warehouse, and stole thereout thirteen firkins of but- 
 ter, &c. whicli they carried along the street thirty yards, and then fetched the prisoner, 
 who was apprized of the robbery, and he assisted in carrying the property away, he was 
 held not a principal, the felony being complete before he interfered. Rex v. King, Russ. 
 ^ R. C. C. 332. Rex v. McMakin, ib. 333. note. 
 
 If a wife, by her husband's order, but in his absence, knowingly utter a forged 
 order and certificate for prize money, the presumption of coercion at tlietirne of uttering 
 does not arise, as the husband was ab.-ent, and the wife may be convicted. Rex v. Morris, 
 Russ. i^ R. C. C. 270. It is not sufficient to make a person a principal in uttering a 
 forged note, that he came with the utterer to the town where it was uttered, went out 
 with him from the inn at which they had put up a little while before he uttered it, joined 
 him again in the street a short time after the uttering, and at some little distance from 
 tlie place of uttering, and ran away when the utterer was apprehended. Rex v. Davis, 
 Russ. S( R. C. C. 113; and see Rex v. Else, id. 142. 
 
 If the principal were insane when the act was committed, no one could be convicted 
 as aider or abettor. R'g. v. Taylor, 8 Car. Sf P. 616. 
 
 The offender must also be participating in the felonious design, or at least the offence 
 must be within the compass of tlie original intention. Rex v. Plumer, Kel. 109, 117. 
 The act must also be the result of tlie confederacy, and if several are out for the purpose 
 of committing a felony, and upon an alarm run different ways, and one of them maim a 
 pursuer to avoid being taken, the others are not to be considered principals in such act. 
 Rex v. White, Russ. Sf R. C. C. 99. And in order to render persons liable as principals 
 in the second degree, the killing or other act must be in pursuance of some unlawful 
 purpose not collateral to it. 1 East, P. C. 258. Fost. 354, 355, 
 
 Thus where a number of persons comijine to seize with force and violence a vessel, 
 and run away with her, and, if necessary, to kill any person who should oppose them in 
 the design, and murder ensues, all concerned are principals in such murder. 1 Gallison, 
 C. C. R. 624. And where there is combined resistance to officers, or a combined effort to 
 cause tumults and affrays, or to commit felony, and death takes place, all are principals. 
 Commonwealth v. Daily, 4 Penn. Law J. 156. Commonwealth v. Hare, 4 Penn. Law J. 259. 
 
 If A. is charged with the offence, and B. is charged with aiding and abetting hini, it 
 is essential to make out the charge as to 6. that B. should have been aware of yl.'s inten- 
 tion to commit murder. Reg. v. Cruise, 8 C. Sf P. 541. 
 
 But all persons present at a prize-fight, having gone thither for the purpose of seeing 
 the prize-fighters strike each other, were principals on the breach of the peace. Rex v. 
 Ferkius, 4 Car. Sf P. 537. Rex v. Murphy, 6 C. Sf P.IO. Rex v. Young, 8 C. Sf P. 645. 
 
 The indictment against principals in the second degree may in general charge all the 
 parties as principals in the first degree, or as being present aiding and abetting. Fost. 
 351. ^ Hawk. c. 23. s. 76. Rex v. Young, 3 T. R. 105. Rex v. Towle, Ritss. Sf R. 
 314. Reg. V. Crisham, 1 C. «Sc Mar. 187. But there are exceptions to this rule as to 
 the structure of indictments under particular statutes which make the punishment dit 
 ferent, and it is best not to charge all the parties as principals in the first degree, but to 
 charge the principals in the second degree specially as aiders and abetters when there is 
 any doubt as to the evidence to prove them all equally guilty; for if one were altogether 
 innocent, having repented of his purpose, and left tiie ottiers before the felony, and it is 
 uncertain which is guilty, both roust be acquitted. 1 Leach, 387. 
 
 Where a prisoner was convicted upon an indictment which charged him with a rape 
 as a principal in the first count, and as an aider and abettor in the second, it was holden 
 that the conviction upon the first count was good. Rex v. Folkes, itoody, C. C. 354. 
 
 A. B. and C. were indicted for murder in the first count as principals in the first 
 degree, in the second count A. was indicted as principal, and B. and C. as principals ia 
 the second degree; the first count was ignored as to B. and C. and a true bill foimd on 
 the second count against all, and it was held that B. and C. might be convicted on the 
 second count, though A. was acquitted. Reg. v. Phelps, 1 C. Sf Mar. 180. 
 
 All who are present aiding and abetting him who inflicts the mortal blow, in cases of 
 murder, are principals and criminals in the highest degree; but it is not every intermed- 
 dling in a quarrel or aflfray from which death ensues, that constitutes an aiding and abet- 
 ting to the murder. If, for instance, two men fight on a former grudge, and of settled 
 malice, and with intent to kill, of which the spectators are ignorant, and they, of a sud- 
 den, take sides with the combatants and encourage them by words, and deatli ensue, it 
 will not be murder in such persons. When there is a conibiriation to resist all oppositioa 
 in the commission of an unlawful act, in the execution of which death eusues, all are
 
 615 HISTORIA PLACITORUM CORONA. 
 
 layeth it, yet he is a principal, and he that counselleth or abetteth 
 him so to do, is accessary before. Co. P. C. cap. 64. p. 138 [4] 
 
 Who shall be said present, aiding, and abetting in case of felony, 
 hath been sufficiently declared in cap. 34. in case of murder, in cap. 
 48. in case of burglary, in cap. 46. in case of robbery, and need not 
 again he-repeated. 
 
 Accessaries again are of two kinds, accessaries before the fact com- 
 mitted, and accessaries after. 
 
 An accessary before, is he, that being absent at the time of the 
 felony committed, doth yet procure, counsel, command, [5] or abet 
 another to commit a felony, and it is an offense greater than the acces- 
 sary after; and therefore in many cases clergy is taken away from 
 accessaries before, which yet is not taken away from accessaries 
 after, as in petit treason, murder, robbery, and wilful burning, by 4 
 Ǥ-'5 P. 4- M. cap. 4.[6] 
 
 guilty of murder. The fact, however, must appear to have been committed strictly in 
 prosecution of the purpose for which the party was assembled, and if one of the party of 
 his own head, turn aside to commit' a felony, foreign to tiie original design, his compa- 
 nions do not participate in his guilt. State v. King et al. 2 Rice^s S. C. Dig. 106. The 
 distinction between principals in the first and second degree, is a distinction without a 
 difference, and therefore it need not be made in the indictment. The words " then ancl 
 there," in the concluding part of a charge against one present abetting a murder, may 
 be rejected as surplusage, or referred to the act done, which caused the death, and not 
 to the time and place of the death. State v. Fley and Robhill, 2 Rice, S. C. Dig. 104. 
 In an indictment for murder, if several be charged as principals, one as principal per- 
 petrator, and the others as aiding and abetting, it is not material which of them be charged 
 as principals in the first degree, as having given the mortal blow; for the mortal injury 
 given by any one of those present, is in contemplation of law, the injury of each and 
 every of them. If the actual perpetrator of a murder should escape by flight or die, 
 those present abetting the commission of the crime, may be indicted as principals, and 
 though the indictment should state the mortal injury was committed by him who is ab- 
 sent or dead; yet, if it be substantially alleged that those who were indicted were present 
 at the perpetration of tiie crime, and did kill and murder the deceased, by the mortal in- 
 jury so done, by the actual perpetrator, it shall be sufficient. State v. Fley and Robhill, 
 2 Rice, S. C. Dig. 104. If sofne of the persons engaged in accomplishing a lawful pur- 
 pose commit a felony in presence of others of the party, but without their participation, 
 the latter are neither principals nor accessaries. U. States v. Jones, 3 Wash. C, C 223. 
 
 [4] 4 Bl. Com. 34. Rex v. Giles, Ry. S^ M. R. 166. Rex v. Palmer, 1 T. R. 96. Rex 
 1 Stewart, R. ^ R. 363. Foster, 349. R. v. Harley, A C. S^ F. 369. Rex v. Gorden, 
 1 Leach, 15. 1 East, F. C. 352. 
 
 [5] State V. Mann, 1 Haywood, N. C. Rep. 4. — meaning of the word "command'* as 
 here used. 
 
 [6] Lord Coke and Mr. Justice Foster considered the word command as compre- 
 hending all those who incite, procure, set on, or stir up any other to do the fict. 2 Fastis 
 P. C. 041. But there arc some diversities: As — 1. When the principal dotli not ac- 
 complish the fact altogether in tlie same sort as it was beforeliand agreed between hin^ 
 and the accessary; and, therefore, if one commands another to lay hold upon a third 
 person, and he lays hold upon him and robs him, the person commanding is not acces- 
 sary to the robbery, for his comm:md might have been performed without any robbery. 
 Dalt. c. 161, J5. 36!) ; and see 1 Ch. C. L. 262. 
 
 But if the command had been to beat him, and the party commanded doth kill him, 
 or beat liim so that he dieth thereof, the person commanding shall be accessary to the 
 murder; for it is a hazard in beating a man that he may die tiicreof. Id. Sed query, if 
 this does not mean where the cominarul was to beat the other violently ? 1 East, P. C. 257. 
 
 2. He that commandetli or counselleth any evil or unlawful act to be done shall be ad- 
 judged accessary to all that shall ensue upon the same evil act, but not to any other dis- 
 tinct thing. As if one command another to steal a horse, and he stcalcth an ox ; or to
 
 HISTORIA PLACITORUM CORONA. 616 
 
 -' Those offenses, which in the construction of law are sudden and 
 unpremeditated, cannot have any accessaries before, as kilHng a man 
 per infortunium, se defendendo, or manslaughter. And therefore if 
 Jl. be indicted of murder, and B. as accessary before, if the jury find 
 .^. guilty only of manslaughter, there shall be no inquiry of B. but 
 
 rob a man by the highway of his money, and he robs him in his house of his plate; or 
 to burn such an one's house, and he burns the house of another; these are other acts and 
 felonies than he commanded to be done, and therefore he shall not be adjudged acces- 
 sary to them. Id. 
 
 3. But if a person commit the same felony which another did command or counsel to 
 be done, though he doth it another time, or in another place, or in another sort than was 
 commanded or counselled, yet here such person commanding or counselling shall be ac- 
 cessary. As if he doth counsel to kill a man by poison, and he kills him with a dagger; 
 or to kill him by the highway, and he kills him in his house; or to kill him one day, 
 and he kills him on another day; in these and the like cases he shall be accessary to the 
 murder, {Id.) for the means used are immaterial, so that the criminal object be effected. 
 
 4. Those offences which in the construction of law are sudden and unpremeditated, 
 cannot have any accessaries before. As killing a man by misadventure in his own 
 defence, or manslaughter, for in such case there can be no procuring, counselling, com- 
 manding or abetting. Ante 450, fosl 616. 
 
 5. It seems to be generally agreed,, that he who barely conceals a felony which he 
 knows to be intended, is guilty only of a misprision of felony, and shall not be adjudged 
 an accessary, for this is not procuring, counselling, or abetting. 2 HawJc. c. 29, s. 23. 
 Thus, words that seem to imply mere permission, as if one informs another that he is 
 about to commit a felony, and the latter replies: "You may do your pleasure for me," 
 this does not implicate him as an accessary, but it only fixes him with the guilt of a 
 misprision. Post 616 ; 2 Hawk. c. 29, s. 23-28. 
 
 6. Also, if a man counsel or command another to kill a person, and before he hath 
 killed him, he who counselled or commanded it, repents and countermands it, charging 
 him not to kill him, and yet after he doth kill him, here such person countermanding 
 shall not be adjudged accessary to the murder, for, generally, the law adjudges no man 
 accessary to a felony before the fact, but such as continue in that mind at the time that 
 the felony is done and executed. Dalt. c. 161, p. 369. 
 
 7. But if a person advise a woman to kill her child as soon as it shall be born, and 
 she kill it in pursuance of such advice; he is an accessary to the murder, though at the 
 time of the advice, the child not being born, no murder could be committed of it, for the 
 influence of the felonious advice continuing till the child was born, makes the adviser as 
 much a felon as if he had given his advice after the birth. 2 Hawk, c.29, s. 18. 
 
 8. If the crime solicited to be committed be not perpetrated, then the adviser may still 
 be indicted for a misdemeanor in having made such solicitation. Rex v. Higgens, 2 East, 5. 
 
 Accessaries before the fact are in general punishable in the same manner as princi- 
 pals, for they are frequently more deeply criminal than the principal. See Dalt. c. 161. 
 But there are several legislative provisions pointing out the punishment in different 
 offences. Thus, accessaries before the fact to murder, are punishable with death. 
 9 Geo. IV. c. 31 . s. 3. So are accessaries to administering poison, and attempts to drown, 
 suffocate, or strangle, and to maliciously shooting and stabbing with intent to murderer 
 maim, &c. 9 Geo. IV. c. 31. s. 11, 12. So are accessaries to administering poison to a 
 -woman to procure abortion, witii intent, &.c. 9 Geo. IV, c. 31, s. 13, and 7 Will. IV. and 
 
 I Vict. c. 85. s. 6. ante, 11. 13. Accessaries to administering poison to a woman not 
 quick with child, with intent, &c. are punishable as principals. (Id.) So are accessaries 
 to the forcible abduction of women for lucre. 9 Geo. IV. c. 31. s. 19. So are accessa- 
 ries io child. stealing. 9 C^eo. IV. c. 31. s. 21. So are accessaries to bigamy. 9 Geo. 
 IV. c. 31. s. 22. And accessaries to any felony punishable under stat. 9. Geo. IV. c. 31, 
 for whom no punishment is otherwise provided, may be transported for not more than 
 fourteen nor less than seven years, or imprisoned with or without hard labor not exceed- 
 ing three years. 9 Geo. IV. c. 31. s. 31. See Arch. C. L. by Jervis, 9 ed. 689. 
 
 Accessaries before the fact to felonies within the statutes 7 & 8 Geo. IV. c.29. s. 30. 
 
 II Geo. IV. S( 1 Will. IV. c. 66; 2 Will. IV. c. 34; 7 Will. IV. Sf I Vict. c. 85. s. 7; 
 C.86. s. 6; c. 87. s. 9; c. 88. s. 4; c. 89. s. 11 ; and also c. 36. s. 35. as to offences against 
 the post office, and 4 Sf 5 Vict. c. 56. s. 2. respectively, are punishable with death or 
 otherwise in the same manner as principals in the first degree.
 
 616 HISTORIA PLACITORUM CORONA. 
 
 he shall be forthwith discharged, because bare homicide is always 
 sudden: for if it were premeditated, it had been murder, and not 
 barely homicide, Bibilh'scase,{c) but there may be an accessary after. 
 
 Again, the exility of the offense, tho it be felony, yet because it is 
 not capital, excludeth accessaries before or after, and therefore in 
 petit larciny there can be no accessary, Jlnne Lassington's case, 
 P. 42 Eliz. B. R.{d) and this is also the reason why there can be no 
 accessary neither before nor after in manslaughter per infortunium 
 or se defendendo, because there is no judgment of death in that case. 
 
 That which makes an accessary before is command, counsel, abet- 
 ment, or procurement by one to another to commit a felony, when 
 the commander or counseller is absent at the time of the felony com- 
 mitted, for if he be present he is principal. 
 
 And therefore words that sound in bare permission, make not an 
 accessary, as if A. says he will kill J. S. and B. says you may do 
 your pleasure for me, this makes not B. accessary. 21 H. 7. 36, 37 
 Crompt. 41. ^.[7] 
 
 \i Ji. hire B. to mingle or lay poison for C. B. doth it according- 
 ly, and C. is poisoned, B. tho absent, is principal, A. is accessary ; 
 but if ./^. were present at the mingling or laying of the poison, tho 
 both were absent at the taking of it, yet both are principals, for they 
 are both equally acting in the poisoning. 
 
 But if ^. buy the materials of the poison, knowing and consent- 
 ing to the design, and deliver them to B. to mingle and apply it, or 
 lay it in the absence of tM. here it seems Ji, is only accessary before: 
 quod vide Co. P. C. cap. 1. p. 50. Frankli)i\s case.(e) 
 
 If A. command or counsel B. to commit felony of one kind, and 
 
 B. commits a felony of another kind, A. is not accessary, as 
 
 r 617 2 if «^- command B. to steal a plate, and B. commits burglary 
 
 to steal the plate, t/?. is accessary to the theft, but not to the 
 
 burglary. Co. P. C. cap. l.p. 51. 
 
 If A. commands B. to take C. and B. takes C. and robs him, t/?, is 
 not accessary to the robbery. 
 
 But if *d. commands B. to beat C. and B. beats C. so that he dies, ./?. 
 is accessary, because it may be a probable consequence of his beat- 
 ing, 3 E. 3. Coron. 314. Stamf P. C. Lib. I. cap. 45.foL 41. a. the 
 like it is if he command B. to rob him, and in robbing him B. kills him, 
 t^. is accessary to the murder. Plowd. Com. 475. Crompt. 43. 6.[8] 
 
 A. commands B. to burn the house of C. B. kills, robs, or steals 
 from C. A. is not accessary, for it is an ofttinse of another kind; so if 
 A. commands B. to steal the horse of C and he steals his cow, A. is 
 not accessary. Plowd. Com. 475. Saunder^s case. 
 
 (c) 4 Co. Rep. 43 b. (d) Cro. Eliz. 750. (c) State Tr. Vol. I. p. 329. 
 
 [7] The procurement need not be direct, it is sufficient if it be through i\\G agency of 
 anollier; and it may be by approbation or consent to an expressed felonious design. 
 Foster, 127. R. v. Somerset, 1!) Slate Trials, 804. R. v. Cooper, 5 C. i^- P. 535. 2 Hawk, 
 c. 21), s. J 1. I'eople v. Norton, 8 Cowen, 127, But bare concealment of an intention on 
 the part of anottier to commit a felony, will not make the person so concealing an acces- 
 sary. 2 Hawk. c. 29, s. 23. ■ 
 
 [8] 4 Bl. Com. 37. R. v. Saunders, Plotbden, 475.
 
 HISTORIA PLACITORUM CORONJi:. 617 
 
 iBut if ./^. command B. to steal generally from C. then he is acces- 
 sary to any kind of theft from C. tho it were done by robbery, for 
 that varies the offense only in degree. 
 
 t,^. commands B. to poison C B. kills him with a sword, yet ./?. is 
 accessary, for the substance of the thing commanded was the death, 
 of C. and the difi'ering in the manner of its execution from the com- 
 mand doth not excuse A. from being accessary. [9] 
 
 13ut if .y^. command B. to kill C. and B. by mistake kills D. or else 
 in striking at C kills D. but misseth C. »/l. is not accessary to the mur- 
 der of Z>. because it differs in the person. Co. P. C. cap. 7. p. 51. 
 Plowd. Com. 475. Saunder^ s case. 
 
 A. gets B. with child, and before the birth counsels B. to kill it, 
 the child is born, B. murders it, A. is accessary to the murder, yet 
 at the time of the counsel given the child was not in rerum nalurd. 
 2 Eliz. By. 186. a. 
 
 Jl. lets out a wild beast, or employs a madman to kill others, 
 whereby any is killed, A. is principal in this case, tho absent, because 
 the instrument cannot be a principal. Bait. cap. \QS.{f) 
 
 A. commands B. to kill C. but before the execution there- 
 of *^. repents, and countermands B. and yet B. proceeds in [ 618 ] 
 the execution thereof, A. is not accessary, for his consent 
 continues not, and he gave timely countermand to B. Co. P. C. cap. 7. 
 p. 51. Plowd. Com. 474, Sau7if/er's case; but if A. had repented, yet 
 if B. had not been actually countermanded before the fact committed, 
 »/^. had been accessary. [10] 
 
 (/) New Edit. p. 5^9. 
 
 [9] Foster, 369, 370. R. v. Cooper, 5 C. Sf P. 535. 
 
 [10] Among the statutary enactments on this subject in the United States, are the 
 following: collected in Wh(/rton''s American Criminal Law, 24-27. 
 
 United States. — Every person who shall, either upon the land or the seas, know- 
 ingly and wittingly aid and assist, procure, command, counsel or advise, any persoa 
 or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the 
 seas, which shall affect the life of such person, and such person or persons shall there- 
 upon do or commit such piracy or robbery, then all and every such person so as aforesaid 
 aidmg, assisting, procuring, commanding, counselling or advising the same, either upon 
 the land or the sea, shall be, and they are hereby declared, deemed and adjudged to be, 
 accessary to such piracies before the fact, and every such person, being thereof convicted, 
 shall suffer death. Act of April 30, 1790. s. 10. 
 
 That after any murder, felony, robbery, or other piracy whatsoever aforesaid, is or 
 shall be committed by any pirate or robber, every person who, knowing that such pirate 
 or robber has done or committed any such pirac}' or robbery, shall, on the land or at 
 sea, receive, entertain or conceal, any such pirate or robber, or receive or take into his 
 custody any ship, vessel, goods or chattels, which have been, by any such pirate or rob- 
 ber, piratically and feloniously taken, shall be, and are hereby declared, deemed and 
 adjudged, to be accessary to such piracy or robbery, after the fact; and on conviction 
 thereof, shall be imprisoned not exceeding three years, and fined not exceeding five hun- 
 dred dollars. Ibid. sect. 11. 
 
 Massachusetts. — Every person, who shall be aiding in the commission of any offence, 
 which shall be a felony, either at common law, or by any statute now made, or which 
 shall hereafter be made, or who shall be accessary thereto before the fact, by counselling, 
 hiring or otherwise procuring such felony to be committed, shall be punished in the same 
 manner, which is or which shall be prescribed for the punishment of the principal felon. 
 Rev. Stat. chap. 133. sect. 1. 
 
 Every person, who shall counsel, hire, or otherwise procure any offence to be commit- 
 VOL. I. — 53
 
 618 HISTORIA PLACITORUM CORONiE. 
 
 ted, which shall be a felony, either at. common law, or by any statute now made, or 
 which siiall hereafter be made, may be indicted and convicted as an accessary before the 
 fact, either with the principal felon, or after tlie conviction of the principal felon, or he 
 may be indicted and convicted of a substantive felony, whether the principal felon shall 
 or shall not have been convicted, or shall or sliall not be amenable to justice, and in the 
 last mentioned case, may be punished in the same manner as if convicted of being an 
 accesary before the fact. Ibid. scct. 2. 
 
 It was said by the Supreme Court that stat. 1784, c. 65, (from which the above section 
 was drawn,) providing that if any person shall aid, assist, &c. any person to commit 
 murder, he shall be considered as an accessary before the fact, refers to a person not pre- 
 sent, aiding, &c. If the party be in such a situation as to be able to afford assistance to 
 the principal, although not literally present, he will be a principal. Com. v. Knapp, 
 9 I'ick. 496. 
 
 Any person, charged with the offence mentioned in the preceding section, may b® 
 indicted, tried and punished in the same court and the same county, where the principa 
 felon might be indicted and tried, although the offence of counselling, hiring, or pro- 
 curing the commission of such felony may have been committed on tlie high seas, or on 
 land, either within or without the limits of this state. Rev. Stat. chap. 133. sect. 3. 
 
 Every person, not standing in the relation of husband or wife, parent or grand-parent, 
 child or grand-child, brother or sister, by consanguinity or affinity, to the offender, whq, 
 after the commission of any felony, shall harbour, conceal, maintain, or assist any prin- 
 cipal felon, or accessary before the fact, or shall give such offender any other aid, know- 
 ing that he had committed a felony, or had been accessary thereto before the fact, with 
 intent that he shall avoid or escape from detection, arrest, trial or punishment, shall be 
 deemed accessary after the fact, and shall be punished by imprisonment in the state pri- 
 son, not more than seven years, or in the county jail, not more than three years, or by 
 fine not exceeding one thousand dollars. Ibid. sect. 4. 
 
 Every person, who shall become an accessary after the fact, to any felony either at 
 common law, or by any statute now made, or which shall hereafter be made, may be 
 indicted, convicted, and punished, whether the principal felon shall or shall not have been 
 previously convicted, or shall or shall not be amenable to justice, by any court having 
 jurisdiction to try the principal felon, and either in the county where such person shall 
 have become an accessary, or in the county where such principal felony shall have been 
 committed. Jbid. sect. 5. 
 
 New York. — Every person, who shall be a principal in the second degree, in the com- 
 mission of any felony, or who shall be an accessary to a murder, before the fact, and every 
 person who shall be an accessary to any felony, before the fact, shall, upon conviction, be 
 punished in the same manner herein prescribed, with respect to principals in the first de- 
 gree. 2 R. Stat. 698, sect. 6, 1st Edition. 
 
 Every person, who shall be convicted of having concealed any offender after the com- 
 mission of any felony, or of having given such offender any other aid, knowing that he 
 has committed a felony, with intent and in order that he may avoid, or escape from, 
 arrest or trial, or conviction, or punishment, and no others, shall be deemed an accessarji' 
 after thp fact, and upon conviction shall be punished by imprisonment in a state prison, 
 not exceeding five years, or in a county jail not exceeding one year, or by fine not ei- 
 ceeding five hundred dollars, or by both such fine and imprisonment. Ihid. sect. 7. 
 
 An indictment against an accessary to any felony may be found in the county where 
 the offence of such accessary shall have been committed, notwithstanding the principal 
 offence was committed in another county; and the like proceedings shall be had thereon 
 in all respects, as if the principal offence had been committed in the same county. 
 Ibid, 727, sect. 48. 
 
 An accessary, before or after the fact, may be indicted, tried, convicted and punished, 
 notwithstanding the principal felon may have been pardoned, or otherwise discharged, 
 after his conviction. Ibid, sect. 40. 
 
 Every person who shall be convicted of having been an accessary after the fact to any 
 kidnapping or confinement, herein before prohihited, shall be punished by imprisonment 
 in a state prison, not exceeding six years, or in a county jail not exceeding one year, or 
 by a fine not exceding five hundred dollars, or by ,both such fine and imprisonment 
 Ibid. GG5, sect. '31. 
 
 Pennsylvania. — Where any murder or felony hath been, or hereafter shall be com- 
 mitted in one county of this province, and one or more persons shall be accessary or
 
 HIS^TORIA PLACITORUM CORONA. 618 
 
 accessaries to any such murder or felony in another coun'y, then an indictment found 
 or talsen against such accessary or accessaries, upon tlie circumstances of such matter, 
 before justices of the peace, or otiier justices or commissioners, to inquire of felonies in 
 the county where sucli offences of, accessary or accessaries, in any manner, have been 
 or shall be committed or done, shall be as good and effectual in law as if the said prin- 
 cipal offence had been committed or done within the same county, where the indictment 
 against such accessary hath been or shall be found. Act of 3[st May, 1118, sect. 22; 
 1 Smith, 405; It/i ed. Furdon, 1)35. 
 
 The justices of the said Supreme Court, or two of them, upon suit to them made, 
 shall write to the keepers of the records, where such principal is or shall hereafter be 
 attainted or convicted, to certify them whether such principal be attainted, convicted 
 or otherwise discharged of such principal felony; who, upon such writing to them or 
 any of them directed, shall make sufficient certificate in writing, under their seal or 
 seals, to the said justices, whether such principal be attainted, convicted, or otherwise 
 discharged or not. And after they who so have the custody of records, do certify that 
 such principal is attainted, convicted or otherwise discharged of such offence by the 
 law, then the justices of gaol delivery or of oyer and terminer shall proceed upon every 
 such accessary in I he county where he or they became accessary, in such manner and 
 form as if both the said principal offence and accessary had been committed and done 
 in the same county, wiiere the offence or accessary was or shall be committed or done. 
 And every such accessary and other offenders as above expressed, shall answer upon 
 their airaignments, and receive such trial, judgment, order and execution, and suffer 
 such forfeiture, pains and penalties, as is used in other cases of felony, and as the statute 
 made in the second and third years of the reign of king Edward the Sixth, (chap. 24,) 
 entitled, "An act for the trial of murders and felonies committed in several counties," 
 doth direct in such cases; which statute shall be observed in this province, any law or 
 usage to the contrary notwithstanding. Ibid. sect. 23. 
 
 Pivery person convicted of bigamy, or being an accessary afler the fact, in any 
 felony, or of receiving stolen goods, knowing them to have been stolen, or of any other 
 offence not capital, for which, by the laws in force, before the act, entitled, "An act lo 
 amend the penal laws of this state," burning in the hand, cutting off the ears, nailing the 
 ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for 
 life, is or may be inflicted, shall, instead of such parts of the punishment, be fined and 
 sentenced to undergo in the like manner, and be confined, kept to hard labour, fed and 
 clothed as is hereinafter directed, for any term not exceeding two years, which the 
 court before whom such conviction shall be, may and shall, in their discretion, think 
 adapted to the nature and heinousness of the offence. Act 5th April, 171^0; 2 Dallas, 
 801 ; 2 Smith, 531 ; 1th ed. Fur. 938, sect. 4. 
 
 Virginia. — An accessary to a murder or a felony committed, shall be examined by the 
 court of that county or corporation, and tried by the court in that district where he be- 
 came accessary, and shall answer upon his arraignment, and receive such judgments, 
 order, execution, pains and penalties as are used in other cases of murder and felony. 
 R. L. vol. i. 104. 
 
 If any be accused of an act done as principal, they that be accused as accessary shall 
 be attached also, and safely kept in custody until the principal be attainted or delivered. 
 R. L. vol. i. 126. 
 
 Persons knowingly harbouring horse-stealers, or receiving from them stolen horses, 
 are to be deemed and punished as accessaries. And if the principal felon cannot be 
 taken so as to be prosecuted and convicted of such offence, nevertheless the acces- 
 sary may be punished as for a misdemeanor, although the principal felon be not before 
 convicted of the felony, which shall exempt the ofi'cnder from being punished as ac- 
 cessary, if the principal offender shall afterwards be taken and convicted. li. L. 
 vol. i. 179. 
 
 If any principal offenders shall be convicted of any felony, or shall stand mute, or 
 shall peremptorily challenge above twenty persons returned to be of the jury, it shall 
 be lawful to proceed against any accessary either before or after the fact, in the same 
 manner as if the principal felon had been attainted thereof, notwithstanding such prin- 
 cipal shall be admitted to the benefit of his clergy, pardoned or otherwise delivered before 
 his attainder; such accessary to suffer the same punishment as the principal, if he had 
 been attainted. R. L. vol, i. p. 20G.
 
 618 HISTORIA PLACITORUM CORONiE. 
 
 CHAPTER LVI. 
 
 OP ACCESSARIES AFTER THE FACT. 
 
 This kind of accessary after the fact is, where a person knowing the 
 felony to be committed by another, receives, relieves, comforts, or 
 assists the felon. [1] . 
 
 This, as hath been siaid, .holds place only in felonies, and in those 
 felonies, where by the law judgment of death regularly ought to ensue, 
 and therefore there is no accessary in petit larciny, homicide joer in- 
 fortunium, or homicide se defendendo. 15 E. 3. Coron. 116. 
 
 I shall consider, 1. What shall not be a receiving or relieving to 
 make an accessary after; and 2. What shall be such a receiving or 
 relieving to make an accessary after. 
 
 If A. knows that B. hath committed a felony, but doth not disco- 
 ver it, this doth not make ./^. an accessary after, but it is misprision 
 of felony, for which Ji. may be indicted, and upon his conviction fined 
 and imprisoned. 
 
 If eA?. sees B. commit a felony, but consents not, nor yet takes care 
 to apprehend him, or to levy hue and cry after him; or upon hue and 
 cry levied doth not pursue him, this is a neglect punishable by fine 
 and imprisonment, but it doth not make ji. an accessary after. S E. 
 2. Coron. 395. 3 E. 3. Coron. 293. Stamf. P. C. Lib. I. 
 [ 619 ] cap, 45. f 40. b. 14. H. 7. 31. b. and the contrary opinion of 
 some old books in this case is therefore rejected. 
 
 If B. commit a felony, and come to the house of td. before he be 
 arrested, and A. suff'er him to escape without arrest, knowing him 
 to have committed a felony, this doth not make »^. accessary; but if 
 he takes money of B. to suffer him to escape, this makes him acces- 
 sary, 9 H. 4. 1. and so it is if J2. shut the fore door of his house, 
 whereby the pursuers are deceived, and the felon hath opportunity 
 
 [1] Generally any assistance whatsoever given to one known to be a felon, in order to hin- 
 der his being approliended or tried, or suffering the punishment to which he is condemned, 
 is sufficient to bring a man within tiiis description, and makes him accessary to the 
 felony: as where one assists him with a horse to ride away with, or with money or vic- 
 tuals to support him in his escape. 2 Hawk. c. 29. s. 26. Also, it seems to be settled that 
 whosoever rescues a felon from an arrest for the felony, or voluntarily suffers him to 
 escape, is an accessary to the felony. 2 Hawk, c, 29. s. 27. It seems agreed, says Haw- 
 kiiis, that the law hath such a regard to that duty, love and tenderness which a wife 
 owes to her husband, as not to make her an accessary to felony by any receipt given to 
 her husband. Yet, if she be any way guilty of procuring her husband to commit it, it 
 seems to make her an accessary before the fact, in tlie same manner as if she had been 
 sole. Also, it seems agreed that no other relation besides tliat of a wife to her husband, 
 will exempt the receiver of a felon from being an accessary to the felony; from whence 
 it follows, that if a master receive a servant or a servant a master, or a brother a brother, 
 or even a husband a wife, they arc accessaries in the same manner as if they liad been 
 mere strangers to one another. 2 IJawk. c. 29. s. 3 [. 
 
 Where goods are feloniously taken by a servant in his master's absence, and the mas- 
 ter afterwards assists in secreting theni, he is an accessary only, though he directed the 
 original taking. Norton v. People, 8 Co/Oj. 137.
 
 HISTORIA PLACITORUM CORONA. 619 
 
 to escape, this makes A. accessary; for here is not a bare omission, 
 but an act done by A. to accommodate his escape, 8 E. 2. Coron. 427. 
 
 */i. hath his goods stolen by B. \( */9. receives his goods again sim- 
 ply without any contract to favour him in his prosecution, or to 
 forbear prosecution, this is lawful; but if he receives them upoa 
 agreement not to prosecute, or to prosecute faintly, this is theft-bote, 
 punishable by imprisonment and ransom, («) but yet it makes not t'?. 
 an accessary 1 42 Assiz. 5. b. 3 E. 3. Coron. 353. Slamf. P. C.f. 40. 
 a. but if he take money of B. to favour him, whereby he escapes, 
 this makes him accessary. Dalt. 263.{b) Crompt. 41. b. 
 
 t/i. hath his goods stolen by B. who sells them to C. upon a just 
 value, tho C. know them to be stolen, this makes not C. accessary, 
 unless he receive the felon. Da/L cap. 108./?. 288. (c) 
 
 But by some opinions, if he buy them at an under value, it makes 
 him accessary, per Crompt. 43. b. and Sir Nlch. Hyde, Dalt. iihi 
 supra; but it seems this makes not an accessary, for if there be any 
 odds, lie that gives more, benefits the felon more than him that gives 
 less than the value, but it may be a misdemeanor punishable by fine 
 and imprisonment, and the buying at an under value is a presumptive 
 evidence, that he knew they were stole, but makes him not accessary. 
 
 If Ji. hath his goods stolen by B. and C. knowing they were 
 stolen, receives them, this simply of itself makes not an accessary, 
 and therefore it hath been often ruled, (^) that to say, J. S. hath re- 
 ceived stolen goods knoiving them to be stolen, is not ac- 
 tionable, because it imports not felony, but only a trespass ["620 ~\ 
 or misdemeanor, punishable by fine and imprisonment, (e) 
 for the indictment of an accessary after, is that he received and 
 maintained the thief, not the goods.{f)[2] 
 
 (a) Vide antea, p. 546. Sf notas ibid. (6) New Edit. p. 531. 
 
 (c) New Edit. ibid. (d) Dawsori's case, Yelv. 4. 
 
 (e) By 3 & 4 W. ^ M. cap. 9. "Receivers of stolen goods, knowing them to be stolen, 
 are to be deemed accessaries after the fact, and suffer as such;" but because these re- 
 ceivers often concealed the principal felons, and thereby escaped being punished as acces- 
 saries; therefore by 1 Ann. cap. 9. "Whosoever shall buy or receive stolen goods know- 
 ing them to be stolen, may be prosecuted for a misdemeanor, and punished by fine and 
 imprisonment, though the principal felon be not convicted;" and this shall exempt them 
 from being punished as accessaries, if the principal shall afterwards be convicted. 
 
 (/) But by 5 Ann. cap. 31. " If any person shall receive or buy knowingly any stolen 
 goods, or knowingly harbour or conceal any felon, lie shall be taken as accessary to the 
 felon, and shall suffer as a felon:" this statute does not take away the benefit of clergy; 
 but by 4 Geo. I. cap. 11. such person may be transported for fourteen years. 
 
 [2] The 7 & 8 Geo. IV. c. 29. is novy the only statute in force, affecting receivers of 
 stolen goods in general. All the statutes prior to that statute are repealed, and the only 
 other acts in force on this offence are the 2 Geo. III. c. 28. relating to receiving stoleo 
 goods, &.C. on the river Thames^ and the 1 & 2 Geo. ly. c. 75. relating to anchors, cables, 
 shipping, &c. 
 
 Where two receivers are charged in the same indictment with separate and distinct 
 acts of receiving, it is too late after verdict, to object that they should have been indicted 
 separately. Reg. v. Hays, 2 M. Sf Rob. 156. Where a person jinowing goods to have been 
 stolen, directs his servant to receive them, and the servant also knowing the?n to be 
 stolen, does so, they are jointly indictable. Reg. v. Parr, 2 M. Sf Rob. 346. Three per- 
 sons were charged with a larceny, and two others as accessaries, in separately receiving 
 portions of the stolen goods. The indictment also contained two other counts, one of
 
 620 mSTORIA PLACITORUM CORONiE. 
 
 But yet it seems to me, that if B. had come himself to C. and 
 delivered him the goods to keep for him, C. knowing that they were 
 stolen, and that B. stole them, or if C. receives the goods to facilitate 
 the escape of B. or if C. knowingly receives them upon agreement 
 to furnish B. with supplies out of them, and accordingly supplies 
 him, this makes C. accessary ;(_ij-) and with this seems to agree the 
 preamble of the statute of 2 <§• 3 E. 6. cap. 24. Crompt. 41. b. for it 
 is relieving and comforting. 
 
 But the bare receiving of stolen goods, knowing them to be stolen, 
 makes not an accessary; for he may receive them to keep for the 
 true owner, or till they are recovered or restored by law; and so it 
 seems are the books to be intended of 27 Assiz. 69. 25 E. 3. 39., (A) 
 9 H. 4. 1. a. 
 
 If a felon be in prison, he that relieves him with necessary meat, 
 drink, or clothes for the sustentation of life, is not accessary. 
 
 So if he be bailed out till the next, sessions, 4'C. it is law- 
 [^ 621 ] ful to relieve and maintain him, for he is quodammodo in 
 custody, and is under a certainty of coming to his trial. 
 Crompt. 42. b. Ball. p. 2S6.{i) 
 
 And therefore it is not treason thus to relieve a traitor, while he is 
 in custody or under bail, and therefore the statute of 27 E/is. cap. 2. 
 that makes it felony to relieve a Jesuit, hath yet this qualification, 
 being at liberty and out of hold. 
 
 But if a felon be in gaol, for a man to convey instruments to him 
 
 {g) But because this was difficult to prove, the confederates of snch thiev^es frequently 
 disposing- of suck goods to the owners for a reward, under the notion of helping them 
 again to their stolen goods, it is provided by 4 Geo. I. cap. 11. "That whosoever shall 
 take a reward under tiie pretence of helping any one to stolen goods, shall suffer as a 
 felon, as if he himself had stolen the said goods, unless he cause such felon to be appre- 
 hended and brought to trial, and give evidence against him;" upon this clause the famous 
 
 Jonathan Wild was convicted and executed. 10 Geo. 1. See statute 6 Geo. 1. ch. 23. 
 
 for pretending to help one to stolen goods. Receivers of linen goods stolen from the 
 bleaching grounds, are by the statute 18 Geo. II. declared felons, without benefit of clergy. 
 
 {h) In the last edition of the year-books, which is in this place inispaged, it is 25 E. 
 3. 82. b. 
 
 (») Neio Edit. p. 530. 
 
 them charging each of the receivers separately with a substantive felony, in separately 
 receiving a portion of the stolen goods. The principals were acquitted, but the receivers 
 were convicted on tlie 'last two counts of tlie indictment. Reg. v. Pulham, 9 Car. Sf 
 P. 280. A lad stole a brass weight from his master, and after it had been taken from 
 him in his master's presence, it was restored to him again with his master's consent, in 
 order that he might sell it to a man, to whom he had been in the luibit of selling similar 
 articles, which he had stolen before. The lad did sell it to the man, and the man being 
 indicted for receiving it of an evil disposed person, well knowing it to have been stolen, 
 was convicted, and sentenced to be transported for seven years. Peg. v. Lyons. I C. Sf 
 Mar. 217. Where six .£100 notes were stolen, and the ])arty was indicted for receiving 
 tlicm, it appeared tliat the notes had been changed by tiic thief for £20 notes, which 
 latter notes had been received by the accused ; it was held, that he could not be convicted 
 on tlie indictment, as he did not receive the notes which were stolen. Ilex v. Wulkeley, 
 4 C. c^- P. 132. 
 
 A person may be indicted for receiving stolen property, if it remain the same in sub- 
 stance, though the name be changed, and therefore a principal may be indicted for steal- 
 ing'a live sheep, and tiie accessary with receiving twenty pounds of mutton. R'-x v. 
 Cowell, 2 East, P. C. 781 ; and sec R. v. Puckering, R. c^ M. C. C. 242.
 
 HISTORIA PLACITOROI CORONA. 621 
 
 to break prison to make an escape, or to bribe tbe gaoler to let him. 
 escape makes the party an accessary, for tho common humanity 
 allows every man to aflord them necessary relief, yet common jus- 
 tice prohibits all men unlawful attempts to cause their escapes. 
 
 If A. speak or write in favour of a prisoner for his favour and 
 deliverance, this makes him not an accessary. 26 Assiz. 47.[3] 
 
 To instruct a felon to read thereby to save him by his clergy makes 
 not an accessary. M. 7 R. 2.,{k) Co. P. C. cap. 64. p. 139. 
 
 If A. be cominitted for felony, and B. an attorney advise the 
 friends of./?, to write to the witnesses not to appear against him, who 
 writes accordingly, this makes neither B. nor the friends accessary, 
 but is a misdemeanor punishable by fine and imprisonment. Co. P. 
 C. iibi supra. 
 
 A feme covert cannot be an accessary for the receipt of her hus- 
 band, for she ought not to discover him. 
 
 But the husband may be an accessary for the receipt of his \vife. 
 Stamf. P. C. Lib. I. cap. \9.fol. 26. a. 
 
 If the wife alone, her husband being ignorant, do knowingly re- 
 ceive B. a felon, the wife is accessary and not the husband. \5 E. 2. 
 Coron. 383. 
 
 But if the husband and wife both receive a felon knowingly, it 
 shall be judged only the act of the husband, and the wife acquitted. 
 M. 37 E. 3^ Rot. 34. in dors. Rex Coram Rege.{l) 
 
 To make an accessary to felony there must be a felony f 622 *] 
 committed by him, to whom he is accessary. 
 
 i^. gives B. a mortal stroke, C. receives or relieves A. or helps him 
 to escape, and then B. dies, C, shall not be an accessary to the felony, 
 because when he received him no felony was done. [4] 
 
 (it) Rot. 30. Rex Cant. 
 
 {1} This was the case of Richard Day and Margery his wife, (vide supra p. 47.) wlio 
 bad been indicted before the sheriff of Lincoln pro receptamento felonum ; the indictment 
 was sent coram rege: Richard surrendered himself and alleged, that he had been tried 
 and acquitted on the said indictment before the justices of gaol-delivery at Lincoln, and 
 was admitted to bail ; after which the judge of gaol-delivery sent the record of Richard's 
 acquittal ; Margery the wife pleaded, tFiat she also had been tried and acquitted, and was 
 also bailed, but afterwards she not appearing, a Capias was awarded against her and her 
 bail: upon this her husband and one John Hode two of her bail came into court, Et pe- 
 tunt ipsos admitti adjinem cum domino rege occasione prcedictd faciendum, S^ admittun- 
 tur) sometime afterwards the said John Hode came into court and alleged, that he had 
 been unjustly fined, "Quia praedictum indictamcntum super prjedictam Margcriam fac- 
 tum minus sufficiens est, eo quod preedicta Mnrgeria tempore, quo ipsa dictos felones 
 receptasse seu eis consentire debuisset, fuit coopCrta praedicto Ricardo viro suo, fc adbuc 
 est &. omnino sub potestate sua [ejus], cui ipsa in nuUo contradicere potuit, and ex quo 
 non inseritur in indictamento prtedicto, quod ipsa aliquod malum fecit, nee eis consen- 
 tivit, seu ipsos felones receptavit ignorante viro suo, petit judicium, si ipsa vivente viro 
 Buo dc aliquo receptamento in prcesentia viri sui occasionari possit." The court took 
 time to consider of this plea, and in Michaelmas term, anno Ato gave the following judg- 
 ment. "Viso & diligenter examinato indictamento praedicto super prajfatam Margeriani 
 facto videtur curios, quod indictamentum ilhid minus sufficiens est ad ipsam inde ponere 
 responsuram. Idco cessit processus versus earn omnino. See Co. P. C. p. lOS. 
 
 [3] But advising witnesses not to appear, though it docs not make an accessary, is a 
 misdemeanor. Hale^s Sum. 219. 
 
 [4] 2 Hawk. c. 29, s. 35, 4 Bl. Com. 38. '
 
 622 HISTORIA PLACITORUM CORONA. 
 
 But a man may be accessary to an accessary by the receiving of 
 him knowing him to be an accessary to felony. Slam/. P. C. cap. 46. 
 / 43. b. 22 ^ssiz. 52. [5] 
 
 There can be no accessary in receipt of a felon, unless he know 
 him to have committed a felony: vide Stamford's P. C. 41. b. 
 
 But yet it hath been held, that if the party be attaint of felony by 
 outlawry or otherwise in the county of .^. if any one of that county 
 receive him, he is accessary, whether he had notice or not, because 
 he is a felon by matter of record, whereof all in the same county 
 ought to take notice. 12 E. 2. Coron. 317. Stamf. P. C. cap. 46. 
 fol. 41. b. 
 
 But it seems to me necessary to make an accessary after, that there 
 be notice, aUho the felon were attaint in the same county, for pre- 
 sumption shall not make men criminal, where the punishment is 
 capital.[6] 
 
 See antea, 612. ch. 55. 
 
 [5] 3 P. Wyns. 475; 2 Haick. c. 29, s. 1. 
 
 [6] But some particular evidence is necessary. Cotn. Dig. Justices, t. 2 Hawk. c. 29, 
 s. 33, c. 25, s. 67; R. v. Thompson, 2 Lev. 308; 3 P. Wins. 496. 
 
 • ■ ' > ' .11 . . . 
 
 The punishment of accessaries after the fact is at common law trivial, (hey being in 
 most cases allowed the benefit of clergy. Fast. 372. There are several legislative pro- 
 visions pointing out the punishment in different offences. Thus, in abduction, biga. 
 my, assaults, child stealing, rape, and unnatural crimes, the 9 Geo. IV. c. 31. s. 31. 
 provides, "that every accessary after the fact to any felony punishable under this 
 act, (except murder) shall be liable to be ilnprisoned with or without bard labour, in 
 the common gaol or house of correction, for any term not exceeding two years; and 
 every person who shall counsel, aid, or abet the commission of any misdemeanor punish- 
 able under this act, shall be liable to be indicted and punished as a principal offender." 
 
 In murder, 9 Geo. IV. c. 31. s. 3. "every accessary after the fact to murder, shall be 
 liable at the discretion of the court, to be transported beyond the seas for life, or to be 
 imprisoned, with or without hard labour, in the common gaol or house of correction, for 
 any term not exceeding four }'ears." 
 
 Accessaries after the fact to offences within the 7 «^ 8 Geo. IV. c. 29. c. 30; 11 Gio. 
 IV. & 1 Will. IV. c. 66; 2 Will. IV. c. 34; 7 Will. IV. & 1 Vict. c. 36; c. 85 ; c. 86; 
 c. ,87 ; c. 88, and c. 89, respectively, may be imprisoned not exceeding two years, with 
 or without liard labour, and with or without solitary confinemement, such confinement 
 not exceeding one month at any one time, nor three months in any one year. Where 
 accessaries after the fact are punishable as for a felony, but no specific punishment is 
 provided by the particular stutute, they may be transported for seven years, or impri- 
 soned, with or without hard labour, for the whole or any part of the imprisonment, and 
 with or without solitary confinement; (7 & 8 Geo. IV. c. 28. s. 9.) such confinement not 
 exceeding one month at any one time, nor three months in any one year; (7 Will. IV. 
 & 1 Vict. c. 90. s. 5,) and if a male, may be once, twice, or thrice publicly or privately 
 whipped, in addition to the imprisonment, if the court shall think fit. 7 &, 8 Geo. IV. 
 c. 28. s. 8.
 
 HISTORIA PLACITORUM CORONA. 623 
 
 CHAPTER LVir. 
 
 CONCERNING THE ORDER OF PROCEEDING AGAINST ACCESSARIES.[1] 
 
 The accessary may be indicted in the same indictment with the 
 principal, and that is the best and most usual way; but he may be 
 indicted in another indictment, but then such indictment must con- 
 tain the certainty and kind of the principal felony. 
 
 If a man were accessary before or after in another county, than 
 where the principal felony was committed, at common law it was 
 dispunishable, but now by the statute of 2 (§• 3 E. 6, cap. 24. the 
 accessary is indictable in that county, where he was accessary, and 
 shall be tried there, as if the felony had been committed in the same 
 county; and the justices, before whom the accessary is, shall write 
 to the justices, <5'c. before whom the principal is attainted, for the 
 record of the attainder. 
 
 This writing is to be by writ in the king's name under the teste of 
 the justice so sending it. Dy. 253. b. 
 
 If the accessary be indicted either alone or together with the prin- 
 cipal, process of outlawry shall not go against the accessary till the 
 principal be attainted or outlawed, neither shall he be put to plead 
 till the principal appear, but shall be bailed till the principal appear; 
 vide Westm. 1. cup. 14.(«) [2] 
 
 (a) 2 Co. Instit. 183. This is now alterd by 1 Ann. cap. 9. 
 
 [1] See statutes 7 & 8 Geo. IV. c. 64, s. 9. On the construction of this statute, see 
 Rex V. Russell, Mood. C. C. 356; Recr. v. Leddington, 9 Car. 4- P. 79. This provi- 
 sion in this statute with respect to attaiuder, is substituted lor that of 1 Ann. St. 2. c. 9, 
 8. 1, which is repealed. 
 
 [2] Ry. V. Ashmell, 9 C. Sf P. 236; Whitehead v. The Stite, 4 Humphreys, 278. By 
 the common law an accessary cannot be put upon trial against his consent until the 
 principal is convicted. Hence if the principal be dead before conviction the accessary 
 cannot be tried. Commonwealth v. Phillips, 16 Mass. 423. The guilt of the principal 
 must be established before the accessary can be tried, 2 Burr''s Trial, 440. An acces- 
 sary to a felony committed by several, may be tried as accessary to those who have 
 been convicted ; but if tried as accessary to all, and some have not been proceeded 
 against, it is error. Stoops v. Commonwealth, 7 &'. S; R. 491. After conviction of an 
 accessary, it is not ground for arresting judgment that the indictment does not allege 
 that the principal had been convicted. Harty v. The State, 3 Blackf. 386. 
 
 By statute a receiver of stolen goods may be tried, though the principal is not con- 
 victed. State v. & L. 2 Tyler, 249; Commomvealth v. Andrews, 2 Mass. 14; Common- 
 wealth y. Frye, 1 Virg. Cases, 18; Butler v. State, 3 McCord, 384. 
 
 But in North Carolina he cannot be tried before the principal, except " when the latter 
 escapes and eludes the process of law." Slate v. Gross, 1 Murph. 270; State v. Goode, 
 1 Hawks, 463. 
 
 But conviction of a principal without judgment warrants the trial of the accessary. 
 Commonwealth v. Williamson, 2 Virg. Cases, 211. 
 
 A verdict that the defendant indicted as accessary to a murder is guilty, without
 
 623 HISTORIA PLACITORUM CORONA. 
 
 The accessary shall not be constrained to answer to his indictment, 
 till the principal be tried, 9 E. 4. 48. a. but if he will wave that 
 benefit, and put himself upon his trial before *the principal be tried- 
 he may, and his acquittal or conviction upon such trial is good. 
 S/0771/. P. C. Lib. I. cap. 49. / 46. b. 
 
 But it seems necessary in such case to respite judgment till the 
 principal be convicted and attaint, for if the principal be after ac- 
 quited, that conviction of the accessary is annulled, and no 
 [624] judgment ought to be given against him; but if he be ac- 
 quitted of the accessary, that acquittal is good, and he shall 
 be discharged. 8 H. 5. 6. 6. Corow. 463. 
 
 If ^. B. and C. be indicted as principals, and D. is indicted as ac- 
 cessary to them all, D. shall not be arraigned till all the principals be 
 attaint or outlawed, for if Jl. and B. be tried, and acquit or attaint, 
 yet D. may be accessary to C and not to Jl. nor B. but if A. B. 
 and C. be indicted as principals, and D. indicted as accessary to A. 
 only, there if ./^. be attaint, tho B. and C. be not, yet D. shall be 
 arraigned. AQAssiz.2b. Coron.2l6. 7 H.4.36.b. S t am f.ubi supra. 
 
 stating whether accessary to the murder in the first or second degree, is erro- 
 neous, lb. 
 
 If A. is cliarged in tlie indictment as principal, and B, as accessary, and the jury 
 find B. to he the principal and A, tlie accessary, tiie indictment is sustained. Slate v. 
 Mairs, Coxe, 453. 
 
 The court may, in its discretion, permit an accessary to be tried separately from the 
 principal. State v. Yancey, 1 Const. Rep. 241. 
 
 If the principal in murder has absconded, and process of outlawry is seasonably com- 
 menced, but there is not time to finish it at the second term, the accessary, who lias 
 refused to be tried without the principal, aithou2"ii he has been two terms under indict- 
 ment, is not eutitled to be discharged on habeas corpus. Commonwealth v. Sheriffs 
 \&S. cy R. 304. 
 
 Whatever constitutes one as an accessary in a capital offence, makes him liable as 
 principal in a misdemeanor. State v. Westjield, 1 Baily, 132. 
 
 The record of the conviction of a slave as principal in a felony, is evidence against a ^ 
 free man as accessary before tlie fact; so of the slave's confession of his own guilt as 
 principal; State v. Sims, 2 Baily, 29 ; State v. Cranky ib. 66. 
 
 The records of the principal's conviction must be produced on trial of tlie accessary, 
 unless they are tried together, or the latter has consented to be tried before the former, 
 or the former is dead or has been pardoned before trial. But if tiie indictment charge 
 the accessary with being present, aiding and abetting, the principal's guilt may be 
 proved by parol evidence, though the principal has been convicted. State v. Crank, 
 2 Baily, 66. 
 
 VVhcrc the principal and accessary are joined in an indictment and tried separately,^ 
 tlie records of the principal's conviction is prima facie evidence of his guilt upon the 
 trial of the accessary, and as tlie burden of proof is on the accessary, he must show- 
 clearly that the principal ought not to have been convicted. Commonwealth v. Knapp, 
 10 Pick. 481. 
 
 But the accessary in such case is not restricted to proof of facts that were not shown 
 on the former trial, and wliich arc incompatible with the guilt of the principal. lb. 
 
 If an indictment allege a burglarious entry with intent to steal, and then and there 
 stealing, it is only the oficuce of burglary, and a count charging one as accessary to 
 " the offence aforesaid," is good. Sloops v. Coinmomoealth, 7 S. iSf R. 491. 
 
 In an indictment against an accessary before the fact in felony, it is not necessary to 
 set forth tiie conviction or execution of the principal. State v. Crank, 2 Baily, 6G ; 
 State V. Sims, ib. 29. 
 
 Where one was indicted as accessary to a murder committed by a slave, it was held 
 enfficient to describe the slave by his own name, without setting out that of his master. 
 State V. Crank, 2 Baily, C6. ■ j
 
 HISTORIA PLACITORUM CORONA. - 624 
 
 Bat yet the court may if they please arraign the accessary in the 
 first case, (6) for if he be found accessary he shall have judgment, 
 but if acquitted of being accessary to A. yet that acquittal dischargcth 
 him not of being accessary to B. or C. and therefore when they come 
 in and plead and are attaint, D. may be arraigned de novo a.s acces- 
 sary to B. and C. Plowd. Com. 9S. b. Gittin^s case. So that it is in 
 the discretion of the court to arraign him or not before B. and C. be 
 attaint, tho it be the safer course to respite the arraignment of the ac- 
 cessary till B. and C. appear or are outlawed. 
 
 If is. be indicted or appealed as principal, and B. as accessary 
 before or after by the same indictment, and the principal plead in bar 
 or abatement, or autrefoits acquit, the accessary shall not be forced 
 to answer, till that plea be determined, for if it be found for A. the 
 accessary is discharged, if against ./?, yet he shall after plead over to 
 the felony, and may be acquitted. 9 H. 7. 19. b. 
 
 \i Jl. be indicted as principal, and B. as accessary, they may be 
 both arraigned together, and plead together, and put upon their trial 
 by the same jury, and the jury shall be charged to inquire first of the 
 principal, and if they find him not guilty, then to acquit the accessary; 
 but if they find him guilty, then to inquire of the accessary. Seig- 
 neur Sanchar's case,(c) 40 Assiz. 8. 7 H. 4. 36. ^.[3] Coke 
 super statute Westm. 1. cap. \A.{d) but in that case judg- [625 ] 
 ment must be first given of the principal, for if any thing 
 obstruct judgment, as clergy, a pardon, i^'C. the accessary is to be 
 discharged. 
 
 If./?, be attaint of murder upon an appeal, and then Jl. is indicted 
 of murder as principal, and B. as accessary, the principal pleads the 
 former attainder,^, shall not be put to answer as accessary, because 
 he is not attaint upon the same suit, and so it is if the attainder of t/^. 
 were first upon the appeal. 7 H. 4. 36. a. Stamf. P. C. 47. a. Coke 
 uhi supra. 
 
 If the principal be attainted and hath his clergy, or be pardoned 
 after attainder, the accessary shall be put to answer; but if the prin- 
 cipal be only convict and hath his clergy, or be pardoned, or stand 
 mute, or die in prison before judgment, or challenge above thirty- 
 six peremptorily, the accessary shall not be put to answer, for the 
 principal was never attainted, (e) and altho formerly there were diver- 
 sity of opinions in the books in these cases,(/) yet the law is now 
 
 {b) To make this consistent with what goes before, we must understand the former 
 passage to mean, that where he is indicted as accessary to all, he shall not be nrraigned 
 as accessary to them all till all be attaint or outlawed, and this, that the court may in 
 such case, if they please, arraign him only as accessary to him who is attaint, tho the 
 others do not appear. 
 
