Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

The third booke of Lavv.

CHAP. 1.

Of a wrong without force.

FOr of possessions (the first & hardest part of Law) wee haue hitherto spoken suffici∣ently. The other resteth, which ministreth Iustice in the punishment of offences.

An offence is the doing of any wrong. And is a wrong without force, or to the which force is coupled.

In those of the first kind, the offendor is to be amerced, or to pay a pettie summe of money to the King. And (a) if he be a lord of the Parliament (whom we call a Pier of the Realme) then a C. s̄. As if (b) ones writ abate, or if in (c) an Action of Tres∣passe

against two, for hunting and taking two Deere, one Defendant bee found not guiltie, the other guiltie of taking only one Deere; here the plaintife (if he bee a Peere of the Realme) shall be amerced CC. s one C. s against him that was found not guilty as all; the other hundred shillings against him that was acquitted of one of the Deere.

The Kings wife shall neuer be amer∣ced. And therefore a writ brought by her is good enough, though this clause, Si fece∣rit te securum, be left out, for she shal not be amerced for her non suite.

CHAP. 2.

Of Trespasses vpon the Case.

OFfences without force, are tres∣passes vpon the Case, or Reall wrongs.

Trespasse vpon the case is such an offence, whereby any thing is indammaged: And is a misuser or deceit.

Misuser, when by meere wrong it is in∣dammaged. Of which kind there be ma∣nie, and those of diuers sorts. As if a man maliciously vtter any false slander to the indangering of one, in Law. As to say, He hath reported that monie is fallen; for hee shall be punished for such a report, if it bee false. The touching of him with some hai∣nous

crime, as that he hath gone about to get poisō to kil the child that such a womā goeth with (yet it is no felonie;) lien (a) in waite to robbe him; procured (b) another, or agreed (c) with another to murder him (though he were not murdered in Deed;) (a) sought his life for his land, &c. or the impairing his trade of life; As to cal a mar∣chant (b) bankerupt (for it is his liuing, but so it is not of a gentleman;) an Attornie (c) Ambodexter, or to say that hee dealeth (d) corruptly. But in all such cases, words of choller and heate, as to call one cosoner, (e) and craftie knaue, common extorcioner, and drunkard, witch, rogue, pillorie-knaue, villeine (vnlesse hee say villeine to such a man, or regardant to such a manor;) words vttered in a suite in law, as to bring a writ of forger of false deeds against a noblemā, or any other (though it be false) will beare no Action; for these are not maliciously. So if he be able to iustifie the words, for then it is not falsely. As that he called him per∣iured, by reason of a periurie committed in the Star-chamber, murderer, thief, or such like, vpon a Conuiction; (f) but not vpon an Enditement or Common voice and fame, though the defendant himself suspect him. if one hauing another mans goods, (h) con∣uert them to his owne vse: if a (i) Sherife suffer one in execution for debt to goe at large: if a Smith (k) cloy my horse: but not if he take him to cure (without warran∣ting of him) and doing all he can, yet the

horse impaire. If being committed to the Gaole, the Gaolet of malice put vpon me so many yrons, or otherwise vse me so hardly that I become lame therby, &c.

Statutes.

Westm̄ 1. cap. 33. He that publisheth any false newes and tales, whereby discord, or occasion of discord and slander may grow betweene the King and his people, or the Nobles, shal be kept in prison vntil he hath brought him forth into the Court, that did speak the same.

2. R. 2. cap. 11. The like for him that tel∣leth false lies of Nobles and great Officers of the Realme, whereby discord may arise betweene the said Lords and Commons.

12. Ric. 2. cap. 11. In the case of these for∣mer Statutes, if the party canot bring forth him that spake the same, he shall bee puni∣shed by the aduice of the Counsell.

But two aboue the rest do here require more speciall consideration; that is to say, Disturbance, and Nusance.