 (c) 9 Co. Rep. 119. a. (d) 2 Co. Inst. 184. 
 
 (e) It was for this reason, that Weston the principal actor in the murder of Sir Thomas 
 Overbury could not for a long while be prevailed with to plead, that so the earl and coun- 
 tess of Somerset, who were the movers and procurers mio'lit escape. See State Tr. Vol. I, 
 p. 314. 
 
 (/) See Coron. 51, 58. 
 
 [3] 9 Rep. 119. Foster's Rep. 361. S. C
 
 625 HISTORIA PLACITORUM CORONiE. 
 
 settled as. above, (§•) 4 Co. Hep. 43, 44. Bihith's case and Syer^s case, 
 Coke super PVestm. 1. cap. 14. 
 
 If the principal be erroneously attaint, the accessary shall be put to 
 answer, and shall not take advantage of the error in that attainder, 
 2 R. 3. 21, 22. but the principal reversing the attainder, reverseth the 
 attainder of the accessary. IS E. 4. 9. b. 
 
 li Ji. be indicted as principal, and B. as accessary before or after, 
 and both be acquit, yet B. may be indicted as principal, and the for- 
 mer acquittal as accessary is no bar.[4] 4 E. 6. B. Coron. 186. ■ 
 Knighl ley's case, CrompLf. 43. a. 
 
 But if ^^. be indicted as principal and acquitted, he shall 
 r 626 3 iio'^ be indicted as accessary before, and if he be, he may 
 plead his former acquittal in bar, for it is in substance the 
 same oflense, Stamf P. C. Lib. II. cap. 36.fol. 105. a. 2 E. 3. Co- 
 ron. 150 Si" 282. but the antient law was otherwise. 8 E. 2. Coron. 424. 
 
 But if he be indicted as principal and acquitted, he may yet be in- 
 dicted as accessary after, for they are oftenses of several natures. 
 27 ^ssiz. 10. S H. 5. Coron. 463. Stamf P. C. ubi supra. 
 
 And so it is if he be indicted as accessary before diU^ acquitted, yet 
 for the same reason he may be indicted as accessary after.\_5^ 
 
 (g) But since our author wrote, it is settled quite otherwise by 1 Ann. cap. 9. for by 
 that statute, " If any principal offender shall be convicted of felony, stand mute, or chaK 
 lenge above twenty, it shall be lawful to proceed against the accessary, either before or 
 after the fact, in the same manner as if such principal felon had been attainted thereof, 
 notwithstanding such principal felon be admitted to his clergy, or otherwise delivered 
 before attainder; and every such accessary, if convicted, stand mute, SfC, shall suffer the 
 same punishment, as if such principal had been attainted. 
 
 [4] But Mr. Justice Foster observes upon this, that in the eye of the law the offences 
 of principal and accessary do specially differ; and if a person indicted as principal can- 
 not be convicted upon evidence tending barely to prove him to have been accessary before 
 the fact, which must needs be admitted, it doth not appear how an acquittal upon one 
 indictment can be a bar to a second, for an oftence specially different from it. Fast. 362. 
 And the distinction is also taken in Rex v. Wijifre'd Gordon, 1 EasVs P. C. 352. and 
 there it was held, by all the judges, that W. G. having been indicted as accessary before 
 the fact, and acquitted upon that indictment, might be indicted again as principal. 
 
 [5] Indictment of Accessary together with his Principal. — Where the parties are thus 
 joined in the same proceeding, the proper course is first to state the guilt of the principal 
 according to the facts, as if he alone had been concerned; and then in case of accessaries 
 before the fact, to aver " that C. D., lute of, &.c. {the procurer) before the committing 
 of the said felony and murder, {or burglary, as the case is,) in form aforesaid, to wit, on, 
 &c., with force and arms, &c., did maliciously and feloniously incite, move, procure, aid 
 and abet," (or counsel, hire, and command,) following the words of the statute, if the de- 
 fendant he made an accessary thereby, or else the efiect of such words, see Rex v. Gre. 
 vil, 1 And. VJ5; "the said A. B., {the principal felon) to do and commit the said felony 
 and murder, and in manner aforesaid, against the peace," &c. 
 
 And where a man is indicted as accessary after the fiict, together with his principal, 
 the original lelony is to be stated in the same way, and the conclusion must aver that the 
 accessary did receive, harbour, and maintain, &c., the principal felon, well knowing that 
 he had committed the felony. The averment of knowledge is indispensably requisite, 
 because without it the guilt does not manifestly appear. Com. Dig. Justices, t.; 2 Hawk. 
 c. 29. s. 33; c. 25. s. 67 ; R. v. Thompson, 2 L<v. 308. 
 
 A person may be indicted for receiving stolen property, if it remain the same sub- 
 stance, though the name be changed ; and therefore a principal may be indicted for steal- 
 ing of a live sheep, and the accessary with receiving twenty pounds of mutton. Rex v. 
 Crowell and Green, 2 East's I'. C. 781 ; R. v. Puckering, R. 6f M. C. C. 242. 
 
 la an indictment against the receiver of Btolen property, the property stated to have
 
 HISTORIA PLACITORUM CORONiE. 626 
 
 been received should agree with that averred to be stolen ; but in Morris's case, Leach, 
 525, where the indictment charged the principal with stealing two bank notes, the pro- 
 perty of S. S., and charged the accessary with receiving the said notes, the property and 
 chattels of the said ^. S., it was holden, that the word " chattels" miglit he rejected as 
 surplusage. 
 
 It is not necessary to use the word " accessary" in the indictment, {Rex v, Burridge, 
 Plow. 477,) or to set forth the means by which the accessary before the fact incited the 
 principal to commit the felony, or the accessary after received or comforted him; for it 
 is periectly immaterial in what way the purpose of the one was effected, or tlie harbour, 
 ing of the other secured ; and as the means are frequently of a complicated nature, it 
 would lead to great inconvenience and perplexity if they were always to be described 
 upon the record. Co. Enlr. 56, 57; Rast. Entr. 48; 9 Co. 114; 2 Hawh. c. 29. s. 17. 
 
 If two are charged jointly with receiving stolen goods, a joint act of receiving must be 
 proved; a proof that one received in the absence of the other, and afterwards delivered to 
 liim, will not suffice. Successive receivers are all separate receivers, and all punishable. 
 Bex V. Messingham, R. Sf M. C. C. 257. 
 
 Indictment against the Accessary alone, after the conviction of the Principal. —It is not 
 necessary in this case to aver that the latter committed the felony, or on the trial to enter 
 into a detail of the evidence adduced against him; but it is not sufficient to recite with 
 certainty the record of the conviction, because the court will presume every thing on the 
 former occasion to have been rightly and properly transacted. Holmes v. Walsh, 7 T. 
 R. 465; Fost. 365. 
 
 It is sufficient in an indictment for felony against a receiver of stolen goods to state, 
 that the principal was "tried and duly convicted," without going on to show what judg- 
 ment was passed upon him, or how he was delivered. Hyman''s case, 2 Leach, 925. 
 
 Indictment against Accessary alone for a substantive felony or misdemeanor. — In this 
 case it is not, it seems, necessary to allege the original felony or misdemeanor with that 
 particularity as to time and place, as in an indictment against the defendant together 
 with the principal. See 1 Stark. C L. 168; R. v. Scott, 2 Easfs P. C. 781. 
 
 The indictment against a receiver of stolen goods, need not allege time and place to 
 the fact of the stealing, it is sufficient if they be alleged to the fact of the receipt. 2 East, 
 P. C. 780. In this indictment it is not necessary to aver that the principal has not been 
 convicted. R. v. Baxter, 5 T. R. 83. 
 
 An indictment is properly framed which states that the principal felon cast away and 
 destroyed a vessel, and that the accessary incited, moved, aided, counselled, hired, and 
 commanded him to do it; and the accessary may be convicted on an indictment so 
 framed, although the principal felon has not been tried, and does not appear to be amena- 
 ble to justice. R. v. Wallace, \ C. S^ M. 200. In other respects the indictment will 
 assimilate that against principal and accessary jointly. 
 
 If the principal be unknown, the indictment may state the offisnce to have been com- 
 mitted by "some person or persons to the jurors aforesaid unknown." Thus in the case 
 of John Thomas, the indictment was for receiving goods stolen by persons unknown, 
 which was objected to be insufficient, in not ascertaining the principal tliief, and that it 
 ought to appear to whom in particular the prisoner was accessary. This objection 
 being referred to the judges, they were unanimously of opinion that the indictment was 
 good, that the greater view of the statutes was to reach the receivers where the princi- 
 pal thieves could not easily be discovered. R. v. Thomas, 2 Easfs P. C. 781. 
 
 Where the principal is known, it seems proper to state it according to the truth; and 
 the common form of the indictnient is to state the fact of stealing the goods by tiie prin- 
 cipal and the receipt of them by the receiver, he then and there well knowing the said 
 goods and chattels to have been feloniously stolen, <fcc. R. v. Hymen, 2 Leach, 925. Or 
 an allegation that the goods were stolen " by a certain evil disposed person" is good, and ' 
 without stating the name of the principal felon, or averring that he is unknown. R. v. Jer- 
 vis, 6 C. &,- P. 156. And this in tnany cases, may be the best mode of stating the offi'nce. 
 
 Where, in an indictment against an accessary to a felony, it was stated that the felony 
 was committed " by a person to the jurors unknown," and it appeared that the principal 
 felon was a witness before the grand jury, it was held that the indictment could not be 
 supported. R. v. Waker, 3 Comp. 264; Rex v. Casper, 9 C. S<; P. 289. 
 
 If a charge against an accessary be that the principal felony was committed by per- 
 sons unknown, it is no objection that the same grand jury have found a bill imputing 
 the principal felony to /. S. Thus in jR. v. J. Bush, the prisoner was tried before Mr. 
 Baron Garrow, at the Gloucester Summer Assizes, 1818, and was convicted and received
 
 626 HISTORIA PLACITORUM CORONA. 
 
 sentence of transportation for fourteen years, but execution was stayed in order that the 
 opinion of the judges might be taken upon the Jiropriety of the conviction. The indict- 
 meni stated that " a certain person or persons to the jurors unknown," the dwelling-house 
 oi Hannah Wilmot, burglariously did break and enter and certain silver plate commonly 
 called a silver cream-jug lie of her goods did steal ; and timt Bush feloniously did receive 
 and have the same, he then and there well knowing the same to have been feloniously and 
 burglariously stolen, &c. Upon the trial it appeared that among the records of indictments 
 returned by the same grand jury, there was one charging one Henry Moreton as princi- 
 pal in the burglary, and the prisoner Bush as accessary after in receiving the cream jug. 
 Mrs. Wilmot proved tliat lier house had been broken but once, that she had lost only one 
 cream-jug, and that she had preferred two indictments to the grand jury. The counsel 
 for the prosecution had declined to proceed on the indictment against Moreton. Ludlow, 
 for the prisoner, objected that the allegation in the present indictment, that the person or 
 persons who committed the burglary were unknown to the jurors, is negatived by the 
 other record, and that the prisoner was entitled to be acquitted. This point was reserved 
 for the opinion of the judges, who in Michaelmas Term, 1818, held the conviction right, 
 being of opinion that the finding by the grand jury of the bill imputing the principal 
 felony to J. S. was no objection to the second indictment, although it stated the princi- 
 pal felony to have been committed by certain persons to the jurors aforesaid aninoicw. 
 R. V. Bush, R. ^ R. C. C. 372. 
 
 In a late case it was made a question, but not decided, whether upon a charge from 
 receiving from T. S. the receipt from S. S. must be proved, the statute making it crimi- 
 nal without regard to the person from whom the stolen property is received. R, v. Mes- 
 singham, R. Sf M. C. C. 257. 
 
 On indictment against principal and accessary before the fact, the evidence in 
 this case must consist' of proof of the guilt of the principal so as to obtain his convic- 
 tion. The accessary may enter into the full defence of the principal, and avail himself 
 of every matter of fact, and every point of law tending to the acquittal of the principal, 
 ■for the accessary in this case is to be considered as particeps in lite, and this sort of de- 
 fence necessarily and directly tendcth to his own acquittal. Fost. 265. 
 
 The prosecutor must prove that the accessary had, previous to the crime, procured, 
 hired, advised or commanded the principal to commit it, and whether this were done 
 directly or through the intervention of a third person, is immaterial. Fost. 125. It must 
 appear the accessary was absent when the crime was committed, so that he was not a 
 principal. 
 
 On indictment against an accessary after the fact together with the principal, the pro- 
 secutor should prove the guilt of the principal. He must prove that the defendant re- 
 ceived, harboured or maintained him, and knew he had committed a felony. If the pri- 
 soner, at different times, receive property stolen from the prosecutor, although the sub- 
 stantive charge must be confined to some one receiving, yet the other receivings may be 
 given in evidence, to show a guilty knowledge that the goods were stolen. Rex v. 
 Dunn, Car. C. L. 1.31 ; R. Sf M. C. C. 146. S. C. and see Rex v. Burridge, 3 P. Wms. 439. 
 He must be proved to have done some act to assist the felon personally, or employed an- 
 other person to do so. Reg. v. Chappie, 9 Car. ^ P. 355; Reg. v. Jervis, 2 M. Sf Rob. 40. 
 
 On indictment against the accessary after conviction of principal, the prosecutor should 
 prove the conviction of the principal; where the accessary is tried in the same county in 
 which the principal was convicted, this is easily effected. But if the accessary be tried 
 in a different county, it is necessary to produce either the record itself or an examined 
 copy of it. l^his is evidence against the accessary sufficient to put him upon his defence, 
 for it is founded upon a legal presumption that every thing in tlie former proceeding was 
 rightly and properly transacted. Holmes v. Walsh,! T. R. 465. 
 
 But a presumption of this kind must, as it seems, give away to facts manifestly and 
 clearly proved. Fost. 365. As against the accessary, therefore, the conviction of the prin. 
 cipal will not be conclusive; it is as to him, res inter alios acta: for an accessary may 
 controvert the guilt of the principal, notwithstanding the record of his conviction. 
 Smithes case, O. B. 1783. 1 Leach, 289. And therefore if it shall come out in evi- 
 dence upon the trial of the accessary, as it sometimes hath, and frequently may, that the 
 offence of which the principal was convicted, did not amount to felony in him, or not to 
 that species of felony with which he was cliargcd, the accessary may avail himself of this, 
 and ought to be acquitted. Fost. 365. and see Danelly^s case, 1 Russ. 30; 2 Marsh, 371; 
 Russ.Sf R.C.C.3\Q. 
 
 And as in point of law so also in point of fact, if it shall manifestly appear in tlie course 
 of the accessary's trial, that the principal was innocent, common justice seemeth to re-
 
 HISTORIA PLACITORUM CORONA. 626 
 
 quire that the accessary should be acquitted. As suppose a man is convicted upon cir- 
 cumstantial evidence, strong as that sort of evidence can be, of murder, another is after- 
 wards indicted as accessary to this murder, and it couicth out upon the trial by incon- 
 testable evidence tliat the person who was supposed to be murdered is still living, in this 
 case, certainly, the person indicted as accessary, shall be-acqnitted. Or suppose the per- 
 son to be in tact murdered, and that it should come out in evidence, to the satisfaction 
 of the court and jury, that the witnesses against the principal were mistaken in his per- 
 son, (a case of tliis kind Sir Michael Foster says he has known,) that the person convicted 
 as principal, was not, nor could possibly have been present at the murder. Fast. 367, 368. 
 1 Hawk. 457. - 
 
 Whatever is evidence against the principal is prima facie evidence of the principal 
 felony, as against the accessary. If an indictment against a receiver, state the principal 
 felony to have been committed by A. B. whatever would have been evidence of the prin- 
 cipal felony to convict A. B. is receivable, to prove this allegation on the trial of the re- 
 ceiver, but is not conclusive. Therefore if A. B. confessed the principal felony, that 
 confession is admissible on trial of the receiver to prove the commission of the principal 
 felony. Rex v. Blick, 4 C. Sf F. 377. 
 
 Competency of Witnesses. — The principal, though not convicted or pardoned, may be 
 examined as a witness against the accessary or receiver. In two prosecutions for a 
 misdemeanor, on statute 22 Geo. III. c. 58. the principal felons, though not convicted, 
 were admitted as. witnesses on part of the crown.- Rex v. Fatram Bridgewater^ Sum. Ass, 
 Cor. Grosse, J. 1787. 2 East, 782. Rex v. Haslam, 1 Leach, 418. 2 East, F. C. 728; sed 
 vide Reg. v. Lyons, 9 Car. Sf F. 555, where principal and accessary were charged in the 
 same indictment. So in Jonathan Wild's case, on a prosecution on statute 4 Geo. I. 
 c. 1 1, for taking a reward to help to stolen goods. 2 East's F. C, 782, 783. 
 
 In a case where the principal was indicted for burglary and larceny in a dwelling, 
 house, and the accessary charged in the same indictment as accessary before the fact, 
 to the said "felony and burglary," and the jury acquitted the principal of the burglary, 
 but found him guilty of the larceny; it seems the judges were of opinion that the acces- 
 sary should have been acquitted, for the indictment charged him as accessary to the 
 burglary only, and the principal being acquitted of that, the accessary should be acquit- 
 ted also. R. V. Donnelly, and Vaughan, 1 Russell, 30; 2 Marsh, 571 ; 1 R. Sf R. V. C. 
 310. S. C. 
 
 CHAPTER LVIII. 
 
 CONCERNING FELONIES BY ACT OF PARLIAMENT, AND FIRST CON-. 
 
 CERNING RAPES. 
 
 Having thus considered the felonies that are by the common law, I 
 now proceed to the handling of felonies by act of parhament, and 
 because it is hardly possible to reduce the titles of them under any 
 dependent method, and difficult to digest them under heads, I shall 
 take them up in order of time, according to the series and order of 
 the reigns and years of the several kings wherein they were enacted, 
 only where I meet with any felony in the time of any king's reign, 
 I shall as near as I can bring together those Acts of Parliament both 
 before and after, that concern that subject. 
 
 And first concerning rape. 
 
 Rape was antiently a felony, as appears by the laws of 
 Jldleslane mentioned by Bracton, Lib. \\\.,{a) and was [627 J 
 punished by loss of life. 
 
 But in process of time that punishment seemed too hard; but the 
 truth is, a severe punishment succeeded in the place thereof, viz, cas- 
 
 (a) De Corona, cap, 28./. 147. a.
 
 627 HISTORIA PLACITORUM CORONA. 
 
 tration and the loss of eyes,(6) as appears by Bracton (who wrote in 
 the time of Henry III.) Lib. III. cap. 28. but then, tho the offender 
 were convict at the liing's suit, the woman that was ravished (if sin- 
 gle) might, if she pleased, redeem him from the execution, if she 
 elected him for her husband, and the offender consented thereunto, 
 as appears by Bracton uhi supra. 
 
 This kind of punishment it seems continued till 3 E. 1. and then 
 by the statute of fVesfm. 1. cap. 13.,(c) it was enacted, "That none 
 ravish or take with force a damsel within age with her consent nor 
 against her consent, nor no dame, damsel of age, nor any other wo- 
 man against her will; and if any do it, the party may sue within 
 forty days, and common right shall be done; and if none sue within 
 forty days, the king shall have the suit, and the party convict shall 
 suffer two years imprisonment, and be ransomed at the king's plea- 
 sure. 
 
 This statute gives a punishment by imprisonment and ransom only, 
 if attaint at the king's suit, and takes away castration and putting 
 out of eyes; but it seems as to the suit of the party, if commenced 
 within forty days, it alters not the punishment before, Le roy lui 
 ferra common droiture. 
 
 But by the statute of Westm. 2. cap. 3A.{d) the offense of rape is 
 made felony, " If a man ravish a married woman, dame, or damsel, 
 where she neither assented before nor after, Eyt judgment de vy <5* 
 member; if she assent after, yet the king shall have the suit." 
 
 This created rape a felony, and therefore it was not inquirable in 
 a leet, for it was made felony de novo by this statute, 22 E. 4. 22. a. 
 6 H. 7.4. b. 
 
 Rape is the carnal knowledge of any woman above the 
 r 628 ] age of ten years against her will, and of a woman-child, 
 under the age of ten years with or against her will. Co. 
 P. C. cap. 11. p. 60.[1] 
 
 (6) By the laws of Wiltiam I. this offense was punished with castration. Vide Leges 
 Gul. I. I. 19. Wilk. Leg. Anglo-Sux. p. 222 Sf 290. 
 (c) 2 Co. Instit. 180. (d) 2 Co. Inst. 433. 
 
 [1] To constitute the offence there must be a penetration. Rex v. Hill, 1 East^s P. C. 
 43;). It was held in Bussen^s case, 1 East, P. C. 438, that the least degree of pene. 
 tration was sufficient, though not attended with tiie deprivation of the marks of vir- 
 ginity. In that case it was proved, that the parts of the injured party were so narrow 
 that a finger could not he introduced, and that the hymen was whole and unbroken; £ind 
 yet this was held a sufficient penetration to constitute the offence, (emission having been 
 also proved, which was necessary as the law stood at that time;) and see Reg. v.McRue, 
 
 8 C. Sf l\ 541. 
 
 The offence may be complete though the hymen was not ruptured. Reg. v. Hughes, 
 
 9 C. Sf P. Ib2 ; overruling Rex v. Gammon, 5 C. (^ P. 321. - 
 
 If penetration cannot be proved, still tlie defendant may be convicted of the assa-ult. 
 7 Will. IV. 4- 1 Vict. c. 85, s, 11. 
 
 Before the 9 Geo. IV. c. 31, s. 18, it was necessary to prove emission, which might be 
 proved either positively by the evidence of the woman that she felt it, or it might be pre- 
 sumed from circumstances ; as for instance, that the defendant, alter having connection 
 with the prosecutrix, arose from her voluntarily without being interrupted in the act.
 
 HISTORIA PLACITORUM CORONA. 628 
 
 Rex V. Harmwood, 1 East, P. C. 440; Rex v. Sheridan, 1 East, P. C. 438; Rex v. Bur. 
 ruics, R. Sf R. 519. But now by that act, s. lH, reciting, "And whereas upon trials for 
 the crimes of buggery and of rape, and of carnally abu,^ing girls under the respective 
 ages hereinbefore mentioned, offender's frequently escape by reason of the difficulty of 
 the proof whicli lias been required of the completion of those several crimes;" for 
 remedy thereof it is enacted, "That it shall not be necessary in any of those cases to 
 prove the actual emission of seed in order to constitute a carnal knowledge, but that the 
 carnal knowledge shall be deemed complete upon proof of penetration only." Since this 
 enactment, even tliough the jury negative the fact of emission, or the circumstances be 
 proved to have been such as that no emission did or could take place, the offence is 
 complete. Rex v. Coze, cited pust. 
 
 Any, the sligiitest, penetration is sufficient, even though it do not break the hymen. 
 Rex V. Russen, 1 East, P. C. 438. 
 
 Though it is not necessary in order to complete the offence of rape, that tlie hymen 
 should be ruptured, provided that it is clearly proved that there was penetration; yet 
 where that which is so very near to the entrance has not been ruptured, it is very diffi- 
 cult to come to the conclusion that there 'has been penetration, so as to sustain the 
 charge. Reg. v. McRue, cited supia. 
 
 In a case of rape if there has been penetration, the jury ought to convict of the capi- 
 tal offence, even though the penetration has not proceeded to the rupture of the hyrnen. 
 Reg. v. Hughes, 9 Car. Sf P. 752. Confirmed by the judges; and the case of Rex v. 
 Gammon, 5 Car. S( P. 3"J1, held to be no authority, Gurney, B. concurring. Ih. 
 
 Since the Stat. 9 Geo. IV. c. 31, the offence of rape is made out by proof of penetra- 
 tion ; and in such case a prisoner must be found guilty, although there was no emission, 
 and although he did not withdraw himself merely because he was satisfied. Rex v. 
 Jennings, 4 Car. S( P. 249, 1 Lewin, C. C. 93. 
 
 The 9 Geo. IV. c. 31, s. 18, does not make emission unnecessary to complete the 
 offence of rape. Rex v. Russell, 1 M. &f Rob. 122. See Rex v. Coulthart, I Lewin, C. C. 
 94. But in case of Rex v. Cox, 5 C. Sf P. 297, 1 Mood. C. C. R. 337, which is subsequent 
 to all these cases, the jury found that there had been penetration, but there had not l)een 
 any emission from the prisoner, and the fifteen judges held that the prisoner was riglitlj 
 convicted of rape. See Rex v. Reekspear, 1 Muud. C, C. R. 342. 
 
 Qu&re, if emission be expressly negatived, the offence of rape is complete under 
 9 Geo, IV. r. 31, fi. 18. Brooke's case, 2 Leicm, C. C. 267. 
 
 In a case of rape since the passing of tlie statute 9 €ieo. IV. c. 31, s. 18, the only 
 question for the jury is, whether the private parts of the man did or not enter into the 
 person of the woman ; and the reason for the limitation to that single inquiry seems 
 to be, that it was thought that the law was holding itself up to contempt by having the 
 subtle and critical subjects of emission, &c. discussed before judges and juries. There- 
 fore, thougli it appear from the evidence beyond all possibility of doubt that the party 
 was disturbed immediately alter penetration, and before the completion of his purpose, 
 yet he must be found guilty of having committed the complete offence of rape. R^g. v. 
 Allen, 9 Car. &f P.'^l. 
 
 Proof of injectio serninis, as well as penetration, was essential in an indictment for 
 rape before the Stat. 9 Geo. IV. c. 31. Rex v. Hill, 1 East, P. C. 439; 5'. P. Rex v. 
 Cave, I East, P. C. 438 ; but see R'X v. Sheridan, 1 Ea&t, P. C. 438 ; Rex v. Harm, 
 wood, i East, P. C. 440 ; I Russ. C. 6f M. 560. 
 
 Before the Stat. 9 Geo. IV. c. 31, s. 18, if something occurred to create an alarm to a 
 party while he was perpetating the offence of a rape, it was left to the jury to say, 
 whetlier he left the body re infectd because cff- the alarm, or whether he left it because 
 his purpose was accomplished. Rex v. Burrows, R. & R. C. C. 519; 1 Russ. 
 C. 4-itf. 561. 
 
 In case of rape, <fcc. the capital offence is completed if there be penetration, although 
 there has been no emission, and the prisoner has been interrupted in the commission of 
 the offence. Rex v. Coxins, 6 Car. <Sc P. 351. 
 
 If in a case of rape the jury are satisfied that non resistance on the part of the prose- 
 cutrix proceeded merely from her being overpowered by actual force, or from her not 
 being able, from want of strength, to resi>t any longer, or that from the number of per- 
 sons attacking her, she considered resistance dangerous and absolutely useless, the jury 
 ought to convict the prisoners of the capital charge; but if they think from the whole of 
 the circumstances that although when the prosecutrix was first laid hold of, it was 
 against her will, yet she did not resist afterwards, because she in some degree consented 
 VOL. I.-;— 54
 
 628 HISTORIA PLACITORUM CORONA. 
 
 The essential words in an indictment of rape are rapuU ($• carna- 
 liter cognovit, bi.it carnuUter cognovit, nor any other circimiloculion 
 
 to what was afterwards done to her, they ought to acquit the prisoners of the capital 
 charge, and convict tliem of an assault only. Ri^g. v. Hallet, 9 Car. iSf P. 748. 
 
 At the time when the 9 Geo. IV. c. 31. passed, it is perfectly clear that in order to 
 constitute the crime of rape, tliere must have been both penetration and emission, conse- 
 quently it lay upon the prosecutor either to give express evidence of actual emis.sion, or 
 to prove sucli facts as were sufficient to induce the jury to infer that emission had actu- 
 ally taken place. In some cases the woman was unable to prove emission, either be- 
 cause she did not perceive it, or (as was the case in Rex v. Frcston, Stafford Spr. Ass, 
 1828, where a father was convicted of ravishing two of his daughters) because alter 
 penetration she fainted away. In such cases it was tlie course to leave it to the jury to 
 infer tiiat emission had taken place, as there was nothing to show that the prisoner had 
 not fully completed his purpose, and acquittals sometimes took place because juries were 
 unwilling to infer a fact which had not been clearly proved, especially when such an in- 
 ference subjected the prisoner to capital punishment. Such being the state of things, the 
 9 Geo. IV. c. 31, was passed; and the question is whether that act has altered the crime 
 of rape so that instead of consisting of both penetratiorl and emission, it now consists of 
 penetration. According to all tlie recent decisions (see Rex v. Great Bently, 10 6. iSf C. 
 520; Wiiliams v. Roberts, 5 Ttjrw. 421; Flight v. Thomas, 11 Ad. &; E. 688.) this 
 oufht to be determined upon the grammatical construction of the words of the statute 
 alone. In sect. 16 there is a separate substantive clause providing that "every person 
 convicted of tlie crime of rape shall suffer death as a felon." Now here the crime is 
 treated as one as clearly settled and defined as the crime of murder, i. e. as consisting of 
 both penetration and emission. It is, however, upon sect. 18 that the question mainly 
 turns. That section recites that " upon trials" for the crimes {inter alia) of rape, offenders, 
 (that is persons guilty of these crimes) "frequently escape by reason of the difficulty of 
 the proof which has been required of the completion of those several crimes," (the mis- 
 chief therefore was tiiat persons who had committed rapes consisting both of penetration 
 and emission, liad escaped by reason of the difficulty of proving both penetration ^and 
 emission) "for remedy thereof, (that is to remedy the escape of persons who had com- 
 mitted such rapes consisting oi^ both penetration and emission,) be it eiiacted thai it shall 
 not be necessary in any of these cases to prove the actual emission of seed," (not that 
 emission shall be no part of the crime) "but that tlie carnal knowledge" (i. e. both pene- 
 tration and emission) "shall be deemed" (presumed) "complete upon proof of penetration 
 only." Now, it is to be observed that there is no intimation whatever of any intention to 
 alter the crime : on the contrary, the clause evidently treats the crime as continuing the 
 same, but is I'ramed to render the means of proving it more easy. It is submitted that 
 upon the true construction of this clause, its effect is, that whereas before the passing of 
 the statute the prosecutor was bound not only to prove penetration, but to go further and 
 give such evidence as satisfied the jury that emission had actually taken place, he is now 
 only bound to prove penetration : on proof of which a presumption arises by virtue of 
 the clause that emission has also taken place, but that this presumption is liable to be 
 rebutted, by showing that in fact emission did not take place. In other words, all the 
 prosecutor has now to prove is penetration, and upon that the jury ought to convict, 
 unless it be proved by the prisoner that he did not in fact complete his purpose. This is 
 the view which seems to have been taken by Alderson, B. in Coultharfs case, (1 Russ. 
 G, 4" M. note, p. 683, 3(/. ed.) and it is ■submitted is the correct construction of the 
 clause. There are several statutory provisions of a similar character, as the 23 Geo. 
 II. c. 11. s. 3. for remedying the difficulties attending prosecutions for perjury, and the 
 statutes which make a certificate of the clerk of assize evidence of a previous conviction, 
 &c. and it is evident that none of these alter the offence, but only facilitate the proof of 
 it. At all events, the clause does not alter the crime, and it is against all the authorities 
 to hold that felony can be created by an}' but express and clear words. In Searle v. 
 miliams, Hob. 2Lt3, it is laid down that " felonies and capital crimes shall never be 
 made by doubtful and ambiguous words." And in Coinlein''s case, Hob. 210, it was 
 "resolved clearly that no statute could be extended to life by doubtful and ambiguous 
 words;" and see Hawk. F. C. c. 41. s. 3. In Rex v. Cale, R. 4- M. C. C. R. 11, it was 
 held by a majority of the judges that the 3 Geo. IV. c. 24. s. 3. which provided that the 
 receiving stolen goods should be '•'■ deemed and construed to be felony," did not create a 
 felony'; and although that case be overruled by Rex v. Solomons, R. iV ^t- ^- ^' ^- 292, 
 still it is a strong authority to show how clear and distinct the words which create a
 
 HISTORIA PLACITORUM CORONA. 628 
 
 without the word rnpiiit are not sufficient in a legal sense to express 
 rape. 1 H. 6. 1. a. 9 E. 4. 26. a.[2] 
 
 new felony, are required to be even where the words be such as to leave no doubt that it 
 was inlendcd to create such felony. It may be added that the decision in Rex v. Cox 
 gives a great facility to convict the innocent in those cases which not uiifrequently 
 occur, where the parties being accidentally discovered in coitu, the woman makes a 
 false charge in order to save her character. Greave^s note, 1 Russ. on Vr, & M. 685 
 3d Land. ed. ^ blh Am. ed. 1845. 
 
 In this country proof of emission seems never to have been required. The State v. 
 Le Blanc, 3 Brev. Rep. 339. In several instances it has been held that as the essence 
 of the crime is the violence done to the person and feelings of the woman, which is 
 completed by penetration without emission, it is sufficient to prove penetration only. 
 Pennsylvania v. Sullivan, Add. R. 143. Stroud v. Com. \l S. Sf R. 177. Com. v. Thomas 
 1 Virginia Cas. 307. 
 
 The slightest penetration is sufficient. Rex v Russen, cited supra. 
 
 In JSew York, penetration alone without emission will support a conviction under the 
 Rev. Stat. 2 Rev. Slat. 663. 
 
 For the statutes of the U. S. see the Crimes Act, 3d March, 1825, sect, 4 and sect 7. 
 
 For the Massachusetts statutes, see Rev. Stat, c. 125, s. 18, ch. 137. s. 11. As to the 
 construction of this stat. see Com. \. Cooper, 15 Mass. R. 197; and see Com. v. Robu 
 12 Pick. R. 496, 507, though this is upon an earlier statute, still as thev are in pari 
 materia, the authority is valuable. Com. v. Goodhue, 2 Mete. Rep. 193. Com. v. Bruce 
 6 Penn. L. J. 236. S. P. on a like act. 
 
 For the New York statutes, see 2 Rev. Stat. 603. sects. 22 &, 23. 
 
 For the New Jersey statutes, see Statutes of N. J. 1847. tit. " Crimes and Punishments " 
 p. 259. §10. 
 
 For the Pennsylvania statutes, see Stroud's Purd. Dig. 904. § 4. Gth ed.; Id. 943. 
 Ith ed. § 36; Act of April 23d, 1829; Stroud's Purd. Dig. 992. 1th ed. 
 
 For statutes of Virginia, see Rev. Code, c. 158, pect, 1 ; Id. c. 258, sect. 3; Act of 
 1837, c. 71. •' 
 
 [^] It must be alleged that the rape was committed with violence and against the will 
 of the woman. 3 Chit. C. L. 815. Also, that she was ravished, alleging merely that the 
 defendant carnally knew her is not sufficient. 1 Russ. C. ^ M. 6«6. It is proper to 
 allege that the defendant carnally knew her, but the omission would, it seems, be cured by 
 verdict. Rex y. Warren, 1 Russ. C. ^ M.3d ed. 686; and see 2 Inst. 180; 2 Hawk. P. 
 C. c. 25. s. 56. An indictment charging that the defendant in and upon A. B. " feloni- 
 ously and Wolently did make [omitting the words "an assault,"] and her, the said A, B. 
 then and there against her will, violently and feloniously did ravish and carnally know," 
 &.C. was held sufficient in arrest of judgment. Reg, v. Allen, 9 C Sf P. 521. It seems 
 necessary to conclude that the offence was against the form of the statute. 1 Russ C Se 
 M. 687. 3d ed; see Rex v. Scott, R. <^ R. 415. 
 
 In Rex V. Burgess and others, Chester Spr. Ass. 1813, upon an indictment charging 
 three persons jointly with the commission of a rape, an objection was taken that three 
 persons could not be guilty of the same joint act, but it was overruled upon the ground 
 thai the legal construction of the averment was only' that they had done such acts as 
 subjected them to be punished as principals in the oiTence. The execution was, how- 
 ever, respited, probably with a view to enable the learned judges to consult other autho- 
 rities on the accuracy of their opinion; but the prisoners were afterwards executed. 
 5 Ev. Col. Stat. CI. 6. p. 244. note (17). 2d ed. and see 1 Russ. C. S( M. 801. 
 
 A general conviction of a prisoner, charged both as pri-ncipal in the first degree, and 
 as aider and abetter of other men in rape, is valid, on the count charging him as prin- 
 cipal. And on such an indictment evidence may be given of several rapes on the same 
 woman, at the same time by the prisoner and other men, each assisting the other in turn, 
 without putting the prosecutor to elect on which count to proceed. Rex v. Folkes, R. & 
 M. C. C. 354; and see Reg. v. Gray, 7 C. Sf P. 164. 
 
 An indictment is good which charges that A. committed a rape, and that R. was pre- 
 sent aiding and assisting hirn in his commission of the felony. Reg. v. Crisham, 1 Car. 
 4" M. 187. In such case the party aiding may be charged either as he was in law, a 
 principal in the first degree, or as he was in fact, a principal in the second degree. lb. 
 See Arch. Crim. P. C. 481. 10(A Lond. Ed.
 
 628 HISTORIA PLACITORUM CORONA. 
 
 To make a rape there must be an actual penetration or res in re, 
 (as also in bnggery) and therefore eiiiissio seniinis is indeed an evi- 
 dence of penetration, but. singly of itself it makes neither rape nor 
 bnggery, but it is only an attempt of rape or bnggery, and is Sjcverely 
 punished by fine and imprisonment. Co. P. C. cap. 10. p. 59. 
 
 But the least penetration maketh it rape or buggery, yea altho 
 there be not emissio seminis. Co. P. C. uhi.supru; the old expres- 
 sio!i was abstiilit ei virginiiatem, and so\nQ{\n\es pucellagium 8uurn. 
 Bract. Lib. Ill.(e) 
 
 And therefore I suppose the case in my lord Coke's 12 Pep. 36. 
 5 Jac. that saith, there must be both, inz. penetratio <§' emissio semi- 
 nis to make a rape or buggery, is mistaken, and contradicts what he 
 saith in his pleas of the crown; and besides, it is possible a rape may 
 be commilteii by some, quihns virgse erectio adsit, <§' emissio seini- 
 nis ex quodam, defectu desi/, as physicians tell us. 
 
 If t/^. actually ravish a woman, and B. and C. were present, aid- 
 ing, and abetting, they are all equally principal, and all subject to the 
 same punishment both at common law and since the statute of ("Feslm. 
 2. de quo infra. 
 
 it appears by Bracton uhi svpra, that in an appeal of rape it was 
 a good exception, quod ante diem S,' annum contentas in appello 
 kabuit earn ul concubinam S,- amicum. t^' inde ponil se super pa- 
 triam, and the reason was, because that unlawful cohabitation car- 
 ried a presumption in law, that it was not against her will. 
 
 But this is no exception at this day, it may be an evidence of an 
 assent, but it is not necessary that it should be so, for the 
 r 629 "I woman may forsake that unlawful course of life. 
 
 But the husband cannot be guilty of a rape committed by 
 himself upon his lawful wife, for by their nuitual matrmionial consent 
 and contract the wife hath given up herself in this kind unto her hus- 
 band, which she cannot retract. [3] 
 
 t^. the husband of B. intends to prostitute her to a rape by C. 
 against her will, and C. accordingly doth ravish her, ./^. being present, 
 and assisting to this rape: in tliis case these points were resolved, 
 1. That this was a rape in C. notwithstanding the husband assisted 
 in it, for tho in marriage she hath given up her body to her husband, 
 she is not to be by him prostituted to another. 2. That the husband 
 being present, aiding and assisting, is also guiliy as a principal in 
 rape, and therefore, altho the wife cannot have an appeal of rape 
 against her husband, yet he is indictable for it at the king's suit as a 
 principal. 3. That in tins case tlie wife may be a witness against her 
 
 (e) De corona, cap. 28./. 147 6. 
 
 [3] A man having^ connexion will) a woman under a deceit practi.«cd on -her, she sup- 
 posinsf him to be her iiusband, i.s not ffuilty of the offence of rape. Rfix v. Jackiion, R. Sf 
 Ry. 487; Rex V. Saunders, 8 Car. Sf /^ 265; Rrx.v. Williams, Id. 286. He might, 
 however, be convicted of an assault under 7 U m. IV. Sf 1 Vict, c, 85. p. 1 1 ; Reg. v. 
 Stanton, 1 Car. Sf Kir. Rep. 415; Hays v. The I'eople, 1 HilVs N. Y.i2e/>. 351; Tlie 
 People V. Metcalf, 1 Wheeler's Cr. Cas. 378. 381.
 
 HISTORIA PLACITORUM CORONA. 629 
 
 husband, and accordingly she was admitted, and A. and C. were both 
 executed. 8 Car. 1. Casus comifis Cas//e/iaven.{f)[4'\ 
 
 If ./^. by force take B. and by force and menace compel ber to 
 marry him, and then with force J?, hath the carnal knowledge of ^. 
 against her will,tho this marriage he voidable, yet it is not so simply 
 void as to enable fier to maintain an appeal of rape against A. for she 
 may by her consent affirm this voidable marriage, and therefore in 
 the like Case, Not. Pari. 15 H. 6. n. 15. there was a special act of 
 parliament to enable the lady Isabel Buffer to bring an appeal of 
 rape against IVilliam Pull in that case notwithstanding that mar- 
 riage ; but that marriage had been dissolvable by a declaratory sen- 
 tence in conrt christian, becanse obtained by a plain force; and if 
 such a dissolution of the marriage had been obtained, then it seems 
 to me, that, if the carnal knowledge of her were forcible and against 
 her will as well as the marriage, that rape was punishable as well by 
 appeal at the suit of the lady, as by indictment at the suit of the king, 
 without the aid of an act of parlian)ent, for it was really a rape, only 
 the marriage de facto was an impediment of its punishment 
 so long as de facto the marriage continued, but now that [ 630] 
 impediment being removed by the declaratory sentence, and 
 the marriage made void ah initio, it is all one as if it had never been, 
 and tho relation be a legal fiction and intenfa ad umtm, yet in this 
 case the marriage and carnal knowledge being one intire act of force, 
 and consecutive one upon another, in the real effect of that first force, 
 it shall remain punishable as if there had been no marriage at all; 
 but the statute of 3 H. 7. cap. 2.{q) hatii provided a remedy in this 
 case, so that this difficulty, need not come in question. 
 
 An infant under the age of fourteen years is presumed by law un- 
 able to commit a rape, and therefore it seems cannot be guilty of it, 
 and tho in other felonies malitia supplet setatem in some cases as 
 ha^ been shewn, yet it seems as to this fact the law presumes him 
 impotent, as well as wanting discretion. [5] 
 
 But he may be a principal in the second degree, as aiding and 
 assisting, tho under fourteen years, if it appear by sufficient circum- 
 stances, that he had a mischievous discretion, as well as in other 
 felonies.[6] 
 
 Thus far of the nature of rape, and who may be culpable of it. 
 Now we will consider upon whom it may be committed, and some 
 other considerations touching this fact. 
 
 (/) See Hat. 115, Rush. Coll. Vol. II. p. 93.— 101. State Tr. Vol. I. p. 366. 12 
 Mod. 340. 
 
 {g) By lliis statute a forcible taking away and marrying a woman against her will is 
 made felony. 
 
 [4] 1 Russ. on C. ^ M. 676. 3d Ed. 
 
 [5] See Com. v. Lniigan, 2 Bost. Law Reporter, 49. Per Thatcher, J.; Rex v. Brom. 
 low, 2 Mood. C. C. 12^ ; Rex v. Groomridge, 7 Car. S^ Pay. R. 562; Best on Presump. 
 22; Reg.x. I'hi'lips, 8 Car. S^ Pay. Ti^;Rex v. Jordan, 9 Id. 118; sed vide Com, v. 
 Green, 2 Pick. R. 380; ante p. 26. note. 
 
 [6] Lord Audley's case, 3 how. St. Tr. 419; Rex v. Elders^aw, 3 Car. Sf P. 391.
 
 630 HISTORIA PLACITORUM CORONA. 
 
 It was doubted, whether a rape conld be committed upon a female 
 child under ten years old, Mich. 13 <S- 14 Eliz. Dy. 304. a. By tlie 
 statute of IS Eliz. cap. 7. it is declared and enacted, " Tliat if any 
 person shall unlawfully and carnally know and abuse any woman- 
 child under the age of ten years, it shall be felony without the benefit 
 of clergy." 
 
 My lord Coke adds the words, either with her will or against her 
 laill, as if were she above the age of ten years, and with her will, it 
 should not be rape; but the statute gives no such intimation ; only 
 declg-res tliat such carnal knowledge is rape. 
 
 And therefore it seems, if she be above the age of ten 
 |] 631 [] years and under the age of twelve years, tho she consent, 
 it is rape. 1. Because the age of consent of a female is not ten 
 but twelve. 2. By the statute of fVestni. 1 cap. 13. Roy defend, que 
 nul ne ravise ne prigne a force damsel deins age, ne per son grce ne 
 sans son grce; and my lord Coke'in his exposition upon that statute(/^) 
 declares, that these words deiiis age must be taken for her age of 
 consent, viz. twelve years, for that is her age of consent to marriage, 
 and consequently her consent is not material in rape, if she be under 
 twelve years old, tho above ten years old, altho tliose words are by 
 some mistake crept into my lord Coke\s definition of rape, Co. P. C. 
 cap. 11. but if she be above the age of twelve years, and consenting 
 at the time of the fact committed, it is not felony.[7] 
 
 (A) 2 Instit. 182. See 4 Bl. Com. 212. 
 
 [7] Attempting to carnally know and abuse a girl between the ages often arid twelve, 
 is not an assault, if tlie girl consents to all that is done, but is a misdemeanor. Reg. v. 
 Mortin, 9 Car. Sf P. 213 ; 2 Mood. C. C. R. 123. The person making such attempt, with 
 the consent of tlie girl, is not indictable for an assault, but is indictable for the misde- 
 meanor of attempting to commit the misdemeanor of carnally knowing and abusing^er. 
 lb. On an indictment for attempting to carnally know and abuse a girl under ten years 
 of age, with a count for a common assault, the attempt was proved, but it could not be 
 shown tliat the child was under ten years of age, and it also appeared that no violence 
 was used by the prisoner, and no actual resistance made by the girl: Held, that although 
 consent on the part of the girl would put an end to the charge of assault, yet there was 
 a great difterence between consent and submission, and that, although in the case of an 
 adult submitting quietly to an outrage of this kind, would go far to show consent, yet, 
 that in the case of a child, the jury should consider whether the submission of the child 
 was voluntary on her part, or was the result of fear, under the circumstances in which 
 she was placed. Reg. v. Day, 9 Car. «Sf P. 722. 
 
 Where the prisoner decoyed a female child into a building for the purpose of ravi.shing 
 her, and was there detected, while standing within a few feet of her, in a state of inde- 
 cent exposure, it was held, that though there was no evidence of his having actually 
 touched her, he was properly convicted of an assault with intent to ravish. Hays v. The 
 People. 1 HiWs N. Y. Rep. 351. Reg.v.Neale, 1 Car. Sf Kir. 591. Arcbb, Crim.Pl. 484. 
 10th Land. Ed. 
 
 An indictment in the first count charged the defendant with having assaulted " E. R. 
 an infant, above the age of ten years, and under the age of twelve years," with intent to 
 carnally know and abuse her; and in the second count charged that the defendant '' un- 
 lawfully did put and place the private parts of him, the said T. M. against the private 
 parts of her, the said E. R. and did then and there dniawfully attempt and endeavour to 
 carnally know and abuse her, the said E. R." Held, that the second count was bad, as it 
 did not allege that E. R. was between the ages of ten and twelve : Held also, that the 
 words " the said E. /^." merely meant that she was the person as mentioned in the first
 
 HISTORIA PLACITORUM CORONA. 631 
 
 • But if she were above the age of twelve years, and consented upon 
 me.nace of death, if she consented not, this is not a consent to excuse 
 a rape. 5 E. 4. 6. a. Dalt. cup. 107 {i) 
 
 And therefore that opinion of Mr. F/zic// cited by Daltonubi sitprOf 
 . ajid by Stamford, cap. 14. fol. 24. out o( Bri/fon, that it can be no 
 rape, if the woman conceive with cliild, seems to be no law, rnulier 
 erihni vi oppressa concipere potest. 
 
 If the woman consented not at the time of the rape committed, 
 bnt consented after, she shall not have an appeal of rape by the statute 
 of fV-estm. 2. cap. 34. but yet the king shall have the suit by indict- 
 ment, and by the statute of 6 R. 2. cap. 6. if she have a husband, he 
 shall have an appeal, and if she have none, then her father or other 
 next of blood shall have an appeal of such rape; and by the same 
 statute as well the ravisher as the ravished, that so assented, are dis- 
 abled to have any dower, inheritance or jointure; and the next of 
 blood of such ravisher or assenting ravished, to whom their lands 
 should revert, remain or fall after their death, shall enter upon the 
 same, and hold it as an estate of inheritance. 
 
 But an assent after through menace of death is not such an assent, 
 as Incurs this penalty; quod vide 5 E. 4. 6. a. 
 
 As in other felonies, so in this there are or may be acces- 
 saries before and after, {ox tlio this be a felony by act of par- [ 632 ] 
 liament, that s[)eaks only of those that commit the offense, 
 yet consequentially and incidentally accessaries before and after Sive. 
 included, and so in every new statute making a felony without speak- 
 ing of accessaries before or after. Co. P. C. cap. 10. p. 59. and so in 
 buggery. 
 
 And note, that at the time of the making of the statute of 13 E. 1. 
 
 , . (i) New Edit, cap. 160. p. 524. 
 
 Cotint, but that those words did not impart into the second count the description of E. R 
 with respect to her age. Re^. v. Martin, 9 Car. Sf F. 215. A count charging A. with a 
 rape, as a principal in the first degree, and B. as a principal in the second degree, may 
 be joined with another count, charging B. as principal in the first degree, and A, as 
 principal in the second degree. Rex v. Gray, 7 Car. Sf P. 164. 
 
 The first count of an indictment charged an assault with intent to ravish: the second 
 a common assault. The record went on to state that the jury found the defendant guilty 
 of the misdemeanor and offence in the said indictment specified, in manner and form as 
 by Ihe said indictment is alleged against him, and the judgment was imprisonment and 
 hard labour: Held, on writ of error, that the " misdemeanor" was novem coUectivum, and 
 that the finding of the jury was in effect, that the defendant was guilty of the whole 
 matter charged, and that the judgment was therefore warranted by the verdict. Rex v. 
 Fowell, 2 B. 1^ Adol. 75. 
 
 The words " forcibly and against the will," are necessary in tiie indictment. See Resr. 
 V. Stanton, before cited, p. 628, though in Pennsylvania it has been held in the case of 
 Harmon v. The Com. 12 Ser. Sf R. 69, (Arc. Com. v. Bennett, 2 Virg. Cas. 235,) that 
 their omission was not fatal, when it was charged that the defendants " feloniously did 
 ravish and carnally did know her." Where an indictment for a rape charged that the 
 defendant " with force and arms, &c. in and upon one Mary Ann Taylor, in the poace 
 of the State, &c. violently and felrtBiously did nuke an assault, and her the said Mary 
 Ann Taylor, then and tiiere violently and against her will, feloniously did ravish and 
 carnally know," it must be shown with certainty that Mary Ann Taylor was a female 
 The State v. Farmer, i Iredell, R. 224.
 
 632 HISTORIA PLACITORUM CORONA. 
 
 rape was not felony, for it had long continued under the nature only, 
 of a misdemeanor and not a felony, and therefore it is not at this day 
 inqnirable in a leet, because it is a felony nevvlv created. 6 H. 7.4. b. 
 22 E. 4. 22. a. 
 
 The regular means of bringing this offense to judgment was either 
 at the suit of the king by indictment, or at the suit of the parly by 
 appea^. 
 
 The indictment ought to have these ingredients. 1. It must be 
 felonice. 2. It must he rupuit &; carnaUter cognovit. 3. It must 
 conclude contra formam slaluti 13 4* 14 Eliz. Dy. 304. a. See 
 ante p. 628. note. 
 
 It may be prosecuted by indictment at any time, /or nullum itm- 
 pus Qccurrit re,s^i. 
 
 An appeal of rape hes for the party ravished, and if she consent 
 after the rape, she is barred of her appeal, and her husband, if mar- 
 lied, or the next of kin, if single, may have the appeal by the statute 
 of 6 R. 2. cap. 6.[S] 
 
 If the next of km were the ravisher, his next of kin shall have the 
 appeal by the equity of the statute of 6 jR. 2. 28. H. 6. Coron. 459. 
 
 As to the appeal of the party ravished two things are necessary, 
 1. That she make fresh discovery and pursuit of the oflense and ofien- 
 dcr, otherwise it carries a presumption that her suit is but malicious 
 and feigned; this Bracton at large describes Lib. III. cap. 2S.f. 147. 
 a. Cum igitur virgo corrupta fuerit & oppressa, slatim cum factum 
 lecens fuerit cum clamore &. hutesio debet accurrere ad villas vicinas, 
 & ibi injuriam sibi illatam probis hominibus ostendere, sanguinem & 
 vestes suas sanguine tincfas & vestium scissuras, & sic ire debet ad 
 pra^positum hundredi .Sc ad servientem domini regis, & ad coronatores 
 & vicecomitem, & ad primum comitatum facial appellum, 
 [] 633]] Ǥ'C. 2. That the appeal be speedily prosecuted, for it seems, 
 that a year and a day be not allowd in this appeal, but some 
 short time, tho it be not defined in law what time, but lies much in 
 the discretion of the court upon the circumstances of the fact, yet the 
 statute of JVestm. 1. cap. 13. allowd but forty days: long delay of 
 prosecution in such a case of rape always carries a presumption of a 
 malicious prosecution. 3. If the wife hath once consented after, her 
 appeal is barred. 
 
 By the statute of IS Eliz. cap. 7. the principals in rape are ousted 
 of clergy, whether they be principals in the first degree, viz. he that 
 committed the fact, or principals in the second degree, viz. present 
 aiding, and assisting; but accessaries before and after have their 
 clergy.[9] 
 
 Touching the evidence in an indictment of rape given to the grand 
 jury or petit jury.[10] 
 
 [8] Appeal for rape is now abolished. See 59 Ge^ III. c. 46. 4 Steph. Com. 385. 
 [9] Abolished by 7 & 8 Geo. IV. c. 28. See 4 Slept. Com. 121. 
 
 [10] Tl)e fact of the woman having made a complaint after the commission of the 
 alleged rape is evidence, but not, it seems, the particulars of such complaint : R. v. Walker,
 
 HISTORIA PLACITORUM CORONA. 633 
 
 The party ravislied may give evidence upon oath, and is in law a 
 competent witness; but the credibility of her testimony, and how far 
 forth she is to be beheved, must be left to the jury, and is more or 
 less credible according to the circumstances of fact tliat concur in that 
 testiniouy. 
 
 2 Mno. Sf Rob. 212; 1 Russ. C. Sf M. -by Greaves, 3d ed. 689, even though the woman is 
 dead; Retr. v. Megson, 9 C ^ F. 420. And where the woman is absent, it is not allow- 
 able to prove that she made a complaint soon after the alleged rape ; for such evidence 
 is merely confirmatory of the story of the woman, and no part of the res gestcB. Reg. v. 
 GuUridgfi,0 C. Sf I'. 471. 
 
 The defendant may give evidence of the woman's notoriously bad characler, for want 
 of chastity or common decency,, or that she had before been connected with the prisoner 
 himself; but he cannot aive evidence of any otlier particular facts to impeach her chas- 
 tity. Rrx V. Hodgson, R. Sf R. 211; I Phil. Ev 190; Rex v. Clarke, 2 Stark. 243. So 
 what she herself said so recently after the fact, as to yeclude tlie possibility of her being 
 practised, has been holden to be admissible in evidence as a part of the transaction, but 
 the particulars of her complaints are not evidenee of the trutli of her statements. Rex v. 
 Brazier, I East's P. C. 444; Rex v. Clarke, 2 Sturk, 241. The woman, however, is not 
 compellable to answer whether she had any connexion with other men, or with a parti- 
 cular person named; nor is evidence of tier liaving liad such, connexion admissible. Rex 
 V. Hodgson, R. Sf R. 211. 
 
 On tire trial of an indictment for rape, it was held that the prisoner's counsel might 
 ask the prosecutrix the following questions, with a view to contradict her, " Were you 
 not, &c. (since the time of the alleged offence) walking in High street, at Oxford, to look 
 out for men?" " Were you not on, 6lc. (since the time of tiie alleged offence) walking 
 in High street with a woman reputed to be a common prostitute?" It was also held, 
 that evidence might be adduced by the prisoner to show the general light character of 
 the prosecutrix, and that general evidence might be given of her being a street walker; 
 but semble, that evidence of specific acts of criminality by her, would not be admissible. 
 Rrx V. Barker, S C. Sf P. 589; Rex v. Martin, 6 C. S( P. 562. 
 
 The party grieved is so much considered as a witness of necessity, in this as in other 
 personal injuries, that if one man assist another man to ravi.sh his own wife, she is ad- 
 missible as a witness against hini. Lord Audley's case, 3 HoweWs St. JV. 419, cited in 
 1 East's P. C. 444, 
 
 Punishment. — By the 9 Geo. IV, c. 31, s, 16, this offence was punishable with death; 
 but now by the 4 &. 5 Vict. c. 56. s. 3, reciting the 9 Geo. IV. c. 31. ss. 16 & 17, it is 
 enacted, '' That from and afler the commencement of this act (ls< October, 1841) if any 
 person sliall be convicted of any of the said offences hereinbefore last specified, such per- 
 son shall not be subject to any sentence, judgment, or punishment of death, but shall, 
 instead of the sentence or judgment in and by the said act hereinbefore last recited, or- 
 dered to be given or awarded against such persons convicted of the said last mentioned 
 offences, or any of them respectively, be liable to be transported beyond the seas for the- 
 term of his natural life." As to punishment of accessaries, see 9 Geo. IV. c, 31, s. 31, 
 
 Evidence. — A prisoner may be convicted of rape, upon the unsupported evidence of an 
 infant under years of discretion, if the jury are satisfied that the evidenee is such as to 
 leave no reasonable doubt of the prisoner's guilt. Anon 1 Russ. C. Sf M. 556. In cases 
 of carnal knowledge of children, the infant witness, though under seven years of age, if 
 advised of the nature of an oath, must be sworn. Rex v. Brazier, 1 Leach, C. C. 199; 
 1 East, P. C. 443. And see Rex v. Bunnell, 1 East, P. C. 442. 
 
 A prisoner was charged with carnally abusing a child under ten years old, on Febru. 
 ary 5, 1832. To prove the child under ten years old, an examined copy of the register 
 of her baptism, on February 9, 1822, was put in, and the child's father stated that he 
 lelt his house about a week before the 9th of February, 1822, his wife not being then 
 confined, and that on his return on that day, he found this child, and was told by his 
 wife's mother that it had been born on the day before: Hfld, that this was not sufficient 
 evidence of the child's being under ten years old. Rex v. Wedge, 5 Car. ^ P. 298. 
 
 On the trial of an indictment for a rape, the prosecutrix may be ask^d, whether pre- 
 viously to the commission of the alleged offence, the prisoner had not intercourse with 
 her by her own consent. Rex v. Marlin, 6 Car. Sf P. 562, A defendant will be acquitted
 
 633 HISTORIA PLACITORUM CORON^E. 
 
 For instance, if the witness be of good fame, if she presently dis- 
 covered the ofl'ense made pursuit after the oflender, shewed circum- 
 stances and signs of the injury, whereof many are of that nature, that 
 only women are the most proper examiners and inspectors, if the 
 place, wherein the fact was done, was remote from people, iuhaln- 
 tants or passengers, if the offender fled for it ; these and the like are 
 concurring evidences to give greater probability to lier testimony, 
 when proved by others as well as herself. 
 
 But on tiie other side, if she concealed the injury for any consider- 
 able time after she had opportunity to complain, if the place, where 
 the fact was supposed to be committed, were near to inhabitants, or 
 common recourse or passage of passengers, and she made no outcry 
 when the fact was supposed to be done, when and where it is pro- 
 bable she might be heard hv others ; these and the like circumstances 
 carry a strong presumption, that her testimony is false or feigned. 
 
 If the rape be committed upon a child under twelve years 
 [ 634] old, whether or how she may be admitted to give evidence 
 may be considerable.(*) 
 
 (*) For she might at that age maintain an appeal pro raptij, Pasch. 33. E. 1. Rot. 16. 
 in dorso. London. Coram Rige. Ja7nes Pochin merchant was attached, and brought 
 Cornm Rege to answer to Isabel daughter of Emma de Lnngeleijr. de raptu «.y pace reiiis 
 fractd, who appeal'd him alter tiiis marmer, per qucndatn narratorem suiim diren^, — 
 Isabella yi/!7a Emmae de L'angcleye, de state novem annoruin S^' dimidii dicit, quod pr(t- 
 dictus Jacobus die dominica proximd post fe stum sancti Martini, anno R. R. E. 33, apnd 
 London in altd strata regis ex oppositu ecclcsicc sancti Beneilicti de Scherhog liora vesper- 
 tina ipsam Isabellam cepit, ^ in qiiddam tab'ernd sua portamty ^ contra pacem domini 
 reiris cittii ed concuhuit, ^ virginitatem siiam rapttit; ^- petit quod jastitinrii domini regis 
 super hoc sihi facia nt justitiam. <^" remedium. Et queritiir, quod pradicta transgressjo 
 sibi facta fuit die ^ anno pncdictis ad dampnum ipsius Isabella; centum liirarum, i^c. 
 Et prcedictus Jacobus venit,'^- defendit oinnem feloniam, raptum, &^c. El pelis ullocan- 
 tiam de appello ipsius Isabellai ; deslcut ipsum Jacobum per verba in appello usualia, Sf 
 necessaria, ac convenientia, non appMat, Et quia constat curia quod appellum, ^c. in- 
 sufficiens est, consrderatum est, quod pradicla Isabella committntur marescallo; ^ postca 
 ei remittitur prisona, ^- prccdictus Jacobus quoad appellum ipsius Isabellas eat inper- 
 petuum quietus, Sfc. He was then arraigned at the king's suit de raptu prtedicto, and was 
 tried, and convicted; but the king afterwards remisit presdicto Jacobo judicium vita Sf 
 membrorum; 6^ quod faciat redemptionem pro delicto prcadicto, S^ Jinem fecit cum domino 
 rege per centum libras. 
 
 in an indictment for an assault with intent to ravish, if the evidence amounts to proof of 
 an actual rape. Rex v. Harmwood, 1 Russ. C. S^ M. 560, 564; 1 East, P. C. 411. Under 
 an indictment for an assault with intent to commit a rape, the defendant may impeach 
 the prosecutrix's character for chastity, by general but not particular evidence. Rex v. 
 Clarke, 2 Stark, 241. But the character of tiie prosecutrix as to general chastity, may be 
 impeached by general evidence. lb. The fact of her making complaint of tiie outrage, 
 and the state in which she was at the time of making tiie complaint, are evidence. lb. 
 
 On an indictment for an assault with an intent to commit a rape, evidence that the 
 prisoner, on a prior occasion, had taken liberties with the prosecutrix, is not receivable to 
 show the prisoner's intent. Rex v. Lloyd, 7 Car. Sf P. 318. In order to convict on a charge 
 of assault, with intent to commit a rajie, the jury must be satisfied, not only that the pri- 
 soner intended to gratify his passions on the person of the prosecutrix, but that he 
 intended to do so at all events, and notwithstanding any resistance on her part. Ih, 
 
 In an indictment for a rape, the deposition of a girl taken before the committing ma- 
 gistrate and signed by him,. may, after her death, be read in evidence at the trial of-the 
 prisoner, althougii it was not signed by her, and she was under twelve years of age, pro- 
 vided she was sworn, and appeared competent to take an oath, and all the facts necessary 
 to complete the crime may be collected from her testimony so given in evidence. Rex v. 
 Flemming, 2 Leach, C. C. 854 ; 1 East, P. 0. 440.
 
 HISTORIA PLACITORUM CORONA. 634 
 
 It seems to me, that if it appear to the court, that she hafh that, 
 sense and understanding that she knows and considers the ohMgatioii 
 of an oath, tho she' be under twelve years, she may be sworn; thus 
 we find it done in case of evidences against witches, an infant of nine 
 years old was sworn. Dalt. cap. 111. 77. 291. {k) 
 
 But if it be an infant of such tender years, that in point of discre- 
 tion the court sees it unfit to swear her, yet I think she ought to be 
 heard without oath to give the court information, tho singly of itself 
 it ought not to move the jury to convict the offender, nor is it in itself 
 a sufficient testimony, because not upon oath, without concurrence 
 of other proofs, that may render the tiling probable; and my reasons 
 are, 1, The nature of the oflense, which is most times secret, and no 
 other testimony can be had of the very doing of the fact, but the 
 party upon whom it is committed, tho there may be other concur^ 
 rent proofs of the fact when it is done. 2. Because if the child com- 
 plains presently of the wrong done to her to the mother or other 
 relations, their evidence upon oath shall be taken, yet it is but a nar- 
 rative of what the child told them without oath, and there 
 is much more reason for the court to hear the relation of the [ 635 ] 
 child herseh^, than to receive it at second-hand from those 
 that swear they heard her say so; for such a relation may be falsi- 
 fied, or otherwise represented at the second-hand, than when it was 
 first delivered. 
 
 But in both these cases, whether the infant be sworn or not, it is 
 necessary to render their evidence credible, that there should be con- 
 current evidence to make out the fact, and not to groiuid a con- 
 viction singly upon such an accusation with or without oath of an 
 infant. 
 
 For in many cases there may be reason to admit such witnesses to 
 be heard, in cases especially of this nature, which yet the jury is not 
 bound to believe; for the excellency of the trial by jury is in that 
 they are the triers of the credit of the witnesses as well as the 
 truth of the fact; it is one thing, whether a witness be admissible 
 to be heard, another thing, whether they are to be believed when 
 heard. 
 
 It is true rape is a most detestable crime, and therefore ought se- 
 verely and impartially to be punished with death; but it nnist be 
 remembered, that it is an accusation easily to be made and hard to 
 be proved, and harder to be defended by the party accused, tho never 
 so innocent. 
 
 I shall never forget a trial before myself of a rape in the county of 
 Sussex. 
 
 There had been one of that county convicted and executed for a 
 rape in that county before some other judges about three assizes 
 before, and I suppose very justly: some malicious people seeing 
 how easy it was to make out such an accusation, and how difficult it 
 was for the party accused to clear himself, furnished the two assizes 
 
 (k) New Edit. p. oil. -
 
 635 HISTORIA PLACITORUM CORONA. 
 
 following with many indictments of rapes, wherein the parties ac- 
 cused with some ditficulty escaped. 
 
 At the second assizes following there was an antient wealthy man 
 of about sixty-three years old indicted for a rape, which was fully 
 sworn against him by a young girl of fourteen years old, and a con- 
 current testimony of her mother and father, and some other rela- 
 tions. The antient man, when he came to his defense, 
 [ 636 ] alledged that it was true the fact was sworn, and it was not 
 possible for him to produce witnesses to the negative; but 
 yet, he said, his very age carried a great presumption that he could 
 not be guilty of that crime; but yet he had one circumstance more, 
 that he believed would satisfy the court and the jury, that he 
 neither was nor could be guilty; and being demanded what that 
 was, he said, he had for above seven years last past been afflicted 
 with a rupture so hideous and great, lliat it was impossible he could 
 carnally know any woman, neither had he upon that account, during 
 all that time carnally known iiis own wife, and ofiered to shew the 
 same openly in court; which for the indecency of it I declined, but 
 appointed tlie jury to withdraw into some room to inspect this un- 
 usual evidence; and they accordingly did so, and came back and 
 gave an account of it to the court, that it was impossible he should 
 have to do with any woman in that kind, much less to commit a 
 rape, for all his bowels seemed to be fallen down in those parts, that 
 they could scarce discern his privities, the rupture being full as big 
 as the crown of a hat, whereupon he was acquitted. 
 
 Again, at Northampton assizes, before one of my brother justices 
 upon the Nisi prins, a man was indicted for the rape of two young 
 girls not above fourten years old, the younger somewhat less, and 
 the rapes fully proved, tho' peremptorily denied by the prisoner, he 
 was tlierefore to the satisfaction of the judge and jury convicted ; 
 but before judgment it was most apparently discovered, that it was 
 but a malicious contrivance, and the party innocent; he was there- 
 fore reprieved before judgment. 
 
 , I only mention these instances, that we may be the more cautious 
 upon trials of offenses of this nature, wherein the court and jury 
 may with so much ease be imposed upon without great care and 
 vigilance; the heinousness of the offense many times transporting 
 the judge and jury with so much indignation, that they are over 
 hastily carried to the conviction of the person accused thereof, by 
 the confident testimony sometimes of malicious and false witnesses.
 
 HISTORIA PLACITORUxM CORONA. 637 
 
 CHAPTER LIX. 
 
 CONCERNING THE FELONY DE UXORE ABDUCTA SIVE RAPTA CUM 
 BONIS VIRI, SUPER STATUTUM WESTM. 2 CAP. 34. 
 
 The words of the statute are, De mulierihus abductis cum bonis 
 virorum siioriim habeat rex sectam de bonis sic asportatis. 
 
 This part of the statute hath affinity with what goes before in the 
 same statute concerning rape; and tho this learning hath been long 
 antiquated, yet it is of use to be known. 
 
 If a wife goes away of her own consent with another man, and 
 takes with her the goods of the husband, this seems to be felony 
 neither in the man nor in the wife, tho Dalt. cap. 108. p. 266. («) 
 takes it to be a felony in the man that takes her and the goods; but 
 it is a tresf)ass, for which at common law the husband may have an 
 action of trespass, quare iixoreni suarn cepit <5* abduxit cunt bonis 
 viri. 
 
 But if Ji. take the wife of B. against her will with the goods of 
 her husband, but doth not actually ravish the wife, it is felony as to 
 the goods, for which the party may be indicted; but as to the 
 taking away of the wife it is but a trespass, for which the husband, 
 may have his action of trespass at common law, quare uxorern 
 suam rapnit <^' earn cum bonis S,' catallis ad valenC , 8fc. abduxit 
 4' adhuc detinet, and in that action shall recover damages for the 
 taking of his wife and goods at common law. 
 
 But it should seem, that he mi^lit have his actfon grounded upon 
 the statute of fVes/m. 2. which differs only in this from a trespass at 
 common law, 1. That the trespass at common law is pone per 
 radios, S)-e. but this is ai/achies, 14 H. 6. 2 b. Again, 2. The writ 
 at common law is general, but this upon the statute con- 
 cludes contra formam statuti, quod vide Fitz. N. B. 89. f 638 "l 
 9 H. 6.2 a. . 
 
 But without question, if the wife were actually ravished and the 
 goods taken, this action lies for the husband, and he shall recover 
 damages for the rape as well as the goods, tho the wife were dead 
 or divorced after the rape. 44 ^Issiz. 13. 47 E. 3. Jiclion sur 
 statute 37. 
 
 . And it seems such an action was antiently in the nature of an 
 appeal of rape and robbery grounded upon the statute of Westm. 2. 
 
 And by the antrent law the defendant being convicted in a writ 
 founded upon this statute, as before, was to have judgment of death, 
 which appears most evidently by the ordinance of parliament. Rot. 
 Fart. 8 E. 2 M. 3. and afterwards sent by Mittimus into the king's 
 bench, T. II E. 2. Iiot. 4. London, which recites, that in such case 
 
 (a) New Edit. p. 504.
 
 638 HISTORIA PLACITORUM CORON.^. 
 
 the defendant was not bailable, Eo quod idem implacitatits^ si 
 hiiJHsmndl trans2;ressione cnnvictiis faisset, siispensioni udjndicari 
 deheret, and therefore provides, that the defendant, if of good fame, 
 shall be bailed. 
 
 And according to this are the books 13 JJssiz. 5. 15 E. 3. Ulfa- 
 garie 49. Coron. 122. 18 E, 3. 32. a. and a case of a vicar cited to be 
 13 E. 2. who had his clergy in this case, but it should seem it was 
 intended, 1. When a rape was actually committed, vide 44 Jlssiz. 13. 
 and 2. When the action was grounded upon the statute, and not 
 barely at common law. 
 
 But the law hath been long disused to give a capital judgment 
 upon this writ, and in process of time nothing, as it seems, was 
 recovered but damages, tho the writ were brought npon tiie statute, 
 for rapuit is now intended of a simple taking. 9 Eliz. Bij. 256. b. 
 2 Co. Instit. 435. super IVestm. 2 cap. 34. 4"3 E. 3. 23. a. 
 
 And it seems the law was accordingly taken, for the statute of 
 6 2i. 2. cap. 6. gives an appeal to the husband for the rape of his 
 wife in some cases, which it needed not have done, if by the law, as 
 it was then used, the husband might upon such a writ convict the 
 party, and obtain judgment of death against him. 
 
 * And besides, it was very inconvenient, that in a civil 
 
 [639] action formed for damages, and that wants the material 
 terms of law to express a felony, (namely carualife?' cogno- 
 vit and felonicl) judgment of death should be given, and so this 
 course expired of itself.(l) 
 
 [1] The offence of abduction may Ije divided into two clauses— ;^rs^ the forcible taking 
 away of a woman on account of her fortune, with intent to marry her or defile her; and 
 secondly, the unlawful abduction of a girl under the age of sixteen from her parents or 
 guardians. 
 
 The 9 Geo. IV. c. 31. s. 19. enacts, "That where any woman shall have any interest, 
 whether legal or equitable, present or future, absolute, conditional, or contingent, in any 
 real or personal estate, or shall be an lieiress, presumptive, or next of kin to any one 
 having sucli interest, if any person shall, from motives of lucre, take away or detain such 
 woman against her will, with intent to marry or defile her, or to cause her to be married 
 or defiled by any other person ; every such offender, and every person counselling, aiding 
 or abetting such ofiender, shall be guilty of felony, and being convicted thereof, shall be 
 liable to be transported beyond the seas for life, or for any term not less than seven years, 
 or to be imprisoned, with or without hard labour, in the common gaol or house of cor- 
 rection, for any term not exceedmg four years." And the act repeals the 3 Hen. VII. 
 c. 2; o9 Eliz. c. 9; and 3 Edw. I. c. 13; 1 Geo. IV. c. 115; as also so much of 6 Rich. 
 St. 1. c. 6. as relates to ravishers, and to women ravished. 
 
 It is not necessary, as was the case under the prior statutes, that an actual marriage 
 or dejilement should take place. Under the present act, the taking or detaining, for the 
 purpose of lucre, coupled with an intent to marry or defile, constitutes the offence. The 
 taking must be against the will of the woman. It seems, liovvever, that although it be 
 with the will of the woman, yet if that be obtained by //Y/urf practised upon her, the case 
 will be within the act. Wakefield'' s case, Lancaster, March Assizes, 1827; Dene. C. 
 Laic, 4. It is no excuse that the woman was at first taken away with her own consent, 
 if she afterwards refuse to continue with the offender, because if she so refuse she may 
 irom that time as properly be said to be taken against her will, as if she had never given 
 any consent at all ; for till the force was put upon her, she was in her own power. 1 Hawk. 
 c. 41. s. 7; 1 Russ. 571. Moreover, the detaining against her will is an offence. It 
 seems also, it is not material whether a woman so taken contrary to her will, at last con- 
 sent thereto or not, if she were under the force at the time, for the offence is complete at
 
 HISTORIA PLACITORUM CORON.E. 639 
 
 the time of taking-. Fullwood's case, Cro. Car, 48^; Sevcndon's case, 5 St Tr. 459; 
 Hawk. c. 41. s. 8. 
 
 It will be observed that the above enactment expressly makes accessaries before tlie 
 fact liable as principals, which was a doubtful point under the prior statutes. 
 
 The indictment must set forth that the w-oman taken away had the property, or that 
 she was jieiress presumptive, &c. as required by the act, in order to show defendant's 
 interested motives. Moulin v. Sir G. Dullison, Vro. Car. 484. '1 he place and manner 
 of taking must also be set forth in the proceedings. Jd. ibid. It must also be alleored, 
 that the taking was against her will, and that it was for lucre, {Burton v. Morris, Hob. 
 182; 1 Hawk. c. 41. s. 5;), and with an intent to marry or defile. 
 
 To sustain the indictment, the prosecutor should look to the averments in it, and prove 
 them accordingly, and in the order stated in such indictment, as that the woman was 
 possessed of the real or personal estate, or was the heiress presumi)tive, or nest of kin to 
 some one having the property required by the act. It should be proved that the defend- 
 ant, from motives of lucre, took away or detained the person mentioned in tlie indict- 
 ment, against her will, and the jury ought not to convict tlie prisoner unless they are 
 satisfied that the prisoner committed the offence from motives of lucre; but evidence of 
 expressions used by the prisoner respecting the property of the lady, such as his stating 
 that he had seen the will of one of her relatives, (naming him) and that she would have 
 £'220 a year, are important for the consideration of the jury in coming to a conclusion 
 whether the prisoner was actuated by motives of lucre or not. Reg. v. Barratt, 9 Car, 
 4- P. 387. 
 
 A prisoner was taken into custody at the house of his brother, oh a charge of abduc- 
 tion. When he was taken, a letter was found in a writing desk, in the room where he 
 and his brother were. The letter was directed to a person in the neighbourhood of the 
 prisoner's late residence. The police officer was going to open it, when the prisoner told 
 him it had nothing to do with the business he had come about; held, that the letter was 
 receivable in evidence on the trial of the prisoner for the abduction. lb. 
 
 The party injured, though the force continued till the time of the marriage, will be a 
 good witness for or against the offender, because she is not his wife de jure, and may 
 herself swear to the compulsion. Seveudon's case, 5 Harv. i^t. Tr. 456; Brown's case, 
 1 Ventr. 243; Fullwood's case, Cro. Car. 488; Rex v. Parry, 1 Hawk. c. 41. s. 13; 
 
 1 Greenl. Ev. s. 343. 
 
 But some writers seem to think that where the actual marriage was good in conse- 
 quence of a subsequent consent, the wife cannot be sworn; though the better opinion 
 seems to be that the offender should not be allowed to take advantage of liis o\yn wrong, 
 and that the act of marriage, which is the completion of his offence, should not be con-. 
 Ptrued to disqualify the witness on whose testimony he may be convicted. 4 Bla. Com. 
 209; 1 East, P. C. 454; Rex v. Wakefield, supra. 
 
 Punishment. — This crime is a felony, and punishable Accordingly with transportation 
 for life, or for not less than seven years, or with imprisonment with or without hard labour 
 for not more than four years. 9 Geo. IV. c. 31, s. 19. By sect. 31 of tlie same act ac- 
 cessaries after the fact are punishable with imprisonment with or without hard labour 
 not exceeding two years. 
 
 Abduction'of Girls under sixteen. — The 9 Geo. IV. c. 31, s. 20, enacts, "That if any 
 person shall unlawfully take, or cause to be taken, any unmarried girl being under the 
 age of sixteen years out of the possession and against the will of her father or mother, 
 or of any other person having the lawful care or charge of her; every such offender 
 shall be guilty of a misdemeanor, and being convicted thereof shall be liable to suffer 
 such punishment by line or imprisonment, or by both as the court Shall award." And 
 the act repeals 4 & 5 f*. 4- M. c. 8. 
 
 This provision was passed in order to meet those cases where the girl is of so tender 
 an age that she might be easily imposed on, and her consent obtained. It alters the law 
 as it stood under the 4 &. 5 P. Sf M. c. 8. 
 
 An illegitimate child appears to be within the act. Rex v. Cornforth and others, 
 
 2 Stra. 1162; better reported in Bolt, by Const. Rex v. Sweeting, 1 East, P. C. 457; 
 and see Moritz v. Garnhard, 7 Walts, R. 3U3, where this case is cited and approved by 
 Gibson, Ch. J. The mother retains her authority though she marry again, and the 
 assent of the second husband is not material. Ratcliffe's case, 3 Rcp.33.^ 
 
 But the. statute extends only to the custody of the 7nother where the father has not 
 disposed of the custody of the child to others. Id.
 
 639 HISTORIA PLACITORUM CORONA. 
 
 It seems that if tlie takings were witli tlie consent of the parent or person having- the 
 charge of the child, no rcstriciion could do away with the etTcct of such approval. 
 Calthorpe v. Arlell, 3 Mod. 169; 1 East. P. C. 457. 
 
 Under the prior act it was holden, that if a parent place a daughter under the care of 
 another, who by collusion marries her to liis own son, the case was not within the act 
 if the marriage were solemnized in a parish church, at a canonical hour, and without 
 any attempt at privacy. 3 Mod, 88. The principle of this case was disputed by Mr. 
 East, who contended that it would protect a schoolmistress in disposing of the flsmale 
 infants under her care in marriage, when it is manliest no power of that kind is ever 
 deputed, but is impliedly reserved by the parent. 1 East, P. C. 457. 
 
 And where a man by false and fraudulent representations, induced the parents of a 
 girl between ten and eleven years of age to allow him to take her away, such taking 
 away has been considered an abduction within this statute. Reg. v. Hopkins, 1 Car. 
 Sf M 254. 
 
 It appears to be an offence at common law to take a child from her parents or guar- 
 dians, or others entrusted with the care of her, by any sinister means, either by vio- 
 lence, deceit, conspiracy, or any other corrupt or improper practice, as by intoxication, 
 for the purpose of marrying her, although she herself might have consented to the mar- 
 riage. 1 East, P. C. 45!); Rex v. Twisleton, I Lev. 257; Rex v. Lord Ossullon, 2 Stra, 
 11U7; Rex v. Lord Grey, 3 St. Tr.; 3 Chit. C. L. 713; and see Mifflin v. Com. 5 H^. ^ 
 (S. Rep. 461, opinion of Gibson, C. J. 
 
 No particular suggestions as to the framing the indictment are necessary. The usual 
 allegation of the girl being unmarried is sufficient. Rex v. Moore, 2 Lev, 179; Rex v. 
 Boyal, 2 Burr R. 832, 
 
 'I'lie prosecutor should be prepared to prove that the defendant took away the girl out 
 of the custody of the parent or temporary guardian; that she was under sixteen years 
 of age ; that the taking was against such parent's or guardian's consent, and for which 
 purpose any of these parties may be called. 
 
 This offence is a misdemeanor, and punishable by fine or imprisonment, or by both as 
 the court think fit. See the 9 Geo, IV. c. 31, s. 20. See 1 Burns's Just. 29 ed. Load. 
 1845, tit. "Abduction." 
 
 It appears to be the better opinion, that if a man marry a woman under age, without 
 the consent of her fatiier or guardian, it will not be an indictable offence at common law. 
 1 East, P. C.c. U.S. 9. p. 458. But if children be taken from their parents or guardians, 
 or others entrusted with the care of them, by any sinister means, either by violence, deceit,' 
 conspiracy, or any corrupt or improper practice, as by intoxication, for the purpose of 
 marrying them, it appears that such criminal means will render the act an offence at 
 common law, though the parties themselves may be consenting to the marriage. 3 Chit- 
 ty''s Cr. Law, 713. 
 
 And seduction may be attended with such circumstances of combination and conspi- 
 racy as to make it an indictable offence. A case is reported, where Lord Grey and otiiers 
 were charged, by an information at common law, with conspiracy and intending the 
 ruin of the Lady Henrietta Berkeley, then a virgin unmarried, within the age of eighteen 
 years, one of tiie daughters of tlie Earl of Berkeley, (she being under the custody, &c. of 
 her father,) soliciting her to desert her father and commit wlioredom and adultery with 
 Lord Grci/, who was the husband of another daughter of the Earl of Berkeley, sister of 
 the Lady Henrietta, and to live and cohabit with him: and further, the defendants were 
 charged, that in prosecution of such conspiracy, they took away the lady Henrietta, at 
 night, from her father's house and custody, and against his will, and caused her to live 
 and cohabit in divers secret places with Lord Grey, to the ruin of the lady, and to the 
 evil example, ifcc. The defendants were Ibund guilty, though there was no proof of any 
 force; but, on the contrary, it appeared that the lady, who was herself examined as a 
 witness, was desirous of leaving her father's house, and concurred in all the measures 
 taken for her departure, and subsequent concealment. It was not shown that any artifice 
 was used to prevail on her to leave her fither's house, but the case was put upon the 
 ground that there was a solicitation and enticement of her to unlawful lust, by Lord 
 Grey, who was the principal person concerned, the others being his servants, or persons 
 acting by liis command, and under his control. Rex v. Lord Grey and others, 3 St. Tr. 
 519. 1 East, P. C. c. 11. s. IQ. p 460. 
 
 The forcible abduction of a woman from motives of lucre, is an offence of the degree 
 of felony, I y the 9 Geo. IV. c. 31, which repeals several former statutes upon this subject. 
 See this note supra.
 
 HISTORIA PLACITORUM CORONA. 639 
 
 Upon an indictment for abduction, on the 9 Geo. IV. c. 31. s. 19, it must be proved 
 that the prisoner took away the woman from motives of lucre, but his expressions rela. 
 tive to her property are evidence that he was actuated by such motives. Upon an in- 
 dictment for having feloniously, and from motives of lucre taken away and detained 
 M. E. ag^ainst her will, she having a future interest in certain personal property, con- 
 taining a count with intent to marry, and a count with intent to defile, it appeared that 
 the prisoner had taught M. E. riiusic, and had paid his addresses to her, which w^re 
 favourably received by her, but which her relatives insisted upon her breaking off, and 
 by their advice she wrote to the prisoner to tell him tliat tlie intimacy must cease for- 
 ever. One day when she was walking out, the prisoner came in a gig, got out, came 
 behind her, and having placed his hand on her shoulder, carried her in his arms to the 
 gig, she struggling and screaming all the time he was doing so. He then drove away 
 with her, but was pursued and overtaken at a distance. She was cross-examined with 
 a view to show that she had consented to the abduction. M. E. would, on her attainiiif 
 the age of twenty-one, be entitled to the sum of £2100, and the prisoner had said that he 
 knew that she would be entitled to £200 a year. It was contended that if the prisoner 
 carried her off even against her own consent, to make her his wife from affection to her 
 person, and not as the means of getting at her property, the offence was not proved. In 
 Hex V. Wakffield^ cited supra, the parties had no previous intimac}', and therefore all 
 inducement to the act arising from real passion and affection, was out of the question, 
 and the abduction in that instance, as well as almost every other which had been the 
 subject of penal inquiry, could be accounted for on no other grounds than those of cold 
 and sordid calculation to get possession of a lady's property by first obtaining possession 
 of her person. Fiirke, B. " I agree with the learned counsel tor the prisoner, that there 
 is a great distinction between this case and the case of Kex v. Wakefield, as there was 
 not in that case' any previous intimacy between the parties. I also agree with him as 
 to his argument that if all the other requisites of the statute constituting the offence are 
 satisfied, and the evidence of the motive being the base and sordid one of lucre, is unsatis- 
 factory or insufficient, it will be your duty to acquit the prisoner of the charge of felony. 
 It is clearly made out that Miss Ellis is entitled to personal property, and that tli'e 
 prisoner took her away with the inlention of marrying her; and I think that the other 
 count may be entirely laid out of your consideration, as there is no evidence of it what- 
 ever. You will therefore say, whether the prosecutrix, being a lady entitled to property, 
 the prisoner either took her away or detained her against her will with intent of marrying 
 her but for the base purpose of getting possession of her property; and if you come to the 
 conclusion that that was so, it will be your duly to find him guilty of the felony. With 
 respect to the motives of the prisoner, evidence has been given of expressions used by the 
 prisoner respecting the property of Miss Ellis, such as having told one of the witnesses 
 that he had seen Mr. WhitweWs will, and that she would be entitled to .£200 a year. 
 These expressions are important for you to consider, in order to your forming a judg. 
 ment whether the prisoner was actuated by motives of lucre or not. Unless you are 
 .■satisfied that such a motive prompted him to take away the prosecutrix against her will, 
 -he is entitled to be acquitted of the felony, and you will then consider whether he used 
 any force to her person in taking her away, and took her away against her consent; for 
 Jf he did, and he is not guilty of the felony, you may under the present indictment con- 
 vict him of the assault." Reg- v. Bnrratt, 9. C. Sf P. 387, cited supra. 
 
 This case also sliows that if the prisoner be acquitted of the felony, he may be con- 
 victed of anassault under the 1 Vict. c. 85. s. 11, if he used force to the person of the 
 female in taking. her away. I Russ on Crimes, 701, 702. See also the remarkable case 
 •of Rex V. Gordon, coram Lnwrence J. Oxford Lent Ass, 1804, fully reported in 1 Russ. 
 on Crimes, 704. 2d Land, ed. 
 
 VOL. I. — 55
 
 639 HISTORIA PLACITORUM CORONA. 
 
 CHAPTER LX. 
 
 OF FELONY BY PURVEYORS TAKING VICTUALS WITHOUT WARRANT. 
 
 By the statute of Articuli super Cartas, cap. 2. It is enacted, Si 
 nul face prises sans garrant, & les emport encountre volimt de celui, 
 a qe les biens sont, soit maintenant arrest per le vill, on le prise serra 
 fait, & amesne al prochein gaol : Et si de ceo soit attaint, soit fait de 
 lui, come de laron, si la quantite de biens le demand. 
 
 If t^. having no commission take goods by pretense of a commis- 
 sion as purveyor, and the party not knowing that he hath no com- 
 mission sell and suffer him to take it, yet this is felony; but if the 
 owner knew he had no commission, and yet willingly sell it to him 
 as a purveyor, and he take and carry it away, this is not a carrying 
 away against the consent of the owner to make a felony within this 
 statute. 2 Co. Instil, p. 546. super Jirticulls, cap. 2. 
 
 This point of felony is confirmed by the statute of 18 E. 3. cap. 7. 
 and 4 E. 3. cap. 4- 
 
 Afterwards by the statute of 5 E. 3. cap. 2. and 25 E. 3. cap. 1. 
 " If a purveyor shall take goods above the value of twelve-pence 
 without testimony and appraisement of the constable, or without tal- 
 lies given, this is also felony." 
 
 Again, by the statute of 25 E. 3. cap. 15. "If a purveyor 
 [640] take sheep and their wool betwixt Easter and Midsummer, 
 it is felony, if he shore them at his own house." 
 
 Again, by the statute of 36 E. 3. cap. 2. " If any purveyor ta'ke 
 goods or carriage, otherwise than is contained in their commission, 
 it is felony." 
 
 But in all these felonies the offender is not ousted of clergy, but he 
 shall have it : vide Co. P. C. cap. 24. 
 
 But these acts of parliament and the punishment of purveyors is 
 now out of date, because by the statute of 12 Car. 2. cap. 24. all 
 purveyance is taken away. 
 
 Only by two subsequent acts, namely 13 Car. 2. cap. 8. and 14 
 Car. 2. cap. 20. there is a special purveyance of carriage settled for 
 the king's household, and for the navy and carriage of ordnance; 
 but the statute of Articiili super cartas, and the other statutes 
 making felony in case of undue purveyance do not concern this 
 new established purveyance, because settled in another way; and 
 therefore I shall say no more touching this matter.
 
 HISTORIA PLACITORUM CORONA. 640 
 
 CHAPTER LXI. 
 
 CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF E. 2. 
 
 E. 3. AND R. 2. 
 
 In the times of those kings there were but few new felonies 
 enacted other than those touching purveyors, whereof in the former 
 chapter. 
 
 By the statute of 1 E. 2. De frangentibus prisonam^ the law 
 was settled in that point, whereof I liave said sufficient supra, 
 cap. 54. 
 
 By the statute of 14 E. 3. cap. 10. "If a gaoler or under keeper 
 by too great duress of imprisonment, and by pain make 
 any prisoner in his ward to become an appellor against his ('641'] 
 will, and thereof be attaint, he shall have judgment of life 
 and member," 
 
 These words in any act of parliament Eii judgment de vy Sf 
 Tnember create a felony. 
 
 This act extends to a gaoler de facto, tho he be not a gaoler 
 de jure. ^ 
 
 The offender hath the benefit of clergy: vide Co. P. C. cap. 29. 
 p.9\. touching this felony. 
 
 By an act Hot. Par. 17 E. 3. n. 15. but not printed, the importa- 
 tion of false and evil money is prohibited under pain of life and 
 member, and the exportation of coin or bullion prohibited under 
 pain of forfeiture, and if the searcher be of confederacy with the ex- 
 porter, it is enacted to be felony in the searcher. 
 
 If it be said this act was needless to make importation of false 
 money felony, because declared treason by the statute of 25 E. 3. 
 the answer is obvious. By the act of Vl E. 3. before-mentioned 
 licence was granted to Dutch merchants and others to import their 
 own coin so it were as good as sterling, and that, if they pleased, 
 the merchants might trade between themselves with that foreign 
 money; and it was necessary in respect of that foreign money to 
 impose a new penalty upon the importers of false money of that 
 kind, because that foreign coin was not within the statute of 
 25 E. 3. 
 
 But this seems to be but a temporary law during that special 
 intercourse between the Efiglish and Dutch, and besides by sub- 
 sequent statutes the penalty of treason is annexed to the importation 
 of counterfeit coin made current by proclamation : guod vide supra, 
 cap. 20. p. 225. 
 
 By the statute of 27 E. 3. cap. 3. of the staple, the exportation of 
 wools, wool-fells, leather or. lead by any English, Irish, or Welch- 
 man, is prohibited under pain of loss of life and member, and for-
 
 641 HISTORIA PLACITORUM CORONA. 
 
 feiture of lands and goods, («) but this was repealed by the statute 
 of 36 E. 3. cap. 11. whereby it was enacted, that merchants deni- 
 zens may pass with their wool as well as foreigners without being 
 restrained. 
 
 But yet this was not full enough, and therefore by the 
 r 642] statute of 38 E. 3. cap. 6. there was a fuller repeal of the 
 statute of 27 E. 3. as to the point of felony, yet the for- 
 feiture of lands and goods continued upon merchants denizens, and 
 the statute of the staple was confirmed in all points by 38 E. 3. 
 cap. 7. 
 
 But by the statute of 43 E. 3. cap. 1. the staple of Calais was 
 abolished, yet by 14 R. 2. cap. 5. exportation of wool, wool-fells, 
 leather and lead are prohibited to denizens under pain of forfeiture 
 of them. 
 
 By the statute o( 21 E. 3. de provisorihiis, cap. 5,ingrossingof Gas- 
 coign wines made felony, but that penalty repealed by the statute 
 37"^. 3. cap. 16. 
 
 So that these statutes stand now repealed. 
 
 But yet by the statute of 18 ^. 6. ccrj). 15. the carrying of wool 
 or wool-fells out of the realm to other places than to the staple of 
 Calais without the king's licence is felony, excepts wools carried to 
 the streights of Morocco. 
 
 This statute is supposed by my lord Coke, P. C. cap. 32 to be in 
 force, but that being doubted, because the staple of Calais then in 
 use hath been long since abolished, a new provision and a better is 
 made by acts of this present parliament.(A) 
 
 But whether that act be in force or not, the offender was not there- 
 by excluded of the benefit of clergy. 
 
 By the statute of 34 E. 3. cap. 22. the concealing and taking away 
 of an hawk was two years imprisonment; but by the statute of 37 E. 
 3 cap. 19. the stealing of a faulcon,tercelet, lanner, or laneret is made 
 felony. 
 
 See the commentary Co. P. C. cap. 34. where it is declared, that 
 this act extends only to faulcons, and those of that kind. 
 
 The proof intended by this act is not by jury but by circumstances, 
 as varvels, S,'c. 
 
 The offender is within benefit of clergy. 
 
 As to the laws in the time of Richard II. 
 
 6 A'. 2. cap. 6. concerning the punishment of rape, de quo satis, 
 cap. 58. 
 
 7 R. 2. cap. 8. of purveyors, de quo supra, cap. 60. 
 
 By the statute of 13 ^. 2. cap. 3. <' If any man bring 
 r643 3 or send into this realm or the king's power any summons, 
 sentence of excommunication against any person for the 
 cause of making motion, assent or execution of the statute of provisors, 
 he shall be taken, arrested, and put in prison, and forfeit all his lands, 
 tenenients, goods and chattels for ever, and incur the pain of life and 
 
 (a) Co. P. C. p. 95. (h) 12 Car. 2. cap. 32. 13 ^ 14 Car. 2. cap. 18.
 
 HISTORIA PLACITORUM CORONiE. 643 
 
 member; and if any prelate make execution of such summons, sen- 
 tence or excommunication, his temporalties shall be taken and abide 
 in the king's hands till due redress made. 
 
 " And if any person of less estate than a prelate makes such exe- 
 cution, he shall be taken and arrested and imprisoned, and make fine 
 and ransom by the discretion of the king's council." 
 
 The bringing in of bulls of this nature is against the common law, 
 and sometimes antiently punished as high treason, vide Co. P. C. 
 cop. 36. 8)' libros ibi. 
 
 But now by the statute 13 Eliz. cap. 2. the offense as well in the 
 bringers in, as executors of these bulls, 4*c. is made high treason, as 
 well in persons ecclesiastical as temporal. 
 
 There is nothing else in these kings reigns that enacts a new felony, 
 only some statutes directing the process and jurisdiction, whereby 
 felonies may be tried, as 13 .ff. 2. cap. 2. of the constable and mar- 
 shal, &'C. 
 
 CHAPTER LXII. [644] 
 
 CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF H. 4. 
 
 H. 5. H. 6. E. 4. 
 
 By the statute of 5. H. 4. cap. 4. it is ordained, "That none from 
 
 thenceforth shall use to multiply gold or silver, nor use the craft of 
 
 multiplication, and if any do, he shall incur the pain of felony in this 
 
 case."(a) 
 
 . And the reason of this act was not because they thought the real 
 
 transmutation of metals into gold or silver was feasible, but the reason 
 
 is given in the petition of the commons. lioL Car. 5. H. 4. n. 63. 
 
 Car plusers homes par colmir de cest multiplication font faux 
 rtiony a ^rand deceit du roy 4' damage de son people: vide tamen 
 Co. P. C. cap. 20. dispensations granted to particular persons by 34 
 S,' 35 H. 6. for the using of this art with a tion obstante oiihe statute 
 of 5 H. 4. 
 
 The offender is to have his clergy. 
 
 And altho the statute mentions not accessaries before or after, yet 
 this statute making the fact felony doth consequentially subject acces- 
 saries before and after to the penalty, tho this be made a qusere. Dy. 
 88. in Eden^s case; yet it seems now settled according to the opinion 
 
 (a) The offense prohibited by this act was not the extracting g'old or silver out of lead 
 or other metals, which is now known by the name of refining-, for that is not the muili- 
 plication of gold or silver, but only a separation thereof from the coarser metal, but the. 
 design of the act was to prohibit the transmutation of one metal into another, which was 
 pretended to be done by the pliilosopher's stone or elixir, whereby great numbers were 
 bubbled and cheated; but however, because some persons were (groundlessly) afraid to 
 exercise the art of smelting and refining metals, lest they should fall under the penalty 
 of this statute, it was therefore repealed by 1 W. Sf M. cap. 30. provided that the gold or 
 silver extracted by the said art be carried to the Tower of London for the making of 
 monies, and be not otherwise disposed of.
 
 644 HISTORIA PLACITORUM CORONiE. 
 
 of my lord Coke, P. C. cap. 20. that there may be accessaries to this 
 new felony before and offer. 
 
 By the statute of 5 H. 4. cap. 5. cutting the tongues or 
 r 645 ] putting out the eyes of the king's subjects of malice pre- 
 pensed is enacted to be felony. 
 
 This was extended to other dismembring, as cutting off ears, by 37 
 H. 8. cap. 6. but by an act of this present parHament(6) this and 
 some other dismembrings are made felonies out of the benefit of the 
 clergy. 
 
 By the statute of 3 H. 5. cap. 1. "If any person do make, buy, 
 coin, or bring into the kingdom Galli-ha/f-pence, Suskins or Dod- 
 kins, to sell, or put them in payment in this realm, it is felony." 
 
 And by the statute of 2 H. 6. cap. 9. If any man pay or receive 
 the money called Blanks, it is also felony; but both these are with- 
 in clergy, and by the whole disuser of these coins these statutes are 
 of little use. 
 
 By the statute of 3 H. 5. cap. 3. it is enacted, "That proclamation 
 shall issue, that all Britons depart out of the realm before the feast 
 of St. John Baptist next, upon pain of loss of life and member." 
 
 But this was but a temporary law and expired. 
 
 By the statute of 3 H. 6. cap. 1. it is enacted, " That no congrega- 
 tions or confederacies be made by masons in their assemblies, where- 
 by the good order of the statute of Labourers is violated ; and they 
 that cause such assembhes to be holden, shall be adjudged felons." 
 
 But the statute of Labourers being repeald by the statute of 
 5 Eliz. cap. 4. this law is consequentially repeald. Co. P. C. cap. 35. 
 j». 99. 
 
 By the statute of S //. 6. cap. 12. it is enacted, " That if any record 
 or parcel of the same, writ, return, panel, process, or warrant of 
 attorney in the king's courts of chancery, exchequer, the one bench 
 or the other, or in the treasury, be wilUngly stolen, taken away, with- 
 drawn, or avoided by any clerk, or by any other person, 
 r 646 ] by cause whereof the judgment shall be reversed; that such 
 stealer, taker away, withdrawer, or avoider, their procura- 
 tors, counsellors, and abetters thereof indicted, and by process there- 
 upon made, duly convict upon their own confession, or inquest there- 
 upon taken of lawful men, half whereof shall be Of men of any court 
 of the same courts, and the other half of others, shall be judged for 
 felons; and that the judges of the same courts, or of the one bench 
 or the other, have power to hear and determine such defaults before 
 them, and thereof to make due punishment, as is aforesaid." 
 
 In the consideration of this statute, it will be convenient to exa- 
 mine, 1. How the law stood in reference to the matters abovesaid 
 
 (b) 22 Sf 23 Car. 2. whereby the cutting out or disablinor the tongue, putting out an 
 eye, slitting the nose, cutting off a nose or lip, cutting olTor disabling any limb or mem- 
 ber, if done with an intention to maim or disfigure, is felony without benefit of clergy; 
 upon this statute Coke and Woodburne were convicted and executed for slitting the nose 
 of Mr. Crispe, 8 Geo. I. See State Tr. Vol. VI. p. 212.
 
 HISTORIA PLACITORUM CORONA. 646 
 
 before this act made. 2. What is the import of the several parts of 
 this act. 
 
 At the common law, the undue rasure, or embezzling of a record, 
 was a great offense, for which even a judge himself was punishable 
 by fine and imprisonment, 2 U.S. 10. //en^/^ww a judge was fined 
 eight hundred marks for rasing the record of a fine of thirteen shil- 
 lings and four pence imposed upon a poor man, and reducing it to 
 six shillings and eight pence.(c) 
 
 By the statute of Westm. 1. viz. 3 E. I. cap. 29, it is enacted, 
 "That if any Serjeant, pleader or other, do any manner of deceit or 
 collusion to the king's court, or consent to it in the deceit of the court, 
 or to beguile the court or the party, and be thereof attaint, he shall 
 be imprisoned for a year and a day, and from thenceforth shall not 
 be heard to plead in that court." 
 
 And if he be no pleader, he shall be imprisoned in like manner, 
 and if the trespass requires greater punishment, it shall be at the 
 king's pleasure. (fl') 
 
 Upon this act it was that Robert de Greshope a common 
 attorney was imprisond for a year and a day, and banished [ 647 ] 
 the court of common pleas, for embezzling a part of a 
 record, ?;/z, 7! 19 E. 1, Rot. 57. in dorso, C. B. mentiond in Co. 
 P. C.cap. Id. p. 71. vide simile. H. 22. E. 1. Rot. 33. in dorso, 
 Cant Coram Rege.{*) 
 
 T. 5 E. 3. Rot. 13. in dorso. Rex B. R. Thomas of Carleton 
 convict of the rasure of the word et in a writ, is committed to the 
 marshal, <§• inhibitum est ei, ne amodo deserviat in officio sive ser- 
 vitio vicecont\ periculo quod incumbit, and this it seems was upon 
 the same act of 3 E. l.(e) 
 
 If a clerk had made a misentry of record, the judge, before whom 
 it was, might, ore tenus, rectify that misentry, tho a considerable 
 time after. 
 
 M. 24 E. 3. Rot. 41. Kane. Rex. it was presented before Richard 
 de Kelleshull, and his fellow justices of oyer and terminer, 18 E. 3. 
 that one fVaresius atte Capele had trespassed in the free warren of 
 the earl of Huntingdon, and the abbot of Battel, and he was con- 
 victed by his own confession, and the clerk had entred the fine ten 
 shillings. The record being sent into the king's bench, Richard de 
 Kelleshull came into court, S," inspecto irrotulamento, said. Quod 
 
 (c) Henghatn was a judge in the reign of Edward I. and his fine was employed for 
 building a clock-house at Westminster, and furnishing it with a clock, which made 
 Southcot (one of the judges of the king's bench in the reign of queen Elizabeth,) when 
 prest by the chief justice to consent to a rasure of the roll, say, that he would not do it, 
 for he meant not to build a clock-house. Co. P. C, p, 72. 
 
 {d) 2 Co. JnstU. 213. 
 
 (*) This was the case of Giles de Berton, who was convict eo quod scienter procuravit 
 omissionem did in processu Sf recordo coram justitinriis de banco, quod coram rege venire 
 fecit; on account of which omission the judgment of the court of common pleas had been 
 reversed,^™ deceplione pradicta committitur marescallo, Sf postea Jinem fecit cum domino 
 rege pro 10 solidis. 
 
 (e) It does not appear from the record, whether the judgmentwas grounded on statute 
 3 E. 1. or on the common law.
 
 647 HISTORIA PLACITORUM CORONA. 
 
 clericiis siius fiiiem ilium surreptive & contra recordum suum intra- 
 vit, & dicit quod finis ille assessus fuit per ipsum & socios suos pro 
 qnolibet ariiculo ad decern libras, & sic finis ejus ejusdem fVaresii 
 summatus fuit ad viginti libras, & illud expresse ore tenus hie recor- 
 datur, and prayed for the king, quoa finis ille secundum recordum 
 suum intrelur in rotulis extractorum, and it was accordingly entred ; 
 so that a judge of record is as it were a living record, and controuls 
 the entry of the clerk. 
 
 In the time of Jiichard II. there happened two great complaints 
 against the judges and clerks for the misentry of a record: the one 
 Rot. Par. 7 R. 2. pars 1. n. 57. for the lady Spencer, who 
 [648] pleaded to a Quare Impedit brought against her by the 
 king; but at the end of Trinity term last, the record of 
 her plea was rased in a material place to her great disadvantage, 
 and the judges refused to amend it, because after the term: the 
 answer was, 
 
 Tiel plee come les justices voillent recorder qe ent estoit pledez, 
 soit de novel entre en le lieu de la rasure, nient contresteant qe le 
 terme, en qel le dit plee fuit pled, soit ja pass, & roy voit qe celui, qe 
 iist la rasure, soit punish pur son malfait. 
 
 The other was Rot. Par. 7 R. 2. pars 2. n. 20. at the complaint of 
 the prior of Mountai^ue, That whereas in a writ of right brought 
 against him he prayed in aid of the king, and was ousted of aid by 
 the court, who entred qusesiium est a Priore, si quid, SfC. the judg- 
 ment that was given was dictum est Priori, quod respondeat sine 
 tntxilio; and accordingly the judges came into parliament and 
 agreed, that new entries should be made, as was desired by the 
 prior, and thereupon the prior brought a writ of error in parliament 
 upon the record so amended. 
 
 These occurrences did the next parliament following, viz. 8. R. 2. 
 draw on the act of 8 R. 2. cap. 4. against the rasing of records, and 
 the false entring of pleas, whereby it is enacted, "That if any judge 
 or clerk be of default (so that by the same default ensueth disherison 
 of any of the parties) sufficiently convict before the king and his 
 council, in that way that the king and his council shall deem rea- 
 sonable, within two years after the default made, S^c. he shall be 
 punished by fine and ransom at the king's will, and satisfy the 
 party." 
 
 Thus this act settled it, and so it stood till S H. 6. but in this act 
 there occurred some inconveniences. 1. The way of trial before the 
 king and council was difficult and inconvenient. 2. The punish- 
 ment as to the clerks seemed too gentle. 3. It did not meet with the 
 inconveniences of stealing records. 4. It was found of great incon- 
 venience to the due administration of justice; for the judges have 
 often occasion upon their own memory of the record, and some- 
 times upon examination, to rectify undue entries, and were 
 r 649 ] required in some cases to amend the m'isentries, or small 
 mistakes in records by the statute of 14 E. 3. cap. 6. and
 
 HISTORIA PLACITORUM CORONA. 649 
 
 other statutes, which could not be done without rasures and altera- 
 tions of the record and roll. 
 
 , To remedy the latter of these inconveniences in the beginning of 
 this very statute of 8 H. 6. cap. 12. and farther by the statute of 
 8 H. 6. cap. 15. a liberal power is given to the justices to amend 
 records, in the pursuance of which power they were by these act* 
 of S H. 6. protected against the dangers and severhy of the act 
 of R. 2. 
 
 And then this act proceeds to inflict punishment of felony against 
 clerks and others, that willingly avoid records, «5'c. which penal law- 
 did not at all extend to judges upon three apparent reasons. 1. Be- 
 cause by this vetY law, judges had power upon examination to 
 amend records. 2. Because the judges of the several courts are 
 made the judges to hear and determine these offenses. And, 3. This 
 clause not mentioning judges (as that of 8 R. 2. did,) but beginning 
 with clerks and other persons, judges shall not be included, who are 
 superior officers, upon the reason given in the 2 Co. Rep. casus 
 archiepiscopi Cant\ and accordingly it is agreed by my lord Coke, 
 F. C. cap. 1 9. p. 72. 
 
 Now I come to the consideration of the statute itself, wherein my 
 lord Coke, P. C. cap. 19. hath made a full collection, to which I can 
 add little. 
 
 1. It extends only to the four great courts of Westminster, and 
 not to inferior courts. 
 
 But as to the English part of the court of chancery, it extends not, 
 because as to the English proceeding it is no court of record. 
 
 But yet it seems it doth extend to those processes, that issue out 
 of that court under the great seal, tho they be processes in order to 
 the Enqlish proceeding,"as siibpitna's, attachments, commissions to 
 examine witnesses, because these being under the great seal, are 
 matters of record. 
 
 2. The Treasury is added, which doth not only extend to the 
 records of the treasury of the courts of king's bench and common 
 pleas, but also to the records in the receipts of the exche- 
 quer, under the custody of the treasurer and chamberlains [ 650 ] 
 of the exchequer: and also to the records in the Tower, ^iwd 
 
 in the chapel of the rolls, yea, and the records in the custody of the 
 clerk of the lords house in parliament, (but not to the journals,) for 
 those are the king's treasuries of records of the highest moment. 
 
 3. The offenses mentioned are four, stealing, carrying away, with- 
 drawing, or avoiding; and this last word avoiding is comprehensive, 
 for it extends to rasing, cutting off, clipping, yea, and cancelling a 
 record. 
 
 4. But these must be done voluntarily, as well as felonicl, and 
 both these words must be contained in the indictment upon this 
 statute. 
 
 A rasing or cancelling of a record by the ordei: of that court in 
 whose custody the record is, is no felony in him that doth it, nor ia
 
 650 HISTORIA PLACITORUM CORONA. 
 
 the court that commands it, for the court hath a superintendence, as 
 well over the record as over the clerks. 
 
 5. It extends not to judges for the reasons before given. 
 
 6. It must be such an embezzling or avoiding of the record, by 
 reason whereof a judgment is reversed, and therefore it extends only 
 to judicial records in any of those four courts or treasuries, be the 
 judgment in a case criminal or civil. 
 
 And therefore it is equally an offense against this statute whether 
 the avoiding, 8f-c. be after judgment given or before, in case judg- 
 ment be given after the offense; and it is held, that an outlawry, tho 
 it he per judicium coronalorum, is a judgment within this statute. 
 
 If the judgment be not actually reversed by sucli embezzling, SfC, 
 yet if it be reversible by reason thereof, it is within this statute, 
 2 R. 3. 10. 
 
 And it extends not only to a reversibleness by writ of error, but a 
 reversibleness or avoidableness of judgment by plea, by reason of such 
 embezzling, <5'C. is within this statute, 2 R. 3. 10. 
 
 But what if the ofJense of embezzling, avoiding, or rasing, be 
 
 such as goes in affirmance of the judgment, and makes it 
 
 r 651 l good, which otherwise were reversible, if it stood as before 
 
 that offense committed? tho this in some cases be punishable 
 
 by the court as a misdemeanor in the clerk, yet it seems not felony 
 
 within this act. 
 
 And the common practice at this day is, if the Venire fucia,^ or 
 Dis/rinffas be erroneous, and would make the judgment erroneous, 
 if filed, hut being not filed, is aided by tlie statute of IS E/iz. cap. 14. 
 the court never compels the clerk to file such writs after verdict, much 
 less punishes them for not doing it. 
 
 But if .^. B. be sued by the original to the exigent and outlawed, 
 and afterwards the exigent is made C B. and the original is also 
 made C. B. to make all agree, this is felony as well in the clerk that 
 raseth the original, as him that raseth the exigent. 2 R. 3. 10. 
 
 7. If the oti'ense riselh in two counties, then it is dispunishable. 
 2 R. 3. 10. 
 
 S. The trial is to be one half by the clerks of the court, and the 
 other half by others. 
 
 9. The judges of the court of the one bench and the other are by 
 this statute enabled to hear and determine it without any other com- 
 mission, and each of these courts have a concurrent jurisdiction, and 
 where it first begins there it is to proceed. 
 
 So that it seemeth, if the offense were in the record of the king's 
 bench, the justices of the common bench may hear and determine the 
 offense, if it be there first indicted. 
 
 This power is to hear and determine; the consequence whereof is, 
 that it enables these respective courts to take indictments of these 
 offenses; this, tho it be intrinsical to the court of king's bench, (for 
 they swear a gragd inquest and take indictments every term,) yet it 
 is a new power in the comiuon bench. 
 
 And altho the trial of the oflense is to be by a party-jury of clerks
 
 HISTORIA PLACITORUM CORONA. 651 
 
 and others, yet the indictment may be taken either of clerks alone, or 
 of foreigners alone, or of both, for it is only the trial that is to be by 
 a party-jury. 
 
 In the case o{ Danby and others, 2 R. 3. 10. these points 
 were resolved upon this statute, 1. If the offense be entirely [ 652] 
 committed in the county where the court of king's bench or 
 common pleas sit, it may be tried, heard and determined by either 
 court without a special commission, for the act of parliament is a 
 commission. 2. If it be committed entirely in a foreign county, or 
 be committed in the county where the court sits, and then the court 
 remove into another county, it must be heard and determined in the 
 county where the fact was committed, and cannot be indicted, heard 
 or determined in another county than where it was done. 3. That 
 therefore in that case there must be a special commission to the jus- 
 tices of the one court, or to the justices of the other, to hear and de- 
 termine the offense in that other county, and then they may there 
 take the indictment and try the offender by a party-jury according to 
 the act ; but it seems, if the indictment be taken by virtue of such com- 
 mission, it may be removed into the king's*ench by Certiorari, if 
 indicted before them, and then tried according to the direction of the 
 act. 4. If the offense were committed in London, where, by privi- 
 lege and charter of the city, the mayor is to be one in commission 
 and oixhe quorum; yet in this case the mayor must not be named in 
 the commission, but only the justices of one of the courts. 5. If the 
 offense be mixt, and partly in Middlesex, where the court sits, and 
 partly in London, or any other foreign county, the felony is dispun- 
 ishable, and so it remains at this day, notwithstanding the statute of 
 2 Sf 3 E. 6. cap. 24. 6. But yet in this case the offender committing 
 part of the offense in Middlesex, may be indicted of misprision of 
 felony in Middlesex, or committing part of the offense in London, 
 may be indicted of misprision of felony in London, and thereupon 
 fined and imprisoned: and accordingly it was done by the advice of 
 all the judges, and the parties fined, for every felony includes mis- 
 prision. 
 
 And yet observe, 1. The felony was one entire felony committed 
 in two counties, and therefore neither enquirable nor determinable in 
 one county, for the jury of that county cannot take notice 
 of part of the fact committed in another, and yet the mispri- [ 653 J 
 sion of that felony was inquirable and punishable in either 
 county, where but part of the felony was committed, and yet the 
 jury in that case must take notice of the entire felony, part whereof 
 was committed in another county. 2. Altho the felony itself is by 
 the act limited to special jurisdiction and manner of trial, yet the mis- 
 prision of that felony was tried by a common jury, and before the 
 general commissioners o{ oyer and terminer in the county where the 
 offense w|^ committed. In this offense the offender hath the benefit 
 of clergy. 
 
 11 //". 6. cap. 14. It was made felony for three years to ship mer- 
 chandizes of the staple in any creeks; but this is expired.
 
 653 HISTORIA PLACITORUM CORONA. 
 
 18 FT. 6. cap. 15. Exportation of wools, other than to the staple 
 of Calais or straights of Morocco, felony. F'ide supra, cap. 61. 
 p. 642. (§' infra. 
 
 18 H. 6. cap. 19. Soldiers departing from their captain without 
 license, felony. This, together with those other statutes, of the same 
 kind, as 7 H. 7. cap. 1. 3 H. 8. cap. 5. I shall refer to the statute of 
 2'E. 6. cap. 2. where I shall take the whole matter of soldiers de- 
 parting into consideration. 
 
 28 //. 6. cap. 4. It is felony to take a distress in the counties and 
 royal seignories in Wales or dntchy of Lancaster, and carry them 
 out of the said counties, dutchy or seignories, ^-c. saving for the lords 
 of fees distraining. This act was to continue only five years, and 
 then expired. 
 
 33 H. 6. cap. 1. If houshold servants, after the death of their mas- 
 ter, violently and riotously take and spoil the goods of their master, 
 and the same distribute among themselves, upon complaint made by 
 the executors, or two of them, to the chancellor, the chancellor with 
 the advice of the chief justices and the chief baron, or two of them, 
 shall direct writs of prOTlamation to the sheriff for the offenders to 
 appear in the king's bench upon some day certain, fifteen days at 
 least after the proclamation. 
 