Disturbance is the hindering of that which in right belongeth vnto one to doe. As for a man to vse his Common; to reduce a water-course that is misturned, to present vnto a Church, &c.

Nusance is annoyance done to ones he∣reditament. As leuying a Faire or market

to the Nusance of another Faire or Mar∣ket, building a house so neere mine, that the rayn which falleth from that house fal∣leth vpon mine, &c.

All manner of nusances are to be remo∣ued, and common nusances, As a wall, (a) &c. built vpon the High-way, trees (b) growing vpon the riuer banke, whereby a water-course is stopped, any man may pull downe.

Deceit, when the dammage groweth by an vndue sleight. As if a man purchase a writ in my name out of the chancerie, I not knowing of it, whereby I am to pay a fine; or if one (whom I make my Attornie in a plea of land against finee) make default, whereby the land is lost: Or if in a Praecipe against diuers Tenants, a man purchaseth a protection for one of them, supposing him to be beyōd-sea in the Kings seruice, where indeede he is and alwaies hath beene in England, by means wherof the demandant is delayed: or if in a Praecipe quod reddat, the Sherife returne the tenant summoned, where in deed he was not, whereby he loo∣seth the land: or if in play one winne ano∣thers monie with false dice, or if he that fel∣leth any thing doe vpon the sale, warrant it to be thus and thus, whereby the other is deceiued. So that the warrantie must be parcell of the contract: for if it be (a) after, (at another place) or (b) a seruant make the warrantie vpon the sale of his masters goods (which in law is the masters sale, &

warrantie of the seruant) it is a void War∣rantie, and no Action of deceit lieth vpon it. Also the warantie can reach but to things in being at the time, not to things to come: as that a horse (c) will carrie you xxx miles a day: nor to things which ma•• bee discerned by my fiue sēces to be otherwise; as cloths of murry color to be blew, vnlesse the buyer in this case bee blind. But where they are warrāted to be of such a length, & are not, there an action of deceit lieth: for that canot bee discerned by sight, but by a colaterall proof, the measuring of them.

CHAP. 3.

Of certaine offences punishable by amercement by the K. Prerogatiue.

CEertaine offences against the law, are in nature of trespasses vpon the case, and by the kings prerogatiue punishable like to them. As suing an action without iust cause, or giuing iust cause of an Action: for (a) in euery actiō where the matter passeth against the plain∣tife (be it by verdit, demurrer, or otherwise) the plaintife is to be amerced, & the def. in det, detenue, couenant, repleuin, Quid iuris clamat, &c. (b) but not in trespasse, for there he shal be fined & imprisoned. Non-suit (c) in an actiō, (d) fault in the original writ hee bringeth: or (by the Sherif) in the return of a writ: making (f) default when he should ap¦peare. (as the Iurors at the Habeas corpora)

and whatsoeuer other offences (not beeing with force and armes) which offer no di∣rect iniurie to a common person.

CHAP. 4.

Of Discontinuance.

HItherto of Trespasses vpon the Case.

A reall wrong is that which medleth with the Freehold other∣wise than it ought: and is a Dis∣continuance, or Ouster.

Discontinuance, when he that hath an estate Taile, or Fee-simple in anothers right, As the husband in right of his wife. A Deau sole seised in the right of his dean∣rie: Deane and Chapter, Gardeine, and Chapleines; as also Maior, and com∣minaltie of lands in the right of their Cor∣poration. maketh a larger estate of the land than he may. As by a Fine or feoffement for life of the lessee, in taile or in fee, which is called a discontinuance. But the Graunt of a rent, release, or confirmation to a lessee for yeres in fee, make no discontinuance, for they passe without liuerie, and there∣fore passe no greater estate than the Graun∣tor had.

Statutes.

32. H. 8. cap. 28. All Leases by deed in∣dented for life or yeares, by any person of full age, hauing an estate in fee or in fee∣taile, in his owne right, or in the right of his Church, or wife, or ioyntly with his wife, shall be perfectly good.