 And if he appear, he shall be committed to answer the 
 [6541 suit of the executors by bill or writ; but if he appear not at 
 the return of tlie writ, after proclamation so made, he shall 
 be attaint of felony. 
 
 Tliis statute extends to one executor, if but one, and to adminis- 
 trators, if no executors, to a lord keeper of the great seal, when no 
 chancellor. 
 
 This was a process much in use in case of great offenses, especially 
 about this king's reign, to convict men sometimes in civil offenses, 
 some'times in cases criminal upon default of appearance at the return 
 of the proclamation. Vide Slat. 5 H. 4. cap. 6. 11 //. 6. cap. 11. 
 
 But this attainder doth not exclude the offender from clergy. Co. 
 P. C. cap. 43. p. 104. 
 
 12 E. 4. cap. 5. All wools, woolfells, morling and shorling of 
 Westmoreland, Cumberland, Northumberland, and Durham, to be 
 shipped out, shall be shipped at Newcastle upon Tine, and thence to 
 Calais or Middleborough, there to be stapled and uttered, and all 
 other wools, woolfells, morling and shorling, to be conveyed only to 
 the staple of Calais; if any attempt to the contrary, it shall be felony, 
 saving the king's prerogative to license transportation elsewhere. 
 This act to continue for five years only, and so it expired. 
 
 17 E. 4. cap. 1. If any shall carry or cause to be carried out of 
 this realm or Wales, any manner of money of the coin of this 
 realm, or any other realm, plate, vessel, mass bullion, jewels of gold 
 wrought or unwrought, or silver without the king's licej^e, except 
 the persons dispensed with by the statute of 2 H. 6. cap. 6. it shall 
 be felony. 
 
 'This act was to continue only for seven years.
 
 HISTORIA PLACITORUM CORONA. 654 
 
 And by the act of 4 H. 7. cap. 23. it was re-enacted again to con- 
 tinue twenty years; and by the statute of 1 H. S. cap. 13. it was 
 continued till the next parliament, (/) and then discontinued : but 
 by the act of 7 E. 6. cap. 6. it was revived for twenty years, and 
 then expired ; so that at this day the exportation of gold and silver 
 is not felony, but remains only under the penalty of those statutes 
 that prohibit its exportation under pains of forfeiture; for 
 the act of 17^5. 3. did not make exportation felony.(o-) [655] 
 And having this occasion I shall here once for all give an 
 account of the laws in force against the exportation of money and 
 bullion. 
 
 By the statute of 9 E. 3. cap. 1. None are to carry any sterling 
 out of the realm of England, nor silver in plate, nor vessel of gold, 
 or silver, upon pain of forfeiture of the same, that he shall so carry, 
 without the king's license; this is confirmed in substance by 38 E. 3. 
 cap. 2. 5 R. 2. cap. 2. 
 
 By the statute of 2 H. 4. cap. 5. If any gold or silver be found in 
 the keeping of any upon his passage over sea, in any ship or vessel 
 to go out of any port or creek without the king's license, it shall be 
 forfeit, saving his reasonable expenses. 
 
 Merchants strangers to lay out one half the proceed of their mer- 
 chandize upon English merchandize, and may carry over the other 
 moiety. 
 
 By the statute of 4 H. 4. cap. 15. All merchants, and strangers, 
 and others, that sell merchandizes here, shall lay out the money 
 thereby arising in other merchandizes of England, to carry the 
 same without carrying any gold or silver in coin, plate or mass out 
 of this realm, upon pain of forfeiting all the same, saving always 
 their reasonable expenses. 
 
 This act is still in force, and received a farther confirmation by the 
 statute of 5 H. 4. cap. 9. 9 H. 5. cap. 1. 
 
 2 H. 6. cap. 6. No gold or silver to be carried out of the realm 
 contrary to the former statutes, except for payment of the king's sol- 
 diers, upon pain of forfeiture of the value of the sum so carried, one 
 fourth part to the discoverer, except ransom of prisoners, and money 
 that soldiers carry for their necessary costs, and for horses and slieep 
 bought in Scotland. 
 
 3 H. 7. cap. 8. All foreign merchants shall employ their money 
 received in ports, ^'C. upon merchandize or commodities of this 
 real, the proof to lie upon the merchant, upon pain of forfeiture of 
 all his goods, and a year's imprisonment. This clause of the statute 
 of 17 ^. 4. made perpetual. 
 
 19 //. 7. cap. 5. None to convey any coin, bullion, or 
 plate, above the value of 6.?. Sd. out of this realm into Ire- [ 656] 
 iland, nor convey such bullion, plate or coin into any ship, 
 boat or other vessel, upon pain of forfeiture thereof, and making fine 
 and ransom at the king's will. 
 
 (/) But not as to the penalty of felony, for that is excepted in the act. 
 (g) Except in the searcher, if he confederated with any to export it.
 
 656 HISTORIA PLACITORUM CORONA. 
 
 So these several statutes lie in the way of transportation of bullion 
 or coin, tho the act of HE. 4. and other acts making it felony are 
 now expired.(/^) 
 
 CHAPTER LXIII. 
 
 CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF R. 3. 
 H. 7. H. 8. E. 6. AND QUEEN MARY. 
 
 I FIND no new felony enacted in the short reign of H. 3. 
 
 By the statute of 1 H. 7. cap. 7. "At every time as information 
 shall be made of any unlawful hunting in any forest, park or war- 
 ren by night, or with painted faces, to any of the king's council, or 
 to any of the justices of peace in the county where any such hunting 
 shall be had, of any person so suspected thereof, it shall be lawful 
 to any of the same council or justices of peace, to whom such infor- 
 mation shall be made, to make a warrant to the sheriff of 
 [ 657 3 the county, constable, bailiff, or other officer within the 
 same county, to take and arrest the same person or per- 
 sons, of whom such information shall be made, and to have him or 
 them before the maker of the said warrant, or any other of the 
 king's said council or justices of peace of the said county, and that 
 the said counsellor or justice of peace, before whom such person or 
 persons shall be brought, by his discretion have power to examine 
 him or them so brought of the same hunting, and of the said doers 
 in that behalf; and if the same person wilfully conceals the same 
 hunting, or any person with him defective therein, that then the 
 same concealment be against every person so concealing, felony; 
 the same felony to be inquired of and determined as other felonies 
 within this realm have used to be; and if he t/ioi confess the truth, 
 and all that he shall be examined of and knoweth in that behalf, 
 that then the said offenses by him done be against the king our 
 sovereign lord but trespass fineable, by reason of the said con- 
 fession, at the next sessions of the peace to be holden for the same 
 county by the king's justices of the same sessions to be there 
 sessed; and if any rescous or disobeyance be made by any person, 
 the which so should be arrested, so that the execution of the same 
 
 (h) By 13 Sf 14 Car. 2. cap. 31. The melting down the silver money of this realm is 
 prohibited, on pain of forfeiting it, and double tlie value; and by 15 Car. 2. cap. 7. it is 
 lawful to export foreign coin or bullion, provided an entry be made thereof at the custom, 
 house: but by 6 ^ 7 W. 3. cap. 17. and 1 Sf 8 W. 3. cap, 19. before the same be shipt, it 
 is necessary there should be a certificate from the lord mayor and court of aldermen of 
 London, tliat oath had been made before them by tlie owner of the said bullion, and by 
 two or more credible witnesses, that the said bullion, and every part thereof, is foreign 
 bullion, and that no part thereof was the coin of this kingdom, or clippings thereof, or 
 plate wrought within this kingdom.
 
 HISTORIA PLACITORUM CORONA. 657 
 
 warrant thereby be not had, then the same rescous and disobeyance 
 be felony inqnitable and determinable, as is aforesaid ; and if any 
 person be convict of such hunting with painted faces, vizors, or 
 otherwise disguised, to the intent he should not be known, or of 
 any unlawful hunting in the night, then the same person so convict 
 to have such punishment, as he should have, if he were convict of 
 felony. "(rt) 
 
 My lord Coke, P. C. cap. 21. hath given us the whole learning of 
 this statute, viz. 
 
 1. The hunting with vizors or painted faces in the day- 
 time, and the hunting in the night with or without such [ 659 1 
 vizors, is felony; but the party may make it trespass only, 
 
 if he pleases. Dy. 50. a. 
 
 2. It doth not extend to the forest, or chase, or park of the king's, 
 {b) nor to forests, parks, or warrens in reputation only, and not in 
 right. 
 
 3. The complaint may be made to any one justice of peace or of 
 the council, and the warrant may be granted by any one. 
 
 4. The warrant must be in writing under seal, and grounded upon 
 an examination shewing a probable cause of suspicion. 
 
 5. When the oftender is brought, he must be examined of the fact 
 done by himself, and then of the fact done by others, but not upon 
 oath. 
 
 6. A hunting without killing is within the penalty. 
 
 7. Tho the hunting be not felony, yet the rescue or disobeyance is 
 felony. 
 
 S. But the rescue or disobeyance made felony is only that which is ' 
 done by the party, not by a stranger. 
 
 And altho the party rescue himself, yet if he be re-taken, so as 
 execution of the warrant be had, it is no felony. 
 
 9. If the party plead not guilty, and is convict of the fact, it is 
 felony; but if he confess upon his arraignment, it then becomes only 
 a trespass finable, tho he denied it upon his first examination. 
 
 10. It is held, that if he confess not but conceals upon his exami- 
 nation before the justice, this alone makes it not felony, neither can 
 he be indicted upon this statute for such concealment; but it must be 
 a judicial concealment, namely, if being indicted for the hunting he 
 upon his arraignment conceal, then he shall be indicted de novo for 
 such concealment; and if convict thereof, he shall be attaint of felony 
 
 (a) But now by 9 Geo. 1, cap, 22. (continued by 6 Geo. 2^ cap. 37.) it is made felony 
 without benefit of clergy for any person being armed with any offensive weapons, and 
 having their faces blacked or disguised, to appear in any forest, chase, S(C. or unlaw- 
 fully to hunt, kill or steal any deer, or rob any warren, or steal tish out of any river or 
 pond, or for any person unlawfully to hunt any deer in the king's forests, 4fc. or 
 maliciously to break down the head of any fish-pond, whereby the fish shall be lost or 
 destroye<^ 
 
 (b) As to this case, a remedy was provided by 31 //. 8. cap. 12. whereby this offense, 
 if committed in the king's forests, &c. is absolutely made felony; but that statute being 
 repealed by the general clause of 1 E, 6. cap. 12. a remedy was again provided by the 
 statute of 9 Geo, 1. above-mentioned.
 
 659 HISTORIA PLACITORUM CORONA. 
 
 for concealment, tho this seems a difficult exposition ;(c) for upon his 
 arraignment for the hunting he only answers to (hat indictment, and 
 is not examined touching others ; and besides, if he be indicted for 
 the hunting, if there be evidence to convict him of the fact, he is con- 
 vict of felony before the indictment for concealment comes; and if 
 there be not evidence to convict him of the principal, how shall there 
 be evidence to convict him of the concealment? 
 
 11. The concealment that makes a felony, must be a wilful con- 
 cealment. 
 
 By the statute of 3 H. 7. cap. 2. It is enacted, " That whereas 
 women, as well maidens, as widows and wives having substances, 
 some in moveable goods, some in lands and tenements, and some 
 being heirs apparent to their ancestors, had been often taken by mis- 
 doers contrary to their wills, and after married to such misdoers, or 
 to others by their assent, or defiled to the great displeasure of God, 
 contrary to the king's laws, and disparagement of the said women, 
 and utter heaviness and discomfort of their friends, and to evil ex- 
 ample of others, it is therefore ordained, established and enacted by 
 our sovereign lord the king, by the advice of the lords spiritual and 
 temporal, and commons in the said parliament assembled, and by 
 authority of the same, That what person or persons from henceforth 
 taketh any women so against her will unlawfully, that is to say, maid, 
 widow, or wife, that such taking, procuring, abetting to the same, 
 and also receiving wittingly the same woman so taken against h.er 
 will, and knowing the same, be felony; and that such misdoers, 
 takers, and procurators to the same, and receivers, knowing the same 
 offense in form aforesaid, be henceforth reputed and judged as prin- 
 cipal felons. Provided that this act extend not to any per- 
 [660]] son taking any woman, only claiming her as his ward or 
 bond- woman. "[I] 
 
 For the making of a felony within this statute, there must be these 
 circumstances on the part of the woman: 1. That the maid, wife, 
 or widow, have substance of goods or land, or be heir apparent. 
 2. That she be taken away against her will. 3. That she be mar- 
 ried to, or defiled by the misdoer, or some others by his consent. 
 Without these three concurring, it makes no felony within this sta- 
 tute, 3 Ss' 4 P. S,' M. Dallison 22. 4. That she be not in ward, or a 
 bond-woman to the person that taketh her, or causeth her to be taken 
 only as his ward or bond-woman. Co. P. C. cap. 12. p. 61. 
 
 In FullwooiVs case, M. 13. Car. 1. B. R. Cro. jj. 482. 484. 488. 
 
 (c) This difficulty arises from the aforesaid construction of the act, tiiat it must intend 
 a judicial conceuhiient, wliereas the act seems plainly to mean a concealment upon his 
 examination before the justice; for after the act had given power to the justice to exam- 
 ine the suspected person, it immediately adds, and if the same person wilfully conceals, 
 ^•c. the said concealment shall be felony; and if he tlien confess the truth, and all that he 
 shall be examined of, his offense shall be but trespass; the word then shews l|^e lime of 
 confession to be at the examination, and therefore the concealment likewise must be 
 intended to be at that time. 
 
 [1] Now repealed and supplied by 9. Geo. IV. c. 31. See ante, note to c. 59.^. 639.
 
 HISTORIA PLACITORUM CORONJi:. 660 
 
 492. these points were resolved: 1. That if a woman be taken away 
 forceably in the county of Middlesex, and married in the county of 
 Surrey, iho. fact is indictable in neither county; for the taking without 
 the marriage, nor the marriage without the taking, make not felony. 
 2. But if she were taken in the county of Middles ex, 3Lud carried into 
 the county of Surrey, so that it is a continuing force in Surrey, tho 
 begun in Middlesex, and then she is married in Surrey, there the 
 offender may be indicted upon this statute in Surrey. 3. Tho pos- 
 sibly the marriage or the defilement might be by her consent, being 
 won thereunto by flatteries after the taking, yet this is felony, if tlie 
 first taking away were against her will, (a?) 4. That if as well the mar- 
 riage as the taking away were against her will, so that the marriage 
 was voidable, yet it is a marriage de facto, and therefore being taken 
 away against her will, and also married against her will, it is felony 
 within this statute. 5. That it is not necessary in the indictment to 
 say, that she was taken ed intetitione to marry or defile her, because 
 the statute hath no such words of ed intentione. But farther, he 
 marrying her the same day he took her, it must needs appear, that it 
 was ed intentione ; yet these words, ed intentione ad ipsam mai'i- 
 tand', are usually added in indictments upon this statute, 
 and it is safest so to do. 6. That the woman thus taken [661 ] 
 away and married may be sworn and give evidence against 
 the offender, who so took and married her, tho she be his wife de 
 facto. [2'] 
 
 And all these points were accordingly resolved, H. 24 8,- 25 Car. 2. 
 in Brown's case,(e) upon this statute, only the indictment ran, cepit 
 ed intentione ad ipsam maritandam: the offender was convict and 
 executed: and the reasons why the woman was sworn and gave evi- 
 dence in the case of Brown were, 1. Because the taking away of the 
 woman and marrying were the same day, and she was rescued out 
 of their hands, and the offender taken the next day, and so all done 
 flagrante crimine. 2. It was but a forced marriage, and so no mar- 
 riage de jure. 3. There was no cohabitation. 4. Concurring evi- 
 dence to prove the whole fact. But had she freely without constraint 
 lived with him that thus married her, any considerable time, her ex- 
 amination in evidence might be more questionable. 
 
 By the statute of 39 Eliz. cap. 9. Clergy is taken away from the 
 principals, procurers, and accessaries before the offense committed. 
 
 By this act of 3 H. 7. the procurers, as well as the misdoers them- 
 selves, and any person that receives the woman thus taken away, are 
 
 {d) And so it was resolved in Swendsen's case, M. 1 Ann. State Tr. Vol. V. p. 468. in 
 which case most of the other points here mentioned were likewise ruled, 
 (e) 3 Keb. 193. I Ven. 243. 
 
 [2] 2 East's P. C, 454, who cites Hale 301, and tlie passage supra. Rex v. Brown, 
 1 Venlr. R. 243. Haniren Swendsen's case, 5 St. Tr. 456. Wukejield' s case, 2 Lew. C. 
 C. 1. 20. 279. Reg. v. Yore, 1 Jebh 6f Sy. R. 563. 572. Rex v. Sergeant. Rij. Sj M. 352. 
 3 Chitty's Cr. L. 817. note (y). Rose, on Cr. Ev. 115. 121. 1 Greenl. on Ev. § 343. 
 1 Russ. on Cri7n. 709, 710. Ed. 1845. 
 
 VOL. I. — 56
 
 661 HISTORIA PLACITORUM CORONA. 
 
 principals by this statute, and so ousted of clergy; but he that receives 
 the offender knowingly, is only accessary after, and not excluded 
 from clergy. 
 
 Quxre, Whether tho the receiver of the woman be made princi- 
 pal by the act of 3 H. 7. he were intended to be ousted of clergy by 
 39 Eliz. cap 9. 
 
 The statute of 3 H. 7. cap. 14. recites, "That forasmuch as by 
 quarrels made to such as have been in great authority, office, and of 
 council with the kings of this reahn, hath ensued the destruction of 
 the kings and undoing of this realm, so as it hath appeared evidently, 
 when compassing of the death of such as were the king's true sub- 
 jects was had, the destruction of the prince was imagined thereby, 
 and for the most part it hath grown by the malice of the king's own 
 
 houshold servants, as now of late such a thing was like to 
 [ 662 ] have ensued; and forasmuch as by the law of this land, if 
 
 actual deeds be not had, there is no remedy for such false 
 compassings, imaginations, and confederacies had against any lord, 
 or any of the king's council, or any of the king's great officers in his 
 houshold, as steward, treasurer, comptroller, and so great inconve- 
 niences might ensue, if such ungodly demeaning should not be straitly 
 punished before that actual deed were done; therefore it is ordained 
 by the king, and the lords spiritual and temporal, and the commons 
 of the said parliament assembled, and by authority of the same, that 
 from henceforth the steward, treasurer, and comptroller of the king's 
 house for the time being, or one of them, shall have full power and 
 authority to inquire by twelve sad men and discreet persons of the 
 exchequer roll of the king's houshold, if any person admitted to be. 
 his servant, sworn, and his name put into the chequer roll of his 
 houshold, whatsoever he be, serving in any manner, office or room, 
 reputed, had or taken, under the state or degree of a lord, make any 
 conspiracies, compassing, confederacies or imaginations with any per- 
 son or persons to destroy or murder the king, or any lord of this 
 realm, or any other person sworn to the king's council, steward, 
 treasurer, or comptroller of the king's house, that if it be found before 
 the said steward for the time being by the said twelve sad men, that 
 any such of the king's servants as is abovesaid, hath confederated, 
 compassed, conspired, or imagined, as is abovesaid, that he so found 
 by that inquiry be put thereupon to answer, and the steward, trea- 
 surer, and comptroller, or two of them, have power to determine the 
 same matter according to the law; and if he put him in trial, that 
 then it be tried by other twelve sad men of the same houshold; and 
 that such misdoers have no challenge but for malice. And if such 
 misdoers be found guilty by confession or otherwise, that the said 
 otfense be judged felony, and they to have judgment and execution 
 , as felons attaint ought to have by the common law." 
 
 Vide the observations of my lord Coke upon this act, Co. 
 [663] P. C. cap. 4. where on the part of the offender there must 
 
 be these qualifications, viz. 1. He must be the king's sworn 
 servant. 2. His name must be in the chequer roll. 3. He must be
 
 HISTORIA PLACITORUM CORONJG. 663 
 
 under the degree of a lord. 4. Tho his conspiring with another not 
 of the houshold be an oflense, yet he only of the houshold is the felon. 
 
 On the part of the person against whom the conspiracy is, are 
 these requisites: 1. The conspiracy to murder the king; or 2. A lord 
 of the realm, but yet only such as is sworn of the king's privy coun- 
 cil. 3. Any other of the king's privy council, tho under the degree 
 of a lord. 4. The steward, treasurer, or comptroller of the king's 
 house, tho neither a lord nor of the privy council. 
 
 The power to hear and determine. 1. The steward, treasurer, and 
 comptroller, [or any two of them, have power to determine,*] tho 
 the act saith, they or any one of them may inquire. 2. If a servant 
 of the king's house, ut supra, conspire the death of the steward, 
 treasurer, and comptroller, yet they remain the only judges in this 
 cause by this act, tho they may take others to their assistance, yet 
 none but they sit as judges. 3. The presentment and trial must be 
 only by the servants of the houshold. 4. The inquiry may be by 
 twelve or more, but the trial only by twelve. 5. No challenge but 
 for malice. 6. The conspiracy must be plotted in the king's hous- 
 hold. 7. The offender is to have his clergy. 
 
 And note, this being a new made felony, and the manner of its 
 determination particularly limited, it is not determinable before any 
 other judges, or in any other courts, neither in the king's bench, oyer 
 and terminer, or gaol delivery. Qusere, whether their session must 
 not be in the king's house. 
 
 By the statute of 7 H. 7. cap. 1. There is provision of felony against 
 captains and soldiers leaving their service ; but this I shall take up 
 hereafter, as also the statute of 3 H. 8. cap. 5. which I shall refer to 
 4 <^' 5 P. <^- M. cajj. 3. 
 
 I come to the time of H. 8. which was fruitful in enact- 
 ing new treasons and ^new felonies, and new offenses as to [ 664 ] 
 Prsemn7nre. 
 
 But there were two acts of parliament, that repeald as all new trea- 
 sons and misprisions of treasons, so all new felonies enacted at any 
 time after the first day of the reign of Henry 8. viz. 
 
 1 E. 6. cap. 12. Whereby it is enacted, " That all offenses made 
 felony by any act or acts of parliament made since the 23d day of 
 Jipril, in the first year of the reign of king H. 8. not being felony 
 before, and also all and every the branches and articles mentiond, 
 or in any ways declared in any of the said statutes concerning the 
 making of any offense or offenses to be felony, not being felony 
 before; and aU pains and forfeitures concerning the same, or any of 
 them, shall from henceforth be repeald, and utterly void and of none 
 effect." 
 
 1 Mar. cap. 1. whereby it is enacted, "That all offenses made 
 felony, or limited to be within the case of Prsemnnire, by any act or 
 acts of parliament, statute or statutes made since the first day of the 
 
 * The words here in the MS. are, Or any one or any two of them have power to inquire, 
 but they seem plainly to have been so written by mistake, the sense requiring them to 
 be as above.
 
 664 HISTORIA PLACITORUM CORONiE. 
 
 first year of the reign of king Henry 8. not being felony before, nor 
 within the case o{ Proemunire, and all and every branch, article and 
 clause. mentiond, or in any ways declared in any of the said statutes 
 concernit)g the making of any offense or offenses to be felony, or 
 within the case of Prsemunire before, and all pains and forfeitures 
 concerning the same, or any of them, shall from henceforth be repeald 
 and utterly void, and of none effect." 
 
 The former of these statutes, and also the latter repeald all new 
 felonies enacted in the time of H. 8. who began his reign April 22. 
 1509. and the latter of these statutes repeald also the new created 
 felonies in the reign of E. 6. 
 
 But neither of Ihese statutes did extend to piracy or robbery upon 
 the sea, nor any such act as concerned matter of proceedings touch- 
 ing felonies, that were such before the time of H. 8. and therefore 
 those statutes in the time of//. 8. that concerned clergy, sanctuary, 
 peremptory challenge, place or manner of trial of felons, or 
 r 665 3 the erecting of new jurisdictions for their trial, as that of 
 33 H. 8. caj). 12. for felonies in the king's court; for these acts 
 were not constitutive of new felonies, but only directions of the course 
 of proceedings in cases of old felonies. 
 
 Those statutes that made new felonies both in the time of H. 8. 
 and E. 6. are therefore of these kinds, viz. 
 
 1. Such as were enacted de novo in the times of H. 8. and E. 6. 
 and were never after revived or re-enacted by any subsequent act of 
 parliament; such were those of 31 H. 8. cap. 2. of breaking the 
 heads of ponds, and taking fish, 31 H. 8. cap. 12. and 32 H. 8. cap. 
 11. stealing of hawks eggs, and hunting in the king's forests, <^«c. 
 33 //. 8. cap. 8. of witchcraft. 33 H. 8. cap. 14. of prophecies. 
 37 H. 8. cap. 6. The burning of a frame of timber. 37 H. 8. cap. 10. 
 Libellous papers charging men to have spoken treason. 23 H. 8. 
 cap. 11. Breaking prison. 
 
 2. Such as were repeald but enacted again in the same kind, but 
 with some alterations, as 22 H. 8. cap. 10. concerning Egyptians, 
 altered by 1 4* 2 P. S,- M. cap. 4. and by 5 Eliz. cap. 20. 
 
 3. Such as were de novo enacted to be felonies in the times of 
 H. 8. and E. 6. and repeald, but re-enacted again, as 22 H. 8. cap. 1 1. 
 touching cutting of Powdike, renewed by 2 <§* 3 P. %• M. cap. 19. 
 
 3 H. 8. cap. 5. concerning soldiers, re-enacted in a great measure by 
 
 2 E. 6. cap. 2. and 4 S,- 5 P. S,' M. cap. 3. 21 H. 8. cap. 7. servants 
 embezzling their masters goods, by 5 Eliz. cap. 10. 25 H. 8. cap. 6. 
 concerning buggery, by 5 Eliz. cap. 17. 23 //. 8. cap. 16. concern- 
 ing Scotchmen, re-enacted by 1 Eliz. cap. 7. but finally repeald by 
 
 4 Jac. 1. cap. 1. 
 
 4. Some offenses were made felony by former acts of parliament 
 before H. 8. but had additions to them, ex.tending the felonies farther 
 than the old acts, some such thing may be found in the statute of 
 
 3 H. 8. cap. 5. concerning soldiers in relation to the statute of 7 H. 7. 
 cap. 1. and then the old felonies stand, but the additional felonies are 
 repeald.
 
 HISTORIA PLACITORUM CORONiE. 666 
 
 Concerning the first of these ranks of acts I shall say nothing, 
 because they are now utterly void; but concerning the other three 
 ranks of statutes, I shall proceed according to their order of time. 
 
 First, For the statute of 3 H. 8. cap. 5. as also that of 2 E. 6. cap. 
 2. concerning soldiers, I shall refer them to the statute of 4 <§' 5. P. 4* 
 M. cap. IS. 
 
 By the statute of 21 H. 8. cap. 7. it is enacted, "That all and sin- 
 gular servants, to whom any caskets, jewels, money, goods or chat- 
 tels, by his or their masters or mistresses, shall from henceforth be 
 delivered to keep, that if any such servant or servants withdraw 
 themselves from their masters or mistresses, and go away with the 
 said caskets, jewels, money, goods or chattels, or any part thereof, to 
 the intent to steal the same, and defraud his or their masters or mis- 
 tresses thereof, contrary to the trust and confidence to him or them 
 put by his or tlieir masters or mistresses, or else being in the service 
 of his or their master or mistresses without any assent or command- 
 ment of his master or mistress, embezzle the same caskets, jewels, 
 money, goods or chattels, or any part thereof, or otherwise convert 
 the same to his own use with like purpose to steal it, that if tlie said 
 casket, jewels, money, goods or chattels, that any such servant shall 
 go away with, or which he shall embezzle with purpose to steal as 
 aforesaid, be of the value of forty shillings, or above, that then the 
 same false, fraudulent, or untrue act and demeanor shall from hence- 
 forth be deemed and adjudged felony, &c. Provided it extends not 
 to apprentices, nor to any person under the age of eighteen years; 
 but every such apprentice or person within that age doing that act 
 shall be and stand in the like case as they were before the making 
 of this act. This act to endure till the next parliament." 
 
 By the act of 27 H. 8. cap. 17. Clergy was taken away in this 
 case, if the indictment were laid specially upon the act of 21 i^. 8. 
 and pursuant to the same; and by the act of 28 H. 8. cap. 2. this act 
 of 21 H. 8. was made perpetual; but by the act of 1 E. 6. cap. 12. 
 these acts were both repealed. 
 
 But again, by the act of 5 Eliz. cap. 10. this act of 21 
 H. 8. was re-enacted and revived, yet it did not revive the [ 667 ] 
 act of 27 H. 8. cap. 17. for taking away clergy. 1. Because 
 the words of the reviving act of 5 Eliz. revive only the act of 
 21 H. 8. specially and particularly by name, and not any other 
 incident act concerning clergy. And again, 2. Because the acts 
 taking away clergy were specially repealed by the statute of 1 E. 6. 
 cap. 12, except in those cases there particularly enumerated, so 
 that at this day a party indicted and convict upon this statute hath 
 his clergy.(/) 
 
 And tiole, that in this case, and all other cases of this nature 
 where a statute is repealed and re-enacted, an indictment or infor- 
 
 (/) But by 12 Ann. cap. 7. Clergy is in such case taken away from facts committed 
 in any house or out-house, except as to apprentices under the age of fifteen years, rol)- 
 bing their masters.
 
 667 ' HISTORIA PLACITORUM CORONA. 
 
 mation may conclude either contra formom statutorum, or contra 
 formam statiiti, for it shall be intended the last statute. And so it 
 is, if a statute be but temporary and then expires, and then is re- 
 enacted ; but if a statute be continued till the end of the next session 
 of parliament, and before that next session be ended it is continued 
 over, the indictment may run contra formam of the first statute, for 
 it never was interrupted, or it may conclude contra formam statu- 
 torum. F. 42 Eliz. B. R. Dingly and Moore,{g) M 31 4' 32 Eliz. 
 B. R. Milt's case. 
 
 This statute was introductive of a new law, when the goods were 
 actually delivered to the servant that goes away with them; for 
 where there is such a delivery it could not at common law be a 
 felony. 
 
 But yet a servant might be guilty of felony at common law, if he 
 takes the goods of his master feloniously, nay, tho they be goods 
 under their charge, as a shepherd, butler, 6,'C. vide supra, cop. 43. 
 p. 505. and for this he may be indicted at this day as a felony at 
 common law, and of this felony at common law, an apprentice or 
 servant under the age of eighteen years may be guilty, and indicted 
 thereof at common law. 
 
 And therefore tho the statute of 21 H. 8. exempt an apprentice or 
 servant under the age of eighteen years from the pain of 
 r 668 3 felony enacted de novo by this statute, namely, where goods 
 are actually delivered to him, yet it leaves him in the same 
 condition as to any felony at common law, as if he were not except- 
 ed; and therefore if my butler or shepherd, under the age of eighteen 
 years, or if my apprentice takes away my goods feloniously without 
 my actual delivery, tho they are under the value of forty shillings, 
 he is indictable of felony at common law. 
 
 If I deliver my servant a bond to receive money, or deliver him 
 goods to sell, and he receives the money upon the bond or goods, 
 and goes away with it, this is not felony at common law because the 
 money is delivered to him, nor felony by this statute, because tho 
 the bond or goods were delivered him by the master, yet the money 
 was not so delivered by the master. Di/. 5. a. Co. P. C. cap. 44. 
 And yet by the very payment of the money to the servant to the 
 master's use, the master is by law said to be actually possessed of 
 this money; and if taken away from the servant by a trespasser or 
 robber, the master may have a general action of trespass, or action 
 upon the statute of hue and cry. 
 
 But it is held, that if the master delivers to the servant twenty 
 pounds in, silver to change it into gold at the goldsmith's or leather 
 to make shoes, and he run away with the gold or shoes, it is felony. 
 Crompt. Justic. 35. b. 
 
 If Ji. hath two servants, B. and C. B. by the command of Jl. the 
 master, and in his presence delivers the master's goods to C. by the 
 
 {g) Cro. Eliz. 750.
 
 HISTORIA PLACITORUM CORONA. 668 
 
 master's command, and C. runs away with it, this is felony within 
 the statute, for it is the master's dehvery; but suppose it be de- 
 livered by the master's command, but in the master's absence, 
 qusere, whether this be within the statute, and what ditference there 
 is between this case and the receiving money from a creditor by the 
 master's directions? yet vide Dy. 5. it seems felony. 
 
 If the master's wife delivers goods of the master to the servant to 
 keep, and he goes away with it, it seems this is within the statute, 
 for he hath them by delivery of his mistress, and the master's wife is 
 as well his mistress, as if she were sole, vide statute 25 E.'i. for petit 
 treason. 
 
 By the statute of 22 H. S. cap. 11. Every perverse and 
 malicious cutting down of the new Powdike ot Marshland, ["669 1 
 or of the old Powdike of the isle of Ely, or of any part 
 thereof, or of any other bank, being part of the rind and uttermost 
 part of the country of Marshland, made for the defense thereof, 
 other than working upon the same for repairing or amending the 
 fortifying thereof, is enacted to be felony. 
 
 This act was repealed by 1 E. 6. cap. 12. and 1 Mar. cap. 1. but 
 is revived by 2 4' 3 P. <§' M. cap. 19. and so continues. 
 
 But the offender hath the benefit of clergy. 
 
 By the statute of 23 H. 8. cap. 16. The selling of a horse to a 
 Scotchman, or delivering a horse in Scotland is made felony. 
 
 This was repealed by 1 E. 6. cap. 12. and tho made penal by the 
 act of 1 E. 6. cap. 5. yet never revived,(A) and the acts of this kind 
 are repealed by 4 Jac. 1. cap. 1. as to Scotland. 
 
 By the act of 25 H. 8. cap. 6. buggery with mankind or beast is 
 enacted to be felony, and the felon excluded from clergy. 
 
 This statute was repealed by the general act of 1 E. 6. cap. 12. and 
 in 2 E. 6. cap. 29. it was enacted to be felony without clergy, but 
 without loss of lands or goods, or corruption of blood. 
 
 But this act of 2 E. 6. was repealed by the statute of 1 Afar, 
 cap. 1. and so both acts stood repealed until 5 Eliz. 
 
 But by the statute of 5 Eliz. cap. 17. the entire act of 25 H. 8. 
 cap. 6. is revived and re-enacted, so that this offense stands at this 
 day absolutely felony without benefit of clergy. 
 
 To make buggery there must be penetratio, as in case of rape. 
 Vide supra, p. 628. 
 
 A woman may be guilty of buggery with a beast within this 
 statute. 
 
 If buggery be committed upon a man of the age of dis- 
 cretion, both are felons within this law. [_ 670 J 
 
 But if with a man under the age of discretion, viz. four- 
 teen years old, then the buggerer only is the felon. 
 
 Those that are present, aiding and abetting, are all principals; the 
 statute making it felony generally; there are or maybe accessaries 
 
 Qi) This must be some mistake in the MS. for this statute was revived, as our author 
 himself says a little above, p. 665. by 1 Eliz. cap. 7. tho afterwards repeal'd by 
 4 Jac. I cap.
 
 670 HISTORIA PLACITORUM CORONiE. 
 
 before and after, as in case of rape. But tho none of the principals 
 are admitted to their clergy, yet accessaries before and after are not 
 excluded from clergy. 
 
 Touching the time of E. 6. I do not find any new felony enacted, 
 but that of 2 4* 3 E. 6. cap. 6. which I shall hereafter consider, when 
 
 1 come to 4 4' 5 P. 8^- M. cap. 3. 
 
 In the time of queen Mary we find these statutes following 
 making new felonies. 
 
 By the statute oi \ 8f 2 P. Sr M. cap. 4. " If any outlandish people 
 calling themselves or being called Egyptians, shall remain in this 
 realm or Wales one month at one or several times. And if any 
 person being fourteen years old, which hath been seen or found in 
 the fellowship of such Egyptians, or which hath disguised him or 
 herself like them, shall remain here or in Wales one month either at 
 one or several times, it is felony. "(/) 
 
 The trial to be by the inhabitants of the county, where they are 
 taken, and not per medietatem linguse, no sanctuary or clergy to be 
 allowed. 
 
 A proviso, that it extend not to their children under thirteen years 
 old. 
 
 And by the statute of 5 Eliz. cap. 20. the act of 1 4' 2 P. <§• M. is 
 confirmed and extended to all above the age of fourteen years, that 
 shall be found in the company of vagabonds, commonly called or 
 calling themselves Egyptians, or counterfeiting or disguising them- 
 selves by their apparel, speech or behaviour like them, if they con- 
 tinue one month, altho they are persons born in the king's dominions. 
 Clergy is ousted. 
 
 I have not known these statutes much put in execution, 
 [] 671 3 only about twenty years since at the assizes at Bury about 
 thirteen were condemned and executed for this offense. 
 
 I am now come to that, which I have all along promised, namely, 
 the felony of soldiers running from their captains, enacted by several 
 statutes, as namely, 18 H. 6. cap. 19. 7 H. 7. cap. 1. 3 H. 8. cap. 5. 
 
 2 S)' 3 E. 6. cap. 2. repeal'd by 1 Mar. cap. 1. and revived by 4 <^ 5 
 P. S,' M. cap. 5. and the statute of 5 Eliz. cap. 5. 
 
 I shall take up the whole matter together, beginning with the an- 
 tient statutes, and so descending downwards to the latter. 
 
 By the statute of IS H. 6. cap. 18. It is recited, "That divers cap- 
 tains, that were retained by indenture to serve the king, some beyond 
 the seas and some in the marches, had defrauded the soldiers under 
 their retiiuie of their pay; and enacts, that no captain, which shall 
 have the conduct of such retinue, and shall receive the king's wages 
 or the same, shall abate his soldiers their wages, except it be for 
 I heir cloathing, that is to say, if they shall be waged for half a year, 
 ten shillings a gown for a gentleman, six shillings and eight pence for 
 
 (i) Our author has here copied from Co. P. C, rap. 39. where the two statutes of 
 1 S( 2 P. Sf M. and 5 Eliz. cap, 20. are blended together; for this last clause and 
 the words at one or several times in the first clause belong to 5 Eliz. and not to
 
 HISTORIA PLACITORUM CORONiE. 671 
 
 a yeoman, upon pain to forfeit twenty pounds for a spear, ten pounds 
 for a bow to the king, for whom he did abate." 
 
 And by the statute of 18 H. 6. cap. 19. It is recited and enacted, 
 as followeth, " Whereas many soldiers, which have taken parcel of 
 their wages of their captains, and so have muster'd and been entred 
 of record the king's soldiers before his commissioners for such terms, 
 for which their masters have indented, have sometimes, presently 
 after their muster and receiving part or all of their wages, departed 
 and gone where they will, and have not passed the sea with their 
 captains, and some passed the sea, and long within their terms de- 
 parted from their captains and the king's service, without apparent 
 license to them granted by their captains, to the great damage, Src. it 
 is enacted, that every man so{k) mustering and receiving the king's 
 wages, which departeth from his captain within his term, in 
 any manner aforesaid, (except notorious sickness by the visi- [ 672 ] 
 tation of God sufiers him not to go, and which he shall cer- 
 tify presently to his captain, and repay his money, so that he may 
 provide him for another soldier in his place) he shall be punished as 
 a felon, and the justices of the peace shall have power to hear and 
 determine the same: and that no soldier, man of arms or archer so 
 mustered of record, and going with his captain beyond the sea shall 
 return into England within the term for which his captain hath re- 
 tained him, nor leave his captain there in the king's service, and in 
 adventure of the war, except he hath reasonable cause by him shewed 
 to his captain, and by him to the chief in the country having royal 
 power, and thereupon shall have a license of the said captain wit- 
 nessed under his seal, and shewing the cause of his license; and if 
 any that doth muster of record come without letters testimonial of his 
 captain within his term on this side the sea, the mayors, <§'c. shall 
 arrest them, and detain them until it be inquired of, and if it be found 
 by inquiry before the justice of peace, and proved, that they have 
 mustered of record and departed from their captains without license, 
 as aforesaid, they shall be punished as felons." But it took not away 
 elergy. 
 
 By this act it appears, that the method of those times was, that as 
 well the soldiers as the captains were under a contract to serve in the 
 war, some for longer time, some for shorter, and sometimes the sub- 
 ordinate soldiers contracted with the king, but most commonly the 
 captain contracted with the king to serve him with such a number 
 of men raised by himself for such a time, as half a year or the like, 
 and the captain made his contract with his soldiers (therefore 
 called his retinue,) and the captain received the pay for himself and 
 them. 
 
 And this method continued until 7 H. 7. and for a long time after, 
 as appears by the whole preamble and body of the statute of 7 H. 7. 
 cap. 1. 
 
 (k) This word [so] restrains the statute to soldiers retain'd in tlic manner mentioned 
 in the act, which method of retainer being now disused, this statute is consequently be- 
 come of little force.
 
 673 HISTORIA PLACITORUM CORONA. 
 
 By that statute it is enacted, " That every captain and petit cap- 
 tain having under them retinue of any soldier or soldiers at the 
 king's wages shall, under pains in the same act limited, pay to their 
 retinue of soldiers their wages rateably, as it is allowed by the king 
 or the treasurer of his wars, and that within six days next after ihey 
 have received it; and if any soldier, being no captain, immediately 
 retained with the king, which hereafter shall be in wages and re- 
 tained, or takes any -prest to serve the king upon the sea or upon the 
 land beyond the sea, departs out of the king's service without license 
 of his captain, that such departing be felony without the privilege of 
 clergy; and the justices in every shire, where such oifender is taken, 
 shall hear and determine the offense, as if done in the same connty; 
 and their departure and retainer, if traversed, shall be tried in the 
 same county where taken." But this act extended not to soldiers 
 impressed to serve in England. 
 
 By this statute it appears, that the retainer of the captain was by 
 contract with the king, and he by the same contract was to provide 
 the soldiers, which were to be at the king's pay. This is continued 
 also till 3 H. 8. as appears by the preamble and body of the act of 
 3 H. S. cap. 5. 
 
 By that act of 3 H. 8. cap. 5. The same punishment is enacted 
 upon soldiers departing without license, only here it is without license 
 of the king's lieutenant. 
 
 By the statute of 7 H. 7. It is receiving wages or prest to serve 
 the king upon or beyond the sea; here it is to serve the king upon 
 the sea, or upon the land, or beyond the sea, which is larger than 
 7 H. 7. for it extends to land service, and the punishment is limited 
 to the justices of the peace of the counties where taken. 
 
 Proviso, that it extend not to captains or soldiers retained to serve 
 in Calais, S,'C. Berwick or fVales. 
 
 It is resolved 6 Co. Rep. 27. a. in the case of soldiers, that both 
 these statutes have continuance, and tiie word {king) extends to the 
 successors of those kings, (m) and altho by the statute of 
 {] G74 ] 1 ^. 6. and 1 Mar. all new felonies made since the first day 
 of the reign of //. 8. that were not felonies before, are re- 
 pealed, yet inasmuch as the statute of 3 H. 8. enacts no new felony, 
 but what was felony by 7 H. 7. cap. 1. Iho it vary as to the person, 
 that is to grant the license, and the persons that are to try it,(*) yet 
 it was in truth no new felony, and therefore it is held the statute of 
 3 //. 8. was not repealed by 1 Mar. or 1 E. 6. 
 
 But it seems to me to be repealed by 1 E. 6. and 1 Mar. for to 
 depart without license of the captain, and to depart without license 
 of the king's lieutenant, are several offenses, for suppose he had the 
 lieutenant's license and not the captain's, it is not excuse enough 
 within 7 H. 7. and if he had the captain's license and not the lieu- 
 tenant's, it excuselh not within the statute of 3 H. 8. But then 
 quaere, whether the exception for clergy of men in orders, or of sol- 
 
 (m) Vide anlea, pag. 100. 
 
 (*) The persons impower'd to try it are the same by both statutes. .
 
 HISTORIA PLACITORUM CORONiE. 674 
 
 diers in Calais, Berwick, and Wales, extends to the statute of 
 7 H. 7. cap. 1. 
 
 If this variance by the statute of 3 H. 8. be a repeal of the statute 
 of 7 H. 7. then they are both repealed, that of 7 H. 7. by 3 H. 8. and 
 that of 3 H. 8. by 1 E. 6. and 1 Mar. 
 
 The statute of 2 8,- 3 E. 6. cap. 2. recites, " That whereas divers 
 of the king's subjects, according to their bounden duties, have 
 appointed and sent into the parts beyond the seas and into Scofhaid 
 many able persons and soldiers with horses and harness meet to 
 serve the king in his wars to their great charges and costs, yet some 
 of the soldiers so sent have, contrary to their bounden duty, sold or 
 converted the said horses or harness, whereby the king hath been 
 destitute of their service, and the owners who sent them have been 
 deceived of their horses and harness, and less able to refurnish other 
 like soldiers with horses and harness at such time as they shall be 
 commanded by the King." 
 
 It is enacted, " That if any soldier hereafter serving the king in his 
 wars in any of his dominions, or on the seas, or beyond the seas, 
 shall hereafter purloin, Si-c. such horses or arms, he shall be commit- 
 ted by the lieutenant, S,'c. upon due proof or testimony, till 
 satisfaction, S,'c. And if any soldiers serving, as is aforesaid, [ 675 ] 
 depart without license of his lieutenant or other above- 
 named with booty or otherwise, being in the enemies country, or 
 elsewhere in the king's service, or out of any garrison, where he or 
 they be appointed to serve, that then every such soldier so departing 
 without license, shall be taken and judged as a felon without benefit 
 of clergy or sanctuary; and the justices of every shire, where he is 
 taken, shall have power to hear and determine the offense, as if com- 
 mitted in the same county. 
 
 "Provisions against captains short pay,4'c. Provided not to extend 
 to detaining of wages for victuals, harness, weapons, or for Siuy prest 
 money provided and delivered to such soldier." 
 
 Nota, This act, tho it vary from the preamble of the other acts of 
 7 H. 7. and 3 H. 8. and recites, that the king's subjects according to 
 their bounden duty had sent men and soldiers, doth not necessarily 
 infer a compulsive power upon the persons so to send, or so to go; 
 1. Unless they were bound by tenure to attend in person or send; 
 such were tenants by knights service. (n) 2. Unless obliged by the 
 statute of 11 H.l. cap. 18. or 19 //^ 7. cap. 1. as having offices, pen- 
 sions, or lands given by the king, who by these statutes were bound 
 to follow the king in his wars, but at the king's wages, by those 
 statutes which were held perpetual. 3. Or unless they had con- 
 tracted with the king to find him soldiers, for this course was not 
 wholly out of use, and the preamble seems to import as much, for 
 they sent their soldiers, and when they thus departed with their arms 
 were bound to refurnish others. 
 
 And tho there be mention oi prest money in this act; yet in truth 
 
 (n) See Co. Lit. p. 76. a. § 103.
 
 675 HISTORIA PLACITORUM CORONA. 
 
 it was imprest money, or the earnest of the contract between the 
 king by the captain and the soldiers, and not as is now used. 
 
 But yet upon this act two things are observable. 1. That this act 
 did not nnake the departure of any soldier to be felony, 
 [ 676 3 ""If^ss he were actually in the king's service in his wars. 
 6 Co. Rep. 27. a. case of soldiers. 
 
 2, Tho this felony was in substance the same, that was enacted 
 by 7 H. 7. yet the general clause of the act of 1 Mar. cap. 1. re- 
 pealed it. 
 
 And this is accordingly so recited by the statute of 4 ^ 5 P. Sr M. 
 cap. 3. which doth recite it to be repealed, and therefore by an ex- 
 press enacting clause renews that clause of the statute of 2 <§• 3 E. 6. 
 that makes such departure felony. 
 
 By the statute of 5 Eliz. cap. 5. It is recited, " That it hath been 
 doubted, whether the statute of IS H. 6. cap. 19. did or ought to 
 extend to mariners and gunners serving on the seas taking wages of 
 the king or queen. It is expressed, ordained, and enacted and 
 declared, that the said statute in all pains, forfeitures and other 
 things did and doth, and hereafter shall extend as well to all and 
 every mariner and gunner having taken, or that shall hereafter take 
 prest or wages to serve the queen, her heirs or successors, to all 
 intents and purposes, as the same did or doth to any soldier; any 
 diversity of opinion, doubt, or matter to the contrary notwith- 
 standing." But this takes not away the benefit of clergy. 
 
 In Co. Rep. 27. a. The case of soldiers. The case was, that 
 divers soldiers after they were prest, and going towards Ireland to 
 serve against the rebels there, and before they had served in the 
 war, did depart and esloigne themselves; hereupon it was resolved 
 by all the judges of England, 43 Eliz. upon a reference to them 
 made, as it seems, 1. That this case was not within the statute of 
 18 H. 6. but that act is now of little use, because that act refers to 
 the antient manner of retaining soldiers, which was usual between 
 the king and great men, to serve the king with such a number of 
 men for a certain time. 2. That the statute of 2 <§• 3 E. 6. cap. 2. 
 revived by 4 8r 5 P. fy M. extended not to this case, for that sta- 
 tute extended to the departure of a soldier after he had been in 
 actual service in the war. 3. That the statutes of 7 H. 7. cap. 1. 
 and 3 //. 8. cap. 5. which in substance are both of one 
 [ 677 ] effect, are perpetual laws, and the word king extends to his 
 successors, and upon those two acts divers soldiers were 
 attaint and executed. 
 
 The reason thereof cannot be grounded upon any supposition, 
 that the course of military retainers was altered in 7 H. 7. from 
 what it was in the time of //. 6. for there arc very many indentures 
 of retainers of record according to the antient form long after that 
 time, and indeed the statutes of 7 H. 7. and 3 H. 8. do import as 
 much, as will easily appear to an attentive reader of them: But that 
 which seems to extend the acts of 7 //. 7. and 3 H. 8. to this case, 
 are the words or take any prest, to serve the king; which words
 
 HISTORIA PLACITORUM CORONiE. 677 
 
 are in these statutes and in that of 5 EHz. cap. 5, which are wanting 
 both ill the statute of 18 //. 6. cap. 19. and 2 8^- 3 E. 6. cap. 2. for 
 that makes them subject to the penalty for departing without Hcense, 
 as well as if they had received wages, or had been mustered, or been 
 in actual service in the wars. 
 
 All the difficulty rests in the word pre.st, viz. whether it be to be 
 intended passively from premo pressi, as it is commonly used at this 
 day, and is so exprest in the case of soldiers, ./?/??'e5 ceo quih fueront 
 prest : Or whether to be taken actively, as it is exprest in the statutes 
 of 1 H. 1. 3 H. 8, and 5 Eliz. having taken prest to serve, &ic, prx- 
 stitium, or the earnest of their contract.(o) 
 
 All do agree, that if a man do voluntarily receive or take py^est to 
 serve as a soldier, mariner, or gunner, either upon or beyond the seas, 
 he is bound thereby, and if he depart without license, it is 
 felony within the statute of 7 H. 7. cap. 1. 3 H. 8. cap. 5. [678] 
 and 5 Eliz. cap. 5. for the words of the statutes are express 
 in it; only in the case of a soldier it is without benefit of clergy, but 
 of a mariner or gunner it is within benefit of clergy, because the 
 statute of 18 H. 6. cap. 19. doth not exclude clergy, and the statute 
 of 5 Eliz. extends only the statute of 18 H. 6. to mariners and gun- 
 ners, and mentions nothing of the statute of 7 ^ 7. or 3 H. 8. which 
 exclude clergy. But of the business of clergy hereafter in this 
 chapter. 
 
 But on the other side, the compulsion of men to go beyond or upon 
 the sea, or otherwise of imprisoning of them, or compelling men to 
 take prest money, or otherwise to imprison them hath been, I confess, 
 a practice long in use; how far it is justifiable or not the books that 
 have treated of it are to be consulted, nde the argument of Calvin's 
 case, 7 Co. Rep. 7. b. He that reads the comment of my lord Coke upon 
 Confirmatio Cartar, cap. 5. and his observations and conclusions 
 there upon the statutes of 1 E. 3. cap. 5 ^^ T.(p) 18 E. 3. cap. 7.{g) 
 25 E. 3. cap. 8.{r) 4 //. 4. cap. \3.{s) may reasonably think he varied 
 
 (o) Whatever doubts may formerly have been about tlie meaning of the word prest, 
 yet it seems now to be fixt to tlie latter sense by 5 ^ 6 W. ^ M. cap. 15. for it is there 
 enacted, "That no person, that shall be listed for the land service, should for the future 
 be esteemed a listed soldier, or be subject to the penalties of this act, or any other 
 penalty for his behaviour as a soldier, unless before his being listed or inserted in any 
 muster-roll he shall have been brouglit before a justice of peace, (not being an officer in 
 the army) or chief magistrate of some city, or high constable of the hundred or division 
 where the party shall be listed, and before such justice, ^c. shall declare his free con- 
 sent to be listed as a soldier." Altho the former clause of this statute for reviving the 
 punishment of mutiny or desertion be limited to the time mentiond in the act, yet this 
 clause coming after that limitation, and being general not only in relation to the penal- 
 ties of this act, but of any otiier act, seems to be perpetual. 
 
 {p) This statute provides, that no man shall be charged to arm himself otherwise 
 than was formerly wont, and that no man be compeld to go out of his shire, but where 
 necessity requireth, and sudden coming of strange enemies into the realm. 
 
 {q) This statute ordains, that men of arms, ^c. chosen to go in the king's service out 
 of England, shall be at the king's wages, till their coming again. 
 
 (r) This statute enacts, that no man shall be constraind to find men of arms, other 
 than those who hold by such service, except it be by common assent in parliament. 
 
 («) The design of this statute is chiefly to confirm the three acts above mentiond.
 
 678 HISTORIA PLACITORUM CORONA. 
 
 his opinion. (/) And he, that looks upon the acts enabling pressing 
 
 of soldiers and mariners for foreign service upon or beyond the sea, 
 
 namely 17 Car. 1. cup. 12, cap. 25. cap. 26. may think that 
 
 r 679 1 those times made some doubt of \i.{u) But of this matter 
 
 I deliver no opinion. (a*) Howsoever, to make a felony 
 
 within those acts of 7 H. 7. cap. 1. 3 H. 8. cap. 5. 5 Eliz. cap. 5. it 
 
 must be laid in the indictment and proved upon evidence. 1. That 
 
 either they received wages, or took prest to serve the king upon sea 
 
 or land. 2. That he, that thus imprested them, was commissioned 
 
 by the king so to imprest them. 
 
 Touching clergy in these offenses. 
 
 1. He that is convict upon the statute of \S H. 6. cap. 19. shall 
 have his clergy. Co. P. C. cap. 2Q. 
 
 2. Consequently a mariner or gunner, that hath taken wages or 
 prest, shall have his clergy, for the statute of 5 Eliz. cap. 5. extends 
 only the pains and penalties of the statute of \Q H. 6. to this case, 
 and by that statute of IS H. 6. clergy was not taken away. 
 
 3. That a departing contrary to the statute of 7 H. 1. or 3 H. 8. 
 is by those statutes exempted from clergy, only the statute of 3 H. 8. 
 cap. 5. allows men in orders the benefit of clergy. 
 
 4. The statute of 2 <§' 3 E. 6. takes away clergy from those, that 
 depart without license after they have served the king in his wars. 
 
 5. By the statute of 1 E. 6. cap. 12. All persons convict of any 
 felony not excepted in that act, whereof this is none, shall have their 
 clergy, as he might have had before 24 Jlpril, 1 H. 8. and therefore 
 an offender against 7 H. 7. cap. 1. is ousted of his clergy, because 
 ousted thereof by 7 H. 7. cap. 1. only if they be in orders, they have 
 privilege of clergy by the statute of 3 H. 8. cap. 5. 
 
 6. But if he be indicted upon the statute of 3 H. 8. cap. 5. 
 
 r 680 ] qusere, whether he shall not have his clergy, for tho the felony 
 
 in substance be the same, yet this statute makes it felony to 
 
 depart without the license of the king's lieutenant ; but the statute 
 
 (Jt) In Calmn's case he was of opinion, that the subject is bound to serve the king in 
 his wars both within and without the realm; and in his comment upon conjirmatio car- 
 tar, cap. 5. 2 Iiistit. 528. he says, that the statutes above mentiond, (which provide, that 
 none shall be compeld to go to the king's war out of his shire, except in case of necessity, 
 nor shall be conslraind to find men of arms, except by consent of parliament,) were but 
 declarations of the anlient law of England. And again, in his comment on Magna 
 Charta, cap. 29. 2 Insiit. 47. he says, that the king cannot send any subject against his 
 will to serve him out of the realm, not even into Ireland, for then under pretense of ser- 
 vice he might send liim into banishment. 
 
 (m) Or rather were clear, that it could not be legally done without a special act of par- 
 liament for that purpose; the like may be argued from some other temporary statutes 
 enacted since our author's time, for authorizing the pressing of soldiers and mariners, 
 viz. 2^3 Ann. cap, 19. 3 <^ 4 Ann, cup. 11. 4 Arm. cap. 10. 5 Ann. cap. 15. 6 Ann. 
 cap. 10. &c. &c. 
 
 (x) But it may be easily perceived, that the reason why our author declines delivering 
 any opinion was, because he did not concur with the then prevailing practice, a practice 
 which seems repugnant to the liberties of an Englishman, and irreconcilcable to the es- 
 tablishcd rules of law, viz. that a man without any offense by him committed, or any 
 law to authorize it, should be hurried away like a criminal from his friends and family, 
 and carried by force into a remote and dangerous service.
 
 HISTORIA PLACITORUM CORONA. 680 
 
 of 7 H. 7. cap. 1. makes it felony to depart without license of the cap- 
 tain, and therefore vide supra, p. 674. whether 3 H. 8. be not re- 
 pealed by 1 E. 6. as a felony newly made since the lirst day of the 
 reign of H. 8. 
 
 If a man receive imprest to serve the king beyond the sea, and is 
 dehvered over to a conductor to be brought to a certain place at the 
 sea side, and is in the king's wages, and runneth away without license 
 of the conductor, all besides [^Croke,'] Yelverton and Hutton, agreed 
 it to be felony, and the conductor is as to this purpose a captain ; but 
 all agreed, that if the conductor at the place delivers him over to an- 
 other conductor, this second conductor is not a captain within the 
 statute ;(y) but Yelverton and Hutton held, that in neither case it is 
 felony, unless the conductor be also a captain, and so named in the 
 indenture between the king and him, which all agreed to be the 
 safest way. 
 
 It was held, that it could not be tried before other justices, than 
 such as are limited by the act, because a new felony, and limited to 
 be tried in another manner than the law directs, viz, in the county 
 where taken. M. 3 Car. Hutt. Rep. 134. nine judges versus CrokCf 
 Hutton, and Yelverton, vide Cro. Car. 71. the better [greater] opin- 
 ion was, that it was felony and may be tried before justices of oyer 
 and terminer or gaol delivery, as well as of the peace. 
 
 But surely the press-masters or constables, that usually take up 
 men for service, are not captains within the act, neither is the running 
 from them felony within these statutes.(2r) 
 
 There are no other felonies newly enacted in the time of 
 queen Mary, but those that were temporary, as 1 4' 2 P. <^ [ 681 3 
 M. cap. 3. telling false news, ^'c. after a former conviction,(*) 
 and 1 Mar. cap. 12. concerning riots. 
 
 (y) The riesolution here did not distinguish between a first and second conductor, but 
 between a conductor, who by agreement with the captain had the leading them quite 
 thro to the place of rendezvous, and one who was hired to carry them part of the way, 
 and then deliver them to another conductor; a conductor of this last sort, whether first 
 or second, it was agreed was not a captain within the statute. See Hut. 134. 
 
 (z) These several acts of parliament enacted for the punishment of soldiers running 
 away from their captains are now in a manner useless, by reason of the frequent statutes 
 for punishing mutiny and desertion by the martial law, a method more concise and 
 effectual ; which, however necessary it may be in the time of war, is by many thought 
 not suitable to English freedom in times of peace and tranquility. See the statutes 
 1 W. Sf M. Sess. 1. cap. 5. and 6 Geo. 2. cap. 3. between which years they have been often 
 renevvd, it not having been judged proper to make them of long continuance, but rather 
 to renew them from year to year. 
 
 (*) This offense was not made felony, but was punishable by imprisonment for life, and 
 forfeiture of goods and chattels.
 
 681 HISTORIA PLACITORUM CORONA. 
 
 CHAP. LXIV. 
 
 CONCERNING FELONIES NEWLY ENACTED IN THE TIMES OP QUEEN 
 ELIZABETH, KING JAMES, KING CHARLES I. AND KING CHARLES II. 
 
 In the time of Q. Elizabeth there were several acts for making new 
 felonies, and ihey be ranked into these ranks. 
 
 I. Such as were only temporary, or during the queen's life; such 
 were the statutes of 1 Eliz. cap. 16. which in some cases made re- 
 bellious assemblies felony. 14 Eliz. cap. 1. touching witholding the 
 queen's castles and other matters. 23 Eliz. cap. 2. touching seditious 
 books, letters, prophecies, calculation of the queen's nativity, <§'c. 
 
 II. Such as were perpetual, or otherwise continued, but afterwards 
 repealed, as 1 Eliz. cap. 10. and 14 Eliz. cap. 4. touching exporta- 
 tion of leather, repealed by the statute of 18 Eliz. cap. 9. 5 Eliz. cap. 
 16. concerning witchcraft, repealed by 1 Jac. 1. cap. 12. 
 
 III. Such as were perpetual and stand unrepealed, or 
 [682] were temporary at first, and made perpetual, and of these 
 I shall here give a brief account. 
 
 By the statute of 5 Eliz. cap. 14. It is enacted, "That if any per- 
 son or persons upon his or their own head or imagination, or by false 
 conspiracy or fraud with others, shall wittingly, subtilly and falsly 
 forge or make, or subtilly cause, or wittingly assent to be forged or 
 made any false deed, charter, or writing sealed, court-roll, or the will 
 of any person in writing, to the intent, that the state of freehold or 
 inheritance of any person or persons, of in or to any lands, tenements 
 or hereditaments, freehold or copyhold, or the right, title, or interest 
 of any person or persons in or to the same, or any of them shall or 
 may be molested, troubled, defeated, recovered or charged; or shall 
 pronounce, publish, or shew forth in evidence any such false or 
 forged deed, charter, writing, court-roll or will as true, knowing the 
 same to be false and forged, as is aforesaid, to the intent above remem- 
 bered, and shall thereof be convicted, either by action or actions, of 
 forger of false deeds to be founded upon this statute, or otherwise 
 according to the order and course of the common law, ^-c. shall pay 
 the party grieved his double costs and damages, to be set upon the 
 pillory, both his ears cut off, and also his nostrils slit and seared with 
 an hot iron, be imprisoned during life, and forfeit the profits of his 
 lands during life.(«) 
 
 " Or if any person, as before, shall forge, or assent to be forged, 
 4*c. any charter, deed, or writing, to the intent that any person may 
 have a term of years in any lands, not copyhold, or any annuity for 
 life, years, or in tail, or fee-simple, or shall forge any obligation, bill 
 
 (o) Upon this clause of the statute, Japhet Croke, alias Sir Peter Stranger, was con- 
 victed, Fasc. 4 Geo. 2. B. R. and sutfered the penalties of the act.
 
 HISTORIA PLACITORUM CORONA. 682 
 
 obligatory, acquittance, release, or discharge of any debt, account, 
 suit, demand, or other thing personal ; or shall pronounce, ^^c. ut 
 supra, that then he shall pay the party grieved double costs and 
 damages, be set upon the pillory, and lose one of his ears, ^-c. 
 
 "And if any person or persons, being hereafter convict of 
 any of the otfenses aforesaid by any of the ways above [] 683 ] 
 limited, shall after his or their conviction or condemna- 
 tion eftsoons commit or perpetrate any of the offenses aforesaid, 
 that then every such second offense shall be adjudged felony; and 
 the parties convicted or attaint thereof according to law shall suffer 
 death, and forfeit their goods and lands, as in case of felony, 
 without having advantage of sanctuary or clergy; but the wife 
 not to lose her dower, nor blood to be corrupted, nor heirs dis- 
 herited. 
 
 " Justices of oyer and terminer and of assize to hear and deter- 
 mine the offenses against this act. 
 
 " Not to extend to any attorney or lawyer pleading a forged deed, 
 not being party or privy to the forging, nor to the exemplification*of 
 a forged deed, nor to any judge, that shall cause the seal to be set to 
 such exemplification." 
 
 Upon this statute, so far as it relates to felony, these things con- 
 siderable shall be set down in order. 
 
 1. What is a making, forging, or assenting. 
 
 If j1. makes a deed of feofment to B. and after makes a deed of 
 feofment to C. with an ante date before the other feofment, this was 
 a forging within the statute 1 H. 5. cap. 3. and also within this 
 statute. Co. P. C. cap. 75. 27 H. 6. 3. a. 
 
 But note, that it is not the bare antedating of a deed, that makes 
 a forgery, for then most assurances, especially bargains and sales for 
 recoveries, leases for years to enable a release would be forgeries; 
 but that which makes it forgery in the former case, is the intent to 
 avoid his own feofment; and the words of this statute are, to the 
 intent that the estate of another person should be disturbed; so 
 the intent is to be joined in case of forgery. 
 
 Again, if ^. make a true deed of feofment to B. of the manor of 
 Dale, and after B. rase out D. and put in S. whereby the feofment 
 imports the manor of Sale ; or if ,M. grants a rent-charge to B. for 
 life, and after sealing and delivery P. rases the deed, and enlarges 
 the sum or estate, this is a subtle making of a false deed 
 within this statute; vide 1 Anders. Rep. Puckering' s case, [ 684 1 
 Case 151. p. 100. 
 
 An assent after the fact committed, makes not the party assenting 
 guilty, or principal in the forging; but it must be a precedent or con- 
 comitant assent. 
 
 2. What is a writing sealed, deed, will, or court-rool? 
 
 The forging of a false customary of a manor put under seal, 
 whereby the interest of the lord is molested, is a writing under seal 
 within this statute. Dy. 322. b. Taverner^s case. 
 VOL. I. — 57
 
 6S4 HISTORIA PLACITORUM CORON.^. 
 
 The inserting of a clause in a will purporting a devise of lands 
 without warrant or direction of the devisor is the forging of a will 
 within this statute, tho the whole will be not forged, and altho done 
 in the testator's life by the clerk that writes the will. Co. P. C. cap. 
 75. as^ainst the report of Di/. 288. a. Marvin's case. 
 
 But nole, this was when the testator was speechless, but if he had 
 his understanding, and assented to it, or published it afterwards, it is 
 no forgery, tho at first written without his direction. 
 
 Forging surrenders, admittances, court-rolls of copyhold lands are 
 within this statute. 
 
 If the deed or will forged purport only a lease for years, whereby 
 the freehold is charged, or of a rent-charge for years, it is within this 
 first branch. 
 
 ^^. makes a lease for years to B. a forging of an assignment of that 
 lease from B. to C. is a forging of a deed within the second clause, 
 Co. P. C. ubi supra, against the opinion in Noy''s tiep. in Markatn's 
 case. (6) 
 
 But an assignment made here of a term for years of land in Ire- 
 land is said not to be within this statute, but punishable as a misde- 
 meanor in common law. 29 Eliz. Newman's case, Hughes 3 Part, 
 N. 221. 
 
 3. What is a pronouncing or publishing, knowing the same to be 
 forged ? 
 
 If ^. forges a deed, and B. tells C. that the deed is forged, 
 r 685 ] and yet C. publisheth it, it was resolved to be within the 
 statute in Ores ham' s csLse. P. 38 Eliz. Cam. Stellata.{c) 
 But it seems to me, tho such a relation may be an evidence of 
 fact to prove his knowledge, yet it is not concUisive, tho perchance 
 de facto the deed be forged; for possibly there might be circum- 
 stances of fact, that might make the person relating it, or his relation, 
 not credible ; so that the knowing must upon the whole matter be 
 left to the jury upon the circumstances of the case, and therefore the 
 case of Gresham being in the star-chamber, where the lords are 
 judges of the fact upon the evidence, is no authority in this case. 
 
 4. What is a writing, bill, bond, acquittance ? 
 
 A will in writing concerning goods only, is within this clause. (c?) 
 The forging of a statute staple, or recognizance in nature of a sta- 
 tute staple, is within this statute, because the party's hand and seal 
 are to it; but not to the forgery of a statute merchant or recogni- 
 
 (b) Noy, p. 42. 
 
 (c) This is the same with Mar'kham'' s case, and is cited by lord Coke for this purpose. 
 Co. P. C. p. 170. in margine. 
 
 (d) This seems to be grounded on a mistake of lord Coke, who in his comment on 
 tills statute supposes the word writing to be inserted in the latter part of tliis clause, 
 after the words any obligation or bill obligatory; whereas it is not so, for the statute 
 makes no mention o( writings, but only with respect to an interest in lands or annuities, 
 and consequently does not extend to a will of goods only ; and so was the case cited by 
 lord Coke in Dyer 302 b. which was of a will of a lease for years, and not of personal 
 goods only; but this case is expressly included in a later statute, viz. 2 Geo. 2. cap. 25. 
 which makes such a forgery felony without benefit of clergy.
 
 HISTORIA PLACITORUM CORONA. 685 
 
 zance, because they have not the conusor's seal. Co. P. C. p. 171. 
 15 H. 7. 16. tf.(e) 
 
 Jl. writes and seals a letter to B. and subscribes it, B. cuts off the 
 lower part of the letter with the hand of ./?. and puts to it the seal of 
 his letter, and over it writes an acquittance, this is the forging an 
 acquittance. Co. P. C. ubi supra. 
 
 I come to the point of felony, having before stated what is a first 
 offense within this statute. 
 
 There must be a conviction of a first offense before the second 
 offense be committed, otherwise the second offense is not felony ; 
 and therefore if before conviction of forgery, J2. commits a 
 first and a second offense, the second offense is not felony [ 686 ] 
 within this statute. 
 
 And by conviction, I conceive, is intended not barely a conviction 
 by verdict, where no judgment is given, but it must be a conviction 
 by judgment. 
 
 And the indictment for a second offense must recite the record of 
 the first conviction, that it may appear to be a conviction of such a 
 forgery as is within the statute; for if it be not the indictment of 
 felony for the second offense fails. 
 
 And upon the evidence, tho the record of the first conviction ought 
 to be proved, yet the matter of the first conviction shall never be 
 re-examined, but must stand for granted, and the party is conckide^ 
 touching the truth of the matter of the first conviction by the record 
 of that conviction. 
 
 If ./?. publish a false deed knowingly, and be convict upon this 
 statute for this offense, and after such conviction forges a deed, this 
 is a second offense, and felony within this statute, tho the publish- 
 ing be prohibited by one clause, and the forging by another, adjudged 
 P. 7. Jac. B. R. Booth's case,(/) Co. P. C.p. 172. for the words 
 are, if he commit any of the said offenses the second time: and so, 
 if he be convict of forgery, the publication of a forged deed after- 
 wards knowingly is felony, or if he be first convict of the forgery of 
 a court-roll, and after that forges an obligation or acquittance ; for 
 the second offense in any of the forgeries or publications is felony, 
 tho it be of a different kind, if the first or second offense be within 
 the statute (^) 
 
 The hearing and determining of the offense against this statute are 
 limited to the justices of assize, or 07/er and terminer. 
 
 (e) According to this case it should be quite the reverse; for it is there said, that the 
 statute merchant has the seal of the party which, the book says, is not requisite in the 
 statute staple. 
 
 (/) 13 Co. Rep. 34. 
 
 (g) But by 2 Geo. 2. cap. 25. the first offense is made felony without benefit of clergy, 
 and extends to all deeds, wills, bonds, writings obligatory, bills of exchange, promis- 
 sory notes, indorsements, or assignments of bills of exchange, or promissory notes, or 
 acquittances, or receipts for money or goods, if done with an intention to defraud any 
 person ; this act was made to continue for five years, and to the end of the next sessions 
 of parliament, and so expired the 15th oi May, 1735, but was revived and made perpetual 
 by 9 Geo. 2. ch. 18.
 
 686 HISTORIA PLACITORUM CORONA. 
 
 This extends not to the justices of peace, for tho in the commission 
 
 of the peace tliere is a clause, nee non ad audiendum 4' 
 
 [ 687 1 terminandum, yet they being commissions of a several 
 
 nature, they are not comprised under the name of justices 
 
 oi oyer and tcrminer.{h) 
 
 But the court of king's bench may hear and determine these 
 offenses, for they are justices of oyer and terminer and more. Co. 
 P. C. cap. 41. JO. 103. 
 
 The offenders as to felony in this statute are excluded from clergy 
 and sanctuary. 
 
 The statute of 5 Ellz. cap. 20. concerning Egyptians. Vide quse 
 supra super stat. 1 <^' 2 P. 4' M. 
 
 By the statute of S Eliz. cap. 3. " No man shall bring, deliver, 
 send, receive, or take, or procure to be brought, delivered, sent, re- 
 ceived, or taken into any ship or bottom any manner of sheep alive, 
 to be carried or conveyed out of this realm, or out of Wales, or out 
 of Ireland, or any of the queen's dominions, upon pain of forfeiture 
 of all his goods, the moiety to the queen, the other moiety to the 
 informer, imprisonment, and loss of his left hand; and the second 
 offense to be felony. 
 
 " But no corruption of blood or loss of dower." 
 
 Justices oi oyer and terminer, gaol-delivery, or of the peace, have 
 power to hear and determine offenses. 
 
 The offender hath benefit of clergy, as well in case of felony, as of 
 cutting off the hand. Co. P. C. cap. 42. 
 
 The statute of 14 Eliz. cap. 5. concerning rogues and vagabonds, 
 is repeald by the statute of 35 Eliz. cap. 7. and settled in another 
 way by 39 Eliz. cap. 4. and therefore I shall refer it thither. 
 
 By the statute of 27 Eliz. cap. 2. " It shall not be lawful for 
 any Jesuit, seminary priest, or other such priest, deacon, or other 
 religious or ecclessiastical person whatsoever, born within this realm, 
 or any of the queen's dominions, hereafter to be made, ordaind or 
 professed by any authority or jurisdiction, derived, challenged, or 
 pretended from the see of Pome, to come into this realm or any of 
 the queen's dominions, (except as in that act is excepted,) under pain 
 of high treason. 
 
 "And any person, that after the end of forty days shall 
 
 [688] wittingly and willingly receive, comfort, aid, or maintain 
 
 such Jesuit, 4'C. being at "liberty and out of hold, knowing 
 
 him to be a Jesuit, seminary priest, d^'C. shall be adjud'ged a felon 
 
 without benefit of clergy." 
 
 By the statute of 31 Eliz. cap. 4. "If any having the charge or 
 custody of any armour, ordinance, munition, powder, shot, or of 
 habiliments of war of the queen, her heirs or successors, or of any 
 victuals provided for the victualling of any soldiers, gunners, ma- 
 riners, or pioners, shall for lucre, or gain, or wittingly, advisedly, and 
 of purpose to hinder or impeach her majesty's service, embezzle, 
 
 (h) Cro. Eliz. 87.
 
 HISTORIA PLACITORUM CORONA. -6S8 
 
 purloin, or convey away the same, to the vahie of twenty shiUings 
 at one or several times, it shall be felony. 
 
 "The prosecution to be within a year after the offense: no cor- 
 ruption of blood, loss of dower, nor loss of lands, but during the life 
 of the offender. 
 
 "The prisoner allowed to make any lawful proof for his discharge. 
 Clergy not taken away." 
 
 By the statute of 35 Eliz. cap. 1. It is enacted, "That if any 
 person above the age of sixteen years, who shall obstinately refuse 
 to repair to some church or chapel, or usual place of common 
 prayer to hear divine service established by her majesty's laws or 
 statutes, and shall forbear to do the same by the space of a month 
 next after without any lawful cause, shall at any time after forty 
 days next after the end of this session of parliament, by printing, 
 writing, words or speeches, advisedly and purposely, go about to 
 persuade others to impugn her majesty's power in causes eccle- 
 siastical, or persuade others to forbear coming to church to hear 
 divine service, or receive the communion according to law, or to be 
 present at any unlawful conventicle or meeting, under pretense of 
 exercise of religion, contrary to her majesty's laws; or shall after 
 the forty days willingly join in, or be present at, such assemblies or 
 meetings under colour of exercise of religion, contrary to the laws of 
 this realm, then such person being thereof lawfully convicted shall 
 be committed to prison-, there to remain without bail or 
 mainprise, till he shall conform and yield to come to some f 689 ] 
 church or chapel, and hear divine service according to the 
 queen's laws, and make open submission and declaration of his con- 
 formity, as by the act is prescribed. 
 
 "And if such person shall not within three months, being required 
 by the bishop of the diocese or justice of peace of the county, where 
 he is convicted, come to some parish church to hear divine service, 
 he shall abjure the realm, as by that act is appointed. 
 
 "And if he shall refuse to abjure, or having abjured shall no go, 
 or else shall return without the queen's license, it is felony without 
 benefit of clergy. 
 
 " No loss of dower, corruption of blood, nor forfeiture of lands 
 longer than the life of the offender. 
 
 " Special punishment by forfeiture of \Ql. per mensem, for such as 
 relieve them, except father, mother, ^^c. 
 
 " Not to extend to women or popish recusants." 
 
 Tho it were formerly doubted, yet upon great consideration by all 
 the judges it hath been resolved, that this statute is in force. 
 
 But to make up the offense to be felony there are so many circum- 
 stances required, that it is difficult to have any legal conviction ac- 
 cording to this statute. 
 
 1. The party must be above sixteen years old. 2. He must obsti- 
 nately refuse to come to church, which obstinate refusal cannot be 
 without a request or monition to repair to church. 3. He must for- 
 bear to come to church for a month after such refusal without a rea-
 
 689 HISTORIA PLACITORUM CORONiE. 
 
 sonable cause of absence. 4. He must do some of those acts limited 
 by the statute, as to dissuade coming to church, <^'C. or after that 
 month's absence be at an unlawful conventicle. 
 
 And all these things must be precisely charged in the indictment 
 and proved upon evidence, or otherwise no such commitment, or 
 abjuration, or felony can follow. 
 
 And therefore, altho many have been hastily convicted upon this 
 
 statute upon general indictments of not coming to church, and being 
 
 at an unlawful conventicle, yet never was any convict before 
 
 [ 690 3 me upon this offense, because these circumstances were either 
 
 not laid in the indictment, or not efiectually proved. 
 
 Besides, it is difficult to say, what conventicle upon pretense of 
 exercise of religion was in those times contrary to the laws of the 
 realm, unless mass, or by mass-priests, tho of late time it hath been 
 settled by special acts of this parliament, viz.{i) 
 
 The reason why popish recusants are exempted out of this act is, 
 because there is provision touching them in the next following, viz. 
 
 By the statute of 35 Eliz. cap. 2. " If any popish recusant not 
 having an estate in lands of twenty marks /;e7' annum, or goods to 
 the value of twenty marks, (other \hM\ feme-coverts) shall not repair 
 to his dwelling-house, <5'C. according to the act, and present himself 
 and his name to the minister and church- wardens of that parish; or 
 after their coming shall go five miles from their dwelling, and being 
 therefore taken shall not within three months after taking come to 
 church and make their confession of conformity, as in that act is 
 exprest, being thereunto required by a justice of peace, or by the 
 minister or curate of the parish, then such recusant being thereunto 
 required by two justices or coroner of the county shall abjure the 
 realm for ever; and if he refuse to abjure, or having abjured refnse 
 to go out of the realm, or being gone shall return without license, it 
 shall be felony without clergy." 
 
 By the statute of 39 Eliz. cap. 4. All former statutes against rogues 
 and vagabonds are repeald, and among other things it is enacted, 
 "That if any rogues shall appear dangerous, or will not be reformed 
 from their roguish life by the provisions of that act, it shall be law- 
 ful for two justices of the limit, whereof one of the Quorum, to com- 
 mit him to the house of correction till the next quarter sessions, and 
 then the major part of the justices may banish him out of 
 r 691 ] the realm and dominions thereof, to such place as shall be 
 assigned by six of the privy council, whereof the lord chan- 
 cellor or treasurer to be one, or condemn him to the gallies of this 
 realm; and if any such rogue so banished shall retiun again without 
 lawful warrant, it shall be felony, to be heard and determined in that 
 county of England or Wales where he shall be apprehended. 
 
 ,(i) There is a blank here in the M.S. but the acts here meant are 16 Car. 2. cap. 4. 
 and 22 Car. 2. cap. 1, by which statute every assembly for religious worsliip of five or 
 more besides the family, in other manner than is allowed by the liturgy of the church of 
 England, is declared to be a conventicle contrary to law ; but these acts are now of no 
 force against protestant dissenters, by reason of the toleratioa act. 1 W. Sj M. cap. 18.
 
 HISTORIA PLACITORUM CORON.E. 691 
 
 " But in this case the offender hath clergy." 
 
 Tliis act is continued by the statute of 1 Jac. cap. 25. 3 Car. 1. 
 cap. 4. and 16 Car. 1. cap. 4. 
 
 By the statute of 1 Jac. cap. 7. It is further added, " That such 
 dangerous and incorrigible rogues shall by judgment of the same 
 justices in the sessions be branded in the shoulder with the letter B. 
 and be sent to the place of his last dwelling; and if it cannot be 
 known, then to the place of his birth; and if such rogue be after 
 found offending in begging or wandering contrary to this statute, it 
 shall be felony without clergy, and tried in the county where he shall 
 be taken." 
 
 This act is likewise continued by 3 Car. 1. and 16 Car. 1. cap. 4. 
 
 This act doth not take away the punishment by the statute of 
 39 Eliz. cap. 4. but gives election to the justices in the sessions to 
 inflict either. 
 
 By the statute of 39 Eliz. cap. 17. " 1. Idle and wandering soldiers 
 or mariners, or idle persons wandering as soldiers or mariners. 2. Idle 
 or wandering soldiers coming from sea, not having a testimonial under 
 the hand of a justice of peace, setting down the time and place of his 
 landing, place of his dwelling and birth, and limiting a time for his 
 passage thither. 3. Or exceeding the time limited by his testimonial 
 fourteen days, unless he falls sick, if he be in truth a soldier or mari- 
 ner. 4. Every wandering soldier or mariner, or every person wan- 
 dering as a soldier or mariner counterfeiting his testimonial, or having 
 the same forged testimonial about him, knowing the same to be 
 forged, is a felon without benefit of clergy." 
 
 This offense may be heard and determined before justices 
 of assize, gaol-delivery, or of the peace, having power to ["692"} 
 hear and determine felony. No corruption of blood. 
 
 If a freeholder will take him into service for a year, and he becomes 
 bound by recognizance, ut per statute, no farther proceeding to be 
 against him; but if within the year he depart without license, it is 
 felony without benefit of clergy. 
 
 Continued by 3 Car. 1. cap. 4. and 16 Car. 1. cap. 4. 
 
 And thus far for felonies enacted in the time of queen EUzahefh. 
 
 In the time of king James these ensuing felonies were de novo 
 enacted. 
 
 By the statute of 1 Jac. cap. 11. " If any person within his ma- 
 jesty's dominions of England and Wales, being married, do at any 
 time after marry any person or persons, the former husband or wife 
 being alive, every such offense shall be felony, and the party offend- 
 ing shall receive such proceeding, trial and execution in such county 
 where he or she is taken." 
 
 This act hath five exceptions. 1. It shall not extend to such per- 
 sons, whose husband or wife shall be continually remaining beyond 
 the seas, for the space of seven years together. 2. Or whose husband 
 or wife shall absent him or herself in any place within the king's 
 dominions, the one not knowing the other to be living within that time. 
 3. Nor to any person divorced by any sentence had or to be had in
 
 692 HISTORIA PLACITORUM CORONA. 
 
 the ecclesiastical court. 4. Nor to any person whose marriage hath 
 been or shall be declared void by sentence in the ecclesiastical court. 
 5. Nor to any person or persons for or by reason of any marriage 
 had or to be had within llie age of consent. 
 
 This felony not to make corruption of blood, or loss of dower, or 
 disherison of the heir. 
 
 1. Observables upon the body of the act. 
 
 Altho the second marriage be simply void, yet the parliament 
 thought it just to make it felony. 
 
 ^1. takes ^. to husband in England, and after takes C. to husband 
 in Ireland, she is not indictable in England, because the offense was 
 committed out of this kingdom. But if Jl. marries a hus- 
 \_ 693 3 band in Ireland, and comes into England, and marries a 
 second husband, here it is felony. The former case was ac- 
 cordingly ruled at Newgate sessions. (A-) 
 
 A. takes B. to husband in Holland, and then in Holland takes C. 
 to husband, living B. and then B. dies, and living C sh(? marries D. 
 this is not marrying a second husband, the former being alive, for the 
 marriage to C. living B. was simply void, and so he was not her 
 husband; but if J5. had been living, this had been felony to marry 
 D. in England: ruled at Newgate sessions about 1648. the lady 
 Madison^s case. 
 
 The first and true wife is not to be allowed as a witness against 
 the husband; but I think it clear the second wife may be admitted 
 to prove the second marriage; for she is not his wife, contrary to a 
 sudden opinion delivered in July, 1664. at the assizes in Surrey, in' 
 Arthur Armstrong' s case; for she is not so much as his wife de 
 facto. Vide quse dixi supra super statu t. 3 H. 7. cap. 2. p. 661. 
 
 2. Observables touching the exceptions. 
 
 As to the first, If the husband or wife be beyond the seas seven 
 years, tho the party in England hath notice that he or she is living, 
 yet it is no felony, which appears by the second exception, where the 
 party is commorant in the king's dominions, if the party hath notice, 
 it is felony; notice there makes the offense, but not when the husband 
 or wife is beyond sea; and yet in the former case as well as the latter 
 the second marriage is void. Vide 22 E. 4. Consultation 5. 
 
 As to the .9eco?zrf exception : Suppose the first wife or husband be 
 absent in New-England or Ireland seven years, this is beyond the 
 seas, and so within the words of the first exception, and yet within 
 the king's dominions, and so not aided by the words of the second 
 exception, unless without notice; it seems in favorem vitse the words 
 within the king's dorninions must be intended within England^ 
 Wales, or Scotland, to make both clauses consistent; but however 
 the isle of Wight is not beyond the sea within the first clause, because 
 infra corpus comitatus Southampton: so for Scilly, Liindy. Qusere 
 oi Guernsey, Jersey. : ..''.;,. 
 
 {k) 1 Sid. 171. Kel. 79.
 
 HISTORIA PLACITORUM CORONA. 694 
 
 As to the third exception : certainly the divorce intended is not ti 
 vinculo matrimonii, for then without the aid of any proviso either 
 may freely marry ; but it must be intended of divorces a mensd <§' 
 thoro. P. 12. Car. \, B, R. Porter^s case, it was doubted, whether a 
 divorce causa saeviliae, were such a divorce as was within this ex- 
 ception, because it seemed ratlier to be a provisional separation for 
 the wife's safety and maintenance, than a divorce ; but it was never 
 resolved. Cro. Car. 461.(/) 
 
 If there be a divorce ii vinculo, and one of the parties appeals, the 
 this suspend the sentence, and possibly may repeal it, yet a marriage 
 pending that appeal is held to be aided by this exception. Co. P. C. 
 cap. 21. p. 89. But if the sentence of divorce be repealed, a mar- 
 riage after is not aided by this exception, tho there was once a 
 divorce. 
 
 As to the fifth exception : If either party be within the age of 
 consent, the exception extends to both : ^. of the age of twenty 
 years marries B. of the age of nine years, ^^. marries a second wife, 
 this is aided by the exception, as well as if B. had married a second 
 husband before agreement at her age of consent to the first marriage, 
 for either of them may resilire before they have both consented, 
 T. 42 Eliz. B. R. Babington's case, Co. P. C. cap. 27. p. 89. 
 
 But if a woman of twelve years marry a man of fourteen years, 
 a second marriage by either is felony, thb they are infants, because 
 as to matters of this kind, especially the business of marriage, they 
 are at this age adjudged of discretion. Sed vide supra, cap. 3. pie- 
 nius de hdc materia. 
 
 3. Observables touching the trial. 
 
 The trial to be in the county where the offender is apprehended, 
 is added cumulative; for he may be indicted where the second mar- 
 riage was, tho he be never apprehended, and so may proceed to out- 
 lawry, as likewise it may be done upon the statute of 7 H. 7. cap. 1. 
 of soldiers. Co. P. C. cap. 26. p. 87. 
 
 By the statute of 1 Jac. cap. 12. All former acts against conjura- 
 tion, inchantments, 4*c. are repeald, and it is enacted, 
 
 " 1. That if any person shall use, practise, or exercise 
 any invocation or conjuration of any evil or wicked spirit, f 695 J 
 
 "2. Or shall consult, covenant with, entertain, employ, 
 feed, or reward any wicked or evil spirit, to or for any intent or 
 purpose. 
 
 " 3. Or take up any dead man, woman, or child, out of his or their 
 grave, or any other place, or the skin, bone, or any other part of any 
 dead person, to be employed in any manner of witchcraft, sorcery, 
 charm, or inchantment. 
 
 " 4. Or shall use, practise, or exercise any witchcraft, sorcery, 
 charm, or inchantment, whereby any person shall be kild, destroyed, 
 wasted, consumed, pined, or lamed in his or her body, or any part 
 thereof. 
 
 (0 Kd. 27,
 
 695 HISTORIA PLACITORUM CORONA. 
 
 "Every such person or persons, their aiders, abettors, and coun- 
 sellors, being thereof convict and attaint, shall suffer death as a felon 
 without clergy. 
 
 " 1. If any person shall take upon him by witchcraft, inchantment, 
 charm, or sorcery, to tell where any treasure of gold or silver may 
 be found in the earth or other secret places. 
 
 "2. Or where goods or things lost or stolen should be found or be 
 come at. 
 
 "3. Or shall use any sorcery, to the intent to provoke any person 
 to unlawful love. 
 
 "4. Or whereby any cattle or goods of any person shall be de- 
 stroyed, waisted, or impaired. 
 
 "5. Or to hurt or destroy any person in his or her body, iho the 
 same be not effected or done. 
 
 "First conviction one year's imprisonment without bail, and once 
 a quarter to stand two hours in the pillory, and confess his or her 
 fault. 
 
 "If after conviction he commit the like offense, and be convict 
 and attaint of such second offense, he shall suffer death as a felon 
 without clergy: but no loss of dower, corruption of blood, nor heir 
 disherited." 
 
 By the statute of 1 Jac. cap. 31. persons going abroad with a 
 
 plague-sore, felony. But this act is discontinued, as my lord Coke 
 
 saith, Co. P. C. p. 90. but 3 Car. 1 cap. 4. hath revived 
 
 \_ 696 ] or continued it to the end of the first session of the next 
 
 parliament; and by 16 Car. 1. cap. 4. it is continued till 
 
 repeald. 
 
 But it gives no forfeiture of lands, goods, or chattels. 
 
 By the statute of 3 Jac. cap. 4. "If any subject pass out of this 
 realm, to the intetit to serve any foreign prince, state, or potentate, 
 or shall pass over the seas, and there shall voluntarily serve any such 
 foreign prince, ^'c. not having before his or their passing taken the 
 oath prescribed in that act before the customer, comptroller of the 
 port, haven, or creek, or their deputy or deputies, or being a gentle- 
 man, or of higher rank, or hath born office of a captain, lieutenant, 
 or other place in the camp shall pass, 8j'c. before he hath taken the 
 oath, and given bond, 8;c. it is felony. 
 
 " The trial shall be in the county where the offense is committed, 
 viz. the place of his departure, tho that be but part of the offense, 
 and there they shall inquire of the rest of the offense committed 
 beyond sea, viz. his service there. (w) 
 
 " The offender hath his clergy. 
 
 " No corruption of blood nor loss of dower." 
 
 By the statute of 21 Jac. cap. 26. "All persons who acknow- 
 ledge or procure to be acknowledged any fine or fines, recovery or 
 recoveries, deed or deeds enrolled, statutes or recognizances, bail or 
 judgment, in the name of any person or persons not privy or con- 
 Cm) Co. P. C. p. 80. cap. 4.
 
 HISTORIA PLACITORUM CORONA. 696 
 
 senting to the same, and being thereof lawfully convicted or attaint, 
 shall incur the penalties of felons without benefit of clergy. 
 
 " No corruption of blood nor loss of dower." 
 
 A bail taken before a judge, is not a bail within this statute 
 till it be filed of record; and if it be not filed, the acknowledging 
 thereof in another's name makes not felony, but a misdemeanor 
 only.(*) 
 
 The statute of 21 Jac. cap. 27. for murdering bastard children: 
 this I shall reserve to the title of evidence, Part II. cap. 39. quod 
 vide ibidem. 
 
 And thus far of felonies in the time of king James. 
 
 In the time of king Charles I. I find not any any new [ 697 J 
 enacted felony. 
 
 I therefore come to the time of king Charles II. (t) 
 
 (*) But this is since made felony by 4 4" 5 TF. 4" -M"* 
 
 (t) Here the manuscript breaks off, our author having- proceeded no farther; but to 
 render the work more complete, it is thought proper to subjoin an account of the several 
 felonies which have been enacted since that time, by which it will appear, that latter 
 times have been no less fruitful in multiplying capital punishments, than former ones 
 were. 
 
 Felonies enacted in the time of King Charles II. 
 
 I. Transporting wool, 
 
 ■ By 13 <Sf 14 Car. 2. cap. 18. it is made felony to transport wool out of England, 
 Wales, or Ireland; but hy 1 S( 8 W. 3. cap. 28, the making- it felony is repeald, and it is 
 reduced to a misdemeanor, which by that and later statutes is subjected to severe 
 penalties. 
 
 II. Covenlry^s act concerning dismembring or disfiguring. 
 
 By 22 S( 23 Car. 2. cap. 1. if any siiall of malice forethought, and by lying in wait, 
 unlawfully cut out or disable the tongue, 
 
 Put out an eye, 
 
 Slit the nose, 
 
 Cut off a nose or lip. 
 
 Or cut off or disable any limb or member of any other person, with intention to maim 
 or disfigure, they, their counsellors, aiders, and abetters, shall be guilty of felony without 
 benefit of clergy. 
 
 Attainder on this statute shall not work any corruption of blood or forfeiture. 
 
 Sir John Coventry, a member of the house of commons, had a little before been as- 
 saulted in the street, and his nose slit, which gave occasion to the making this act, 
 which from him was called Coventn/s act. 
 
 Upon this statute. Coke and Woodburne were condemned and executed at Suffolk 
 assizes, 8 Geo. I. for slitting the nose of Mr. Crispe. See State Tr. Vol. \l. p. 212. 
 
 III. Maliciously burning stacks of corn, or killing cattle in the night. 
 
 By 22 4" 23 Car. 2. cap. 7. Whoever shall in the night-time maliciously, unlawfully, 
 and willingly, burn any stacks of corn, hay, or grain, barns or other houses, or buildings, 
 or kilns. 
 
 Or shall in the night-time maliciously, unlawfully, and willingly, kill or destroy
 
 697 HISTORIA PLACITORUM CORONA. 
 
 horses, sheep, or other cattle, shall be guilty of felony ; but liberty is given the offender 
 to chuse transportation for seven years. 
 
 Attainder on this act shall not work corruption of blood, loss of dower, or disherison 
 of the heir. 
 
 During the short reign of king James II. I do not find any new 
 
 enacted felony. 
 
 Felonies enacted in the time of King William III. 
 I. Personating bail. 
 
 By 4 W. tSf JVL caip. 4. Personating another before those who have authority by that 
 act to take bail, so as to make him liable to the payment of any sum of money in that 
 suit or action, is made felony. 
 
 [ 698 ] II. Counterfeiting lottery tickets. 
 
 By 5 tSf 6 W. <Sf M. mp. 7. 8 Ann. cap. 4. 12 Ann. sess. Leap. 2. sess. 2. cap. 9. 5 Geo. 1. 
 cap. 3 ^ 9. 7 Geo. 1. cap. 20. The forging or counterfeiting the tickets in the several 
 lotteries appointed by the said acts, 
 
 Or standing orders or receipts given out in pursuance of the said acts, 
 
 Or altering the number or principal sum thereof, 
 
 Or counterfeiting the hand of any person to such order, 
 
 Or the bringing any such forged ticket, SfC. (knowing it to be so) to the managers, 
 Sfc. with intent to defraud his majesty or any contributor, is made felony without benefit 
 of clergy. 
 
 III. Counterfeiting the stamps. 
 
 By 5 ^ 6 W. Sf M.cap. 21. 9 <^ 10 IF. cap. 25. 8 Ann. cap. 9. 9 Ann. cap. 1 1 <^ cap. 23. 
 10 Ann. cap. 19. 12 Ann. sess. 2. cap. 9. 5 Geo. 1. cap. 2. Forging any of tlie stamps 
 appointed by the said acts, 
 
 Or counterfeiting or resembling the impression of the same upon any vellum, parch- 
 ment, or paper. 
 
 Or uttering, vending, or selling any vellum, S[C, with such counterfeit impression, 
 knowing the same to be so. 
 
 Or using any stamps or marks with intent to defraud the crown of the stamy duty, is 
 made felony without benefit of clergy. 
 
 IV. Counterfeiting the seal of the Bank, bank-notes, S,'c. 
 
 By 7 & 8 TF. cap. 31. § 36. 8 & 9 W. cap. 19. § 36. and 11 Geo. 1. cap. 9. The forg. 
 
 ing the common seal of the bank, 
 Or any bank-bill or bank-note, 
 Or erasing or altering any such bill or note. 
 Or altering or erasing any indorsement, or any bank-bill or note, 
 Or tendering the same in payment, knowing the same to be forged, erased, or altered 
 
 is made felony. 
 
 V. Counterfeiting exchequer-bills. 
 
 By 7 & 8 W. ccrp. 31. § 78. 9 W. cap. 2. § 3. 5 Ann. cap. 13. 7 Ann. cap. 7. 9 Ann. 
 cap. 7. 11 Geo. 1. cap. 17. § 12. The counterfeiting exchequer bills, 
 
 Or any indorsement thereon, 
 
 Or tendering sucli counterfeit bills or indorsement, knowing the same to be counter, 
 feit, with intention to defraud his majesty, or any other person, is felony without benefit 
 of clergy. 
 
 VI. Blanching copper, 4'C. 
 
 By8&.'9 W. cap. 25. Blanching copper for sale, or mixing blanched copper with 
 silver. 
 
 Or knowingly buying or selling, or offering to sale such, or aiiy other malleable mix- 
 ture of metals or minerals heavier tlian silver, and wearing like gold, 
 
 Or receiving, paying, or putting off any counterfeit, or unlawfully diminished milled 
 money (not cut in pieqcs) at a lower rate than it imports, or was coined or counterfeited 
 for, is made felony.
 
 HISTORIA PLACITORUM CORONA. 698 
 
 Felonies enacted in the time of Queen Anne. 
 
 I. Wilfully destroying any ship. 
 
 By 1 Ann sess. 2. cap. 9. and 4 Geo. 1, cap. 12. It is felony for any captain, master, 
 mariner, or other officer belonging- to any ship wilfully to cast away, burn, or destroy 
 the said ship, or procure the same to be done to the prejudice of the owner. 
 
 Or for the owner, captain, Sfc. to do the like, to the prejudice of any underwriter of 
 the policy of insurance, or of any merchant, who shall load goods therein. 
 
 II. Receiving stolen goods. 
 
 By 5 Ann. cap. 31. Receivers of stolen goods, knowing them to be stolen, are declared 
 guilty of felony, as accessaries. 
 
 III. Assaulting a privy counsellor in the execution of his [ 699 1 
 
 office. 
 
 By 19 Ann. cap. 6. It is felony without benefit of clergy to assault, wound, or attempt 
 to kill a privy counsellor in the execution of his office. 
 
 The occasion of making this act see supra p. 230. in notis, 
 
 IV. Counterfeiting the seal of the South-Sea company, South-Sea 
 
 bonds, Si'C. 
 
 By 9 Ann. cap. 21. It is felony without benefit of clergy to forge or counterfeit the 
 common seal of the South Sea company, 
 
 Or to forge, counterfeit, or alter any of their bonds. 
 
 Or knowingly to tender, or offer to dispose of the same, with intent td defraud any 
 person, see 6 Geo. 1. cap. 11. 
 
 V. Making an hole in a ship, or stealing any pump from a ship. 
 
 By 12 Ann. cap. 18. made perpetual by 4 Geo. 1. cap. 12. The making any hole in a 
 
 ship in distress, 
 
 Or stealing any pump belonging to such ship, or aiding or abetting thereto, 
 
 Or wilfully doing any thing tending to the immediate loss of such ship, is made felony 
 
 without benefit of clergy. 
 
 Felonies enacted in the time of King George I. 
 
 I. Concerning riotous assemblies. 
 
 By 1 Geo. 1. cap. 5. (which is for the most part copied from an expir^ act of 1 Mar. 
 cap. 12.) if twelve persons or more, being unlawfully and riotously assCTnbled, shall so 
 continue together to the number of twelve for the space of one hour after proclamation 
 made to depart, such continuance is made felony without benefit of clergy ; 
 
 As also to oppose or hinder the reading the proclamation, 
 
 Or to continue to the nuiftber of twelve for one hour after such hinderance so made, 
 having knowledge thereof. 
 
 By the same act it is felony without benefit of clergy for any persons, unlawfully and 
 riotously assembled, with force to pull down, or begin to pull down any church, or chapel, 
 or building for religious worship allow'd by the toleration act, or any dwelling-house, 
 barn, stable, or other out-house. 
 
 II. Maliciously burning any wood or coppice. 
 
 By 1 Geo. 1. cap. 48. and 6 Geo. 1. cap. 16. It is felony for any person maliciously to 
 set on fire or burn any wood, underwood, or coppice, or any part thereof. 
 
 III. Returning from transportation, taking a reward for helping to 
 
 stolen goods, S,'C. 
 
 By 4 Geo. 1. cap. 11. If any offender ordered for transportation beyond sea shall return 
 to, or (by 6 Geo. 1. cap. 23.) be found at large in Great Britain or Ireland, without some 
 lawful cause before the expiration of his term, without licence from his majesty, he shall 
 be guilty of felony without benefit of clergy. 
 
 By the same statute, whoever shall take any money or reward under pretence of help- 
 ing any person to stolen goods, unless he apprehend the felon, and give evidence against
 
 699 HISTORIA PLACITORUM CORONA. 
 
 him at his trial, shall be guilty of felony, and shall suffer in the same manner as if he 
 had stolen them himself, with such circumstances, as the same were stolen. 
 Upon this clause, Jonathan Wild was executed, 10 Geo. 1. 
 
 IV. Counterfeiting army debentures. 
 
 By 5 Geo. 1. cap. 14. 6 Geo. 1. cap. 17. 9 Geo. 1. cap. 5. It is felony without benefit of 
 clerjfy for any person to alter or counterfeit any army debentures, 
 
 Or fraudulently to issue out any other than for the sums certified by the commissioners. 
 
 r 700 ] V. Counterfeiting South-Sea receipts or warrants, Sj-c. 
 
 By 6 Geo. 1. cap. 11. It is made felony without benefit of clergy for any 
 one to alter, forge, or counterfeit any South-Sea receipt for a subscription to the stock, 
 Or warrant for a dividend. 
 Or any indorsement or writing thereon. 
 Or knowingly to tender or offer to dispose of the same with intent to defraud any one. 
 
 VI. Counterfeiting the seal of the two assurance companies. 
 
 By 6 Geo. 1. cap. 18. The counterfeiting the corporation seal of either of the assurance 
 companies, now known by the names of the Royal Exchange and the London Assurance, 
 
 Or altering any policy, bill, bond, or other obligation under their common seal, . 
 
 Or knowingly paying away such policy, &c. or demanding the money thereon, is 
 felony without benefit of clergy. 
 
 VII. Maliciously spoiling the garments of any persons in the streets. 
 
 By 6 Geo. 1. cap. 23. The wilful and malicious tearing, spoiling, cutting, burning, or 
 defacing the garments or clothes of any person in the streets or highways is felony. 
 
 VIII. Smuggling. 
 
 By 8 Geo. 1. cap. 18. If any persons above the number of five carrying offensive arms, 
 or being in disguise, shall be found passing with foreign goods from any ship without 
 due entry and payment of the duties. 
 
 Or shall forcibly resist any officer of the customs or excise in the seising run goods, 
 they shall be guilty of felony. 
 
 IX. Counterfeiting the name of, or personating a proprietor for 
 
 transferring stock, or receiving dividends. 
 
 By 8 Geo. 1. cap, 22. To counterfeit the name of any proprietor, 
 
 To forge or ^procure to be forged, or wilfully to act and assist in forging a letter of 
 attorney, or otner instrument to transfer any share in the capital stock of any corpora- 
 tion established by act of parliament. 
 
 Or to receive any annuity, or dividend attending such share, 
 
 Or falsly to personate any proprietor for the purposes aforesaid, is felony without bene- 
 fit of clergy. • 
 
 X. The like as to annuity orders. 
 
 By 9 Geo. I. cap. 12. To do the like with relation to any annuity order, is made felony 
 without benefit of clergy. 
 
 XL The Waltham-hlack act against appearing in disguise in any 
 forest, 4'C. unlawfully hunting deer, robbing any warren, destroy- 
 ing fish, maiming cattle, destroying trees in any avenue, 4'C. firing 
 houses, stacks of corn, <5'C. maliciously shooting at any person, 
 sending threatening letters, Sfc. 
 
 By 9 Geo. 1. cap. 22. continued by 12 Geo. 1. cap. 30. and 6 Geo. 'i. cap. 37. till 
 Sept. 1. 1736, and from thence to the end of the next session of parliament, it is made 
 felony without benefit of clergy, for any person armed with offensive weapons, and hav- 
 ing his face blacked, or otherwise disguised, to appear in any forest, chase, park, &,c. or 
 in any high road, open heath, common, or down, 
 
 Orunlawfuily and wilfully to hunt, wound, kill, or steal any red or fallow deer, 
 
 Or unlawfully to rob any warren, ^c. 
 
 Or to steal any fish out of any river or pond, '
 
 HISTORIA PLACITORUM CORONiE. 700 
 
 Or unlawfully to break down the head or mound of any fish-pond, whereby the fisli 
 shall be lost or destroyed, 
 
 Or unlawfully and maliciously to kill, maim, or wound any cattle, 
 
 Or to cut down, or otherwise destroy any trees planted in any avenue, or growing in 
 any garden, orchard, or plantation for ornament, shelter, or profit. 
 
 Or to set fire to any house, barn, or out-house, hovel, cock, mow, or stack of corn, 
 straw, hay, or wood. 
 
 Or maliciously to shoot at any person in any dwelling-house or other place. 
 
 {Upon this clause Edward Arnold was convicted at Surrey /en<-assJ2es, 1723-4, /or 
 shooting at lord Onslow,) 
 
 Or knowingly to send any letter without any name, or signed with a ficti- 
 tious name, demanding money, venison, or other valuable thing, f 701 1 
 
 Or forcibly to rescue any person being lawfully in custody for any of the 
 offenses before-mentioned. 
 
 Or to procure any person by gift or promise of money, or other reward, to join in any 
 such unlawful act. 
 
 No attainder on this act shall work corruption of blood, loss of dower or forfeiture. 
 
 This act was occasioned by the devastations and injuries then lately committed in a 
 violent manner by several persons near Waltham, who had appeared blacked and dis- 
 guised in the chases, forests, Sfc. and was from thence called the Waltham-blach act. 
 
 XII. Concerning the pretended privilege of the Mint in Southwark. 
 
 By 9 Geo. 1. cap. 28. If any person shall within the place commonly called the Mint^ 
 or the pretended limits thereof, wilfully obstruct any person serving or endeavouring to 
 serve or execute, any will, warrant, or legal process, S^c. 
 
 Or shall assault, or abuse any person for having so done, whereby he shall receive any 
 damage or bodily hurt; 
 
 Or shall oppose any officer of justice, or person aiding such officer in the execution 
 of any writ, warrant, or process, S^c, or shall be abetting thereto; 
 
 Or shall rescue, or knowingly harbour or conceal any prisoner taken upon such pro- 
 cess; ' 
 
 Or shall presume to exercise any unlawful jurisdiction for supporting the pretended 
 privilege within the said place, such offender shall be adjudged guilty of felony, and be 
 transported for seven years. 
 
 And if any person wearing any vizard, S^c. or having his face'or body disguised, shall 
 join or abet any riot, or oppose the execution of any legal process, S^c. within the limits 
 aforesaid, such offender shall be adjudged guilty of felony without benefit of clergy. 
 
 And every person aiding or abetting, concealing or harbouring such disguised person, 
 shall be adjudged guilty of felony, and be transported. 
 
 XIII. The Uke with respect to Wapping, Stepney, 4*c. 
 
 By 11 Geo. 1. cap. 22. The same provision is made against most of the said offenses, 
 if committed within the hamlet of Wapping, Stepney, or any other place within the bills 
 of mortality, whereof presentment shall have been made by the grand jury at a general 
 or quarter-sessions. 
 
 XIV. Counterfeiting East-India bonds, or indorsements thereon, or 
 
 on South-Sea bonds, ^'c. 
 
 By 12 Geo. 1. cap. 32. Whoever shall forge or counterfeit, or wilfully assist in forg- 
 ing or counterfeiting the name or hand of the accountant-general of the court of chancery, 
 the register, clerk of the court, report-oflace, or any of the cashiers of the bank of Eng- 
 land, to any certificate, report, (^c. 
 
 Or any East-India bond or indorsement thereon; 
 
 Or any indorsement on any Soulh-Sea bond, shall be adjudged guilty of felony without 
 benefit of clergy. 
 
 XV. Assaulting any master wool-comber, weaver, maliciously break- 
 
 ing tools, (§'C. 
 
 By 12 Geo, 1. cap. 34. If any person shall assault any master wool-comber, or master . 
 weaver, or other person concerned in the woollen manufacture, whereby he shall receive
 
 701 HISTORIA PLACITORUM CORONJ^. 
 
 any bodily hurt; for not complying with any such illegal by-laws, Sfc. as in the act men- 
 tioned, 
 
 Or shall write or send any threatening letter to such person for not complying with 
 such illegal by-laws, or with any demands or pretenses of his workmen, or others em- 
 ployed by him in the woollen manufacture, he siiall be deemed guilty of felony, and be 
 transported for seven years. 
 
 If any person shall maliciously cut or destroy any woollen goods in the loom or on 
 the rack; 
 
 Or shall destroy any rack on which such goods are hanged in order to dry; 
 
 Or shall wilfully break any tools used in the making such woollen goods, not having 
 the consent of the owner so to do; 
 
 Or shall break or enter by force into any house or shop by night or by day for any 
 of the purposes aforesaid, such offender shall be adjudged guilty of felony without benefit 
 of clergy. 
 
 r 702 "I Felonies enacted in the time of King George II. 
 
 I. Maliciously breaking down turnpikes. 
 
 By 1 Geo. 2. cap. 19. 5 Geo. 2. cap. 33. 8 Geo. 2. cap. 20. It is made felony without 
 benefit of clergy for any person maliciously to break down or destroy any turnpike-gate 
 or other fence belonging to such turnpike erected to prevent passengers from passing by 
 without paying the toll, or forceably to rescue any person lawfully in Custody for such 
 offense. 
 
 Attainder by this act not to work corruption of blood, loss of dower, or forfeiture. 
 
 II. Forging of deeds, stealing bonds, S,'C. 
 
 By 2 Geo. 2. cap. 25. The forging or counterfeiting, or procuring to be forged or 
 counterfeited any deed, will, bond, writing obligatory, bill of exchange, promissory note 
 for payment of money, tlie indorsement or assignment of any bill of exchange, or pro- 
 missory note for payment of money, or any acquittance or receipt for money or goods, 
 or knowingly to utter or publish as true any forged deed, SfC, with intention to defraud 
 any person, is felony without benefit of clergy. 
 
 By the same statute to steal or take by robbery any bonds, notes, orders, tallies, Sfc. 
 is felony of the same nature, and in the same degree, as if the money secured by such 
 bonds, Sfc. and remaining unsatisfied, had been stolen or taken by robbery. 
 
 This act was made to continue only for five years from 29 June 1729, and from thence 
 to the end of the then next sessions of parliament. 
 
 III. Stealing lead, iron, <§'C. fixt to anyhouse or building. 
 
 By 4 Geo. 2. cap. 32. To steal, rip, cut, or break with intent to steal any lead, iron 
 bar, iron gate, iron palisado, or iron rail fixed to any dwelling-house or other building 
 used with such dwelling-house, or fixed in any garden, orchard, court-yard, fence or 
 outlet belonging to any dwelling-house or other building is felony, and so it is in the 
 aiders and abetters; and such as shall buy or receive such lead or iron, knowing the 
 same to be stolen. 
 
 IV. Assaulting with an intent to rob. 
 
 By 7 Geo. 2. cap. 21. It is made felony with any offensive weapon or instrument un- 
 lawfully and maliciously to assault, or by menaces, or by any forceable or violent man- 
 ner to demand any money, goods or chattels of any person, wiih a felonious intent to 
 commit robbery on such persiin. 
 
 V. Counterfeiting the acceptance of a bill of exchange, or any ac- 
 
 countable receipt. 
 
 By 7 Geo. 2. cap. 22. If any person shall falsly make, alter, forge, or counterfeit, or 
 cause or procure to be counterfeited, iSfc. any acceptance of any bill of exchange, or the 
 number, or principal sum of any accountable receipt, for any note, bill, or other security 
 for payment of money, or any warrant or order tor payment of money, or delivery of 
 goods, with intent to defraud any person, or shall witli such intent knowingly utter or 
 publish the same as true, he shall be deemed guilty of felony. 
 
 . [For the continuation of felonies enacted since the 7 Geo. 2. see p. 711, Sfc]
 
 HISTORIA PLACITORUM CORON:^. 703 
 
 CHAPTER LXV. 
 
 CERTAIN GENERAL OBSERVATIONS CONCERNING FELONIES BY ACT 
 ■ OF PARLIAMENT. 
 
 I. Generally, if an act of parliament be, that if a man commit 
 such an act, he shall have judgment of life and member, this makes 
 the offense felony, and this was ordinarily the clause used in antient 
 statutes, as TVesim. 2 cap. 34., {a) 14 E. 3. cap. 10. 2S E. 3. cap. 3. 
 13 /?. 2. cap. 3. <S-c. Co. P. C. cap. 29. ;?. 91. 
 
 2. And consequently there ensued thereupon corruption of blood, 
 eschete to the lord, and the wife's loss of dower. 
 
 3. But yet there may be and frequently are in acts of parliament, 
 making new felonies, provisions, that there shall be no corruption of 
 blood, disherison of the heir, or loss of dower; and this is done 
 sometimes by enacting words, as in 1 Jac. cap. 31. for going abroad 
 with a plague-sore, sometimes by a proviso, that it shall not extend 
 to corruption of blood, loss of dower, 8rc. as 8 E/iz. cap. 3. 5 Eliz. 
 cap. 14. and sometimes by the words saving to the ivife her dower, 
 and to the heir his inheritance, as upon the statute of 1 Jac. cap. 12. 
 for witchcraft. • 
 
 .4. But notwithstanding such a clause, the king shall have the 
 forfeiture of his lands during his life, and also his goods, for no 
 eschete can come to the lord, where the inheritance is saved to the 
 heir. 
 
 5. But by a special clause, forfeiture of goods as well as of lands 
 may be provided against, as in the act of 1 Jac. cap. 31. of going 
 out with a plague-sore. Co. P. C. cap. 6. p. 47. and cap. 28. p. 90. 
 
 6. A saving or exclusion of corruption of blood doth 
 virtually make the heir inheritable, and saves also the [704 3 
 "woman's dower. Co. P. C. cap. 28. super statut. 1 Jac. 
 
 cap. 31. 
 
 7. By an act making a new felony, clergy is not excluded from 
 the offender, without special words. Co. P. C. cup. 19. p. 73. super 
 statut. 8 //. 6. cap. 12. against stealing records. 
 
 8. In all acts making a new treason, felony, or misprision of trea- 
 soin, peers are to have their trial by their peers, tho no special clause 
 enacting it. Co. P. C. cap. 21. p. 89. super statut. 1 Jac. 6. cap. 11. 
 for marrying two husbands. 
 
 9. An act making any offense to be a felony, tho it speaks not of 
 accessaries before or after, yet they are impliedly contained. (6) 
 
 10. Nay, altho the statute makes an offense to be felony in them 
 that commit it, their counsellors, procurers, and abetters, to be felons, 
 and speaks nothing of accessaries after ; yet by the opinion of my 
 
 («) See 2 Co. Instil, p. 434. (6) Co. P. C. p. 59. 
 
 VOL. I. — 58
 
 704 HISTORIA PLACITORUM CORON/E. 
 
 lord Coke, receivers and accessaries ofler are also virtually implied, 
 as in the statute of Westni. 2. in rape, Co. P. C. cap. 19. p. 72. upon 
 the statute of 3 H. 7. cap. 2. for carrying away women, Co. P. C. 
 cup. 12. p. 61. upon the statute of 5 //. 4. cap. 4. against multipli- 
 cation, Co. P. C. cap. 20. p. 74. upon the statute of 1 Jac. cap. 12. 
 of witchcraft, Co. P. C cap. d. p. 45. in fine, tho Stamford be of 
 another opinion. (c) 
 
 11. An act, that makes an offense by name, as rape, <§'c. to be 
 felony, virtually makes all that are present, aiding, and assisting 
 principals, tho one only doth the fact, tho as to point of clergy in 
 some cases it differs : de quo posted. 
 
 12. An act, which makes the offender, his counsellers and abet- 
 ters, guilty of felony, yet regularly, mak^s not the counsellers, pro- 
 curers or abetters principals, unless present,, but, if they be absent, 
 leaves them in the condition of accessaries before., as upon the 
 statute of 1 Jac. cap. 12. of witchcraft, and other statutes of that 
 kind, unless in express words it makes them all principals, as is done 
 by the statute of 3 H. 7. caj). 2. Co. P. C. cap. 12. p. 61. the only 
 instance of that kind. 
 