This extendeth not to Leases of land in the hands of any farmour, by vertue of a∣ny old Lease, vnlesse the same bee expired surrendred or ended within a yeare after the making of a new; nor to the grant of any reuersion, nor to any lease of land which hath not most commonly beene let, or occupied in farme by the space of xx. yeares next before, nor to any lease made without impeachment of Wast, or made for aboue xx. yeares, or three liues from the day of making. And that there bee reser∣ued yearely payable to the lessours, their heires and successours, according to their estates, the rent accustomably yeelded within twentie yeres next before: which heires and successors shall haue the like ad∣uantage against the Lessees, their execu∣tors and assignes, as the Lessor himselfe might. Prouided the wife bee made party to euerie lease by the husband of any land of her inheritance The Lease to be made by Indenture in both their names, and shee to seale the same, and the rent to bee reser∣ued to the husband and wife, and her heirs,

according to her estate of inheritance.

13. Eliz Cap 10. All grants, Feoffe∣ments, Leases, and other conueyances and estates, by any Master or Fellows of a Col∣ledge, Deane and Chapter, Master or Gar∣dein of an Hospitall, Parson, Vicar, &c. other than for xxj years, or three liues, from the time of such lease or grant, reseruing the accustomable yearely rent, yearely pay∣able, shall be void.

14. Eliz Cap. 11. The Statute 13. Eliz. Cap. 10. before, shall not extend to grant assurance, or lease of anie house in Citie, Borough, Towne corporate, or Market towne, or within the Suburbs, (the same not being their dwelling house, or hauing aboue ten acres of ground belonging to it.) Prouided the lease shall not be made in re∣uersion, and the accustomed yeerely rent shall be reserued, the Lessees charged with reparations, and it shall not bee aboue for∣ty yeares. No alienation shall be of such houses, vnlesse that presently vpon such ali∣enation there be an absolute purchase in fee simple of other Lands of as great value.

18. Eliz. Cap. 11. All leases made by such persons (as 13. Eliz. Cap. 10. before) where another lease for yeares is in being, not to bee expired, surrendred, or ended within three yeares next after the making of such new lease shall be void. All bonds

& couenants for renewing or making of any lease, contrarie hereunto, or to 13. Eiz. Cap. 10. before, shall be void.

1. Eliz. not printed, the like (as 13. Eliz. Cap. 10. before) for Archbishops and Bi∣shops, vnlesse it bee of estates made to the King, his heires and successors.

32. H. 8: cap. 28. No fine, feoffement, or other Act by the husband onely, of any land being the inheritance or free-hold of the wife, shal be a discontinuance or preiu∣dicial to the wife, or such as haue interest after her death: leases within the compasse of this Statute onely except.

Warrantie of an estate of inheritance, or for life, descending vpon him that ought to haue such estate, maketh a discontinuance. As if tenant in Taile of an Aduowson in grosse, suffer an vsurpation by six months, the release of a colateral ancestor with war∣rantie is a discontinuance, for hee hath fee by the vsurpation.

So it seemeth of a collateral ancestors re∣lease, with warrantie to the Grantee in fee of a rent or aduowson in grosse by Tenant in Taile. But if Tenant in Taile of a rent or aduowson in grosse grant it in fee, with warrantie; this is no discontinuance, but at the pleasure of the issue.

Discontinuance taketh away the en∣trie of those that come to haue title af∣ter his death. If he (whose entrie is

barred by a discent or discontinuance) haue the freehold cast vpon him by a new title, he shal be in of his anciēt title: which is ter∣med a remitter. As if the heire of the dissei∣sor (in by discēt) make a lease for life to I. S. the remainder for life or in fee to the dissei∣see, if Tenant in Taile discontinue, & then disseise the discontinue, & die seised, where∣by the lands discends to his issue; if the hus∣band make a feoffement in fee of land in the right of his wife, and take backe an estate in fee to him and his wife. In these cases the disseisee after the death of I. S. the issue in Taile, and the wife suruiuing, her husband is remitted: but if the husband suruiue, her heire is not; for there is ano∣ther tenant of the Freehold, against whom he may bring his Action. And in the case of Tenant in taile before, though the heire of the Discontinue were within age at the time of the discent to the Issue in taile, yet his entrie is gone for eue, r by reason the Is∣sue is remitted.

CHAP. 5.

Of Intrusion, Abatement, Disseisin, and vsurpation.

OVster is, when the Freeholder is ousted, or put out. And therefore it gaineth a Free-hold vnto the partie.

This ouster is of a freeholder in Deede, or in Law. Of the first sort are Intrusion, or Abatement.

Intrusion, which is after the death of Tenant for life, be it a mans own life, or another mans, Tenant in Dower, or by cur∣tesie, &c.

Abatement, which is after the death of one that hath the Inheritance, whether the land discend vnto his heire, or he die with∣out heire.

Of the second sort are, Disseisin & vsur∣pation

Disseisin is the ousting of him that hath a Free-hold in Deede: which of a rent or other profit is by the disturbing of him in the meanes of comming to it. As in euery Rent, whether Rent-seruice, Rent-charge, or Rent-secke. Encloser and Forestaller.

Encloser is, when the Tenant encloseth the Land, so as he cannot come to distrein, or to demand it. But if it be a Parke or such

like, that hath of ancient time beene inclo∣sed, so as it is not done of purpose to keep him from his rent, that is no disseisin.

Forestaller is, when the Tenant beset∣teth the way with force and Armes vpon his comming. Of which nature also is the menacing of him, that for doubt of some bodily hurt, death, or losse of member hee dare not come.

In a Rent-seruice and rent-charge, Res∣cuous, and Repleuin.

Rescuous, when either the partie ha∣uing distreyued; the distresse is rescued, or being vpon the land to distreyne, cannot be suffered.

Repleuin is, when an Action of Reple∣uin is brought vpon a distresse taken.

In a Rent-charge and a Rent-seck, de∣nier.

Denier is, when the Rent (beeing de∣manded vpon the Land) is not paid.

Vsurpation is, when the Church be∣commeth ful by the presentment of a wrōg Patron: which is done by the institution of the partie presented.

Prerogatiue.

But against the King, Induction onely doth it. Therefore at the Common law, in a Quare impedit, Plenartie day of the Writ purchased, is a good plea, though it bee by institution onely. And the Plenartie by

sixe moneths (which barreth the right Pa∣tron of his Quare impedit, by the Statute Westminst. 2. Cap. 5.) is accounted from that time betweene common persons. So is it for the King when he presenteth. And in these cases the Ordinary may certifie a ple∣nartie without making mention of any in∣duction, but of admission and institution onely. But against the King plenartie is accounted from the time of induction, and not before. And if a Patron that holdeth of the King, present, and die after admissi∣on and institution of his Clark, and before induction; the King shall present a new. Otherwise it is in the case of a common person. But Plenartie is no plea in a Qua∣re impedit, against a person impersonee (that is, a Spirituall Bodie politique, which bee∣ing Patron, hath the Church appropriated in succession, (viz.) to hold to their proper vse, without presentation, institution, or in∣duction of any incumbent) for his plea must be, That the Church is full of his pre∣sentment, which a person impersonee can∣not say.

Statutes.

Westm̄. 2. Cap. 5. Vsurpation vpon Gardeins tenants in Dower, or vpon femes couert, or houses of religiō in time of vaca∣tion, shal not put the heires fems, or houses of religion out of possession. But faint reco∣ueries shal not be auoyded in such cases by way of plea.

Plenartie is no plea in a Quare impedit, or darreine presentment, if the Writ bee pur∣chased within vj moneths.