 13. In an act limiting a second offense to be felony, but 
 ["705] the first only a misdemeanor, there must be two things to 
 make the second offense felony, viz. 1. A judgment given 
 for the first offense. 2. The second offense must be conmiitted after 
 the judgjpent for the first, otherwise it makes not felony, as in case 
 of forgery upon the statute of 5 Eliz. cap. 14. Co. P. C. cap. 75. 
 p. 172. ,(r/) and npon the statute of 1 Jac. cap. 12. of witchcraft. 
 Co. P. C. cap. 6. p. 46. 2 Co. Instil, p. 468. 
 
 14. Therefore where those and some other statutes speak of a 
 second offense after a conviction of a former, it is not intended 
 barely of a conviction by verdict, unless judgment be given upon it. 
 Co. P. C.p.46. 
 
 15. An act jnaking a felony, and limiting it to be tried in the 
 county where the party is apprehended, unless there be negative 
 words, and not elsewhere, is but cumulative, and he may be indicted 
 where the offense was committed, as upon the statute of 1 Jac. cap. 
 11. marrying a second husband or wife, Co. P. C. cap. 21. p. 88. 
 and upon the statute of 7 H. 7. cap. 1. and 3 H. 8. cap. 5. soldiers 
 departing. Co. P. C. cap. 26. p. 86, 87. 
 
 16. A second statute enacting the same offense to be felony, that 
 was so enacted before, with some alterations is but cumulative, and 
 no repeal of the former act; as the statute of 3 H. 8. cap. 5. of soldiers 
 making their departure without the licence of the king's lieutenant 
 felony (where the act of 7 H. 7. cap. 1. makes it felony, if without 
 the captain's licence,) yet repeals not the former, because it is but an 
 affirmative act; so 39 Eliz. cap. 4. for banishing incorrigible rogues 
 is not taken away by 1 Jac. cap. 7. wliich adds burning in the shoul- 
 der, and sending them to their last habitation. 
 
 (c) Stamf. P. C. fol. 44. 6. (d) Vide supra, p. 685.
 
 HISTORIA PLACITORUM CORONA. 705 
 
 17. If one statute be grat'ted upon another statute relative to it in 
 order to the better execution of a former statute, if the former be 
 repealed, the latter is thereby virtually repealed, as the statutes of 
 Labourers{e) being repealed by 5 Eliz. cap. 4. the statute of 
 3 H. 6. cup. 1. making congregations of masons feJons is [706] 
 thereby repealed. (/) Co. P. C. cap. 35. p. 49. 
 
 IS. If a statute be but temporary and discontinued, and then re- 
 vived by a new act of parliament; or if a statute be made touching 
 a new felony, and repealed and re-enacted, the conclusion of the 
 indictment contra formam statutorum is good; but the best way is 
 to conclude contra formam stutut. in hnjiism,odi casii edit. S,'provis. 
 with an abbreviation, because in construction of law it shall be taken 
 ehher statuti or statutorum, which may best maintain the indict- 
 ment in point of law. (^) 
 
 19. A statute making a new felony of an offense, that consists of 
 an act partly in the kingdom, and partly out of tlie kingdom, and 
 limiting it to be tried where the offense is committed, shall be con- 
 strued to be where that part of the offense is committed, that is with- 
 in the kingdom, as upon the statute of 1 Jac. cap. 2. passing the sea, 
 and serving a foreign prince, without taking the oath of obedience, 
 shall be tried in that county where the part was that he passed the 
 sea. Co. P. C. cap. 23. p. SO. 
 
 20. An act making a new felony extends not to an infant under the 
 age of discretion, viz. fourteen years old ; but if he be of that age, it 
 binds him. Plowd. Com. 465. a. Eyston and Stud's case. 
 
 21. Whether the word king^ is personal to the then king, or extends 
 to his successors in acts of parliament? It is true in grants of judicial 
 or ministerial offices that concern administration of justice, as judges 
 or sheriffs, a grant of such an office, durante beneplacito regis, is 
 simply determined by the king's death. 12 Co. Rep. p. 4S. Nay 
 the grant of a judicial olBce by the king quam diu se bene gesserit, 
 tho it be a freehold, determines by the king's death; for it is personal 
 to the king that grants them; but it is held, that the grant of offices 
 of another nature, or of lands durante beneplacito nostro 
 
 doth not determine by the death of the king without some [ 707 ] 
 act or declaration by the successor to determine it. 12 Co. 
 Jiep. p. 48,49. 
 
 But as touching acts of parliament, regularly the word kiyig ex- 
 tends to his successors, (A) and therefore the statutes of 11 ^. 7. cap. 
 IS. for service in the king's wars, 7 H. 7. cap. 1. for departing of 
 soldiers, tho the preamble seems personal to that king, yet (it hath 
 been ruled) to include successors, Co. P. C. cap. 26. p. 86. Bi/. 211. a. 
 so, the statute of 23 H. S. cap. 4. for brewers, Noi/'s Pep. p. 118. 
 
 (e) 23 E. 3. cap. 1. and 25 E. 3. cap. 1. 
 
 (/) For this last mentioned statute recites as the ground thereof, tiiat the congrega- 
 tions of masons had violated the good effects of the statutes of Labourers. 
 
 (g) But this piece of our author's advice cannot now be observed, because by the late 
 acts of 4 Geo. 2. cap. 2G. Sf 6 Geo. 2. cup. 6. all indictments, informations, &c. are re- 
 quired to be in words at length, and not abbreviated. 
 
 (A) Vide supra, p. 100.
 
 707 HISTORIA PLACITORUM CORONA. 
 
 Chalchman and Wright. So Poyning^s law, 10 H. 7. in Ireland 
 for the manner of passing acts of parliament, tho that act speaks only 
 of the king, without successors, yet it extends to his successors, and 
 so declared 3 <§• 4 P. <§• M cap. 4. in Hibernid, 12 Co. Rep. 109. b. 
 110. a. 
 
 And altho the power of altering the laws of Wales was a great 
 trust reposed in H. 8. by the statute of 34 H. 8. cap. 26. for Wales, 
 and was thought by some to cease by his death, 12 Co. Rep. p. 48. 
 yet they durst not rest upon that, but it was specially repealed by the 
 statute of 21 Jac. cap. 10. 
 
 A statute made to continue during the king's pleasure, doth not 
 determine by his death, unless it be specially relative to the person 
 of the king, as during the pleasure of the king that noiv is, or ac- 
 cording to some dicti domini regis, M. 24 Eliz. Maoris Rep. n. 311. 
 p. 176. jjer Mede ; and therefore it seems that in such case the sue* 
 cessor must make some proclamation or declaration of record to de- 
 termine it, before it be determined; as upon the statute of 8 H. 6. 
 cap. 11. for the manner of taking apprentices in London, which was 
 in truth the case in Moor, n. 311. but the statute of 5 Eliz. cap. 4. 
 repealing all acts touching apprentices and labourers, and making a 
 special provision to save the customs of London, hath quieted that 
 question. 
 
 By the statute of 8 H. 6. cap. 24. it is enacted, "That no English- 
 man sell to any merchant alien any merchandize, but for ready pay- 
 ment." By the statute of 9 H. 6. cap. 2. it is enacted, " That notwith- 
 standing the former statute they may sell for six months time, and 
 this ordinance shall endure so long as shall please the king." It is 
 held 10 H. 1.1. b. that this statute remains as a suspension 
 r708] of the former act of S H. 6. notwithstanding the death of 
 Henry VI. till repealed by proclamation by his successor. 
 
 And yet in case of capital offenses limited, and de novo enacted by 
 act of parliamenl to continue during the king's pleasure, it is not safe 
 to proceed upon them after the king's death ; and tho in matters of 
 misdemeanors such continuance is limited by acts of parliament, yet 
 I do not remember any such kind of limitation in acts enacting capi- 
 tal ofienses, but they are either perpetual, or limited to continue for 
 a time certain, as seven years, ^-c. or till the end of the next session 
 of parliament, S^c. 
 
 22. An act of parliament, that makes an offense felony, doth con- 
 sequently introduce the punishment of concealing, that is, misprision 
 of felony; and every offense made felony by act of parliament, in- 
 cludeth misprision, and the party may be indicted of misprision of 
 felony, and thereupon fined and imprisoned, 2 R. 3. 10, 11. And 
 yet in Co. P. C. p. 133. upon the statute of 33 H. 8. cap. 1. of false 
 tokens, it is said, where a corporal punishment only is inflicted by 
 act of parliament, the party cannot be fined and imprisoned, which 
 is to be understood with two cautions, viz. 1. Where the indictment, 
 4'C. is grounded for the same offense contained in the statute, and 
 therefore it crosseth not the case of 2 R. 3. for there he was indicted
 
 HISTORL\ PLACITORUM CORONA. 708 
 
 for tnisprision, and not for felony. 2. Where it was an offense at 
 common law, there if the indictment be grounded barely at common 
 law, he may be fined and imprisoned, tho the statute limit a cor- 
 poral punishment, as in case of false tokens he may be indicted as a 
 cheat. (*) 
 
 (*) Here our author had wrote the title of another chapter Touching Piracy, but did 
 not proceed in it, perhaps because he had referred what he thought needful tcr be said oa 
 that head to the chapter oi^ Clergy, Part II. cap. 50.
 
 709 
 
 ADDENDA IN NOTIS. 
 
 Ad. p. 270. I. 19. Rot. Pari. II. H. 6. n. 43. A Roy noslre Sover eigne Seigneur Be- 
 sechen humbly your communes of this present parlement, that where one JoAn Carpenter 
 o? Bridham in the s\\\Te of Sussex husbondnian, the vii of Ff cerer the yere of youre noble 
 reigne the viii, saying to Isabell his wyfF, that was of the age of xvi yere, and hadde be 
 marled to hym but xx dayes, that they wold goo togedre on pilgrernage, and made to 
 arraye hir in hir best arraie, and toke liir with hym fro the said tonne of Bridhain to 
 the toune of Stoiighton in the said shire, and there with woode he smote the said Isabell 
 his wilf on the hede that the brayne wende oute, and with his knyffgaf hir many other 
 dedly woundes, and streped hir naked out of hir clothes, and toke his knyff and slytte 
 hir belly from the brest doune, and toke hir bowels oute of hir body, and loked if she were 
 with child. And thus the said Jo/i« murdrid horibly his wift', of the which ho'ribly niur- 
 dre the Thursday next after the fest of Seint Ambrose the bishop, the yere of youre 
 reigne by foreseid, tiie said Jo//w was endited byfore Sir John Bohun Kt. Sir Henry Hi/see 
 Kt. and Wit. Sydney }'our commissioners of your pees withinne the shire foreseid, and 
 processe made out upon the same enditement according to your lawes till the same John 
 Carpenter was outlavycd of the said mourdnre, and now gratiously for the same cause 
 arreste, and in your prisone called the king's bench: Please hit to youre hie right wise- 
 nesse to considere the horrible murdure foreseid, and by auctorite of this your hie court 
 of parliament to ordeine, that the said Juhn Carpenter may be juged as a traytour. and 
 that your jugges have power to give judgement upon him to be drawed and hanged as a 
 traytour, in eschewyng of such horrible mourdurs in tyme corny ng, savying allwayes to 
 tlie lords of the see eschetes of his lands after yere, day and wast. 
 
 Pur ceo qil semble encountre la libertee de Seint Esglisfi, le Roy s' advisera. 
 
 Ad. p. 384. 1. 6. after electa r. scripturce sacrcB contraria, for so Grosled exprest him- 
 self, altho these words are omitted in our author's M.S. See Mat. Paris, p. 874. 
 
 Ad p. 396. not\ (n) in Jine. The truth is, the writ for burning Satctre was indeed a 
 special act of parliament made for that purpose, for so is a writ teste''d per regem Sf con- 
 cilium in parliamento to be intended. See the prince's case. 8 Co. Rep.fol. 19. a. Nor 
 do 1 find any footsteps of heresy being punished capitally before this statute and that of 
 2 H. 4. The notion that the writ de hceretico comburendo lay at common law seems to be 
 a mistake, for tho that writ be in the printed register, yet it is not in the antient manu- 
 script registers; see State Tr. Vol. 11. p. [275]. That this was not the antient punishment 
 of heretics in England; see Mat. Paris, p. 105. ft>r Braclon [Lib. III. de corona cap. 9] 
 Briiton [cap. 9.] Fleta [Lib. I. cap. 29 t^- 37.] speak .n(^ of heretics, but of apostates and 
 infidels: And tho by the imperial law some particular heresies were punishable with ^eath : 
 see Cod. Lib. I. tit. 5.1. 11, 12, ^c. yet it does not appear, that even in the empire he- 
 resy in general was punished capitally, till tiie constitution of Frederic II. about the year 
 1234, which indistinctly adjudges all heretics to tiie flames: but in England the usual 
 punishment seems to have been imprisonment, and even this was not allowable, tho he 
 were hareticus contumax, before the pretended statute of 5 R. 2. without the king's spe- • 
 cial license, an instance whereof is in Rymer''s Fmdera, Tom. VI. p. 651. Rex venerabili 
 episcopo Londonim salutem. Quia accepimus per inqnisitionem vcstram, quod Nichohius 
 
 de Drayton coram vobis congrue convictus' &- pro h^retico adjudicatus existit, 
 
 quodque in suo errore nephando animo induralo nequiter perseverans, ad fidei catholicce 
 unitatem redire non curavit nee curat in prajsenti, licet scepids ad hoc excitatus «& in- 
 ductus, sententiam majoris excommunicationis in hac parte incurrendo. Cum igitur 
 sancta mater ecclesia ita tales hcereticos perseqnitiir, ne suo veneno alios inficiant, ut in 
 carceribus custodiri praecipiat. Super quo nobis f^npplicaslis, Slc. Nos supplicationi 
 vestrae prsedictae gratanl6r concedentes, ad ipsura Nicholaum hsereticum carcerali custo-
 
 HISTORIA PLACITORUM CORONA. 709 
 
 diae ve?trrE mancipare, & ipsum in carcere vestro custodire faciendum, quousque dictum 
 errore(n suuin revocaverit, it ad fidei catholics unitatcni redire voluerit, quan- 
 tum in nobis est, licentiam concedimus specialem. Rot. l^at. 44. E. 3. p. 1. tn. f 710 1 
 23. doiso. . L J 
 
 Ad. p. 490. in fine. Placita coram jusliciariis ifinerantibus apiid crucem lapideam in 
 com. Midd. anno 2 E 1. incij.ierde 3. Rot. 13. in dorso. Seyton' Alice de Covale was 
 arraigned /no morte Johannes Lipertung, and pleaded, that she killed him se defendendo, 
 "eoquod burgavit domum suam; & de bono & male ponit se stiper patriam; &, xii jura- 
 tores dicunt, quod prsedicta Alicia occidit pripdictuni Johannem se defendendo, eo quod 
 voluit domum suam burgasse, &, ipsam occidisse, si posset. Ideo inde quieta. Et ca- 
 talla praedicti Johannis confiscantur." Placita coram eisdem jtislic'' ibidem. Rot. 12. in 
 dorso. Thomas le Chapeleyn nequiter ^' in felonid, f regit ostium domus Isabellce Lucas 
 de Bottewell. Hue and cry was raised, and he was pursued, and killed in fugiendo by 
 one William Javene. Javene broujrht the king's pardon pro morte ilia, " Ideo conceditur 
 ei firma pax, & quia praedictus Thomas le Chaieleyn occisus fuit in fugiendo, catalla 
 ejus confiscantur." 
 
 Ad. p. 508. /. 15. comes into the dwellin<T. house, but as the case is reported in Kel. 31. 
 he was indicted for brenking into the house. Vide infra Part II. p. 358, 
 
 Add. p. 556. I. ult. H. 7 E. 2. Rot. 88. This was the case of Thomas de Hedersete 
 and John de Upstone, who being convicted ed quod incendium Sf combustionem domorum 
 villiB de Lenne ex prescogitata malilia felonice perpetrdrunt, had judgment quod suspen- 
 dantiir. 
 
 Ad. p. 602. 3/. 28 E. 3. Rot. 32. " The abbot of St. Albans was impleaded coram 
 rege, pro evasione prisonum d gaola de Sancto Albans, cujus custodiam idem Abbas habet, 
 utde jure abbatliiae sus;" amongst whom wa.fi John de Heremyngford a clerk convict; but 
 upon the jury's finding, "quod idem Johannes de Hcremyngford tempore evasionis prfB- 
 dictsB, seu aliquo momcnto ante recaptioncm ejusdem, non fuit extra visum custodis dic- 
 tae gaote sub prsedicto Abbate, consideraluni est, quod praedictus Abbas eat inde qui- 
 etus." 
 
 M. 45 E. 3. Rot. 17. This was the case of William Bakere, who was taken cum bonis 
 Sf calallis furatis by the constables of Danbury, and set in the stocks, from whence he 
 escaped; upon which the said constables were brought coram rege ad respondendum, ^c. 
 and pleaded, " quod postquam latro ceppos fregit, ipsi earn recenler insecuti fuerunt, 
 visum super ipsum semper habentes," till they retook him, and committed him to the 
 gaol of the said town; " et quod prasdictus latro adhuc in eadem gaola existit, &c." The 
 king's attorney replied, and joined issue with them, as to their keeping constant view of 
 him till he was retaken. " Et juratores dicunt, quod prcedictus latro arrestatus & captus 
 fuit per eosdem constabularios, &. in ceppis positus, & quod iidem constabularii praedic- 
 tum latronem postea permiserunt evadere, absque hoc quod ipsi habuerunt visum super 
 prasfatum latronem in evadendo, prout ipsi superiCis allega,runt, Ideo consideratum est, 
 quod praedicti constabularii erga dominum regem de cenlum solidis pro evasione prae- 
 dicta onerentur." 
 
 Ad. p. 621. Mich. 7 R. 2. Rot. 3. This was the case of John, Vicar of Round Church 
 in Cambridge, who was indicted, that whereas one William Gore an approver, prisoner 
 in the castle of Cambridge, " laicus erat tempore captionis corporis sui, jam per assen- 
 sum, Sc licentiam gaolarii, & janitoris ibidem, irruditus [eruditus] est, &. informatus de 
 leturura [literatura] per eundem vicarium, &c." Upon this indictment the vicar surren- 
 dered himself coram rege, and was arraigned de felonid pradictd, and pleaded not guilty. 
 The court bailed him till his trial, which was before the judges of nisi prius in Cam- 
 bridge, where the jury found, " Quod praedictus Johannes vicarius in nullo est culpabilis 
 de feloniae, nee de aliquibus articulis sibi impositis, nee unquam se ea, occasione retraxit. 
 Ideo consideratum est, qu6d eat inde quietus." 
 
 Ad. p. 677. The reason why I say prest must now be understood in the active sense, 
 IS because, tho it be vulgarly used in a passive signification for being taken away by 
 compulsion, yet in legal understanding it cannot now be applied to any to make him a 
 listed soldier, and subject to penalties as such, unless he actively do somewhat, as taking 
 earnest, or the like, whereby he voluntarily consents to his being listed, and so amounts 
 to the same as taking prest. 
 
 Ad. p. 695. The statute of 1 Jac. cap. 12. against conjuration, witchcraft, Sfc. is 
 lately repealed by an act of this present parliament, viz. 9 Geo. 2. cap. 5.
 
 711 HISTORIA PLACITORUM CORONiE. 
 
 FELONIES ENACTED SINCE THE LAST EDITION OF THIS BOOK, WHICH 
 WAS IN THE YEAR 1736. 
 
 VI. Wilfully destroying or damaging Westminster-Bridge. 
 
 By 9 Geo. 2. cap. 2[). Ifany person or persons shall wilfully and maliciously blow up, pull 
 down, or destroy the bridge or any part thereof, or attempt so to do, or unlawfully, with- 
 out authority from the Commisvsioners, remove or take any works thereto beionifing, or 
 direct or procure the same to be done, whereby the bridge or tlie works thereof may be 
 damaged, or the lives of the passengers endangered, such offender or offenders being 
 lawlully convicted, shall be adjudged guilty of lelony, and shall suffer death without 
 benefit of clergy. 
 
 [ 712 ] VII. Subjects inlisting, and persons procuring any subject 
 to inlist, to go abroad and serve any foreign prince, &c. 
 
 By 9 Geo. 2. cap. 30. sect. 1. and 29 Geo. 2. cap. 17. sect. 4. Ifany subject shall inlist 
 or enter himself, or shall engage to go beyond the seas, or embark with intent to inlist 
 and enter himself, tho no inlisting money be actually paid to him ; or ifany person shall 
 procure any subject to inlist or enter himself, or hire, or retain, any subject with intent 
 to cause him to inlist or enter himself, or retain, engage, or procure any subject (tho no 
 inlisting money be paid) to go beyond the seas, or embark with intent and in order to be 
 inlisted to serve any foreign prince, state, or potentate, as a soldier, without his majesty's 
 leave, he shall be guilty of felony without benefit of clergy; and offenses committed out 
 of the realm may be tried in any county in England, by 9 Geo. 2. cap. 30. sect. 2. 
 
 VIII. An act for indemnifying persons who have been guilty of 
 offenses against the laws made for securing the revenues of cus- 
 toms and excise, and for enforcing those laws for the future. 
 
 By 9 Geo. 2. cap. 35. sect, 7. Persons then liable to be transported for any of the 
 offenses touching the said revenues mentioned in this act, committing the like offenses 
 after claiming the benefit of this act, shall be adjudged guilty of felony, and suffer death 
 without benefit of clergy. See this statute at large, which contains many other pains 
 and penalties concerning the revenues, and is too voluminous to be all inserted here. 
 
 IX. An act of 10 Geo. 2. cap. 32. for continuing an act for the more 
 effectual punishing wicked and evil disposed persons going armed 
 in disguise, and doing injuries and violences to the persons and 
 properties of the king's subjects, and for the more speedy bringing 
 the off'enders to justice, &c. 
 
 By 10 Geo. 2. cap. 32. ahd 24 Geo. 2. cap. 5. the act of 9 Geo. 1. cap. 22. called the 
 Waltham Black Act, was continued for some time; and by 31 Geo. 2. cap. 32. it was 
 made perpetual. — And by this present act. sect. 6. ifany person or persons shall wilfully 
 and maliciously set on fire, or cause to be set on fire, any mine, pit, or del[)h of coal, or 
 cannel coal, every person so offending being thereof lawfully convicted, shall be adjudged 
 guilty of felony, and suffer death without benefit of clergy. And this sectibn the 6th 
 is made perpetual by 31 Geo. 2. cap. 42.' 
 
 By sect. 7. Persons convicted a second time of hunting and taking away deer out of 
 unincloscd forests or chases, are to be transported for 7 years; and if such person or 
 persons return from transportation within that lime, to be adjudged guilty of felony, and 
 suffer death without benefit of clergy. 
 
 By sect. 9. Persons armed coming into a forest, chace, or park, with an intent to 
 steal deer, and beating and wounding the keeper or keepers, their servants or assist- 
 ants, to suffer the like pains and penalties, as in sect. 7. and made perpetual by 31 Geo. 3. 
 cap. 42.
 
 HISTORIA PLACITORUM CORONA. 713 
 
 X. An act of 11 Geo. 2. cap. 22. for punishing such persons as shall 
 do injuries and violences to the persons or properties of the king's 
 subjects with intent to hinder the exportation of corn. 
 
 By seel. 1. Persons usin^ violence to hinder the purchase or carriage of corn, to be 
 imprisoned and publickly whipt. 
 
 By sect, 2. Persons committing the like offenses a second time, or destroying grana- 
 ries, or corn therein, or in sliips, or vessels, shall be adjudged guilty of fe ony, and be 
 transported; and if they return from transportation, to suffer deatli without benefit of 
 clergy. 
 
 XI. An act of 11 Geo. 2. cap. 26. for enforcing the execution of an 
 act of the 9th of this king, intitled an act for laying a duty upon 
 the retailers of spirituous liquors, and for licensing the retailers 
 thereof. 
 
 By sect. 2., Rescuing offenders against this act, or assaulting informers, is made 
 felony, and transportation for seven years. 
 
 XII. An act of 13 Geo. 2. cap. 26. for the more effectual preventing 
 the exportation of wool fronn Greul-Britain ; and of wool and 
 
 . wool manufactured from Ireland to foreign parts. 
 
 By sect. 26. Persons opposing officers in the execution of their duty according to this 
 act, are to be transported for seven years, and if they return within that time to suffer 
 death as felons, without benefit of clergy. 
 
 XIII. Stealing sheep and other cattle. 
 
 By the 14 Geo. 2. cap. 6. Stealing sheep or other cattle is made felony, and the felon, 
 his aider or assistant, to suffer death without benefit of clergy. — But it becoming doubt- 
 ful to what sorts of cattle the said act was meant to extend, it is enacted by the 15 
 Geo. 2. cap. 34. that the said act was meant and intended, and shall be deemed and 
 taken to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as 
 sheep, and to no other cattle whatsoever. 
 
 XIV. Forging, counterfeiting, or altering bank notes, &c. and ser- 
 vants of the bank breaking their trust to the company. 
 
 By 15 Geo. 2. cap. 13. sect. 11. If any person or persons shall forge, counterfeit, or 
 alter any bank note, bank bill of exchange, dividend Warrant, or any bond or obligation, 
 under the common seal of the said company, or any indorsement thereon, or shall offer 
 or dispose of, or put away any such forged, counterfeit, or altered note, bill, dividend 
 warrant, bond, or obligation, or the indorsement thereon, or demand the money therein 
 contained, or pretended to be due thereon, or any part thereof, of the said company, or 
 any their officers or servants, knowing such note, bill, dividend warrant, bond or obliga- 
 tion, or the indorsement thereon, to be forged, counterfeited, or altered, with intent to 
 defraud the said company, or their successors, or any other person or persons whatso- 
 ever ; every person or persons so offending, and being thereof convicted in due form of 
 law, shall be deemed guilty of felony, and shall suffer death as a felon without 
 benefit of clergy. f 714 J 
 
 Sect. 12. If any officer or servant of the said company, being intrusted with 
 any note, bill, dividend warrant, bond, deed, or any security, money, or other effects be- 
 longing to the said company, or having any bill, dividend warrant, bond, deed, or any 
 security or effects of any other person or persons, lodged or deposed with the said com- 
 pany, or with him as an officer or servant of the said company, shall secrete, embezzle, 
 or run away with any such note, bill, dividend-warrant, bond, deed, security, money, or 
 effects, or any part of them ; every officer or servant so offending, and being thereof con- 
 victed in due form of law, shall be deemed guilty of felony, and shall suffer death as a 
 felon, without benefit of clergy.
 
 714 HISTORIA PLACITORUM CORONiE. 
 
 XV. For preventing cloth or woollen goods remaining on the rark 
 or tenters, or any woollen yarn or wool left out to dry, from being 
 stolen or taken away in the night. 
 
 By 15 Geo. 2. cap. 27. If any cloth or woollen goods on the tenters, or woollen yfim, 
 or wool left out to dry, shall be stolen in the niglit, any justice, on complaint made .in 
 ten days by tlie owner, may issue his warrant to any peace officer in the day-time to 
 enter into, and search the houses, out-houses, yards, gardens, or other places belonging 
 to the houses of every person wliotn sueli owner shall, upon his oath, declare to such 
 justice he suspects to have stolen, taken away, or received the same ; and if the officer 
 shall find any such goods, which from the oath of such person he shall have reason to 
 sus[)ect to have been stolen, he shall apprehend the person in whose custody or posses- 
 sion the same shall be found, and carry him before a justice; and if he shall not give a 
 satisfactory account how lie came by the same, or in a convenient time, to be set by the 
 justice, produce tlie party of whom he had the same, or a credible witness to depose on 
 oath his properly therein, he shall be convicted of stealing such goods; and shall for the 
 first otVcnse forfeit to the owner treble value; and in default of payment thereof in the 
 time appointed by such justice, he shall issue his warrant to levy the same by distress 
 and sale; and in default of distress shall commit him to the common gaol where he shall 
 be apprehended, for three months, or till paid; for the second offence treble value, and 
 six months imprisonment; for the third offence such justice shall commit him till the 
 assizes; and if^lic shall be there convicted in like manner, he shall be guilty of felony, 
 and transported for seven years. But j)ersons aggrieved (except on the third conviction) 
 may ap[)eal to the next general quarter sessions, whose order tJierein shall be final. But 
 nevertheless, this shall not alter any former law in force, for stealing or receiving such 
 cloth or goods, except where the proOf is laid oh the ofiender as aforesaid. 
 
 XVI.' For preventing the coimferfeiting of the current coin of this 
 kingdom, and uttering and paying false or counterfeit coin. 
 
 By 15 Geo. 2. cap. 28. If any person shall wash, gild, or colour any lawful or counter- 
 feit silver coin, called a shilling or sixpence, or add to or alter the impression, or any part 
 thereof, on either side, with intent to make such shilling or sixpence resemble 
 I 715 I a guinea, or half a guinea; or shall any way alter or colour halfpennies or 
 farthings, with intent to make them resemble a shilling or sixpence, he, his 
 counscller^i, aiders and abettors, shall be guilty of high treason. 
 
 Sect. 2. If any person shall tender in payment any counterfeit coin, knowing it to be 
 so, he shall for the first ofl'ence suffer six months imprisonment, and find sureties for "his 
 good behaviour for six months longer: for the second offence, shall suffer two years im- 
 prisoinnent, and find sureties for two years more; and for the third offi;nce, shall be 
 guilty of felony without benefit of clergy. 
 
 Sect. 3. If any person shall tender in payment any counterfeit money (knowing it to 
 be so,) and shall either the same day, or within ten days after, knowingly tender other 
 false money in jjaynient, or at the'time of such tendering have more in his custody, he 
 shall, for the first offence, suffer a year's imprisonment, and find sureties for his good be- 
 haviour for two years more; and for the second offence, shall be guilty of felony without 
 benefit of clergy. 
 
 Sect. 5. 9. Persons guilty of the said crimes shall be tried and convicted in such man- 
 ner as is used against offenders for counterfeiting the coin; and the clerk of assize, or 
 clerk of the peace where the first conviction was had, shall certify the same by a tran- 
 script in few words, containing^ the tenor of such conviction (for which he shall have 
 2s. dd. and no more,) and such certificate being produced in court, shall be sufficient 
 proof of the former conviction. Prosecution to be in six months. 
 
 Aote. By this it should seem, that the justices of the peace in sessions have power to 
 try such offenders, otherwise this direction to the clerk of the peace to certify the con- 
 viction is incongruous; for he is not the proper person to certify what is done in another 
 court, where he is not necessarily supposed to be present; albeit no power is given to 
 the sessions by any express words in this statute to hear and determine such offenses. 
 
 XVII. For the more easy conviction of offenders found at large in 
 , Great Britain, after they have been ordered lor transportation. 
 
 By 16 Geo. 2. cap. 15. If any felon or other offender, ordered for transportation, or 
 having agreed to transport himself on certain conditions, either for life or any number
 
 HISTORIA PLACITORUM CORONiE. 715 
 
 of years, shall be afterwards at large in any part of Great Britain, without some lawful 
 cause, before the expiration of the term, he shall be guilty of (ehmy witliout benefit of 
 clergy. And by sect. 2. of 16 Geo. 2. cap. 15. the manner of trying convicts returnino^ 
 from transportation is to be according to 6 Geo. 1. cap. 23. 
 
 XVIII. For punishment of persons who shall aid or assist prisoners 
 
 to attempt to escape out of lawful custody. 
 
 By 16 Geo. 2. cap. 31. If any person shall assist any prisoner to at'empt liis escape 
 from any gaol, the no escape be actually made, if such prisoner was then attainted, or 
 convicted of treason or felony (except petty larceny,) or lawfully committed or detained 
 in any gaol for treason or felony (except petty larceny) expressed in the warrant of com- 
 mitment; he shall be guilty of felony, and be transported for seven years ; and if such 
 prisoner was then convicted of, or detained in gaol for petty larceny, or any 
 other crime not being treason or felony expressed in the warrant of commit- f 716 "| 
 rant, or was then in gaol for debt amounting to 100/. he shall be guilty of a 
 misdemeanour, and be liable to fine and imprisonment. 
 
 And if any person shall convey, or cause to be conveyed, any disguise, instrument or 
 arras, to any prisoner in gaol, or to any other person there for his use, witliout consent of 
 the keeper; such person, altho no escape or attempt be actually made, shall be deemed 
 to have delivered such disguise, instrument, or arms, with an intent to assist such pri- 
 soner to escape, or attempt to escape; and' if such prisoner was then attainted or convicted 
 of treason or felony (except petty larceny,) or lawfully detained in gaol for treason or 
 felony (except petty larceny) expressed in the warrant of commitment — he shall be 
 guilty of felony, and transported for seven years; — but if the prisoner was then convicted 
 or detained for petty larceny, or any other crime not being treason or felony, expressed 
 in the warrant of commitment, or for debt amounting to lOOl. he shall be guilty of a 
 misdemeanour, and liable to fine and imprisonment. 
 
 And if any person shall assist any prisoner to attempt to escape from any constable, 
 or other person who shall have the lawful charge of him in order to carry him to gaol, 
 by virtue of a warrant of commitment for treason or felony (except petty larceny;) or if 
 any person shall assist any felon to attempt to escape from on board any boat or vessel 
 carrying felons for transportation, or from the contractor for the transportation of such 
 felons, or his agents, he shall be guilty of felony, and be transported for seven years. — 
 All prosecutions on this act to be commenced within a year after the offence committed. 
 
 XIX. Holding correspondence with the sons of the pretender. 
 
 By 17 Geo. 2. cap. 39. Holding correspondence in any manner with any of the pre- 
 tender's sons, or with any person employed by them, or remitting any money for tlieir, 
 or any of their use, knowing the said money to be for such use or service, such person 
 so offending shall be guilty of high treason, and shall suffer and forfeit as in cases of 
 high treason. And any of the pretender's sons attempting to land in Great Britain or 
 Ireland, to stand and be adjudged to be attainted of high treason. 
 
 XX. Stealing of linen, fustian, and cotton goods and wares, in build- 
 ings, fields, grounds, and other places used for printing, whitening, 
 bleaching, or drying the same. 
 
 By 18 Geo. 2. cap. 27. Every person who shall by day or night feloniously steal any 
 linen, fustian, callico, or cotton cloth; or cloth worked, woven, or made of any cotton or 
 linen yarn mixed; or any thread, linen, or cotton yarn; linen or cotton tape, incle, fillet- 
 ing, laces, or any other linen, fustian or cotton goods, laid to be printed, wiiitened, 
 bowked, bleached, or dried, to the value oi ten shillings, or shall knowingly buy or re- 
 ceive any such wares stolen, or who shall assist, aid, or hire another to commit such 
 offence, shall be guilty of felony without benefit of clergy. — The court may order such 
 offenders to be transported for fourteen years. — And such offenders breaking gaol, or 
 returning from transportation, to suflfer death without benefit of clergy. 
 
 XXI. An act to indemnify persons who have been guilty r717'| 
 of the unlawful importing, landing, or running of pro- 
 hibited, uncustomed, or other goods and merchandize. 
 
 By 18 Geo. 2. cap. 28. Offenders guilty of the offences against the revenue mentioned 
 in this act, aftd liable to be transported for the same before this act was made, and taking
 
 717 HISTORIA PLACITORUM CORONA. 
 
 the benefit of the indemnification therein, and afterwards repeating such offences, shall 
 be guilty of felony, and suffer death without benefit of clergy. 
 
 XXII. Riotous exportation of wool, and other goods prohibited to 
 
 be exported. 
 
 By 19 Geo. 2. cap. 34. which by the 11 Geo. 3. cnj>. 51. hath continuance to Sept.'^, 
 1778, &.C. If any persons armed, to the number of three or more, shall be assembled to 
 assist in tlic illegal exportation of wool, or other goods prohibited to be exported, or ia 
 carrying of wool, or other such goods, in order to exportation ; or in rescuing the sanie 
 after seizure; or in rescuing an offender- herein, or preventing his being apprehended; or 
 shall be aiding in any of the premises; or if any person shall have his face disguised 
 when passing with such goods; or shall forcibly hinder or assault any officer in seizing 
 the same, or dangerously wound any such, in attempting to go on board any vessel; or 
 shoot at, or wound him when on board in execution of his office, he shall be guilty of 
 felony without benefit of clergy. — There are several other felonies in this act agaii^t 
 smugglers, too long to be inserted here; so see the act, which is very long. 
 
 XXIII. To prevent the return of such rebels concerned in rebellion 
 in 1745, as were or should be pardoned on condition of transpor- 
 tation; and to hinder their going into the enemy's country. 
 
 By 20 Geo. 2. cap. 46. Rebels returning from transportation without licence, or volun- 
 tarily going into France or Spain to suffi;r death without benefit of clerjory ; and aiders 
 of such persons returning, to sutfer death without benefit of clergy. — And subjects hold- 
 ing correspondence with rebels going into France or Spain, or persons employed by thein, 
 to suffijr death without benefit of clergy. 
 
 XXIV. Quakers oaths. 
 
 By 27 Geo. 2. cap. 46. sect. 36. In all cases wherein by any act of parliament an oath 
 shall be allowed or required, the solemn affirmation of Quakers shall be allowed instead 
 of such oath, and that altho no express provision be made for that purpose in such act; 
 and if any person shall be lawfully convicted of wilful, false, and corrupt affirming, or 
 declaring any matter or thing, which, if sworn in the usual form, would have amounted 
 to wilful and.corrupt perjury, he shall suffer as in cases of perjury. 
 
 XXV. For preventing robberies and thefts upon any navigable 
 rivers, ports of entry or discharge, wharfs and keys adjacent. 
 
 By the 24 Geo. 2. cap. 45. All persons \vho shall feloniously steal any goods of the 
 
 value of forty shillings in any ship, boat, or vessel, on any navigable 
 
 r 718 1 river, or in any port of entry or discharge, or from any wharf or key, or 
 
 shall be present and aiding therein, sliall be excluded from the benefit of 
 
 clergy. 
 
 XXVI. For securing mines of black lead from theft and robbery. 
 
 By 25 Geo. 2. cap. 10, Every person who shall unlawfully break, or by force enter 
 into, any mine or wad-hole of wad, or black cawke, commonly called black lead ; or into 
 any pit, shalt, or vein thereof; or shall unlawfully take and carry away from thence any 
 wad, black cawke, or black lead; or shall aid, hire or command any person to commit 
 any the said offences, shall be guilty of felony, and the court or judge may order him to 
 be committed to prison, or the house of correction not exceeding one year, to be kept to 
 hard labour, and to be publicly whipt by the common hangman, or by the master of such 
 liouse of correction, at the times and places, and in such manner as the court shall think 
 proper; or he may be transported for a term not exceeding seven years; and if he shall 
 voluntiirily escape, or break prison, or return from transportation before the time, he shall 
 be guilty of felony without benefit of clergy: and if any person shall buy or receive any 
 such wad, knowing the same to be unlawfully taken and carried away as aforesaid, he 
 shall be guilty of felony, and be liable to all the penalties inflicted by the laws on persons 
 knowingly buying or receiving stolen goods. 
 
 XXVII. For better preventing the horrid crime of murder. 
 
 By 25 Geo. 2. cap. 37. sect. 9. If any person, shall, by force, set at libarty or rescue
 
 HISTORIA PLACITORUM CORONA. 718 
 
 or attempt to set at liberty or rescue any person out of prison, committed for, or found 
 guilty of murder: or rescue, or attempt to rescue any such person goinfj to, or during 
 execution; he shall be guilty of felony without benefit of clergy. — And by sec. 10. If, 
 after execution, any person shall by lorce rescue, or attempt to rescue the body, he shall 
 be guilty of felony, and transported for seven years. 
 
 XXVIII. For enforcing the laws against persons who shall steal, or 
 
 detain ship-wrecked goods, S,'c. 
 
 By 26 Geo. 2. cop. 19. Persons convicted of plundering, stealing, taking away or 
 destroying any goods or merchandizes, Sfc. ship-wrecked, or of obstructing tlie escape of 
 any person from a wreck, or of putting out false lights, shall be deemed guilty of felony 
 without benefit of clergy. — sec. 2. Provided, where goods of small value shall be stolen 
 without any circumstances of cruelty, the offender may be indicted for petit lar- 
 ceny, and shall suffer such punishment as the laws, in cases of petit larceny, do enjoia 
 or require. 
 
 XXIX. For the better preventing clandestine marriages. 
 
 By 26 Geo. 2. cap. 3.3. sect. 8 Sf 9. If any person shall solemnize matrimony in any 
 other place than a church, or public chapel, (unless by special licence from the Arch- 
 bishop of Canlerhiiry) or without publication of bans, or licence in a church or chapel; 
 he shall (on prosecution in three years) be adjudged guilty of felony, and 
 transported for fourteen years; and the marriage shall be void. — But by sec. I" 719 1 
 18. not to extend to Scotland, nor to the marriages of Quakers, or Jews. 
 
 By Sec. 16. If any person shall knowingly and wilfully insert, or cause to be inserted 
 in the register book, any false entry, or any matter or thing relating to any marriage, or 
 falsely make, alter, forge, or counterfeit any such entry in the register or any marriage 
 licence, or cause the same to be done, or assent thereunto, or ufter as true any such 
 falsified register, or copy thereof, or any such forged licence, he shall be guilty of felony 
 without benefit of clergy. 
 
 XXX. Threatening letters. 
 
 By 27 Geo. 2. cap. 15. If any person shall knowingly send any letter, without any 
 name subscribed thereto, or signed with a fictitious naiue, demanding money or other 
 valuable thing; or threatening to kill or murder any of his Majesty's subjects, or to 
 burn their out-houses, barns, stacks of corn or grain, hay or straw; though no money, 
 or venison, or other valuable thing be demanded by such letter; ox shall rescue any 
 person in custody for such offence, he shall be guilty of felony without benefit of 
 clergy. 
 
 XXXIi For preventing the stealing, buying and receiving stolen 
 lead, iron, copper, brass, bell-metal and solder. 
 
 By 29 Geo. 2. cap. .30. Every person who shall buy or receive any of the said mate- 
 rials, knowing the same to be unlawfully come by, or shall privately buy or receive any 
 of tiie said materials (stolen) by suffering any door, window, or shutter, to be lefl 
 opened and unfastened, between sun-setting and .'<un-risifig, for that purpose; or shall 
 buy or receive the same, or any of them, at any time, in any clandestine manner, from 
 any person or persons whatsoever, shall, being convicted thereof by due course of law, 
 although the principal telon or felons has not nor have been convicted of stealing the 
 same, be transported for fourteen years. 
 
 XXXII. For punishment of persons who shall attain, or attempt to 
 attain, possession of goods or money by false or untrue pretences. 
 
 By 30 Geo. 2. cap. 24. All persons who knowingly and designedly, by false pretence 
 or pretences, shall obtain from any person money, goods, wares or merchandizes, with 
 intent to cheat or defraud any person of the same; or shall knowingly send or deliver 
 any letter or writing with, or without a name subscribed thereto, or signed with a fictitious 
 name, letter or letters, threatening to accuse any person of any crime punishable by law 
 with death, transportation, pillory, or any other infamous punishment, with intent to ex- 
 tort from him any money, or other goods, sliall be deemed offenders against law and the 
 public peace; and the court, before whom any such offender shall be tried, shall, on con-
 
 719 HISTORIA PLACITORUM CORONiE. 
 
 victinn, orHer him to be fined and imprisoned, or to be put in the pillory, or publicly 
 whipped, or to be transported for seven years. 
 
 XXXIII. For preventing frauds and abuses attending payments of 
 
 seamen's wages, ^'C. 
 
 By 31 Geo. 2. cap. 10. Whosoever willingly and knowingly shall personate or falsely 
 assunio, or i>rocurc any other to personate or falsely assume, the name or 
 r 720 "1 character of any officer, seaman, or other person intitled, or sup|>osed to 
 be intitled to any wages, pay, or other allowances of money, or prize- 
 money, for the service done on board of any of his Majesty's ships or vessels; or wil- 
 lingly or knowingly shall personate or falsely assume the name or character of the 
 executor or administrator, wife, relation, or creditor of any such officer, or seaman, or 
 other person, in order to receive any wages, pay, or other allowances of money, or prize- 
 money as aforesaid, or shall forge or counterfeit, or procure to be forged, or counter- 
 feited (or utter or publish as true, knowing the same to be false, forged or counterfeited, 
 9 Geo. 3. cap. 30. see. 6.) any letter of attorney, bill, ticket, certificate, assignment, last 
 will, or any other power of authority, in order to receive any such wages, pay, or other 
 allowances of money, or prize-money as aforesaid; or shall willingly and knowingly take 
 a false oath, or procure any other person to take a false oath to obtain the probate of any 
 will, or letter of administration, in order to receive the payment of any vvuges, pay, or 
 other allowances of money, or prize-money due, or that were supposed to be due to any 
 Buch officer, seaman, or other persons as aforesaid, who has really served, or was sup- 
 posed to have served on board of any of his Majesty's-sliips or vessels; every such per- 
 son so offending shall be guilty of felony without benefit of clergy. 
 
 XXXIV. For preventing frauds and abuses in marking or stamping 
 
 gold or silver plate. 
 
 By 31 Geo. 2. cap. 32. sect. 15. If any person shall cast, forge or counterfeit, or cause 
 or procure to be cast, forged or counterfeited, the mark or stamp used for making plate 
 in pursuance of the act of 12 Geo. 2. cap. 26 <Sfr. by the goldsmith's company, &c. or 
 mark plate, «Slc with a forged or counterfeit mark or stamp, or shall transpose the 
 mark impressed from one piece of wrought plate to another; or shall sell or export 
 plate with a forged, counterfeit, or transposed mark, or shall wilfully and knowingly 
 have any such mark or stamp in liis possession ; he shall be guilty of felony without 
 benefit of clergy. But this is repealed, and made transportation for fourteen jears by 
 13 Geo. 3. cap. 59. 
 
 Felonies" exacted ix the time of Kixg George III. 
 
 I. To prevent the committing of thefts and frauds by persons navi- 
 
 gating bum-boats and other boats upon the river Thames. 
 
 By 2 Geo. 3. cap. 28. Persons convicted of knowingly buying, or receiving stolen 
 goods from vessels in the river Thames, or of privately buying or receiving, at any time, 
 anv such goods clandestine!}', or by suffering any door, window, or shutter at night, to 
 be left open or unfastened for that purpose, shall be transported for fourteen years; and 
 persons convicted of cutting or spoiling any cordage, cables, buoys, buoy-rope, headfast, 
 or other fasts, or ropes of vessels at anchor or moorings in the river; and per- 
 [ 721 I sons who shall be aiding or assisting therein, with an intent to steal the same, 
 shall be transported for seven years. 
 
 II. For preventing fraudsin relation to the postage of letters. 
 
 By 4 Geo. 3. cap. 24. sect. 8. If any person shall counterfeit the hand-writing of any 
 person whatsoever in the superscription of any letter, or packet, to be sent by the post, 
 in order to avoid payment of tiie duty of postage; every person so offending shall be deemed 
 guilty of felony, and shall be transported for seven years. 
 
 III. For establishing a manufactory of cambricks and lawns, ^-c. 
 
 By 4 Geo. 3. cap. 37. sect. 15. , If any person shall counterfeit the common seal of the 
 corporation, established by this act, or shall forge, counterfeit, or alter any deed, bill,
 
 HISTORIA PLACITORUM CORON.E. 721 
 
 bond, or obligation under the common seal of the said corporation, or shall offer to dis- 
 pose of, or pay away any such forged, counterleited, or altered bill, bond, or obligation, 
 knowing the same to be such; or shall demand any money therein mentioned, or pre. 
 tended to be due thereon, or on any part thereof, of and from the said corporation, or any 
 members, officers, or servants thereof, knowing such bill, bond, or obligation to be forged, 
 counterfeited or altered, with intent to defraud the same corporation, or their successors, 
 or any other person or persons whomsoever, every person so offending, and being con- 
 victed thereof, shall be judged guilty of felony, and shall suffer as in cases of felony, 
 without benefit of clergy. 
 
 And by sect. 16. If any person shall, by day or night, break into any house, shop, 
 cellar, vault, or other place or building, or by force enter into any house, shop, cellar, or 
 vault, or other place or building with intent to steal, cut, or destroy any linen yarn be- 
 longing to any linen manufactory, or the looms, tools, or implements used therein ; or 
 shall williilly or maliciuusly cut in pieces or destroy any such goods, when exposed 
 either to bleach or dry, he shall be guilty of felony without benefit of clergy. 
 
 IV. For preservation offish in fish-ponds, and conies in warrens, &c. 
 
 By 5 Geo. 3. cap. 14. sect. 1. In case any person or persons shall enter into any park 
 or paddock fenced in and inclosed, or into any garden, orchard, or yard adjoining, or be- 
 longing to any dwelling-house, in or through which park or other premises any river or 
 stream shall run or be, or wherein shall be any river, stream, pond, pool, mo;it, stew, or 
 other water, and by any ways or means, or device, whatsoever, shall steal, take, kill, or 
 destroy any fish, bred, kept, or preserved, in any such river or stream, pond, pools moat, 
 stew, or other water aforesaid, without the consent of the owner or owners thereof; or 
 shall be aiding and assisting in stealing, taking, killing, or destroying any such fish as 
 aforesaid ; or shall receive or buy any such fish, knowing the same to be so stolen or 
 taken as aforesaid; and being thereof indicted within six calendar months next after such 
 qffcnse or offenses shall have been committed, before any judge, or justices 
 of gaol-delivery for the county wherein such park or paddock, garden, orcliard, V 722 1 
 or yard shall be, and shall on such indictment be by verdict, or his or their 
 own confession or confessions, convicted of any such offense or offenses as aforesaid; the 
 person or persons so convicted shall be transported for seven years. 
 
 And by sect. G. If any person or persons shall wilfully and wrongfully, in the night- 
 time, enter into any warren or ground, lawfully used or kept for the breeding or keeping 
 of conies, altho the same be not inclosed, and shall then and there wilfully and wrontr. 
 fully take or kill, in the night-time, any coney or conies, against the will of the owner 
 or occupier thereof, or shall be aiding and assisting therein, and shall be convicted of the 
 same before any of his majesty's justices of oyer and terminer or gaol-delivery, for the 
 county whereof such offensew offenses shall i)e committed, every such person and per- 
 sons so offending, and being thereof lawfully convicted in manner aforesaid -shall and 
 may be transported for seven years, or suffer such other punishment, by whipping, fine, 
 or imprisonment, as the court, before whom such person or persons shall be tried, shall 
 in their discretion award and direct. 
 
 By sect. 7. No person who shall be convicted of any offense against this act, shall be 
 liable to be convicted for any such offense under any former act or acts, law or laws, 
 now in force. 
 
 V. For preventing unlawful combinations of workmen employed in 
 
 the silk manufacture. 
 
 By 6 Geo. 3. cap. 28. sect. 15. If any person or persons shall, by day or by night, 
 break into any house or shop, or enter by force into any house or shop, with intent to 
 cut or destroy any velvet, wrought silk, or silk mixed with any other materials, or other 
 silk manufacture, in tlie loom, or any warp, or shute, tools, tackle, or utensils; or shall 
 wilfully and maliciously cut or destroy any velvet, wrought silk, or silk mixed with any 
 other materials, or other silk manufacture in the loom, or any warp or shute, tools, tackle, 
 or utensils, prepared or employed in, or for the making thereof; or shall wilfully and 
 maliciously break or dpstroy any tools, tackle, or utensils, use-d in or for the weaving or 
 making any such velvet, wrought silks, or silks mixed with any other materials, or other 
 silk goods, or silk manufactures, not having th^ qonsent of the owners so to do; every 
 such offender, being thereof lawfully convicted, shall be adjudged guilty of felony, and 
 shall suffer death without benefit of clergy.
 
 722 HISTORIA PLACITORUM CORONA. 
 
 VI. For the encouraging the cuUivation, and for the better preser- 
 
 vation of trees, roots, plants, and shrubs. 
 
 By 6 Geo. 3. cap. 36. All and every person and persons who shall, in the night-time, 
 lop, top, cut down, break, throw down, bark, burn, or otherwise spoil or destroy, or carry 
 away any oak, beach, ash, elm, fir, chesnut, or asj) timber-tree, or other tree or trees 
 standing for timber, or likely to become timber, without the consent of the owner or 
 
 owners thereof first had and obained; or shall, in the night-time, pluck up, 
 I 723 I dig up, break, spoil, or destroy, or carry away, any root, shrub, or plaqt, 
 
 roots, shrubs, or plants of the '.•alue of five shillings, and which shall be grow- 
 ing, standing, or being in the garden, or under nursery-ground, or other inclosed ground, 
 of any person or persons whomsoever, shall be deemed and construed to be guilty of 
 felony; and every such person or persons shall be subject and liable to the like pains and 
 penalties as in cases of feloTiy; and the court by and before whom such person or persohs 
 shall be tried, shall, and Jiereby have authority to transport such person of persons for 
 the space of seven years: and all and every person and persons who shall be wilfully 
 aiding, abetting, or assisting in such cutting down, breaking, throwing down, barking, 
 burning, or otherwise spoiling or destroying, or carrying away any such oak, beach, ash, 
 elm, fir, cliesnui, or asp tiinbcr-tree, or other tree or trees standing for timber, or likely 
 to become timber, ns aforesaid; or in such plucking up. digging up, cutting, breaking, 
 spoihng, or destroying, or carrying away such root, shrub or plant, roots, shrubs or plants 
 as aforesaid, of the value aforesaid ; or who shall buy or receive such root, shrub or plant, 
 roots, shrubs or plants, of the value aforesaid, knowing (he same to be stolen, shall be 
 subject and liable to the same punishment, as if he, she, or they had stolen the same; 
 any law to the contrary in auy.wise .notwithstanding. 
 
 VII. For the better preservation of timber-trees, and of woods and 
 undcr-woods ; and lor the further preservation of roots, shrubs, and 
 plants. 
 
 By 6 Geo. 3. cap. 48. Every person who shall wilfully cut or break down, bark, burn, 
 pluck up, lop, top, crop, or otiierwise delace, damage, «!poil, or destroy, or carry away 
 any timber-tree or trees, or trees likely to become timber, or any pari thereof, or the 
 lops or tops thereot', without the consent of the owner (or in any of his majesty's forests 
 or chases, witiiout the consent of the surveyor, or his deputy, or persons intrusted wiih 
 the care thereof,) and shall be thereof convicted on the eath of one witness, belore one 
 justice, shall, for the first oflcnse, forfeit not exceeding 20/. together wi h the charges 
 previous to and attending such conviction, to be ascertained by such justice; and on 
 non-payment thereof', to be committed by such justice to the Qominon gaol, for any time 
 not exceeding twelve months, nor less than six, or until^ie penalty and charges shall 
 be paid: for the second ofiVnse to forfeit not exceeding 30Z. together with the charges as 
 aforesaid; and for non-payment, to be committed as aloresaid, for any time not exceeding 
 eighteen months, nor less than twelve, or until the penally and charges shall be paid ; 
 and if any person shall be guilty of a like cficncc, a third time, and shall thereof be con- 
 victed in like mar}ner,* he shall be deemed guilty of felony, and the court 
 r 724 ~\ before whom he shall be tried, shall have authority to transport him for seven 
 years. And all oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, 
 sycamore, and birch trees, [and also poplar, alder, larch, niapple, and hornbeam, by 
 13 Geo. 3. cap. 33.] shall be deemed timber trees. 
 
 And by sect. 3. Every person who shall pluck up, spoil or destroy, or take or carry 
 away any root, shrub or plant, roots, shrubs or plants, out of the fields, nurseries, gar- 
 dens, or garden-ground, or other cultivated lands, of any person, witiiout the consent of 
 t^ie owner, and shall be thereof convicted upon the oath of owe witness before one jus- 
 tice,^ shall, for the first offense, forfeit not exceeding 40s. together with the charges pre- 
 
 * Here scerhs to be a mistake. Being convicted in like manner, iniplies a sumn^ary 
 conviction, as before directed, before one justice; but it cannot be intended, that a justice 
 shall, in this manner, have power to transport a man. But the word court alterwards, 
 before which he shall be convicted (that is court of assize, or sessions, as it seemeth by 
 tlie following words of the act,) implies a legal trial by a jury; and therefore these words 
 [in like manner] ought to be omitted. . 
 
 t The words in the printed act arc [and shall be thereof convicted upon the oath of 
 one or more credible witness or witnesses, before any one or more justice or justices of 
 tlie peace]. It is probable by mistake of the printer of this act.
 
 HISTORIA PLACITORUM CORON/E. 724 
 
 vious to, and attending such conviction, to be ascertained 'by such justice; and if not 
 paid immediately, the said justice shall commit him to the house of" correction for one 
 moiitli, to be kept to hard labour, and once whipped there: for the second offense, shall 
 forfeit not exceeding 51. together with the charges as aforesaid; and if not paid imme- 
 diately, then to be committed to the house of correction for three months, and to be kept 
 to hard labour, and whipped there once in every of the said months; and if any person 
 shall a third time commit the like offense, and shall be thereof convicted, he shall be 
 deemed guilty of felony, and the court before whom he shall be tried, shall have authority 
 to transport him for seven years. 
 
 VIII. Stealing bills or other securities for money out of letters. 
 
 By 7 Geo, 3. cap. 50. sect. 1. If any person employed in the business of the post- 
 ofBce, shall secrete, imbezzle, or destroy any letter or packet, containing any bank note, 
 bank post bill, bill of exchange, exchequer bill, South-Sea or East India bond, dividend 
 warrant of the bank, or other company, navy, or victualling, or transport bill, ordnance 
 debenture, seaman's ticket, state lottery ticket, bank receipt for payment on any loan, 
 note or assignment of stock in the funds, letter of attorney for receiving annuities or 
 dividends, or for selling stock in the funds, or belonging to any company, American pro- 
 vincial bill of credit, goldsmith's or banker's note for payment of money, or other bond 
 or warrant, draught, bill, or promissory note for payment of money, or shall steal and 
 take the same out of any letter or packet, he shall be guilty of felony, and suffer death 
 without benefit of clergy. [And see for the like the act of 5 Geo. 3. cap. 25. sect. 17] 
 
 By sect. 2. If any person shall rob any mail of any letter, packet or bag, or shall 
 steal and take any letter or packet from out of any mail or bag or out of any post-ofRce, 
 or house, or place, for the receipt of delivery of letters, altho tlic same shall not appca,r 
 to be a taking from the person, or on the highway, or in a dwelling-house, or out-house 
 belonging to a dwelling-house; and altho it shall not appear that any person 
 was put in fear, he shall nevertheless be guilty of felony, and shall suffer death I" 725 J 
 without benefit of clergy. 
 
 By sect. 3. If any person employed in any business of the post-office, who shall take 
 any letter or packet to be forwarded by the post, and receive any money therewith for 
 the postage, shall burn or destroy any such letter or pikckel; or shall advance the rate of 
 postage upon any letter or packet, and not duly account for the money by him received 
 for such advanced postage, he shall be deemed guilty of felony. 
 
 IX. For the more speedy and effectual transportation of offenders. 
 
 By 8 Geo. 3. cap. 15. Where his majesty's mercy shall be extended to any offender 
 upon condition of transportation, and the same be signified to the judge, by one of the 
 principal secretaries of state, such judge may make order for the immediate transporta- 
 tion of such offender; who shall thereupon be transferred and made over to the con- 
 tractor, ^c. and if such offender be afterwards seen at large in Great Britain, without 
 lawful cause, before the expiration of the term for which he was transpor^d, he shall 
 suffer death without benefit of clergy. 
 
 X. For punishment of persons destroying mills, mines, ^'c. 
 
 By 9 Geo. 3. cap. 29. sect. 1. If any person or persons riotously and tumultuously 
 assembled, to the disturbance of the public peace, shall unlawfully and with force de- 
 molish or pull down, or begin to demolish or pull down any wind saw-mill, or other 
 wind-mill, or any water-mill, or other mill, or any of the works thereto belonging, every 
 such person shall be guilty of felony without benefit of clergy. 
 
 And by sect. 2. If any person shall wilfully or maliciously burn, or Set fire to any 
 such mill; he shall in like manner be guilty of felony without benefit of clergy. 
 
 And by sect. 3. If any person sTiall wilfully or maliciously set fire to, burn, demolish, 
 pull down, or otherwise destroy or damage any fire engine, or other engine erected for 
 draining water from collieries, or coal mines, or for drawing coals out of the same; or 
 for draining water from any mine of lead, tin, copper, or other mineral ; or any 
 bridge, waggon-way or trunk, erected for conveying coals from any colliery or coal- 
 mine, or staith for depositing the same; or any bridge or waggon-way erected for 
 conveying lead, tin, copper,, or other mineral from any such mine, or shall cause or 
 procure the same to be done, he shall be guilty of felony, and transported for seven 
 years. 
 
 VOL. I. — 59
 
 725 HISTORIA PLACITORUM CORONA. 
 
 XI. Forgery in relation to seaman's wages. 
 
 By 9 Geo. 3. cap. 30. sect. 6. If any person shall utter or publisli as true, any false, 
 forged or counterfeited letter of attorney, bill, ticket, certificate, assignment, last will, 
 or any other power or authority whatsoever, in order to receive any wages, pay, or other 
 allowance^ of money, for prize-money, due, or supposed to be due to any officer or sea- 
 man, or otlicr person, who has really served, or was supposed to have served, or who 
 shall hereafter serve, or be supposed to have served, on board of any ship or vessel of his 
 Majesty, his heirs or successors, with intent to defraud any person, knowing the same 
 to be false, forged or counterlcitcd ; then every sucli perscn, being thereof 
 r 726 1 lawfully convicted, shall be deemed guilty of felony, and shall suti'er death 
 without bene6t of clergy. 
 
 XII. For making the receiving of stolen jewels, and gold and silver 
 plate, in the case of burglary and highway robbery, more penal. 
 
 By 10 Gto. 3. cap. 48. Every person who shall buy or receive any stolen jewel or 
 jewels, or any stolen gold or silver plate, watch or watches, knowing the same to have 
 been stolen, shall, in all cases where such jewel or jewels, or gold or silver plate shall 
 have been feloniously stolen, accompanied with a burglary actually committed in the 
 stealing the same, or shall have been feloniously taken by a robbery on the highway, 
 shall be tri iblc as well before conviction of the principal felon in such felony and bur- 
 glary or robbery, wliether, he sb.all be in or out of custody, as alter his conviction. And 
 if any person so buying or receiving such jewel or jewels, or gold or silver plate, shall 
 be convicted thereof, he shall be guilty of felony, and transported for tourteen years. 
 
 XIII. For preventing the counterfeiting the copper coin of this realm. 
 
 By 11 Geo. 3. cap. 40. sect. 1. Jf any person or persons shall make, coin, or counter- 
 feit, any of the copper monies of this realm, commonly called an halfpenny, or af'irthing^ 
 such person or persons offending therein, and his, her, or their counsellors, aiddrs, or 
 abetters and procurers, shall be adjudged guilty of felony [but within clergy.] 
 
 By sect. 2, If any person or persons shall buy, sell, take, receive pay, or put off any 
 counterfeit copper money, not melted down, or cut in pieces, at, or for a less rate or value 
 than the same, by its denomination, doth or shall import, or was counterfeited for, 'every 
 such person and persons shall be adjudged guilty of felony [but within clergy.] 
 
 XIV. For proceeding against persons standing mute on their arraign- 
 
 ment for felony or piracy. 
 
 By 12 Geo, 3. cop. 20, If any person being arraigned on any indictment or appeal 
 for tblony, or on any indictment for piracy, shall, upon such arraignment stand mule, or 
 will not answer directly to the felony or piracy, such person so standing mute, as afore- 
 said, shall be convicted of the felony or piracy charged ip such indictment or appeal; 
 and the co^t, before whom he shall be arraigned, shall thereupon award judgment and 
 execution against such person, in the same manner as if such person had been convicted 
 by verdict, or confession of the felony, or piracy charged in such indictment or appeal; 
 and sue!) judgment shall have all the same consequences in every respect, as if such per- 
 son had been convicted by verdict or confession of such felony or piracy, and judgment 
 had been thereupon awarded. 
 
 XV. For preserving his JNIajesty's dock-yards, magazines, ships, 
 
 ammunition, and stores. 
 
 By 12 Geo. 3. cap. 24. If any person shall, either within this realm, or any of the 
 islands, countries, forts or places thereunto belonging, wilfully and maliciously set on 
 fire, or burn, or otherwise destroy, any of his Majesty's ships or vessels of war, whether 
 
 the same be on tloat, or building in any of his Majesty's dock-yards, or build- 
 I 727 I i'lgi or repairing by contract in any private yard ; or any of his Majesty's 
 
 arsenals, magazines, dock-yards, rope-yards, victualling-offices, or any of the 
 buildings erected therein, or belonging thereto; or any timber or materials there placed, 
 for building, repairing, or fitting out of ships or vessels ; or any of his Majesty's military, 
 naval, or victualling stores, or other ammunition of war; or any place where any such 
 military, naval, or victualling stores, or other ammunition of war shall be kept; he, and 
 also his aiders and abetters, shall be guilty of felony, without benefit of clergy.
 
 HISTORIA PLACITORUM CORON^E. 707 
 
 XVI. For the preventing of frauds in the stamp duties upon vellum, 
 
 parchment, paper and cards. 
 
 By 12 Geo. 3. cap. 48. If any person shall write or engross, or cause to be written or 
 engrossed, cither the whole, or any part of any writ, mandate, bond, affidavit, or other 
 writing, matter, or thing whatsoever, in respect wlicreof any duty is, or shall be payable 
 bv any act or acts made, or to be made in that belialf, on the whole, or any part of any 
 piece of vellum, parchment or paper, whereon there shall have been before written any 
 other writ, bond, mandate, atfidavit, or other matter or thing, in respect whereof any 
 duty was or shall be payable, as aforesaid, before such vellum, parchment, or paper, shall 
 have been again marked or stamped according to the said acts; or shall fraudulently erase 
 or scrape out, or cause to be erased or scraped out, the name or names of any person or 
 persons, or any sum, date, or otlicr thing, written in such writ, mandate, affidavit, bond, 
 or other writing, matter or thing, as aforesaid; or fraudulently cut, tear, or get otf, any 
 mark or stamp, in respect whereof or whereby, any duties are or shall be payable, or, 
 denoted to be paid or payable as aforesaid, frotn any piece of vellum, parchment, paper, 
 playing cards, outside paper of any parcel or pack of playing cards, or any part thereof^ 
 with intent to use such stamp or mark for any other writing, matter or thing, in respect 
 whereof Any duty is, or shall be payable, or denoted to be paid or payable, as aforesaid, 
 then, and so often, and in every such case, every person so offending in any of the par- 
 ticulars before mentioned, and every person knowingly and wilfully aiding, abetting or 
 assisting any person or persons, to commit any such offense or otfcnses, as aforesaid, 
 . ehall be deemed guilty of felony, and shall be transported for a term not exceeding seven 
 years; and if such offender shall voluntarily escape, or break prison, or returri from 
 transportation within Uie limited tinic, he slmll sufibr death w^itbout benefit of clergy. 
 
 XVII. For the more efrcctnal execution of criminal laws in the two 
 
 parts of the united kingdom. 
 
 By 13 Geo. 3. cap. 31. sec. 4. If any person having feloniously taken money, cattle, 
 goods, or other elfects, in cither part of the united kingdom, and shall afterwards have 
 the same, or any part thereof, in his possession in the other part of the united kingdom; 
 it shall be lawful to indict, try and punish him for thelt or larciny, in that part of the 
 united kingdom where he shall so have such money, cattle, goods or other efiecls in his 
 possession, as if the same had been stolen there. 
 
 And by sect. 5. If any person, in either part of the united kingdom, shall 
 knowingly receive or have any money, cattle, goods, or other eflccts, stolen, f 728 1 
 or otherwise feloniously taken in the other part of the united kingdom, he 
 ehall be liable to be indicted, tried, and punished for the same, in that part of the united 
 kingdom where he shall so receive and have the same, as if they had been originally 
 stolen there. 
 
 XVIII. For the preventing the forging or counterfeiting any stamp 
 or seal used for marking calicoes, linens and stuffs to be printed, 
 painted, stained or dyed. 
 
 By 13 Geo. 3. cap. 56. If any person shall counterfeit or forge any stamp or seal 
 already provided by the commissioners in the said act mentioned, or which shall here- 
 after be provided, renewed, or altered; or shall counterfeit, or resemble the impression of 
 the same, upon any of the said commodities chargeable with duties, thereby to defraud 
 his 3Iajesty thereof, such person shall be guilty of felony without benefit of clergy. 
 
 XIX. For preventing the forging of the notes or bills of the Bank of 
 
 England, Ǥ'C. 
 By 13 Geo. 3. cap. 79. sec. 1. If any person or persons (other than the officers, work- 
 men, servants, or agents for the time being of the governor, &-c. of the bank, to be autho- 
 rised for that purpose by them, and for their use) shall make or use, ox cause or procure 
 to be made or used, or knowingly aid or assist in the making or using, or (without being 
 authorised as aforesaid) shall knowingly have in his, her, or their custody or possession 
 (without lawful excuse, the proof whereof shall lie upon the person accused) any frame, 
 mould, or instrument for the making of paper, with the words Bank of England, visible 
 in the substance of such paper; or shall make, or cause or procure to be made, or know- 
 ingly aid or assist in the making any paper, in the substance of which the said words. 
 Bank of England, shall be visible; or if any person (except as before excepted) shall by
 
 728 HISTORIA PLACITORUM CORONA. 
 
 any art, mystery, or contrivance, cause or procure the said words, Bank of England, to 
 
 appear visible in the substance of any paper wiiatsoever; or knowingly aid or assist in 
 causing the said words, linnk of England, to a|)pcar in the substance of any paper what- 
 soever; every person so offendinor in any of the cases aforesaid, sliull, for such oflFcnse, 
 be deemed a felon, and shall sutler death without benefit of clergy.* 
 
 XX. To prevent the stealing of deer. 
 
 By 16 Geo. 3. op. 30. sect. 1. The penalty on persons who shall hunt, kill, wound or 
 shoot at, &c. any tallow-deer in any forest, park, «Scc. without being duly authorised, is, 
 for the second otfensc, felony and transportation for seven years. 
 
 And by sect. !). The penally on persons carrying fire arms into any forest, park, Sec 
 with intent to destroy deer, is also felony, and transportation for seven years. 
 
 XXI. To antliorize, for a limited time, the punisimient by hard la- 
 bour of otfenders, who, for certain crimes, are, or shall become 
 hable to be transported. 
 
 By 16 Geo. 3. cap. 43. sect. 1. Any male person convicted in England of any crime 
 
 punishable by transportation, may, instead thereof, be kept to hard labour in 
 
 r 729 "1 cleansing the river lliames, «fcc. for any term not less than three, nor more 
 
 than ten years. 
 
 And by sect. 15. If any person so ordered to hard labour, shall at any lime during the 
 
 term, for which he shall be ordered to hard labour, break prison, or escape; for the first 
 
 escape, he shall be punisiied by doubling the term of the service and hard labour ; and 
 
 on conviction for a second escape, he shall be adjudged a felon, and sutler death without 
 
 benefit of clergy .t 
 
 STATUTES RELATING TO FELONY ENACTED SINCE THE LAST EDITION 
 OF THIS WORK, WHICH WAS IN THE YEAR 177S. 
 
 XXII. For granting to his Majesty certain duties on licences, to be 
 taken out by all persons acting as auctioneers, and certain rates 
 and duties on all lands, houses, goods, and other things, sold by 
 auction ;{a) and upon indentures, leases, bonds, deeds, and other 
 instruments. 
 
 By 17 Geo. 3. ch. 50. ^ 25. If any person shall counterfeit or forge, or procure to be 
 counterfeited or forged, any seal, stamp, or mark, to resemble any seal, stamp, or mark, 
 directed, or allowed to be used by this or any other act of parliament, for the purpose of 
 denoting the duties by this or any other act of parliament granted, or shall counterfeit 
 or resemble the impression of the same witli an intent to defraud his Majesty, his heirs 
 and successors, of any of the said duties; or shall privately or fraudulently use any seal, 
 stamp, or mark, directed or allowed to be used by this or any other act of parliament, 
 relating to the stamp-duties, with intent to defraud his Majestij, his heirs and successors 
 of any of the said duties; every person so offending, and being thereof lawfully convicted, 
 shall be adjudged a felon, and shall sutler death as in cases of felony, without benefit of 
 cJergy. 
 
 XXIII. For preventing the forging of acceptances of bills of ex- 
 change, 4'C. with intent to defraud corporations. Tide stat. 7. 
 Geo. 2. ch. 22. 
 
 By IS Geo. 3. ch. 18. If any person shall falsely make, alter, forge, or counterfeit, or 
 cause or procure, ^-c. or willingly act, ^-c. any acceptance of any bill of exchange, or the 
 
 * By 13 Geo. 3.,ch. 84. § 42, the malicious destruction of turnpike-gates, houses, or 
 engines, Sfc. is a felonious and transportable oftence; (and so as to rescuers, &c.) Vide 
 indictment hereon, and said § o^ stat. at large. Cr. Cir. Com. 7th edit. 740-1. 
 
 t By 16 Geo. 3. ch. 34. § 15. If any person shall counterfeit, &c. or utter, sell, &c. 
 knowing, &.c. any seal, stamp, or mark, used for indentures, leases, bonds, or other 
 deeds, cards, dice, or newspapers, he shall be adjudged a felon, and sutfer death without 
 benefit of clergy. Vide also abstract of 29 Geo. 3. ch. 50. § 13. being No. LX.1. post. 
 
 (a) Partly repealed as to aucliuns, by 13 Geo. 3. ch. 56. § 1.
 
 HISTORIA PLACITORUM CORONA. 729 
 
 namber, or principal sum of any accountable receiptt for any note, bill, or other security 
 for payment of money, or any warrant or order for payment of money, or delivery of 
 goods, with intention to defraud any corporation whatsoever; or shall utter, <Sfc. with liiic 
 intention, he shall be deemed guilty of felony, and shall sufler death as a felon without 
 benefit of clergy. 
 
 XXIV. For the payment of costs to parties on complaints determined 
 before Justices of the peace, out of sessions; for the payment of the 
 charges of Constables in certain cases ; and for the more eflectual 
 payment of charges to witnesses and prosecutors of any larceny, 
 or other felony. 
 
 By 18 Geo. 3. ch. 19. § 7. On trials for grand or petit larceny, or other felony, the 
 court may order the treasurer of the county, 6jc. to pay the prosecutor his reasonable 
 expences, and also an allowance for his troui)le and loss of time, if he shall appear to the 
 court to be in poor circumstances. And also by the same statute, § H. the court may 
 order the payment of the reasonable expences of persons appearing on their recog- 
 nizances, or subpoenas, to give evidence, whether any bill of indictment be preferred or 
 not to the grand jury, and also reasonable allowances for their trouble and loss of time, 
 if they shall appear to the court to be in poor circumstances. (6) 
 
 Vide Stat. 25 Geo. 2. ch. 36. § 11. and 27 Geo. 2. ch. 3. § 3. cited in 6 T. R. 238. Eas- 
 ter Term, 35 Geo. 3. K. B. 
 
 XXV. For granting to his Majesty several additional duties on 
 stamped vellum, parchment, and paper: and for belter securing the 
 stamp duties upon indentures, leases, deeds, and other instruments. 
 
 By 19 Geo. 3. ch. 66. § 8. If any person shall counterfeit or forge, or procure to be 
 counterfeited or forged, any seal, stamp, or mark, directed or allowed to be used by this 
 or any other act of parliament, for the purpose of denoting the duties by this or any 
 other act of parliament granted, or shall counterfeit or resemble the impression of the 
 same, with an intent, Sfc. or shall privately or fraudulently use, <Sfc. he shall be adjudged 
 a felon, and shall suffer death as in cases of felony, without benefit of clergy. 
 
 XXVI. To explain and amend the laws relating to the Transpor- 
 tation, imprisonment, and other punishment of certain offenders. 
 
 Vide No. XL. post. 
 By 19 Geo. 3. ch. 74. § 3. When any person is convicted of felony for which he shall 
 be liable to be burnt in the hand,{c) the court may, instead thereof, impose on him a 
 moderate fine, or (except in the case of manslaughter) order him to be either publickly 
 or privately whipped. But by § 4. this act shall not abridge the power vested in the 
 court of imprisoning offenders, 
 
 XXVII. For granting to his Majesty several additional duties on 
 advertisements; and certain duties on receipts for legacies, or for 
 any share of a personal estate divided by force of the statute of 
 distributions, or the custom of any province or place.* 
 
 By 20 Geo. 3. ch. 28. § 6. If any person shall counterfeit or forge, or procure, S^c. 
 any seal, stamp, or mark, directed or allowed to be used by this act, or shall 
 counterfeit or resemble the impression of the same, with intent, <^r. or shall f 730 ~\ 
 privately or fraudulently use, <^c. he shall, upon conviction, sufl^er death as in 
 cases of felony, without benefit of clergy. 
 
 XXVIII. For granting to his Majesty an additional duty upon al- 
 manacks printed on one side of any one sheet or piece of paper, S,'C. 
 
 By 21 Geo. 3. ch. 56. § 9. If any person shall counterfeit, or forge, or procure to be 
 
 {b) These expences extend to inferior districts having jurisdiction to try felons, and 
 raising their own rates similar to the county rates. Rex v. Myers, 6 T. R. 237. 
 
 (c) Vide Stat. 4. Geo. 1. ch. 11; 6 Geo. l.'ch. 23. 
 
 * Repealed as to receipts for legacies, and new duties granted, by 36 Geo. 3. ch. 52. * 
 abstracted post.
 
 730 HISTORIA PLACITORUISI CORON.F.. 
 
 counterfeited or forged, any stamp or mark, to resemble any stamp or mark, directed to 
 be used by this or any other act of parliament; or shall counterfeit or resemble the im- 
 pression of the same; or shall utter, Sfc. or shall privately or fraudulently use, t^c. with 
 intent to defraud, Sfc. he shall, upon conviction, sutler death as in cases of felony, with- 
 out benefit of clergy. 
 
 XXIX. To explain and* amend an act, made in the fourth year of 
 the reign of his late JMajesty King Geor<:e the Second, intitnled, 
 
 I An Act for the more effectnal punishing stealers of lead, and iron 
 bars, fixed to houses,{d) or any fences belonging thereunto. 
 
 By 21 Geo. 3. ch. G8. All and every person and persons who shall steal, rip, cut, 
 break, or remove with intent to steal, any copper, brass, bdl-melal, vteiisil, or Jixtiire, 
 being fixed to any dwelling-house, out-house, coach-house, stable, or other building, used 
 or occupied with such dwelling-house, or thereunto belonging, or to any other building 
 whatsoever, or fixed in any garden, orchard, court yard, fenre, or outlet, belonging to 
 any dwelling-house, or other building, or any iron rails, or fencing set or fixed in any 
 square, court, or other place (such |)erson having no title or claim to title thereto,) shall 
 be deemed and construed to be guilty of felony; and the court may order him to be 
 transported for seven years, or kept to hard labour in |)rison for any time not exceeding 
 three years, nor less than one, subject also to the punishment of public whipping (if the 
 court shall think fit,) not exceeding three times: And all persons assisting therein, or 
 who siiall buy or receive, i^r . knowing, Jffc, are subject to the same punishments, although 
 the principal felon or felons has not, or have not, been convicted of stealing the same. 
 
 XXX. To explain and amend an act, made in the twenty-ninth year 
 of the reign of his late Mnjest}/ King George the Second, intituled, 
 An Act for more elfcctually discouraging and preventing the steal- 
 ing, and the buying and receiving of stolen lead, iron, copper, brass, 
 bell-metal, and solder, and for more etfectually bringing the otfeu- 
 ders to justice. 
 
 ■ By 21 Geo. 2. ch. 69. Every person who shall buy or receive any pewter-pot, or o(her. 
 vessel, or any pewter in any form or shape whatever, knowing the same to be stolen, if 
 unlawfully come by; or shall privately, buy or receive any stolen pewter, by suticring 
 any door, window, or shutter, to be left open or unfastened, between sun-setting and sun- 
 xising, for that purpose; or shall buy or receive the same at any time, in any clandestine 
 mariner, from any person or persons whatsoever, shall, being thereof convicted by due 
 course of law, although the principal felon or felons has not, or have not, been convicted 
 of stealing the same, be transported for any time not exceeding seven years, or be kept 
 and detained in prison and therein kept to hard labour for any time not exceeding three 
 years, nor less than one year; and within tliat time (if the court shall think fitting) such 
 offender or offenders shall be once, or oftener, but not more than three times, publicly 
 whipped. 
 
 XXXI. For punishing persons wilfully and maliciously destroying 
 any ivoollen, silk, lijien, or cotton goods, or any iynplements pre- 
 pared for or used in the manufacture thereof; and for repealing so 
 much of two acts, made in the twelfth year of King George the 
 First, and the sixth year of his present Majesty, as relates to the 
 
 _. punishment of persons destroying any woollen or silk manu- 
 L ' ^■*- J factures, or any implements prepared for, or used tl)erein.(e) 
 
 By 22 Geo. 3. ch. 40. § L If any person or persons shall, by day or by night, break 
 into any house or shop, or enter by force into any house or shop, with intent to cut or 
 
 {d) See the indictments against Principal and Aider. Cr. Cir. Com. 7th edit. 459. 
 Against the Receiver. Ibid. 460. Vide Hickman's case and references, noted in the 
 same book, touching the manner of laying an indictment for stealing lead from a church. 
 Page 461. 
 
 (e) Vide 28 Geo. 3. ch. 55. and 29 Geo. 3. ch. 46. abstracted hereafter, being No. LVIII. 
 and LX.
 
 HISTORIA PLACITORUM CORONA. 731 
 
 destroy any serge or other woollen goods in the loom, or any tools employed in making 
 thereof; or shall wilfully and maliciously cut or destroy any such serges or woollen 
 goods in the loom, or on the rack ; or shall burn, cut, or destroy any rack on which any 
 such serges or other woollen goods are handed in order to dry; or shall wilfully and 
 maliciously hrcak or destroy any tools used in the making any such serges or other 
 woollen goods, not having the consent of tlic owner so to do; every such offender, being 
 thereof lawfully convicted, shall be guilty of felony, without benefit of clergy. 
 
 ^ 2. To the same effect as to silk goods, or tools used in the manufacturing thereof. 
 
 § 3. The like as to linen and cotton manufactures, Sfc. 
 
 § 4. Repeals part of 12 Geo. 1. ch. 34; and, 
 
 § 5. Repeals part of 6 Geo. 3.ch. 28.(/) 
 
 XXXII, For the more easy discovery and effectual punishment of 
 
 buyers and receivers o^ stolen goods. 
 
 By 22 Geo. 3. ch. 58. § 1. Buyers or receivers of stolen goods (except lead, iron, cop. 
 per, brass, bell-metal, and solder,) although the offence of the principal amounts to petit 
 laiceny(^'r) only, knowing, Sfc. may be prosecuted for a misdemeanor, and punished by 
 fine, imprisonment, or whipping, although the principal felon or felons be not before con- 
 victed of the said felony, and whether he, she, or they, is or are amenable to justice or 
 not. But where the felony actually committed shall amount to grand larceinj, and the 
 party actually committing thereof shall not be before convicted, such offender or offenders 
 shall be exempted from being punished as accessary or accessaries, if such principal 
 felon or felons shall be afterwards convicted. 
 
 By § 2. justices may grant search-warrants and commit, ^-c. 
 
 § 3. Constables, iSfC. may apprehend persons suspected, Sfc. 
 
 § 4. Persons offering stolen goods to be pawned or sold rtiay (upon reasonable cause) 
 betaken before a justice, 6fc. 
 
 § 5. Persons under fifteen years of age, charged with felony, within benefit of clergy, 
 pardoned upon discovering two or more receivers, i^fc. 
 
 § 6. Not to repeal any former law, Sfc. nor shall an offender convicted under this act 
 be punished for the same offence by any such former law. 
 
 XXXIII, For repealing an act made in liie twenty-second year of 
 his present JMajesty, intituled, ./^;2 act for charging a stamp duty 
 upon inland bills of exchange, pro?nis.wry notes, or other notes 
 payable otherwise than upon demand; and for granting new 
 stamp duties on bills of exchange, promissory and other notes; 
 and also stamp duties upon receipts.* 
 
 By 23 Geo. 3. ch. 49. § 20. If any person shall counterfeit or forge^or procure to be 
 counterfeited or forged any stamp or mark directed or allowed to be used by this act, or 
 shall fraudulently use, S^c. with intent, i^c. or shall utter, vend, sell, or expose to sale, 
 any vellum, parchment, or paper, liable to the said duties, with any counterfeit mark or 
 impression thereupon, knowing, i^c. he shall, upon conviction, suffer death as in cases 
 of felony, without benefit of clergy. 
 
 XXXIV, For granting to \\\s Majesty sevev^X additional and new 
 duties upon stamped vellum, parchment, and paper; and also for 
 repealing certain exemptions from the stamp duties.! 
 
 By 23 Geo. 3. ch, 58. § 11. If any person shall counterfeit or forge, or procure to be 
 counterfeited or forged, any seal, stamp, or mark, directed or alloi\'ed to be Used by this, 
 or any other act, or shall utter, 4"C. or privately or fraudulently use any seal, i^c. he 
 shall, upon conviction, suffer death as in cases of felony without benefit of clergy. 
 
 (/) For an indictment on the stat. in question, viz. 22 Geo. 3. ch. 40. vide Cr. Gir. 
 Com. 7th Edit. 692. 
 
 (or) At common law there can be no accessaries in petit larceny. Vide ante, p. 616. 
 
 * Duties under this act to cease, and new ones granted, by 31 Geo. 3. ch.'2o. abstract- 
 ed post. 
 
 t Partly repealed by 36 Geo. 3. ch. 52. abstracted post.
 
 732 HISTORIA PLACITORUM CORONA. 
 
 XXXV. For the more effectual preventing the illegal importation of 
 foreign spirits, and for putting a stop to the private distillation of 
 £7niish-mvide spirituous liquors, <§•«•. 
 
 By 23 Geo. 3. ch. 70. § 9. Persons making- frames, moulds, plates, Sfc. for excise-per- 
 mits, or paper for tliat purpose, ^c. and their aiders, unless appointed by the cominis- 
 sioners of excise, Sfc, shall, upon jconviction, suffer death as in cases of felony, williout 
 benefit of clergy. 
 
 XXXVI. To extend the provisions of an act (intituled an act to 
 amend and make more eflectual the laws relating to rognes, vai^a- 
 honds, and other idle and disorderly persons, and to houses of 
 correction,) to certain cases not therein mentioned. 
 
 By 23 Geo. 3. ch. 88. If any person or persons be apprehended having any implement 
 for liouse-breaking, or any offensive weapon, with a filonioiis intent, S;c. or shall be 
 found in or upon any dwelling-house, warehouse, coach-house, stable, or out-house, or iu 
 any inclosed yard or garden, or area belonging to any house, with an intent to steal any 
 goods or chattels; every such person shall be deemed a rogue and vagabond, within the 
 intent and meaning of slat. 17 Geo. 2. ch. 5. (A) 
 
 XXXVII. For granting to his Majesty certain additional rates of 
 postage for conveyance of letters and packets, by the post, within 
 the kingdom of Great Britain; and for preventing frauds, 6,-0. 
 
 By 24 Geo. 3. Sess. 2. ch. 37. § 9. If any person shall forge or counterfeit the hand- 
 writing of any person whatsoever, in the subscription of any letter or packet to be se'ht 
 by the post in order to avoid the postage, or the date, ^-c. or shall send by the post any 
 forged or counterfeited subscription on any letter or packet, knowing, ^c he shall be 
 deemed guilty of felony, and transported for seven years. 
 
 XXXVIII. For the more eflectual prevention of smuggling in this 
 
 kingdom. 
 Vide No. LVI. and LXXI. post. 
 By 24 Geo. 3. sess. 2. ch. 47. § 11. If any person shall maliciously shoot at any ship, 
 vessel, or boat, belonging to his Majesty's navy, or in the service of the customs or excise, 
 within four leagues of the limits of any port, Sfc. or the coast thereof, ^-c. or at any 
 officer, «Sfc. when in the execution of their duty, he shall, being thereof lawfully convicted, 
 be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy, 
 and so as to the aiders and abetters therein. 
 
 XXXIX. For granting to his Majesty certain duties on licenses for 
 
 vending hats by retail, 4'C.* 
 
 By 24 Geo. 3. sess. 2. ch. 51. § 15. If any person shall counterfeit, S^c. or privately 
 or fraudulently use, S(c. any seal, stamp, or mark, directed or allowed by this act, he 
 shall be adjudged a felon, and suffer death, without benefit of clergy. 
 
 XL. For the transportation of felons and other offenders, S,'C. 
 
 By 24 Geo. 3, sess. 2. ch. 56. ^ 1. His Majesty in council may direct to what place 
 the fielons shall be conveyed, ^-c. By § 6. they may be sent to the River Thames, S^c. 
 There are many regulations respecting this subject in the "statute : and there are also 
 other subsequent statutes, such as 27 Geo. 3. ch. 2. touching the transportation of felons 
 to New South Wales, Sfc. See also 28 Geo. 3. ch 24, and 37 Geo. 3. ch. 140. 
 
 XLI. To empower Xhejt/sfices of oyer and terminer and gaol-deli- 
 very of Neivgate for the county of Middlesex, to continue, 4'C. 
 
 By 25 Geo. 3. ch. 18. If a session of oyer and terminer and gaol-delivery of Newgate 
 for the county of Middlesex shall have been begun, before the essoign day of any term, it 
 shall not be discontinued by the sitting of the court of King'' s Bench, SfC. 
 
 (h) Vide 21 Geo. 3. c^. 11. 
 
 * Partly repealed by 36 Geo. 3. ch. 125. abstracted post.
 
 HISTORIA PLACITORUM CORONA. 733 
 
 XLII. For grantii^ to his Majesty certain stamp-duties on licences 
 to be taken out by pawnbrokers. 
 
 By 25 Geo. 3. ch. 48. § 10. If any person shall counterfeit, tfec. any seal, stamp, or 
 mark, directed by this act, or shall counterfeit or resemble the impression of the same 
 upon any vellum, ttc. or shall utter, or use, &c. knowing, «&c. he shall be adjudged a 
 felon, and shall suffer death, without benefit of clergy. 
 
 XLIII. Por repealing an act made in the twenty-fourth year of the 
 reign of his present Majesty, intituled, ^^n act for gi^antin^ to his 
 Majesty certain duties on certijicates, issued with respect to the 
 kilting of game; and for granting other duties in lieu thereof. 
 
 Vi^le No. LXIV. post. 
 
 By 25 Geo, 3. ch. 50. § 19. If any person shall counterfeit, &c. any seal, stamp, or 
 mark, directed by this act, or shall counterfeit or resemble the impression of the same, or 
 shall utter, or use, &c. knowing, &.C. he shall be adjudged a felon, and shall suffer death, 
 without benefit of clergy. 
 
 XLIV. For granting to his Majesty certain duties on licences to be 
 taken out for vending gloves or mittens, by retail. 
 
 By 25 Geo. 3. ch. 55. fy 15. If any person shall counterfeit, &c. any seal, stamp, or 
 mark, directed by this act, or shall utter or use, &.c. knowing, &,c. he shall be adjudged 
 a felon, and shall suffer death, without benefit of clergy. 
 
 XLV. For repealing an act made in the twenty^third year of the 
 reign of his present JNIajesty, intituled, t^/i aot for granting; to his 
 Majesty a stamp duty on licences to l)e taken out by certain per- 
 sons uttering or vending medicines, Sj-c. and for granting other 
 duties in lieu thereof 
 
 By 25 Geo. 3. ch. 79. § 17. If any person shall counterfeit, «fec. any seal, stamp, or 
 mark, directed by this act, or shall counterfeit or resemble the impression of the same 
 upon any vellum, &,c. or shall utter, or use, &c. knowing, &,c. he shall be adjudged a 
 felon, and shall suffer death, without benefit of clergy. 
 
 XLVI. For granting to his Majesty certain duties on certificates to 
 be taken out by solicitors, attornies, <S'C. and other duties with re- 
 spect to warrants, mandateSjand authorities, to be entered or filed 
 of record. 
 
 By 25 Geo. 3. ch. 80. § 30. If any person shall counterfeit or forge any seal, stamp, or 
 mark, directed or allowed by this act, or siiall counterfeit or resemble the impression of 
 the same, or shall utter, or use, &c. knowing, »fcc. he shall be adjudged a felon, and shall 
 suffer death, without benefit of clergy. 
 
 XLVII. For granting to his Majesty certain duties on stamped vel- 
 lum, parchment, and paper, within that part of Great Britain 
 called Scotland, to replace to the revenue the salaries granted to 
 judges there, Sec. 
 
 By 26 Geo. 3. ch. 48. § 9. If any person shall counterfeit, &c. any seal, stam|), or 
 mark, directed by this act, or shall counterfeit or resemble, or cause, &c. the impression 
 of the same upon any vellum, &lc. or shall utter, or use, «fcc. knowing, &c. he shall be 
 adjudged a felon, and shall suffer death, without benefit of clergy.
 
 733 HISTORIA PLACITORUM CORONiE. 
 
 XLVIII. For granting to his Majeaty certain sgimp duties on per- 
 fioneriy, hair powder, and other articles therem mentioned; and 
 on licences to be tai^en out by persons uttering or vending the 
 same. 
 
 By 2fi Geo. 3. ch. 49, § 24. If any person shall counterfeit, &c. any seal, stamp, or 
 mark, directed by this act, or shall counterfeit or resemble the impression of the same 
 upon any vellum, »fec. or shall utter, or use, &c. he shall be adjudged a felon, and shall 
 suffer death, without benefit of clergy. 
 
 XLIX. For better securing the duties on starch, and for preventing 
 frauds on the said duties. 
 
 By 26 Geo. 3. ch. 51. § 14. If any person shall forr^e or counterfeit any 
 I 734 J stamp or seal, to resemble any stamp or seal which shall be provided in pur- 
 suance of this act, or shall counterfeit or resemble the impression of iJie 
 same upon the papers containinjr starch, thereby to defraud, &,c. he shall be adjudged a 
 felon, and shall sutFer death, without benefit of clergy. 
 
 L. For regulating houses, and other places, kept for the purpose of 
 slaughtering horses. 
 
 By 26 Geo. 3. ch. 71. § 8. If any person shall slaughter any horse, mare, or jrelding, 
 foal or filly, ass or mule, or any bull, cow, heifer, ox, calf, sheep, hog, goat, or other cat- 
 tle, for any other purpose than for butcher's meat : or shall slay any horse, &.c. brought 
 dead to such slaughter-house, or other place, without taking out a licence, or without 
 giving notice, &,c. or shall slaughter, &:c. at any time, other than and except certain 
 hours in this act limited, &,c. he shall upon conviction, be adjudged, deemed, and taken 
 to be guilty of felony, and shall be punished by fine and imprisonment, and such cor- 
 poral punishment, by public or private whipping, or shall be transported beyond the seas 
 for any time not exceeding seven years, as the court shall direct. 
 
 By § 9. Persons destroying, limeing, or burying hides, &.c. shall, upon conviction, be 
 adjudged guilty of a misdemeanor, and punished by fine and imprisonment, and such 
 corporal punishment by public or private whipping, as the court shall direct. 
 
 LI. For better securing the duties on paper printed, painted, or 
 stained in Great Britain. 
 
 By 26 Geo. 3. ch. 78. § 13. If any person shall counterfeit or forge any stamp or seal, 
 to resemble any stamp or seal provided by this act, or shall counterfeit or resemble the 
 impression, &c. he shall be adjudged a felon, and shall suffer death, without benefit of 
 clergy. 
 
 LII. For the more effectnally carrying into execution the laws re- 
 lating to the duties on stamped vellum, parchment, and paper, 4'C. 
 [Touching general evidence, 4'c.] 
 
 By 26 Geo. 3. ch. 82. § 6. Reciting that " great difficulties have frequently arisen upon 
 the trial of divers informations, indictments, and other prosecutions for offences commit- 
 ted against his Majesty's revenue on stamped vellum, parchment, and paper, by requiring 
 strict proof of the commissions, deputations, or other authorities under which the said 
 commissioners, and the officers, and other persons appointed and employed by them to 
 (farry the same into execution, have acted," it is enacted, that upon the trial of any in- 
 formation, indictment, or other prosecution, for any offence committed against any act 
 or acts of parliament touching or concerning the said duties, or any of them, whereby 
 any person shall or may be deemed or construed to be guilty of felony, it shall be suffi- 
 cient to prove that such officer, &c. acted under the commissioners, without producing 
 or proving the particular commission, deputation, or other authority by which he was 
 constituted, appointed, or employed.
 
 HISTORIA PLACITORUM CORONA. 734 
 
 LIII. For incorporating certain persons therein named, by the name 
 and stile of the British Society for extending the fisheries, and 
 improving the Sea-coasts of this kingdom ; audi to enable them 
 to subscribe a joint stock, and therewith to purchase lands, and 
 build thereon, in Scotland, <§'C. 
 
 By 26 Geo. 3, ch. 106. § 26. If any person shall forge or counterfeit the seal of the 
 society, or any deed or writing under tlie common seal, or shall demand any money in 
 pursuance of any such forged or counterfeited deed or writing, either from the society 
 or any members or servants thereof, knowing, >fcc. lie shall be adjudged guilty of felony, 
 and shall be transported in manner as by law directed, for a term not exceeding seven 
 jears. 
 
 LIV. For repeahng the several duties of customs and excise, and 
 granting other duties in lieu thereof, and for applying the said 
 duties, with others, composing the revenue, &;c. and for applying 
 certain unclaimed monies, remaining in tlie Exchequer for the 
 pavment of annuities on lives, to the reduction of the national 
 debt. 
 
 By 27 Geo. 3. ch. 13. § 46. If any person shall counterfeit, &c. any seal, stamp, or 
 mark, directed by this, or any former act or acts, relating to the duties under the man- 
 agement of the commissioners, &c. or shall counterfeit or resemble the im- 
 pression of the same; or shall utter^ or use, &-c. knowing, &c. he shall be f 735 J 
 adjudged a felon, and shall suffer death, without benefit of clergy.* 
 
 LV. For making allowances to the dealers in foreign ivlnes, for 
 the stock of certain foreign wines in their possession, at a certain 
 time, upon which the duties on importation have been paid ; and 
 for amending several laws relative to the revenue of excise. 
 
 By 27 Geo. 3. ch. 31. § 13. If any person shall counterfeit or forge any stamp or 
 seal to resemble any stamp or seal which shall be provided or made in pursuance of this 
 act, or shall counterfeit or resemble the impression of the same, upon any printed, 
 stained, painted, or dyed calico, muslin, linen, stuff, fustian, velvet, velveret, dimity, or 
 other figured stuff, with intent, ^c. he shall be adjudged guilty of felony, and shall suffer 
 death, without benefit of clergy. 
 
 LVI. For making further provisions in regard to such vessels as 
 are particularly described in an act made in the twenty-fourth 
 year of the reign of his present Majesty, for the more effectual 
 prevention of smuggling in this kingdom,{i) and for extending, 
 4*c. Sf-c. 
 
 By 27 Geo. 3. ch. 32. § 14. If any person shall forge, Sfc. any stamp or seal, or the 
 impression, <^-c. to resemble, S^c. those provided by this act, hp shall be adjudged a felon, 
 and shall suffer death, without benefit of clergy. 
 
 LVI I. For taking and swearing affidavits to be made use of in 
 the court of session of the county palatine of Chester, and for 
 taking of special bail in actions and suits depending in the same 
 court. 
 
 By 27 Geo.S.ch. 43. § 4. Any person who shall before any person or persons em- 
 powered by this act to take special bail, represent or personate any other person or 
 
 * Repealed as to duties on goat and sheep skins, by 31 Geo. 3. ch. 27. Vide ^o, 
 XCVIII. po8t. 
 
 CO Vide No. XXXVIII. ante; No. LXVII. and L^Xl. post.
 
 735 HISTORIA PLACITORUM CORONA. 
 
 persons, whereby the person or persons so represented or personated may be liable to 
 the payinent of any sum or sums of money for debt or danjages, to be recovered in tlie 
 same suit or action wlierein such person or persons is or are represented or personated, 
 as if lie, she, or tliey, liati really acknowledged and entered into the same, he shall be 
 adjudged a felon, and sliall sutler and incur the same pains, penalties, and tbrfeitures, as 
 persons convicted of the like offences are liable to by virtue of an act past in the fourth 
 year of the reign of king Willium and queen Mary, intituled An act for takinfr special 
 hails in the country, upon actions and suits depending in the courts of King''8 Bench, 
 Common I'leas, and Exchequer at \V€Stininster.{k) 
 
 Vide Stat. 34 Geo. 3. ch. 46. § 5, as to personating bail, SfC. in the county palatine of 
 Lancaster, 
 
 LVIII. For the better and more effectual protection of stockins^ 
 fraiyies. and the machines or engines annexed thereto, or used 
 therewith; and for the punishment of persons destroying or in- 
 juring of such stocking frames, machines, or engines, and the 
 frame-work knitted pieces, Ǥ'C. 
 
 Vide No. XXXI. ante, and No. LX. post. 
 By 28 Geo. 3, ch. .55. § 4. If any person shall by day or by night, enter by force into 
 any house, shop, or place, with an intent to cut or destroy any frame-work knitted pieces, 
 stoekitigs, or other articles, S>;c. or shall wiitully and maliciously cut or destroy any 
 frame-work kntited pieces, i^c. or shall wilfully and maliciously break, destroy, or dam- 
 age any frame, machine, engine, tool, instrument, or utensil, used in and tor the work- 
 ing and making of any such fran>e-work knitted pieces, «.^-c. not having the consent of 
 the owner so to do, i^c. he shall be adjudged guilty of felony, and shall be transported to 
 some of his Majesty's dominions beyond the seas, for any space or term of years not ex- 
 ceeding fourteen years nor less than seven years, 
 
 LIX, For raising a certain sum of money, by way of an- 
 \_ 736 ] mtities, to be attended with the benefit of survivorship, 
 in c/asses. 
 
 By 29 Geo. 3. ch. 41. § 36. Persons forging, <^c. or altering registers, «^c. or perso- 
 nating lite proprietor of any order, ^c. or nominee, ^c. sliall be adjudged guilty of 
 felony, and shall suffer death, as in cases of felony, without benetit of clergy. 
 
 LX. For preventing the wilfully burning or destroying ships, and 
 and the wilfully and maliciously destroying any ivoollen, silky 
 linen, or cotton goods, ov any implements prepared lor or used in 
 the manufacture thereof, in that part of Great Britain called 
 Scotland. ,• -^ 
 
 By 20 Geo. 3. ch. 46. Any owner, Sfc. destroying any vessel with intent to defraud 
 underwriters, SfC. shall, upon conviction in Scotland, sutTer death, as in other cases of 
 capital crimes: so as to persons entering forcibly into any house, 6fC. with intent to 
 destroy any goods in the loom, ^-c. or tools, Sfc, upon conviction in Scotland. 
 
 LXI. For granting to his Majestt/ several additional stamp duties on. 
 newspapers, advertisements, and on cards and dice. 
 
 By 29 Geo. 3. ch. 50. § 13. If any person shall counterfeit, ^c. any seal, stamp, or 
 mark, directed b}' this or any former act of parliament, or shall counterfeit or resemble 
 the impression of the same, or shall utter, or use, ^-c. with intent to defraud his Majesty, 
 S(C. he shall be adjudged a felon, and shall sutfer death as in cases of felony, vrithout 
 benetit of clergy. 
 
 (A-) See an indictment for personating bail on this statute, viz. 4 W. «^- M. ch. 4. Cr. 
 
 Cir. Com. 7lh Edit. 185. It does not take away the benefit of clergy, but that of 
 
 21 Jac. 1. ch. 26, in certain cases, does. Vide observations on both these statutes same 
 book, p. 186. Vide also ante, 696.
 
 HISTORIA PLACITORUM CORONA. 736 
 
 LXII, For granting to his Majesty several additional stamp duties 
 on probates of wills, letters of administration, and on receipts for 
 legacies, or for any share of a personal estate divided by force of 
 the statute of distributions,* 
 
 By 29 Geo. 3. ch. 51. ^ 8. If any person shall counterfeit, ^c. any seal, stamp, or 
 mark, directed or allowed to be used by this or any former act of parliament, or shall 
 counterfeit or resemble the impression of the same, or shall utter, or use, ^c. with intent, 
 Sfc. he shall be adjudged a felon, and shall suffer death as in cases of felony, without 
 benefit of clergy. 
 
 LXIII. For giving relief to such persons as have suffered in their 
 rights and properties, during the late unhappy dissentions in Jlme- 
 
 ^ rica, 4'C. and also for making compensation to such persons as 
 have suffered in their properties in consequence of the cession of 
 the province of East Florida to the King of Spain. 
 
 By 30 Geo. 3. ch. 34. § 11. If any person shall forge or counterfeit any- order, which 
 phill have been made forth, or renewed, by virtue of this act, belbre the same shall have 
 been paid off and cancelled, or any indorsement, Sfc. or tender in payment, S[c. with 
 intent to defraud his Majesty, or the person to be ajjpointcd to pay off the same, or to pay 
 any interest thereupon, he shall be adjudged a felon, and shall suffer death as in cases 
 of felony, without benefit of clergy. 
 
 LXIV. For granting to his Majesty ^w additional duty on certificates 
 issued with respect to the killing game.(/) 
 
 By 31 Geo. 3. ch. 21. § 5. If any person shall counterfeit, «^c. any seal, stamp, or 
 mark, to resemble any seal, stamp, or mark, directed by this act, or shall counterfeit or 
 resemble the impression of the same, or shall utter, or use, SfC. he shall suffer death as 
 in cases of felony, without benefit of clergy. 
 
 LXV. For repealing the duties now charged on bills of exchange, 
 promissory notes, and other notes, drafts, and orders, and on re- 
 ceipts; and for granting other duties in lieu thereof.(m) 
 
 By 31 Geo. 3. ch. 25. § 29. If any person shall counterfeit, ^-c. any stamp 
 or mark, directed by this act, or resemble the impression of the same, or shall ] 737 \ 
 utter, or use, ^c. he shall suffer death as in cases of felony, without benefit of 
 clergy. 
 
 LXVl. To render persons convicted of petty larceny competent wit- 
 nesses. 
 
 By 31 Geo. 3. ch. 35, Reciting that " Whereas persons convicted o? grand larceny are 
 by their punishment restored to their credit as witnesses, but persons convicted of /letty 
 larceny are rendered and remain wholly incompetent to be examined as witnesses, it is 
 enacted, that from and after the 24th day of June, one thousand seven hundred and 
 ninety one no person shall be an incompetent witness by reason of a conviction for petty 
 larceny. 
 
 LXVII. For explaining and amending an act, passed in the thirty- 
 first year of the reign of his late Majesty King George the Second, 
 intituled, ^n Act for the encouragement of seamen employed iji 
 the Royal iVayy, 4'c. and for further extending the benefits thereof 
 
 » Repealed as to receipts for legacies, and new duties granted, by 36 Geo. 3. ch. 52, 
 abstracted post. 
 
 {I) Vide No. XLIII. ante. (m) Vide No. LXXVII. and No. XC. post.
 
 737 HISTORIA PLACITORUM CORONA. 
 
 to petty officers and seamen, non-commissioned officers of marines, 
 and marines, serving, or who may have served, on board any of 
 his Majesty^s ships. 
 
 Vide No. LXXIV. post. 
 By 32 Cleo. 3. rh. 33. § 23. If any person shall falsely make, forge, or counterfeit, c^r. 
 or utter, &fc. any ticket for the wages xit pay due to any petty officer or seamnn, non- 
 commissioned olliccr of marines, or marine, for his services on board any ship or vessel 
 of his Majesty, or any duplicate thereof, i^r. with intention to receive any wages, S^c. 
 shall suffer death as a felon, without benefit of clergy. 
 
 LXVIII. For explaining and amending an act passed in the twenty- 
 sixth year of the reign of liis present Majesty, intituled ^in act 
 for the further preventhig frauds and abuses attcndhig the pay- 
 ment of wages, prize-money, &,'C. and for further extending llie 
 benefits thereof to petty-olficers, SfC. 
 
 Vide No. LXXIV. post. 
 By 32 Geo. 3. ek. 34. § 29. If any person shall falsely make, forge, or counterfeit, <^-c. 
 or utter, i^c. any petition for a ceriificate to enable any person or persons, to obtain let- 
 ters of administration to any petty officer, «^-c. or shall falsely make, forge, or counterfeit, 
 i^-c. or utter, i^c. any certitieale for enabling him to obtain probate or letters of adminis- 
 tration, with the win annexed, i^c. he shall suffer death as a lelon, without benefit of 
 clergy. 
 
 LXIX. For enabling his Majesty to direct the issue of exchequer 
 bills to a limited amount, for the purposes and in the manner there- 
 in mentioned. 
 
 By 33 Geo. 3. ch. 29. § 48. If any person shall forge, ^'c. any certificate or certificates 
 of the commissioners by this act appointed, or any receipt to be given by the cashier or 
 cashiers of the bank oi' England, in pursuance of this act; or shall willully deliver to the 
 auditor of the reeei[)t of his Majesty's exchequer for the time being, 6(c. or shaU utter, 
 6fC. with intent to defraud his Mnjestij, or any body or bodies politic or corporate, or any 
 person whomsoever, he shall sufJer death as in cases of felony without benefit of clergy. 
 
 LXX. For the better preventing forgeries and frauds in the transfers 
 of the several funds transferable at the bank of England. 
 
 By 33 Geo. 3. ch. 30. § 1, 2, 3. Persons making, or assisting in making, transfers of 
 stock in any other names than the owners; or forging or assisting in forging transfers, 
 ^•c. or making, or assisting in making, false entries in the books of the bank, ^c. shall 
 be deemed guilty of felony, and shall suffer death without benefit of clergy. 
 
 And by § 4. If any clerk, S^c. employed or entrusted by the governor and company, 
 shall knowingly or wilfully make out or deliver, S^c. any dividend icarrant for a greater 
 or less amount than the person or persons, on whose behalf, or pretended behalf, such 
 dividend warrants shall be made out, is or are entitled to, with intent, tSfC. he shall, upon 
 conviction, be transported for seven years. 
 
 LXXI. For better preventing offences in obstructing, de- 
 [ 738 1 stroying, or damaging ships or other vessels, and in ob- 
 structing seamen, keelmen, casters, and ship-carpenters, 
 from pursuing their lawful occupations.(n) 
 
 By .33. Geo. 3. ch. 67. § 5. If any seaman, keel-man, caster, ship-carpenter, or other 
 person, shall wilfully and maliciously burn or set fire to any ship, keel, or other vessel, 
 he shall suffer death as in eases of felonv, without benefit of clergy. By § 4. seamen, 
 keel-men, i^c. willully and maliciously destroying or damaging any ship, keel, or other 
 vessel (otherwise than by fire,) shall be adjudged guilty of felony, and shall be trans- 
 ported for any time not exceeding fourteen years, nor less than seven years. And by 
 
 (n) Vide No. XXXVIII. LVI. and LX. ante.
 
 HISTORIA PLACITORUM CORONA. 738 
 
 $ 8. it ts provided, that no person or persons shall be prosecuted by virtue ortliis act, for 
 any of the offences aforesaid, unless such prosecution be commenced twelve calendar 
 months after the offence committed. 
 
 LXXII. For granting to his Majesty certain stamp duties on inden- 
 tures of clerkships to solicitors and attorneys in any of the courts 
 in England therein mentioned. 
 
 By 34 Ceo.Z. ch. 14. ^14. If any person shall counterfeit, Sfc. any seal, stamp, or mark, 
 to resemble any seal, stamp, or marlc directed by this act, or shall utter, vend, or sell any 
 vellum, parchment, or paper liable to such stamp duty, with such counterfeit stamp or 
 mark thereupon, knowing, &fc. he shall suffer death, as in cases of felony, without bene- 
 fit of clergy. 
 
 LXXIII. For taking of special bail in actions and suits depending 
 in court o( coynmon-pleas^, of the county palatine of Lancaster. 
 
 By 34 Geo. 3. ch. 46. § 5. Personating ball, ^c. is made felony, upon the same prin- 
 ciple as that for the county palatine of Chester, abstracted ante, No, LVII. 
 
 LXXIV. To enable petty officers in the navy, seamen, non-commis- 
 sioned officers of marines, and mariners, serving in his Majesty^s 
 navy, to allot part of their pay for the maintenance of their wives 
 and families.(o) 
 
 By 35 Geo. 3. ch, 28. § 30. If any person shall falsely make, forge, or counterfeit, or 
 cause, or procure to be falsely made, forged, or counterfeited, or willingly act, S^c. any 
 declaration or order for payment, or any certificate or receipt therein Ijefore described, 
 or mentioned ; or shall utter, ^c. he shall be adjudged guilty of felony, and shall suffer 
 death as a felon, without benefit of clergy, 
 
 LXXV. For granting to his Majesty several additional duties on 
 stamped vellum, parchment, and paper: and forrepealing a certain 
 exception as far as relates to bonds given as security for the pay- 
 ment of one hundred pounds or under, contained in an act of the 
 twenty-third year of his present Majesty^s reign. 
 
 By 35 Geo. 3. ch. 30. § 4 If any person shall counterfeit, ^c. any stamp to resemble 
 any stamp directed or allowed to be used by tliis aet, or shall counterfeit or resemble the 
 impression of the same; or shall utter, vend, sell, use, ^'C. he shall suffer death as in cases 
 of telony, without benefit of clergy, 
 
 LXXVI. For granting to his Majesty a duty on certificates issued 
 for using hair-powder. 
 
 By 35 Geo. 3. ch. 49. § 31. If any person shall counterfeit, S^c, any stamp or mark, 
 directed or allowed to be used by this act; or shall counterfeit or resemble the impressiou 
 of the same; or shall utter, vend, sell, use, Sjc. he shall suffer death as in cases of felony, 
 without benefit of clergy. 
 
 LXXVII. For granting to his Majesty certain additional duties on 
 
 receipts. 
 
 By 35 Geo. 3. ch. 55. § 17. If any person shall counterfeit, S^c. any stamp or mark, 
 directed or allowed to be used, or provided, made, or used in pursuance of 
 31 Geo. 3. ch. 35.(p) or this act, or shall counterfeit or resemble the impression f 739 1 
 of the same; or shall utter, vend, sell, expose to sale, or use, Sfc. he shall be 
 adjudged a felon, and suffer death as in cases of felony without benefit of clergy. 
 
 (o) Vide No. LXVII. and LXVIII. ante, 
 (p) Vide No. LXV. ante.
 
 739 HISTORIA PLACITORUM CORONA. 
 
 LXXVIII. For granting to his Majesty certain stamp duties on sea 
 
 insurances. 
 
 By 35 Geo. 3. ch. 63. ^ 23. If any person sliall counterfeit, ^c. any stamp or mark, 
 direcled or allowed to be used, in pursuance of this act, or shall counterfeit or resemble 
 the impression of the same; or shall utter, vend, sell, expose to sale, or use, S^c. he shull 
 be adjudged a felon, and shall Butfer death as in cases of felony, without benefit of 
 clergy. 
 
 LXXIX. For making part of certain principal sums or stock and 
 annuities raised or created, or to be raised or created by the par- 
 liament of the kingdom of Ireland, on loans for the use of the 
 government of that kingdom, transferable, and the dividends on 
 such stock and annuities payable at the Bank of England, ^'C.{q) 
 
 By 35 Geo. 3. ch. 66. § 3, 4, 5, 6, 7, 8, 9. Persons forging, altering, or uttering, S(C. 
 receipts or debentures, SfC. or forging letters of attorney or other authority or instrument 
 to transfer, assign, sell, or convey any stock, c^c. or personating proprietors ; or forging 
 dividend warrants, Sfc. or (being officers of the bank) embezzling notes, Sfc. or making 
 transfers in the names of any other person or persons, than the proprietor or proprietors, 
 Sfc. or forging transfers, Sfc. or making false entries in the books of the Bank of Eng. 
 laud, with intent to defraud the governor and company of the Bank of England, or any 
 other body politic or corporate, or any person or persons whatsoever, shall be deemed 
 guilty of felony, and shall suffer death, without benefit of clergy. 
 
 By § 10. Clerks, Sfc. of the Bank making out false dividend warrants, to be trans- 
 ported for seven years. 
 
 LXXX. For rendering more effectual an act, passed in the first year 
 of the reign of King James the First, intituled, i:?/i act to restrain 
 all persons fro7)i marriage until their former wives and former 
 husbands be dead. 
 
 By 35 Geo. 3. ch, 67. § 1. Persons convicted in England of bigamy are subject to 
 the penalties, pains, and punishments as, by the laws now in force, persons are subject 
 and liable to, who are convicted of grand or petit larciny: and by § 2. if they shall be at 
 large within Great Britain, without some lawful cause, before the expiration of the 
 term for which they shall be ordered to be transported, they shall be guilty of felony, 
 and shall suffer death, without benefit of clergy. 
 
 By ^ 3. If found at large in Great Britain, after order of transportation, they may be 
 tried either in the county where they had been convicted, or in that in which they are 
 apprehended and taken. 
 
 LXXXI. For establishing a more easy and expeditious method for 
 the punctual and frequent payment of the wages and pay of cer- 
 tain otticers belonging to His Majesty's navy.(r) 
 
 By 35 Geo. 3. ch, 94. § 34. If any person shall falsely make, forge, Sfc. or willingly 
 act and assist, Sfc. or shall utter and publish as true, knowing, Sfc. any talse, forged, or 
 counterfeited order, bill, extract, or certificate, S(c. for the purpose of defrauding the 
 public, or any commissioned officer, ^c. he shall be adjudged guilty of felony, and shall 
 sutler death as a felon, without benefit of clergy. • 
 
 LXXXII. To prohibit, for a limited time, the making of starch, 
 hair-powder, and blue, from wheat, and other articles of food; 
 and for lowering the duties on the importation of starch, and of 
 other articles made thereof. 
 