When one parcener presents in anothers turne, yet this gaineth no possession: for the other may present when her turn commeth againe.

CHAP. 6.

Of Trespasses in goods.

SVch is the nature of an offence with∣out force.

An offence with force is a Trespas (or offence) against the Crowne. For in all Inditements and Inquisitions, of treason, murder, felonie, trespasse, &c. vi & armis must be in, else it is not good.

Trespasse is a criminal offence punish∣able by a fine vnto the King. So is euerie contempt punishable: and for this reason no action of Trespasse lieth for the Lessee for yeres, against the Lessor, (though he di∣streyne without cause) for that the Statute of Marlebridge, cap. 4, is, That he shall not be punished by fine and ransome; which if he be attainted in this action, he must needs be, and for this the partie must be impriso∣ned till he doe compound. Therefore after tender of his fine, the king cannot iustly de∣taine him in prison.

Trespasses touch possessions or the per∣son.

Possessions, when the wrong is don in them, namely in goods or land.

Trespasse in goods, is the wrongful ta∣king of them with pretence of title. And therfore altreth the property of those goods. So as one cannot declare in an Action of trespasse, that the defendant took his horse at S. and carried him to D. and there killed him against the peace, &c. For by wrong∣ful taking, the propertie being diuested out of the plaintif, and vested in the defendant, consequently it followeth, that hee cannot kill his owne horse against the peace.

CHAP. 7.

Of Trespasse in Land.

TRespasse in land is, when the tres∣passe is done vpon an actual posses∣sion thereof. For of a trespasse don (a) after the death of the Ancestor, and before the heires entrie: after (b) breach of the Condition, and before entrie for it: where a lease for yeares is made, re∣seruing a rent, vpon condition to be voyde if the rent be not paide: or after Michael∣mas, and before the Lessees entrie, where a lease for yeres is made to begin at that day: no Action lieth for the heire in the first case; for the Lessor in the second, nor for the Lessee in the third. Because they were not seised of the Land at the time of the trespasse done; yet the Lessor in the second

case might haue made a new lease before his entrie; for the first lease was meerely void, and the Lessee in the last case, might before Michaelmas grant away his terme.

Where beasts or any other Chattells, shocks of Corne, or whatsoeuer else, whe∣ther Conisance may be of them to bring a Repleuin, or not: that so the Trespasse may be distreyned by him that hath dam∣mage by it. As one that hath Common out of land, though he haue nothing in the land it selfe, so as he can haue no Action of Trespasse against the owner of the beasts, for their entrie into the land, nor the grasse wasted, &c. yet he may distrein them dam∣mage feasant, because of the dammage hee sustaineth. But so cannot Cesti qui vse: for he hath nothing at all to doe in the land, saue that there is a confidence between the feoffees and him: but the feoffees may pu∣nish him by the Common law, if he occu∣pie the land, for he is but a meere stranger. And if a stranger of his owne head driue out beasts that are dammage feasant, the owner of the beasts shall punish him, for he is indammaged by this driuing out, and the other hath no losse.

Hither belongeth Eiectment, when a termer for yeares of land is ousted: Whe∣ther by the Lessee or a stranger, but not a Termer for yeares of beasts or other Chat∣tels.

Prerogatiue.

Here (viz.) of land, which is a thing per∣manent for things tronsitorie and remoue∣able: the King may be put out of his posses∣sion, and haue his Action according, as ra∣uishment of gard, Quare impedit, &c. But of things permanent hee cannot haue an Action, as a Praecipe quod reddat, eiectment of ward, &c. because of such things he can∣not be put out of possession: the King ha∣uing possession by matter of Record, or other good title, none can put him out. But if hauing no title by matter of Record, or otherwise, he enter vpon me & put me out, there if I enter againe, my entrie is lawfull, and no intrusion. So if the king seise vpon an office, finding that his tenant died sei∣sed but of an estate for life, the reuersion to another; he in the reuersion may enter, and make a feoffement: for the King seiseth by colour of a Record, which Record giueth him no title indeed.