 By 36 Geo. 3. ch. 6. § 13. If any person shall forge, Sfc. any stamp or seal, to rescm- 
 ble, ^-c. or counterfeit the impression, SfC. he shall be adjudged a felon, and shall suffer 
 death as in cases of felony, without benefit of clergy. 
 
 iq) Vide No. LXXXVII. post. 
 
 (r) Vide No. LXVII. LXVIII. and LXXIV. ante.
 
 HISTORIA PLACITORUM CORONA. 
 
 740 
 
 LXXXIII. For the safety and preservation of his Majesty^s person 
 and government against treasonable and seditious practices and 
 attempts. 
 
 By 36 Geo. 3. ch. 7. § 1. Persons who shall compass, devise, S^c. the death, restraint, 
 ifc. of his Majesty or liis heirs, or to depose them, or to levy war, or to compel a change 
 of measures, SfC, to be deemed traitms, and slialj sutfer pains .of death, and also lose 
 and forfeit as in cases of high treason. By ^ 2. Persons in England who shall by 
 writing, SfC. incite or stir up the people to hatred or contempt ot bis Majesty, or the 
 government, Sfc. shall be guilty of high misdemeanors; and for a second offence may be 
 punished as in the cases of high misdemeanors, or banished or transported for seven 
 y^ars. And by § 3. Persons banished or transported found at large within Great Bri- 
 tain, without some lawful cause, before the expiration of the term for which, A-c. shall 
 suffer death, as in cases of felony, without lienefit of clergy : And such persons may be 
 tried in any county, ^'c either whereapprehended and taken, or from whejice they were 
 ordered to be banished or transported; and a certificate of the conviction shall be suffi. 
 cient proof, SfC. i 
 
 LXXXIV. For the more effectually preventing seditious meetings 
 
 and assemblies. 
 
 By 36 Ceo. 3. ch. 8. § 4. If any persons, exceeding the number of fifty, being assem- 
 bled contrary to the provisions lierein contained, and being required or commanded by 
 any one or more justice or justices of the peace, or by the sheriff of the county, or his 
 under-sheriff, or by the mayor, Sfc. where such assembly shall be, by proclamation to be 
 made in the king's name, in the form in this act directed, to disperse themselves, and 
 peacfeably to depart to their habitations, or to their lawful business, shall, to the number 
 of twelve, or more, notwithstanding such proclamation made, remain or continue to- 
 gether by the space of one hour after such command or request made by proclamation, 
 S(c. they shall be adjudged felons, and shall suffer death, as in case of felony without 
 benefit of clergy. 
 
 LXXXV. For repealing certain duties on legacies and shares of 
 personal estates, and for granting other duties thereon, in certain 
 cases. 
 
 By 36 Geo. 3. ch. 52. § 40. If any person shall counterfeit or forge, S(c. any stamp 
 directed or allowed to be used or provided in pursuance of this act; or shall counterfeit 
 or resemble the impression of the same, SfC. or shall utter, vend, sell, expose to sale, or 
 use, ^c. he shall be adjudged a. felon, and shaU auffer deatlijaa in case of felony, without 
 benefit of clergy. 1 w( * ','^'i ■ ( * i < i w ' l'» J i 
 
 , /•.• ' ■- ?,| .: . • •; ■ * ; J '- : -■" J ■ ... ■ , 
 
 LXXXVL For the better collection of the duty on hats. 
 
 . [This slat, repeals part of 24 Geo, 3. aess. 2. c. 51, abstracted ante., p. 732.] 
 By 36 Geo.3. ch. 125. § 19. If any person shall counterfeit or forge, Sfc. any stamp 
 or mark directed to be allowed or used, or provided, made, or used, in pursuance of this 
 act, or shall counterfeit or resemble the impression of tlie same; or shall utter, vend, 
 sell, or expose to sale, Sfc. any piece of silk, linen, S(e. with such counterfeit mark or 
 stamp thereon, knowing, SfC. or shall privately or fraudulently use any stamp, Sfc. he 
 shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit of 
 
 LXXaVII. For making certain annuities, created by the parliament 
 of the kingdom of Ireland, transferable, and the dividends thereon 
 payable, at the Bank of England: and for the better security of 
 the proprietors of such annuities, and of the. governor and com- 
 pany of the Ba7ik of England. (s) ■ ;■ r V 
 
 By 37 Geo. 3. ch. 46. § 3, 4, 5, 6, 7, 8, 9. Persons forging, altering, SfC. receipts or 
 debentures; or forging letters of attorney, Sfc. or personating proprietors; or forging or 
 
 VOL. I. — 60 
 
 («) Vide No. LXXIX. ante.
 
 740 IIISTORIA PLACITORUM CORONiE. 
 
 uttering forged dividend warrants, S^c. or officers of the bank embezzling notes, Sfc. or 
 making transfers in other than proprietors names, ^c. or forging or uttering forced 
 transfers, ^c. or making false entries in the books of the Bunk of England, «.^c. with 
 intent to defraud the governor and company of the said bank, or any other body politic 
 or corporate, or any person or persons wliatsocvcr, shall be deemed guilty of felony, and 
 fshall suffer death, without benefit of clergy. By § 10. Officers of the bank making out 
 false dividend warrants^ to be transported for stven years. 
 
 LXXWIII. For the better prevention and punishment of 
 \_ 741 J attempts to seduce persons serving ni his Majesty^ s forces^ 
 by sea or land, from their duty and allegiance to his Ma- 
 jesty, or to incite them to mutiny or disobedience. 
 
 Vide No. XCIV. post. 
 
 By 37 Geo. 3. ch. 70. § 1. Any person attempting to seduce any sailor or soldier fronn 
 his duty, or inciting him to mutiny, ^c. to be adjudged guilty of felony, and to suffer 
 death as in cases of felony, without benefit of clergy. By § 4. To continue and be in 
 force until the expiration of one month after the commencement of the then next session 
 of parliament. Continued for a limited time by 38 Geo. 3. ch. 6. And further continued 
 by 39 Geo. 3. ch. 4. till six weeks after the commencement of tlic then next session. 
 
 LXXXIX. For more etlectnally restraining intercourse with the 
 crews of certain of his Majesfy's ships now in a state of mutiny 
 and rebellion, and for the more effectual suppression of such tnu- 
 tiny and rebellion. 
 
 ^'ide No. XCIV. post. 
 
 By 37 Geo. 3. ch. 71. § 3. Persons communicating with the crew or assisting them 
 shall, on conviction thereof, be adjudged guilty of felony, and shall suffer ^caih as in 
 cases of felony, without benefit of clergy: And by § 4. All persons voluntarily remain- 
 ing on board after knowledge of the declaration therein mentioned, shall be adjudged 
 guilty of piracy and felony, and shall suffer such pains of death and loss of lands, goods, 
 and chattels, as any pirates or felons by virtue of an act, made in the eleventh year(t) 
 of King William the Third, intituled, An act for the more effectual suppression of piracy, 
 or any other ael, ought to suffer. By ^ 9. To be in force until the expiration of one 
 montii after the commencement of the then next session of parliament 
 
 XC. For granting to his Majesty certain stamp-duties on the seve- 
 ral tnatters{u) therein mentioned, and for better securing the 
 duties on certificates to be taken out by solicitors, attornies, and 
 others, practising in certain courts of justice in Great Britain. 
 
 By 37 Geo. 3. ch. 90. § 5. If any person shall counterfeit, ^c. any stamp directed or 
 allowed to be used by this act, or shall counterfeit or resemble the impression of the 
 same, with intent, S^c. or shall utter, vend, or sell, any vellum, S^c. witli such counterfeit 
 stamp or mark thereupon, knowing the same to be counterfeit, or shall privately or 
 fraudulently use any stamp directed or allowed to be used by this act, with intent, ifc. 
 he shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit 
 of clergy. 
 
 (t) So in the purview of stat. 37 Geo. 3. ch. 71 ; but mentioned 11 & 12 W. 3. c. 7. in 
 the margin, which is right, as appears by 4 Blac. Com. 72, and the several statute 
 books of Haickins, Rvjfhead, and Runnington. If a statute be recited as of the fourth 
 year of the reign, i^c. and it appears to have been made in tJie fourth and fifth years, 
 <^-c. the variance is fatal. Rann v. Green, Coxcp. 474. Vide also Rex v. Trelawney, 
 1 T. R. 222, and Watson v. Shaw and others, 2 T. R. 654. 
 
 (u) Promissory Notes are parcel of these matters. Vide No. LXV, &. LXXVII, ante, 
 and also No. CVI, post.
 
 HISTORIA PLACITORUM CORONA. 741 
 
 XCI. For granting to his Majesty an additional stamp duty on deeds. 
 
 By 37 Geo. 3. f A. 111. § 5. If any person shall counterfeit, ^c. any stamp or mark, 
 directed or allowed to be used by this apt, or shall counterfeit or resemble the impression 
 of the same, with intent, &jc. or shall utter, vend, or sell, any vellum, parchment, or 
 paper, with such counterfeit mark or stamp thereupon, knowino^, <^c. or shall fraudu- 
 lently Ur^e any stamp or mark directed or allowed to be used by this act, with intent, A-c. 
 he shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit 
 of clergy. 
 
 XCII. For the better preventing the forging or counterfeiting the 
 names of ivitnesses to letters of attorney, or other authorities or 
 instruments, for tlie transfer oi stocks or funds which now are or 
 by any act, or acts of parhament sliall hereafter be made 
 transferable at the Bank of England, or for the transfer f 742 "I 
 of any part of the capital stock of the governor and com- 
 pany of the Bunk of England caWed bank stock; or any part of 
 the stoc/cs or funds under the management of the South Sea Com- 
 pany, or East India Company; or for the receipt of dividends, 4'c. 
 
 By 37 Geo. 3. ch. 122. § 1. If any person shall falsely make, forge, Sfc. the name or 
 names, hand-writing, or hand- writings, of any witness or witnesses attesting the execu- 
 tion of any letter of attorney, or other authority, or instrument, to transfer, &c. or shall 
 utter, or publish, as true, any such letter of attorney, or other authority, or instrument 
 ^•c. knowing such name or handwriting to be false, forged, or counterfeited, he shall be' 
 adjudged guilty of felony, and shall be transported for seren years, or shall be adjudged 
 to suffer such lesser punishment as the court, before whom such offender shall be tried 
 shall think fit to award. 
 
 XCIII. To prevent the counterfeiting any copper-coin in this realm 
 made, or to be made, current by proclamation, or any foreign gold 
 or silver coin; and to prevent the bringing into this realm, or 
 uttering, any counierieil foreign gold or silver coin. 
 
 By 37 Geo. 3. ch. 126. § 4. If any person shall utter or tender in payment, or give 
 in exchange, or pay or put off any such false or counterfeit coin as aforesaid, resembling 
 or made with intent to resemble or look like, any gold or silver coin of any foreign 
 prince, state, or country, or to pass as such foreign coin, knowing the same to be false 
 or counterfeit, he shall suffer six months imprisonment, and find sureties for Jiis good 
 behaviour for six months more; and if he shall be convicted a second time for the like 
 offence, he shall suffer two years imprisonment, and find sureties for his good behaviour 
 for two years more: And if he shall afterwards offend a third time, in like manner he 
 shall be adjudged to be guilty of felony, without benefit of clergy. 
 
 XCIV. To enable his Majesty more easily and effectually to grant 
 conditional pardons to persons under sentence by nuval courts 
 martial, and to regulate imprisonment under such sentences. 
 
 Vide No. LXXXVIII. and LXXXIX. ante, and also No. Cll.post. 
 
 By 37 Geo. 3. ch. 140. § 1. If his Majesty shull extend his mercy to persons liable to 
 death by the sentence of a naval court martial, a justice of the king's bench, or common 
 pleas, or a baron of the exchequer, may, on notification from the secretary of state, allow 
 the benefit of a conditional pardon as if it had passed under the great seal, and shall 
 make orders accordingly : And by § 6. The laws touching the escape of felons under 
 sentence of death shall apply to offenders under like sentence by a naval court, and to 
 all persons aiding, abetting, or assisting in any such escape, if the offender shall have 
 been allowed the benefit of a conditional pardon.
 
 742 HISTORIA PLACITORUM CORONA. 
 
 XCV. For granting to his Majesty an aid and contribution for the 
 prosecution of the war. 
 
 By 38 Geo. 3. ch. 16. § 95. Persons forging or altering certificates, receipts, or dupli- 
 cates, &c. or knowingly uttering or publishing them as true, with intent, &c. shall be 
 adjudged guilty of felony, and shall suffer death, without benefit of clergy. By § 107, it 
 is provided, tliat the present act may be altered, varied or repealed by any act or acts"i,o 
 be made in this session of parliament. Vide income act, viz. 39 Geo. 3. ch. 13. which, by 
 § 1, repeals the above stat. in part; but § 36, extends the power of it in other respects, 
 &c.(d) 
 
 XCVI. To continue until the first day of August, one thousand 
 eight hundred, and until the end of the then next session of parlia- 
 ment, and amend an act made in the thirty-third year of the reign 
 of his present Majesty, intituled, Jin act for establishing regula- 
 tions respecting aliens arriving in this kingdom, or resident 
 therein, in certain cases. [w) 
 
 By 38 Geo. 3. ch. 50. § 24. In case any person ordered or adjudged to be 
 I 743 I transported in pursuance of this act, shall be found at large within this realm, 
 after sentence of transportation pronounced, he or she shall be deemed guilty 
 of felony, and shall suffer death as a felon without benefit of clergy. 
 
 XCVII. For granting to his Majesty a duty on certificates issued 
 with respect to armorial-bearings or ensigns. 
 
 By 38 Geo. 3. ch. 53. § 18. If any person shall counterfeit, &c. any stamp or mark 
 directed or allowed to be used or provided, in pursuance of this act; or shall counterfeit 
 or resemble the impression of the same, upon any vellum, parchment, or paper, with 
 intention to defraud, &c. or shall utter, vend, sell, or expose to sale, any vellum, parch- 
 ment, or paper, liable to the said duty, with such counterfeit mark or impression there- 
 upon, knowing, &c. or shall privately or fraudulently use any stamp directed or allowed 
 to be used by this act, with intent, &c. he shall be adjudged a felon, and shall suffer 
 death as in cases of felony, without benefit of clergy, 
 
 XCVIII. To amend several laws of excise relating to coach-makers, 
 auctioneers, beer and cyder exported, certificates and debentures, 
 stamps on hides and s/cifis, drawbacks on wines and sweets, and 
 ale and beer licences. 
 
 By 38 Geo, 3. ch. 54. § 9. If any person shall, with intent to defVaud his Mdjesty, 
 counterfeit or forge, &c. any debenture in any case in which a debenture is by any act 
 or acts of parliament relating to the duties of excise required or directed to be given or 
 granted, or shall knowingly or willingly utter, publish, or make use of any such coun- 
 terfeited or forged debenture, he shall be adjudged guilty of felony, and shall suffer death 
 as a felon, and have execution awarded against him, as persons attainted of felony, with- 
 out benefit of clergy. 
 
 By § 10. The pains of death imposed by the 9 Ann, ch. 11. 10 Ann, ch. 26. and 
 5 Crto. 1. ch, 2. relating to duties on hides and skins, &c. declared to be in force against 
 persons who counterfeit stamps provided by those three statutes, or in pursuance of the 
 acts of 28 Geo. 3. ch. 37. and 1 Geo. 3. ch. 21. {x) 
 
 XCIX. For making perpetual, subject to redemption and purchase 
 in the manner therein stated, the several sums of money now 
 
 (») No repeal by the latter stat. of the felony mentioned in the above act of 38 Geo. 3. 
 ch 16. § 95. 
 
 (ic) Amended, and further powers given by stat. 38 Geo. 3. ch. 77. vide 33 Geo, 3. 
 cA. 4. 
 
 (a;) Vide No. LIV. ante.
 
 HISTORIA PLACITORUM CORONA. 743 
 
 charged in Great Britain as a land-tax for one year, from the 
 twenty-fifth day of March one thousand seven hundred and 
 ninety-eiglit.(y) 
 
 By 38 Geo. 3. ch 60. § 118. If any person shall forisre, counterfeit, or alter, &c. any 
 contract or contracts for the sale of any land-tax, or any assignment or assignments of 
 such contract or contracts, or of any portion of land-tax therein comprised, or any cer- 
 tificate or certificates of the commissioners of land-tax or of supply, or any chief magis- 
 trate authorized by this act to make out the same, or of the surveyor-general of the 
 land revenue of the crown, or of the duchy of Cornwall, or any certificate or receipt of 
 the cashier or cashiers of the governor and company of the bank of England, or any 
 certificate, &c. directed by this act to be made out by the proper officer to the commis- 
 sioners for the affairs of taxes, &c. or shall wilfully delis'gr, <fec. or utter, &-c. he shall be 
 adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of 
 clergy. 
 
 C. More effectually to prevent, during the war, persons, being his 
 Majesty's subjects, for voluntarily repairing to or remaining in , 
 France, or any country or place united to France, or occupied by 
 the armies of France; and to prevent correspondence with such 
 persons and with his Majesty's enemies. 
 
 By 38 Geo. 3. ch. 79. § I. If any subject of his Majesty shall, during the war, go, or 
 embark to go to France or any place united thereto, or occupied by its armies, 
 he shall be adjudged guilty of^ felony, and shall suffer death as in cases of f 744 J 
 feluny, without benefit of clergy. By § 4, If any subject shall correspond with 
 any such other subject of his Majesty, so going to, and remaining in France, he shall be 
 deemed guilty of felony, and shall suffer death without benefit, &c. By § 5. If any subject 
 of his Majesty shall, during the war, correspond with the persons exercising the powers of 
 government in France, SfC. or with any of their agents, knowing such agent or agents to be 
 employed, &,c. he shall be adjudged guilty of felony, and shall suffer death, without benefit, 
 &c. By § 8. In ease any person ordered or adjudged to be transported under this act, shall 
 be found at large within this realm, after sentence of transportation pronounced, and 
 before the time shall be expired for whicli such person was sentenced to be transported, 
 he shall be deemed guilty of felony, and shall suffer death, without benefit, &c. By § 2. 
 If any subject of his Majesty shall, during the war, knowingly and wilfully hire, let, 
 engnge, &c. or be concerned in the hiring, Sfc. any vessel, with intent that any of his 
 Majesty^s subjects should embark therein with intent to go to France, S(c. he shall be 
 transported for any time not exceeding seven years, to such place as his Majesty in 
 council shall direct. 
 
 CI. To repeal the duties imposed by an act, made in the last session 
 of parliament, for granting an aid and contribution for the prose- 
 cution of the war ; and to make more effectual provision for the 
 like purpose, by granting certain duties upon income, in lieu of 
 the said duties. 
 
 Vide 33 G.3. c. 22; cA. 72. 
 By 39 Geo. 3. ch. 13. § 32. If any person shall give false evidence on oath or affir- 
 mation, or in any affidavit or deposition, &c. before the commissioners in the said act 
 mentioned, he shall, upon conviction, be subject and liable to such pains and penalties, 
 as by any law now in being, persons convicted of wilful and corrupt perjury are subject 
 and liable to. {yy) 
 
 (y) Certain duties to which this act relates, to be levied within one year from March 
 25., 1799, &c. by 39 Geo. 3. ch. 3. See further on this subject of taxation, 39 Geo. 3. 
 ch.G; ch. 21; cA. 40; ch. 43;' and ch. 108. 
 
 iyy) ^y ^ ^^o- 2. cA- 25. § 2. Persons guilty of wilful and corrupt perjury, or subor- 
 nation of perjury, may be imprisoned or transported for seven years; and if they escape; 
 break prison, or return, Sec. shall suffer death as felons, without benefit of clergy. Made 
 perpetual by 9 Geo, 2. ch, 18.
 
 744 HISTORIA PLACITORUM CORONA. 
 
 CII. For remedying certain defects in the law respecting offences 
 committed upon the high seas. 
 
 Vide No. XCIV. ante. 
 
 By 39 Geo. 3. cli. 37. § 1. All offences whatever committed on (be high seas, shall be 
 liable to the same punishments as if committed on shore, and shall be enquired of, heard, 
 tried, determined, and adjudged, in tlie some manner as treasons, felonies, murders and 
 confederacies, are directed to be, by stat. 28. Hen. 8. ch. 15. And by § 2. Persons tried 
 for murder or nianslauglitcr, and tbund guilty of manslaugiiter only, shall be entitled to 
 the benefit of clergy, and be subject to the sume punishment as if committed on land.(z) 
 
 CIII. For making perpetual so much of an act made in the nine- 
 teenth year of the reif n of his Majesty as relates to the punish- 
 ment of burning in the hand of certain persons convicted of 
 felony, within the benefit of clergy. 
 
 By 39 Geo. 3 ch. 45. So much of the stat. of 19 Geo. 3. ch. 74. as relates to the pun- 
 ishment of burning offenders convicted of felony, within the benefit of clergy, in the 
 hand, is made perpetual. 
 
 Vide No. XXVI. ante, and 39 Geo. 3. ch. 46, which perpetuates so much of the said 
 stat. of 19 Geo. 3. ch. 74, as relates to the lodgin<rs of Judges at county assizes. Vide 
 also 39 Geo. 3. ch, 51 and 52. which continue (until 25th March, 1802) such parts of said 
 stat. 19 Geo. 3. ch. 74, tfcc. as relate to the confinement ofjclons in temporary places, &-c. 
 or penitentiary houses, &.c. 
 
 CIV. For the more effectual suppression of societies established for 
 seditious and treasonable purposes; and for better preventing 
 treasonable and seditious practices. 
 
 Vide No. LXXXVIII, and LXXXIX. ante. 
 By 39 Geo. 3. ch. 79. § 8. Persons convicted, upon indictment, of the offences 
 r 745 "J and practices mentioned in this act, shall and may be transported for the term 
 of seven years, hi the manner provided by law for transportation of offenders, 
 or imprisoned for any time not exceeding two years, as the court sliall think fit; and 
 every such offender, who shall be ordered to be transported, shall be subject and liable 
 to all laiDs{a) concerning offenders ordered to be transported. 
 
 CV. To protect masters against embezzlements by their clerks or 
 
 servants. 
 
 By 39 Geo. 3. ch. 85. If any servant or clerk shall, by virtue of his employment, 
 receive or take into his possession any money, goods, bond, bill, note, banker's draft, or 
 other valuable security or effects, for or in the name or on the account of his master or 
 employer, and shall fraudulently embezzle, secrete, or make away with the same, or any 
 part thereof, he shall be deemed to have feloniously stolen the same from his master or 
 employer, for whose use, or in whose name, or on whose account the same was or were 
 delivered to, or taken into the possession of such servant, or clerk. SfC. and every such 
 offender, his adviser, procurer, aider, or abettor, being thereof lawfully convicted or 
 attainted, shall be liable to be transported for any term not exceeding /o«r<ee« years, iu 
 the discretion of the court before whom such offender shall be convicted or adjudged. 
 
 CVI. For granting to his Majesty certain stamp duties on bills of 
 exchange and promissory notes for small sums of money. 
 
 By 39 Geo. 3. ch. 107. § 25. If any person shall counterfeit or forge atiy stamp or 
 mark, directed or allowed to be used by this act, with intent, S^c, or shall fraudulently 
 use any such stamp or mark, witli intent, ^c. or shall utter, vend, sell, or expose to sale, 
 
 (2) The stat. of 28 H. 8, does not extend to offences committed in creeks or ports 
 within the body of a county. 3 Bac, Abr, 4th edit. 820. 
 (a) Vide note under No. CI. ante.
 
 HISTORIA PLACITORUM CORONA. 745 
 
 any vellum, ^'c. with an)' such counterfeit stamp or mark thereupon, knowing, SfC. he 
 shall be adjudged a felon, and shall suffer death, without benefit of clergy. 
 
 CVII. For rendering more commodious, and for better regulating, 
 the port of London. 
 
 By 39 Geo. 3. ch. 69.(6) § 104. If any person shall wilfully and maliciously set on 
 fire any of the works to be made by virtue of this act, or any ship or other vessel lying 
 or being in any canal, dock, bason, cut, or other works to be made by virtue of this act, 
 he shall be adjudged guilty of telony, without benefit of clergy. And persons otherwise 
 wilfully damaging the works, or vessels, S(C. shall suffer punishment by fine, imprison- 
 ment, or transportation, at the discretion of the judge, Sfc. before whom such offender 
 shall be tried and convicted. 
 
 CVIII. For enabling his Majesty to incorporate by charter a com- 
 pany to be called The Globe Insurance Company, for insurance 
 on lives, and against loss or damage by fire, and for other pur- 
 poses therein mentioned. 
 
 , By 39 Geo. 3. ch. 83.(c) § 22. If any person shall forge or counterfeit the common 
 seal of the said corporation to be created and established pursuant to this act, or shall 
 forge, counterfeit, or alter, any policy, deed, bill, bond, or obligation under the common 
 seal of the said corporation, or shall offer to dispose of, or pay away the same, knowing 
 the same to be such ; or shall demand the money therein contained, or pretended to be 
 due thereon, of or from the said corporation, or any of the officers thereof, knowing, i^c. 
 with intent to defraud the said corporation, or any person or persons whomsoever, he 
 shall be deemed guilty of felony, and suffer as in cases of felony, without benefit of 
 clergy. By § 23. To be deemed, adjudged, and taken to be a public act. 
 
 The Charter mentioned in this act is not yet complete, it being under the considera- 
 tion of the pripy council upon the attorney -general's report. 
 
 j 
 
 STATUTES RELATING TO FELONY SINCE THE LAST EDITION OF THE 
 
 WORK. 
 
 Defacing the mark on stores, punishable by 14 years transportation. 39 4*40 Geo. 
 IIL c. 89. ^4. 
 
 Setting fire to works or vessels in the London canals, docks, &c. 39 Geo. III. c. 69. 
 § 104 ^ 39 (^ 40 Geo. III. c. 89. ^ 4. 
 
 Persons disobeying orders of quarantine. 39 «Sf 40 Geo. III. c. 80. § 11. 21. 
 
 Masters of vessels concealing the plague. 39 ^ 40 Geo. III. c. 80. § 16. 
 
 Persons escaping from Lazarets. Id. § 23. 
 
 Forging certificate of quarantine. Id. § 27. 
 
 Clandestinely conveying, goods, letters, &c. from vessels under quarantine. Id. § 28. 
 
 Returning from transportation under 39 <Sf 40 Geo. III. c. 89. § 6. 
 
 Aliens returning from transportation for life. 43 Geo. 111. c. 155. § 39. 
 
 Counterfeiting receipts for contributions under Loan acts. 41 Geo. III. c. 3. § 24, 
 
 Personating pensioners, &,c. 43 Geo. III. c. 119. § 17. 
 
 Forging land tax redemption contracts. 42 Geo. III. c. 116. § 194. 
 
 Maliciously shooting, stabbing, &.c. with intent to murder, &c. administering poison 
 to women quick with child to procure miscarriage, &,c. setting fire to any house, out- 
 house, &c. 43 Geo. III. c. 58. § 1, 2. 
 
 (6) In order to facilitate the labour of others, it has been judged necessary to observe 
 here, that there are two of these numbers in the statute books, and that this act will be 
 found under a new head, intituled, "PUBLIC LOCAL AND PERSONAL ACTS," 
 in p. 228, Tol. 14. of Runnincrton's edition of the Statutes, and vol. 18, oi Ruffhead's. 
 So as to the next ch. which begins in those books, p. 261. 
 
 (c) Vide note (6) supra. '
 
 746 HISTORIA PLACITORUM CORONA. 
 
 Secreting post-office letters, <fec. containing any security, «tc., procuring or receiving 
 the same. 42 Geo. III. c. 81. § 1-2. 
 
 Casting away or destroying siiips. 43 Geo. III. c. 79. and c. 113. 
 
 Counterfeiting stamps, &c. in Great Britain. 41 Geo. III. c. 10. § 8; c. 86. § 16; and 
 43 Geo. III. c. 126. § 11; c. 127. § 8. 
 
 Counterfeiting starch stamps in Great Britain. 42 Geo. III. c. 14. ^ 6. 
 
 Counterfeiting stamps, marks, &lc. on medicine wrappers. 42 Geo. III. c. 56. ^ 22. 
 
 Forging paper for bank notes or engraving bank notes without authority. 41 Geo. III. 
 
 Forging or altering foreign bills of exchange. 43 Geo. III.c. 130. § 1. 3. 
 
 Forging debentures for teas exported to Ireland. 41 Geo. III. c. 75. § 7. 
 
 Forging certificates of excise. 41 Geo. III. c. 91. § 5. 
 
 Forging post-office franks, &-c. 43 Geo. III. c. 28. § 22. 
 
 Damaging, stealing or destroying works on canals, roads, railways, enclosures, &c. 
 41 Geo. III. c. 22. §09.70: c. 21. §78; c. 3.3. § 71 ; c. 72. § 49 ; c. 83. § 33 ; c, 74. §64; 
 c. 116. §42; c. 127. § 112; c. 128. § 108; c. 135. § 61; c. 136. §21. 42 Geo. III. c. 32. 
 § 46; c. 19. §33; c. 22. § 49.50; r. 24. §46. 49; c. 58. §45; c. 74. §53; c. 112. §53; 
 c. 114. §78, 43 Geo. III.c. 102. § 32; c. 22. § 20; c. 33. § 22; c. 35. § 82 ; c. 49. §47; 
 c. 55. §19; c. 60. § 109; c. 88. § 13; c. 126. §75; c. 128. §81 ; c. 130. § 5; c. 72. § 121. 
 
 Casting away or destroying ships. 43 Geo. III. c. 79. and c. 1 13. 
 
 Shooting at otlicers of navy customs, «&c. or firing at a vessel. 45 Geo. III. c. 121. § 11. 
 
 Counterfeiting stamps, &cc. in Great Britain. 41 Geo. III. c. 10. § 8; c. 86. § 16k 
 43 Geo. III. c. 126. § 11 ; c. 127. § 8. 44 Geo. III. c. 98. § 9. 45 Gen. III. c. 28. § 8. 
 
 Stamps on paper wrappers (inaccurately worded ) 46 Geo. III. c. 112. § 2. 
 
 Forging exchequer bills. 48 Geo. III.c. I. § 9. 
 
 -Stealing from oyster beds. 43 Geo. III. c. 144. § 1. 
 
 Fraudulently obtaining letters containing bank notes. 47 Geo. III. St. 2. c. 53. § 9. 
 
 Bank notes, engraving plates. &c. impressions from which shall resemble bank notes 
 or uttering any paper which shall resemble bank notes. 52 Geo. III. c. 138. § 5. 
 
 Counterfeiting bank tokens. 51 Geo. III. c. 110. § I. or bringing counterfeit tokens 
 into the kingdom, § 2. 
 
 Forging stamps or seals for stamping starch. 52 Geo. Ill, c. 27. § 13. 
 
 Making false conies of entries or altering &c. register books of parishes. 52 Geo. III. 
 c. 146. § 14. 
 
 Aiding prisoners of war to escape. 52 Geo. ITI. c. 156. § 1. 
 
 Administering or taking unlawful oaths. 52 (weo. III. c. 104. § 1. 
 
 Aliens returning from transportation tor life. 43 Geo. III. c. 155, § 39. 
 
 Forging draft, on the Receiver General. 46 Geo. III. c. 150, § 10. 
 
 Forging deeds, wills, securities, receipts, orders for money, «tc. or uttering the same 
 to defraud any person or corporation. 45 Geo. III. c. 89, § 1. Altering and extending. 
 2 Geo.U. c. 25; 7 Geo. II. c. 22; 15 Geo. II. c. 13; 41 Geo. Ill, c.39. 
 
 Forgery of drafts, &c. of public oifieers. 46 Geo. III. c. 45, §9; c. 142, § 14; 
 c. 150, § 20. 
 
 Counterfeiting receipts for contributions under loan acts. 41 Geo. III. c. 3, § 24. 
 
 Personating pensioners, &c. 43 6'co. III. c. 119, § 17. 
 
 Forging contracts for land tax redemption. 42 Geo. III. c. 116, § 194. 
 
 Forging lottery tickets. 44 Geo. III. c. 93, § IL 
 
 Disobedience to post-office orders. 45 Geo. III. c. 10, § 23. 
 
 Personating seamen or forging wills or letters of attorney of seamen, &c. 45 Geo. III. 
 
 Forgery of drafts, «!tc. of commissioners of land revenue. 50 Geo. III. c. 65, § 18. 
 
 Forger}' of stamps provided under 50 Geo. III. c. 35, § 6. 
 
 Forgery of certificates, &,c. of commissioners for the issue of Exchequer bills. 
 
 51 Geo. III. c. 15, § 71. 
 
 Destroying stocking or }ac6 frames. 53 Geo. III. c. 16, § 1.. 
 
 Wilfully dcstroving or demolishing any buildings, engines, or machinery therein. 
 
 52 Geo. III. c. 130, § 1,2. 
 
 Embezzling letters by persons employed by post-office department. 52 Geo. III. 
 c. 143, §2-4. 
 
 Shooting at or wounding revenue officers. 52 Geo. Ill, c. 143, § 12. 
 
 l^orging names of register, «Scc. of the High Court of Admiralty. 53 Geo. Ill, 
 c. 151, §12. ' ' 
 
 Forsring, &,c. or altering declaration of return of premium on a policy of assurance, 
 54 Geo. III. c, 133, § 10.
 
 HISTORIA PLACITORUM CORON.E. 747 
 
 Cutting or destroying frames and frame-work of knitting machines. 54 Geo. III. 
 c. 42. 
 
 Tiie 52 Geo. III. c. 44, § 47, relative to the punishment of persons convicted of felony 
 without benefit of clergy repealed by 53 Geo. III. c. 162. 
 
 • Forging certificates, receipts, bills of credit, transfers, powers, &c. made felony. 
 53 Geo. 111. c. 41, §26, 27; 54 Geo. III. c. 13,6 5; 54 Geo. III. c. § 70.38; 54 Geo. III. 
 c. 86, § 43; 54 Geo. III. c. 110. § 6; 54 Geo. HI. c. 151, § 16. 
 
 Falsely representing the next of kin of seamen. 55 Geo. III. c. 60, § 30. 
 
 Forging names of ministers, &c. required under 55 Geo. III. c. 60, § 31. 
 
 Kescuing or attempting to rescue convicts from the penitentiary. 56 Geo. III. 
 c. 63, § 44. 
 
 Aliens sentenced to transportation guilty of felony if found at large. 55 Geo. III. 
 c. 54. § 36. 
 
 Demolishing engines, &c. belonging to collieries. 56 Geo. III. c. 125, §. 1. 
 
 Felons making their escape after condemnation to transportion or being found at 
 large before expiration of their sentence. 56 Geo. III. c. 27, § 7, 8, 16. 
 
 Forging stamps under Stamp act. 55 Geo. III. c. 184, § 7. 
 
 Forging newspaper stamps. 55 Geo. III. c. 185, § 6. 
 
 Forging gold and silver plate duty marks. 55 Geo. III. c. 185, § 7. 
 
 Forging letters of attorney or wills of seamen, or knowingly uttering the same. 
 55 Geo. III. c. 60, § 32. 
 
 Forging cerlicates, powers, tfcc. for half-pay of naval officers. 56 Geo. III. c. 101, § 5. 
 
 Personating seamen, &.c. 55 Geo. III. c 60, § 32. 
 
 Forging certificates, bills, &c. for pay of navy officers. 57 Geo. III. c. 20, § 10. 
 
 Forging, altering, &,c. certificates, &,c. of commissioners for issuing Exchequer bills 
 for carrying public works, &.c. 57 Geo. III. c. 34, § 63. 
 
 Forcibly entering any house, &c. with intent to destroy, &.c. any machinery or goods 
 therein. 57 Geo. III. c. 126, § 2. 
 
 Persons falsely assuming the names or character of those entitled to prize-money or 
 pay in order to receive the same. 57 Geo. III. c. 127, § 4; 59 Geo. III. c. 56, § 18. 
 
 An act for more effectually preventing seditious meetings and assemblies, to continue 
 in force until the end of the session of parliament next after five years from the passing 
 of the act. 
 
 The act of 60 Geo. III. c. 6. 6 8. 11. 14. § 8. That if any person or persons shall attend 
 any meeting whatever holden for the pretext of deliberating upon any public grievance 
 or upon any matter or thing relating to any trade, manufacture, business or profession, 
 or upon any matter in church or state, or of considering, proposing, or agreeing to any 
 petition, complaint, remonstrance, declaration, resolution, or address, upon the subject 
 thereof, contrary to the provisions of this act it shall be lawful for any one or more jus- 
 tice or justices of the peace in and for any county or the sheriff" or under-sheriff" of any 
 county or the mayor or head officer or any justice of the peace of any city or town cor- 
 porate within which any such meeting shall be held to make or cause to be made pro- 
 clamation in the king's name in the form directed in this act commanding any person 
 so Ufilawfully attending any such meeting immediately and peaceably to depart there- 
 from : and if any person or persons so ordered to depart as aforesaid shall not upon such 
 proclamation depart from any such meeting within the space of a quarter of an hour after 
 such proclamation made that then and in every such case every such person so continu- 
 ing and not departing as aforesaid shall upon being thereof lawfully convicted be adjudged 
 to be guilty of felony and shall be liable to be transported for any period not exceeding 
 seven years. 
 
 § ll. That it shall be lawful for any one or more justice or justices of the peace in 
 and for any county or for the sheriff" or under-sheriff" of any county or for the mayor or 
 other head officer or any justice of the peace of any city or town corporate within which 
 any meeting shall be held or persons shall assemble for the purpose of holding any meet- 
 ing contrary to the provisions of this act, or where any person or persons not entitled to 
 attend any meeting or assembly as aforesaid, shall refuse or neglect to depart therefrom 
 for the space of a quarter of an hour after such proclamation' made as aforesaid to make 
 or cause to be made such proclamation in the king's name in the manner and form herein- 
 after directed to command all persons there assembled to disperse themselves and peacea- 
 bly to depart to their habitations or to their lawful business and if any such persons so 
 assembled as aforesaid shall, to the number of twelve or more, notwithstanding such pro- 
 clamation made, continue together by the space of half an hour after such proclamation 
 made, that then and in every such case every person so continuing being thereof legally
 
 748 HISTORIA PLACITORUM CORONA. 
 
 convicted shall be adjudged guilty of felony and be liable to be transported for any term 
 not exceeding seven years, 
 
 § 14. That if any person or persons do or shall with force and arms wilfully and know- 
 ingly oppose, obstruct, or in any manner wilfully and knowingly let, hinder, or hurt any 
 justice of the peace or other persons authorized as aforesaid, or any person acting in aid 
 or assistance of any justice of the peace who shall attend or disperse any such meeting 
 as aforesaid, or shall be going to attend or disperse any such meeting, or any justice of 
 the peace or peace officer or any person or persons acting in aid or assistance of any jus- 
 tice of tlie peace or other officer who shall begin to proclaim or be going or endeavouring 
 to make any proclamation authorized or directed to be made under the provisions of this 
 act, whereby such proclamation shall not be made : and also, if any persons so being 
 assembled as aforesaid to whom any such proclamation as aforesaid should or ought to 
 have been made of the same had not been hindered as aforesaid, shall to the number of 
 twelve or more continue together and not disperse themselves within half an hour after 
 such let or hindrance so made having knowledge of such let or hindrance so made; and 
 also if any person so being at any sucli assembly as aforesaid shall with force and arms 
 wilfully and knowingly oppose, obstruct, or in any manner wilfully and knowingly let, 
 hinder, or hurt any justice of the peace or other magistrate or any peace officer or other 
 person acting in their aid or assistance in the arresting, apprehending, or taking into 
 custody or detaining in execution of any of the provisions of this act any person or per- 
 sons or endeavouring so to do that then and in every such case every person so offending 
 being thereof legally convicted shall be adjudged guilty of felony and be liable to be 
 transported for any term not exceeding seven years. 
 
 Cultinar aicay or defacing buoy-ropes, &c. transportation for not exceeding 14 years. 
 14-2 Geo. IV. c. 76. ^ G. 
 
 Engraving, S^-c. on any plate for producing an impression of all or any part or engrav- 
 ing on any plate any resemblance of ground-work of a bank of England note, or using 
 such plate or having such plate in custody or possession; or uttering any impression 
 from it: transportation for 14 years. 1 Geo. IV. c. 92. § 1.2. 
 
 The felonies which are capitally punishable by 39 Eliz. r. 9; 4 Geo. I.e. 11 ; 5 Geo. 
 II. c. 30; and 8 Geo. II. c. 20 ; are made punishable by. transportation for life or not 
 less than 7 years by 1 Geo. IV. c. 115. 
 
 Privately stealing to the value of 5s. and under \5l. Transportation for life, or not 
 less than seven years. 1 Geo. IV. c. 117. 
 
 Turnpike gates, maliciously destroying, &c. Seven years transportation. 3 Geo. IV. 
 c. 126. § 128. 
 
 Forging certificate, &.c. of commissioners for issuing exchequer bills. 3 Geo. IV. c. 86. 
 §54. 
 
 Forging certificates under superannuation act. 3 Geo. IV. c. 113. § 23. 
 
 Forgery of handwriting, &c. of the accountant general, &,c. of the court of exchequer 
 to a certificate to receive suitor's effects in the beink, &,c. ; or fraudulently claiming pay- 
 ments. 1 Geo. IV. c. 35. § 27. 
 
 Forging Sfc. certificate &c. under 1 & 2 Geo. III. c. 73. § 15. 
 
 Forging Sfc. receipts or certificates for annuity under 3 Geo. IV. c. 51. § 15. 
 
 Procuring others to utter forged letters of attorney, &c. or to apply for pay on probates 
 of forged wills of seamen or marines. 1 &, 2 Geo. IV. c. 49. § 4. 
 
 Any person or persons pulling down plucking up or otherwise destroying or dam. 
 aging turnpike gates or any chain &,c. belonging thereto or any toll houses or weigti- 
 ing machines or rescuing persons in custody for any of these offences, to be adjudged 
 guilty of felony and to be transported for seven years. 3 Geo. IV. c. 126. § 128. 
 
 For general enactments relating to felonies, see 6 Geo. IV. c, 25. materially altering 
 the law in many particulars. 
 
 Assaulting custom house officer made felony and punished with transportation for 
 seven years or imprisonment with hard labour not exceeding three years. 6 Geo. IV. 
 c. 108. § 59. ' • 
 
 Bankrupt not surrendering and submitting to be examined &c. or removing or em- 
 bezzling to the value of lOZ. to be transported for life or not less than seven years, or be 
 imprisoned only or imprisoned with hard labour for not exceeding seven years. € Geo. IV. 
 c. 80. ^ 143. 
 
 Entering and taking trees plants &c. out of orchards gardens and nursery grounds &-c. 
 6 Geo. IV. c. 127. 
 
 Permitting vessels to depart out of quarantine without authority, giving false certifi- 
 cate &c. 6 Geo. IV. c. 78. ^ 21. 25.
 
 HISTORIA PLACITORUM CORONA. 749 
 
 Forgery of handwriting of receiver general or controller general of customs or of any 
 person duly authorized to act for them. 6 Geo. W. c. 106. § 27. 
 
 Fortrery of newspaper stamps or stamping papers with forged stamps or uttering papers 
 with forged stamps &.C. 6 Geo. IV. c. 119. § 6. 
 
 Smuggling. 6 Geo. IV. c. lOS. ^ 56. 
 
 As to felonies for malicious injuries to property, see 7 »fe 8 Geo. IV. c 30. repealing 
 the old laws and consolidating and amending the laws of England relative to malicious 
 injuries. See 29 Statutes at Large, p. 90. 
 
 The act for consolidating and amending the statutes of England relative to offences 
 against the person has repealed most of the old acts and substituted its own provisions. 
 See 29 vol. Statutes at Large, p. 370. 
 
 An act to remove doubts as to the liability of lords and peers of parliament to punish- 
 mcnt in certain cases of felony. 4 &, 5 Vict. c. 22. 33 Statutes at Large 781. 
 
 NOTE TO PAGE 516^. 
 
 " Silent leges inter arma" — the laws are silent in the midst of arms — said the great 
 Roman orator. During our quarter of a century of war, the laws held on their course; 
 but few had the courage to question the wisdom of that course, and still fewer the leisure 
 to attend to any suggestions of improvement. The daring adventurer who then mounted 
 the car of progress had to guide it, self-balanced, over the single rib of steel which spanned 
 the wide gulf between the land of reality, and the land of promise. Romilly was the 
 foremost amongst the courageous spirits who risked something for the amelioration of 
 the lot of their fellow men. In 1516 Sir Thomas More wrote, " I think it not right 
 nor justice that the loss of money should cause the loss of man's life: for mine opinion 
 is, tliat all the goods in the world are not able to countervail man's life. But if they 
 would thus say that the breaking of justice, and the transgression of laws is recompensed 
 with this punishment and not the loss of the money, then why may not this extreme and 
 rigorous justice well be called plain injury? For so cruel governance, so straight rules 
 and unmerciful laws be not allowable, that if a small offence be committed by and bye 
 the sword should be drawn: nor so stoical ordinances are to be borne withal, as to count 
 all offences of such equality that the killing of a man, or the taking of his money from 
 him were both one matter." In 1816 Sir Samuel Romilly carried a bill through the 
 House of Commons abolishing capital punishment for shoplifting which had been rejected 
 by that house three years before. The House of Lords however threw out this bill; and 
 on that occasion three hundred years after Sir Thomas More had proclaimed the. opinion 
 wljich we have just recited, Lord EUenborough the lord chief justice, "lamented that 
 any attempts were made to change the established and well-known criminal law of the 
 country which had been found so well to answer the ends of justice." 
 
 The history of the reform of our criminal law presents one of the most encouraging 
 examples of the unconquerable success of the assertion of a right principle when it is 
 perseveringly advocated and never suffered to sleep and when above all the reformation 
 is attempted step by step, and the prejudices of mankind are not assailed by the bolder 
 course which appears to contemplate destruction and not repair. The name of reform 
 in the criminal laws had not been heard in the Mouse of Commons for fifty-eight years 
 when in 1808, Romilly carried his bill for the abolition of the punishment of death for 
 privately stealing from the person to the value of five shillings: in other words for pick- 
 ing pockets. It is instructive to see how through the force of the circumstances around 
 him Romilly approached the subject of this reform with a caution which now looks 
 almost like weakness. His object was originally to raise the value according to which 
 a theft was rendered capital. In January 1808 he gave up the intention of bringing 
 forward even this limited measure — he was sure the judges would not approve of it. To 
 another distinguished lawyer belongs the merit of having urged Romilly to a bolder 
 policy. His friend Scarlett, he says, "had advised me not to content myself with merely 
 raising the amount of the value of property, the stealing of which is to subject the 
 offender to capital punishment, but to attempt at once to repeal all the statutes which 
 punish with death mere thefts unaccompanied by any act of violence or other circum- 
 stance of aggravation. This suggestion was very agreeable to me. But as it appeared 
 to me that I had no chance of being able to carry through the house a bill which was to 
 expunge at once all these laws from the statute-book, I determined to attempt the re- 
 peal of them one by one; and to begin with the most odious of them, the act of Queen 
 Elizabeth which makes it a capital offence to steal privately from the person of another."
 
 750 HISTORIA PLACITORUM CORON.E. 
 
 Upon this prudential principle Romilly carried his first reform in 1808. But the House 
 of Commons, which consented to pass tlie bill forced upon him the omission of its pream- 
 blc: — "Whereas the extreme severity of penal laws hath not been found effectual for tlie 
 prevention of crimes: but on the contrary by increasing the difficulty of convicting 
 offenders in some cases affords them impunity and in most cases renders their punish- 
 ment extremely uncertain." The temper with wliicli too many persons of rank and 
 influence received any project of amelioration at the betrinning of this century is forcibly 
 exhibited in an anecdote which Romilly has preserved for our edification : "If any person 
 be desirous of having an adequate idea of the mischievous effects which have been pro- 
 duced in this country by the French revolution and all its attendant horrors, he should 
 attempt some legislative reform, on humane and liberal principles. He will then find not 
 only what a stupid dread of innovation but what a savage spiiit it has infused into the 
 minds of many of his countrymen. I have had several opportunities of observing this. 
 It is but a few nights ago that while I was standing at the bar of the House of Commons 
 a young man the brother of a peer whose name is not worth setting down, came up to 
 mc and breathing in my face the nauseous fumes of his undigested debauch, stammered 
 out ' I am against your bill ; I am for hanging all.' I was confounded : and endeavour, 
 ing to find out some excuse for him I observed that I supposed he meant that the cer- 
 taintv of punishment affording the only prospect of suppressing crimes the laws what- 
 ever they arc ought to be executed. ' No, no,' he said, ' it is not that. There is no good 
 done by mercy. They only get worse. I would hang them all up at once.' " 
 
 In 1810 Sir Samuel Romilly brought in three bills to repeal the acts which punished 
 with death the crimes of stealing privately in a shop goods of the value of five shillings, 
 and of stealing to the amount of forty shillings in a dwelling-house or on board vessels 
 in navigable rivers. The first bill passed the House of Commons but was lost in the 
 Lords. The other two were rejected. In 1811 the rejected bills were again introduced 
 with a fourth bill abolishing the capital punishment for stealing in bleaching-grounds. 
 Tiie four bills were carried through the House oFCommons; but only that on the subject 
 of bleacliing-grounds was sanctioned by the Lords. The constant argument that was 
 employed on these occasions against the alteration of the law was this, that of late years 
 the offences which they undertook to repress were greatly increased. Justly did Rom- 
 illy say, " A better reason than this for altering the law could hardly be given." On 
 the 24th of May, 1811, when three of the bills were rejected in the House of Lords, Lord 
 Ellenborough declared, ''They went to alter those laws which a century had proved to 
 be necessary and which were now to be overturned by speculation and modern philoso- 
 phy." The lord chancellor Eldon on the same occasion stated that he had himself early 
 in life felt a disposition to examine the principles on which our criminal code was 
 framed, " before observation and experience had matured his judgment." Since how- 
 ever he had learnt to listen to these great teachers in this important science his ideas had 
 greatly changed, and he saw the wisdom of the principles and practice by which our 
 criminal code was regulated. In 1813 Sir Samuel Romilly's bill for the abolition of 
 capital punishment in cases of shoplifting was carried by the Commons in the new par- 
 liament, but it was again rejected in the House of Lords. No further attempt was made 
 towards the amelioration of this branch of our laws till the year 1816; which attempt 
 we have now more particularly to record. 
 
 On the 16th of February Sir Samuel Romilly obtained leave to bring in a bill repeal- 
 ing the act of William the Third, which made it a capital offence to steal privately in a 
 shop to the value of five shillings. He described this act as the most severe and san. 
 guinary in our statute book, inconsistent with the spirit of the times in which we lived, 
 and repugnant to the laws of nature which had no severer punishment to inflict upon the 
 most atrocious of crimes. As recently as 1785 no less than ninety-seven persons were 
 executed in London for this oftence alone ; and the dreadful spectacle was exhibited of 
 twenty suffering at the same time. The capital sentence was now constantly evaded by 
 juries committing a pious fraud and finding the property of less value than was required 
 by the statute. The consequence of severe laws never executed was that crime went 
 on to increase, and the crimes of juvenile offenders especially. On moving the third 
 reading of the bill on the 15th of March, Sir Samuel Romilly called attention to the 
 great number of persons of very tender age who had recently been sentenced to death for 
 pilfering in shops. At that moment there was a child in Newgijte not ten years of age 
 under sentence of death for this offence; and the Recorder of London was reported to 
 have declared that it was intended to enforce the laws strictly in future, to interpose 
 some check if possible to the increase of youthful depravity. The bill passed the Com- 
 mons, but was thrown out in the Lords on the 22d of May. On this occasion the lord
 
 HISTORIA PLACITORUM CORON.E. 751 
 
 chief justice agreed with the lord chancellor, "that the effect of removing the penalty of 
 death from other crimes had rendered hi(n still more adverse to any new experiment of 
 this kind. Since the removal of the vague terror which hung over the crime of stealing 
 from the person the number of offences of that kind had alarmingly increased. Though 
 the punishment of death was seldom inflicted for crimes of this nature, yet the influence 
 which the possibility of capital punishment had in the prevention ot crimes could scarcely 
 be estimated except by those who had the experience in the operation of the criminal 
 law which lie had the misfortune to have. When it was considered that the protection 
 of the property in all shops depended on the act before them, and that even now thefts of 
 that description were numerous, the bouse would not he trusted, take measures to increase 
 them." 
 
 When we look back on the debates upon the criminal law, from 1809 to 1816, and 
 see how little was asked by Romiily, and refused to him, compared with the amount yf 
 reform that has since been accomplished, we can only regard the arguments for the sup- 
 port of the ancient system of capricious terror as the arguments of men slowly and pain- 
 fully emerging from barbarism. 
 
 When, in the time of Henry VI. more persons were executed in England in one year 
 for highway robbery than the whole number executed in France in seven years; when, 
 in the reign of Henry VIII. seventy-two tliousand thieves were hanged, being at the 
 rate of two thousand a year; and when, in the reign of George III. as we have seen, 
 twenty persons Were executed on the same morning in London, for privately stealing — 
 we see the principle of unmitigated ferocity, the savagery which applies brute force as 
 the one remedy for every evil, enshrined on the judgment-seat. Tlie system went on 
 till society was heart-sick at its atrocities, and then rose up the equivocating system 
 which lord chancellors, and lord chief justices, and doctors in moral philosophy, upheld 
 as the perfection of human wisdom — the system of making the lightest as well as the 
 most enormous offences ^pital, that the law might stand up as a scare-crow — an old, 
 ragged, ill-contrived, an^ideous mawkin — that the smallest bird that habitually pilfered 
 the fields of industry despised while he went on pilfering. With the absolute certainty 
 of experience that bloody laws rigorously administered did not diminish crime, the legis- 
 lators of the beginning of the nineteenth century believe, or affected to believe, that the 
 same laws scarcely ever carried into execution would operate through the influence of 
 what they called " a vague terror." As if any terror, as a preventive of crime or a mo- 
 tive to good, was ever vague. The system was entirely kept in existence by the incom- 
 petence and idleness of the law-makers and the law-administrators. A well-digested 
 system of secondary punishments never seemed to them to be within the possibility of 
 legislatiori. We are very far from the solution of this great problem in our own days; 
 but we have made some steps towards its attainment. 
 
 The revolting cruelty and the disgusting absurdity of our criminal laws, thirty years ago, 
 were in perfect harmony with the system of police, which had then arrived at its perfec- 
 tion of imbecile wickedness. The machinery for the prevention and detection of crime 
 was exactly accommodated to the machinery for its punishment. On the 3d of April, 
 on the motion of Mr. Bennet, a committee of the House of Commons was appointed to 
 inquire into the state of the police of the metropolis. The committee was resumed in 
 1817; and two reports were presented, which were amongst the first causes of the 
 awakening of the public mind to a sense of the frightful evils which were existing in 
 what we flattered ourselves to be the most civilized city in the world. Twelve years 
 after, a committee of the House of Commons thus described the police system of 1816 
 and 1817 : — " If a foreign jurist had then examined the condition of the metropolis, as 
 respected crime, and the organization of its police — and if, without tracing the circum- 
 stances from which that organization arose, he had inferred design from the ends to 
 which it appeared to conduce — he might have brought forward plausible reasons for 
 believing that it was craft.ily framed by a body of professional depredators, upon a calcu- 
 lation of the best means of obtaining from society^ with security to themselves, the 
 greatest quantity of plunder. He would have found the metropolis divided and subdi- 
 vided into petty jurisdictions, each independent of every other, each having sufficiently 
 distinct interests to engender perpetual jealousies and animosities, and being sufficiently 
 free from any general control to prevent any intercommunity of reformation or any unity 
 of action." Another committee of the House of Commons reporting in 1833, says of the 
 same system, "The police was roused into earnest action only as some flagrant viola- 
 tion of the public peace, or some deep injury to private individuals, impelled it into exer- 
 tion; and security to persons and property was sought to be obtained, not by the activity 
 and wholesome vigour of a preventive police, which it is a paramount duty of the State
 
 752 HISTORIA PLACITORUM CORONA. 
 
 to provide, but by resorting from time to time, as an occasional increase of the more vio- 
 lent breaciies of the law demanded it, to the highest and ultimate penalties of that law, 
 in the hope of checking tlie more desperate oflenders." The same report says, *' Flash- 
 houses were tiicn declared to be a necessary part of the police system, where known 
 thieves, with tlie full knowledge of the magistrates and public officers, usscinbled, until 
 the State, or individuals from the losses they had sustained, or the wrongs they had suf- 
 fered, bid high enough for their detection. Flash-houses, known in the scientific phrase- 
 ology of the police as " flash-cribs" " shades" and " infcrnals" were filthy dens, where 
 thieves and abandoned females were always t.o be found, riotous or drowsy, surrounded by 
 cliiidren of all ages, qualifying for their degrees in the college of crime." " There," says 
 a Middlesex magistrate, examined before the committee of 1816, " they (the children) 
 see thieves and thief-takcrs sitting and drinking together on terms of good-fellowship; 
 all they see and hear is calculated to make them believe they may rob without fear of 
 punishment, for in their thoughtless course they do not reflect that the forbearance of the 
 officers will continue no longer than until they commit a forty-pound crime, when they 
 will be sacrificed." A forty-pound crime ! the phraseology is as obsolete as if it were 
 written in the pedlar's French of the rogues of the sixteenth century. A forty-pound 
 crime was a crime for whose detection the State adjudged a reward, to be paid on con- 
 viction, of forty-pounds ; and, as a necessary consequence, the whole race of thieves were 
 fostered into a steady advance from small offi^nces to great, till they gratefully ventured 
 upon some deed of more than common atrocity, which should bestow the blood-money 
 upon the officers of the law who had so long petted and protected them. The system 
 received a fatal blow in 1816, in the detection of three officers of the police, who had 
 actually conspired to induce five men to commit a burglary for the purpose of obtaining 
 the rewards upon their conviction. The highwaymen who infested the suburbs of the 
 metropolis had been eradicated — they belonged to another age. Offi;nccs against the per- 
 son were rarely connected with any olFences against propertji* But the uncertainty of 
 punishment, the authorized toleration of small offenders, ana the organized system of 
 negotiation for the return of stolen property, had filled the metropolis with legions of expe- 
 rienced depredators. The public exhibitions of the most profligate indecency and bru- 
 tality can scarcely be believed by those who have grown up in a different state of society. 
 When Defoe described his Colonel Jack, in the days of his boyish initiation into vice, 
 sleeping with other children amidst the kilns and glass-houses of the London fields, we 
 read of a state of things that has long passed away ; but, as recently as 1816, in Convent 
 Garden Market, and other places affording a partial shelter, hundreds of men and women, 
 boys and girls, assembled together, and continued during the night, in a state of shame- 
 less profligacy, which is described as presenting a scene of vice and tumult more atrocious 
 than any thing exhibited even by the lazzaroni of Naples. — Knight's Hist, of Eng, B, I. 
 c. 7. Land. 1846-7. 
 
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