CHAP. 8.

Of Menaces.

TRespasses to the persō are with pre∣tence of violence, or violence indeed.

Pretence of violence, as Mena∣ces & Assaults.

Menaces are threatning words of

beating one, or such like, through feare whereof ones businesse is foreslowed. For a menace onely (without other losse) ma∣keth not the Trespasse, but both of them together.

CHAP. 9.

Of Assault.

ASsault is an vnlawfull setting vpon ones person. As offering to beate one, though he doe not beate one in deede, striking (d) at one with an Hatchet, or such like, though he do not touch him. Whether belongeth lying in waite, besetting his mā∣sion house, and not suffering his seruants to goe in and out, &c.

CHAP. 10.

Of false Imprisonment.

VIolence indeede, is false imprison∣ment, or bodily hurt.

False imprisonment is an vn∣lawfull restraint of libertie. As (a) arresting one against his will, though it be in the High-streete, and he ne∣uer put in prison in any house; detaining of a woman (b) against her wil, whom he hath

rauished. So if a (c) master imprison one without cause, and deliuer the key of the dore to a seruant that hath notice of his wrongfull imprisonment of him, if the ser∣uant deliuer him not, he shall bee punished in an Action of false imprisonment. But if the imprisonment be vpō a false & feined suite, as in suing (d) execution vpon a sta∣tute marchant, when the monie is paid, yet no Action of false imprisonment lieth, for he is imprisoned by course of Law.

CHAP. 11.

Of Batterie.

BOdily hurts are either outward vio∣lences onely, or Rape.

Outward violences only, are Bat∣terie and maime.

Batterie is the wrongfull beating of one. But if a man will take away my goods, I may lay my hands vpon him, and disturbe him, and (if he will not leaue) I may beate him, rather than he shall carrie them away, for that is no wrongfull bea∣ting.

CHAP. 18.

Of Maime.

MAime is the wrongfull spoyling of a member defensiue in fight. As cutting off ones finger, knocking (b) out ones foretooth, (c) put∣ting out his eye, &c. Otherwise it is of knocking out his grinding teeth, cut∣ting off ones eare, nose, &c. for these are but deformities.

CHAP. 13.

Of Rape.

THese are outward violences only: Rape is the carnall abusing of a (d) woman against her will. But if the woman conceiue vpon any carnall abusing of her, that is no rape, for she cannot conceiue vnlesse shee consent.

Statutes.

6. R. 2. ca. 6. If the woman after rape, con∣sent, as wel she as the rauisher be dishabled to haue any heritage, dower, or Ioint-feof∣ment after the death of their husbands and

Ancestors, and the next of bloud shal haue title to enter incontinently.

CHAP. 14.

Of Contempts.

CErtaine offences against the King are in the nature of trespasses, and are termed contempts: as (a) ma∣king rescous vpon his Writ ser∣ued, (b) going armed in his palace, &c. where sometime the punishment is in∣creased according to the qualitie of the of∣fence, not onely in the fine, but further, in the losse of member, and such like. As a ju∣ror appearing, and being challenged, if hee doe not appeare vpon demand, when hee is found indifferent, shall bee fined by the value of his land by a yeare. He that smi∣teth a man (d) in Westminster Hall, or a Iuror in the presence of the Iustices, shall haue his right hand cut off, his land and chattels forfeited, and in the latter case bee committed to perpetuall prison.

CHAP. 15.

Of Offences against the Crowne.

THus much then of Trespasse; it re∣maineth to speake of offences a∣gainst the Crowne, which are cri∣minall offences, punishable by death.

Where further also all the offendors both hereditaments, As lands, rents, &c. whether for life (a) onely, or of (b) an estate of inheritance, & chattels, not onely in pos∣session, (c) but such as he hath but a right to, As lands (d) wherof he is disseised, debts, (e) goods (f) to be accounted for, or wrong∣fully (g) taken; But (h) not such as he is to recouer but dammages for, as in batterie, &c. are forfeite to the King. And that as well in Felonie, as Treason, saue onely in felonie land of inheritance is forfeite to the Lord, as appeareth (i) afterwards.

Hereditaments (k) from the time of the offence, (whether the attainder be by Out∣lawrie, verdit, or howsoeuer else) Chattels, though real, (l) as a lease for yeres, &c. from (m) the time of the attainder onely. So (n) as a sale or gift before, is good, for he must liue of them. And therefore after endite∣ment, and before attainder, the goods shall not be remooued out of his house, but shal

be in the keeping of his neighbors. And in these and all other forfeitures, as vpon an (o) enditement of fugam fecit, or (p) if one be taken with the manner, vpon a robbery, or (q) tarrie the exigent, &c. the Towne is chargeable with the goods, and therefore (r) may seise them wheresoeuer they be.

Statutes.

31. E. 3. cap. 3. No man nor towne shall be charged in the Exchequer, by the extract of the Iustices, of the Chattels of fugitiues, or felons, if they can shew that another is chargeable.

1. Ric. 3. cap. 3. No Sherife, Vnder-she∣tife, or escheator, Bailife of Franchises, nor any other person, take or seise the goods of any person arrested, or imprisoned, before that such persons, so arrested and impriso∣ned be conuict, or attainted of such felony, according to the Law of England: or else the same goods otherwise lawfully forfeit, vpon paine to forfeite the double value of the goods so taken, to him or them that shall be thereby indammaged, by Action of debt in this behalfe to be pursued.

The bloud also is here corrupted. So as a remainder to his right heire, can neuer take effect. The eldest son attainted of fe∣lonie in his fathers life time, and him sur∣uiuing, or his issue (a) (if he die before) can∣not inherite: and besides, shall be an im∣pediment,

that the younger brother can∣not, but it shall go to the Lord by escheat. Otherwise (c) it is if the eldest sonne die without issue in his fathers life time.

Lastly, the wife looseth (d) her dower, And notwithstanding (e) the husband ali∣en the same before the offence commited.

Statutes.

1. E. 6. cap. 12. No dower shall bee for∣feit, by the husbands attainder, of any murder, or felony whatsoeuer.

Prerogatiue.

Those that flie for feare of the offence (we call it a Fugam fecit) forfeit their that∣tels Accessaries after the fact, that is to say witting mainteiners (and (f) if it bee of one outlawed in the same County, though they haue no other notice of it) as by (g) receiuing one that flieth for it into his house, and shutting the doore, so as the Countrey thinking him to be there, he es∣cape whilest no man followeth him; ay∣ding him with money, but not with good words, as wholsome aduise speaking or writing for his deliuerie, And therfore also that suffer (i) one arrested whether by themselues or any other to escape which we call a voluntarie escape, are guiltie of the same offence.

Prerogatiue.

Concealing the offence, without disco∣uering it vnto the king, or his Councell, or to some Magistrate, is called misprision, and that forfeiteth (a) chattels, and here∣ditaments during their life.

CHAP. 16.

Of Felonie.

OFfences against the Crowne bee of two sorts, Felony, and High∣treason. Felony is an offence of the Crowne not bent immediatly against the State, where the for∣feiture of the offenders (b) inheritance is giuen to the Lord (whether it be in petie (c) Treason, or other Felonie, and (d) at a∣ny time after he is attainted; And there∣fore the Lord may haue a writ of Escheat before execution. But (e) of lands (wher∣of one is seised in the right of his wife) the King shall haue the issues during the hus∣bands life.

Prerogatiue.

The King, both (f) here, and whereso∣euer (g) the offendor was dispunishable of wast (as if hee were seised of land in the

right of his wife) is vtterly to wast the in∣heritance, by rooting vp the houses & trees, plowing vp the meadowes, digging vp the land, &c. And this is in detestation of the offence.

Statutes.

Magn. Charta, cap. 22. The King shal haue the land by a yeare and a day, & then render it to the Lord of the fee.

Prerogatiue, cap. 15. giueth the king the profits by a yeare and a day, and moreouer the wasting of it.

CHAP. 17.

Of Stealth.

FElonie is a bare Felonie, or pettie treason.

Bare Felonie is a Felonie of the lowest nature, and is punishable by hanging.

This is simple, or mixt.

Simple, as stealth, and man-slaughter.

Stealth is the wrongfull taking of goods without pretence of title. And there∣fore altereth not the propertie, as a trespasse doth, so as vpon an appeale the partie shall re-haue them.

Statutes.

21. H. 8. cap. 7. (made perpetuall, 5. Eliz. cap. 18.) The seruant that hath any goods or chattels deliuered him to keepe by his master, and (with an intent to steale) doth either goe away therewith, or being in ser∣uice, imbezle, or conuert the same to his owne vse, shall be iudged a theefe, if the va∣lue of the goods amount to xl. s.

This extendeth not to Apprentices, or any person within eight yeares of age.

Inne-kéepers must answere for goods of their guests stollen: though they let them haue a chamber with a key vnto it, to keepe their goods in. But if the guest suf∣fer with his good will a stranger (whom he knoweth not) to lodge with him in the chamber, and the stranger rob him, the In∣keeper shall not be charged. Otherwise it is, if he be lodged there by the Inne-keeper.

Prerogatiue.

Goods confisked; that is to say, which the théefe, attainted for stealing another thing, for if it bee for stealing the same goods they are said to bee forfeit, and not confisked, disclaimeth to haue any proper∣tie, in and waifes; that is to say, which a theefe (but not one that committeth a tres∣passe) waiueth; are the Kings, if he (whe∣ther any officer of his, or the Lord of the

Franchise, seise them before the partie from whom they were stollen. But if the party from whom they were stollen seise them first, (though it bee not in xx yeares after they be stollen) or doing his diligence to apprehend the theefe, which is called fresh suite; whither the theefe bee taken at his suite or not, conuict him afterwards vpon an Appeale; he shal haue his goods again.

Statutes.

21. H. 8. cap. 11. The partie shal haue re∣stitution of his goods without fresh suite, if he or any for him giue in euidence, by rea∣son whereof the other is attainted.

The stealing of goods which exceed not the value of xii. b (called pettie Larcenie) is a felonie (for a man may iustifie the cal∣ling of one theefe for such an offence) that doth onely forfeit his Chattels.

CHAP. 18.

Of Man-slaughter.

MAn-slaughter is the killing of any person (a) borne into the world, though he be not baptised. But (b) to kill an infant in ven∣ter sa meere, is no felonie.

Statutes,

21. E. 1. Stat. de male fac⃛ in parcis: It is no Felonie for Forresters to kill misdo∣ers, if they will not submit themselues.

But if one liue a yeare after an act com∣mitted, which was the cause of his death, as beating, (c) poyson (d) giuen him, &c. it is no felonie in him that did the Act: but this death shall bee accounted a naturall death.

The killing of one by (e) chance (which we call by misfortune, or misaduenture) in the doing a lawfull act. But not if A. B. be fighting and C. comming between to part them, bee slaine by either of them both without any ill entent, for that is felony at the least if not murder, in him that kil∣leth C. because the thing which they were doing was vnlawfull, or in his owne de∣fence, which we call Se defendendo, flying as farre as he may to saue his life, for o∣therwise it is felonie, though the other pur∣sue him, doth onely forfeit his chattels, and he must haue a charter of pardon.

Statutes.

Gloucest. cap. 9. Hee that killeth a man by misaduenture, or se defendendo, must put himselfe vpon the countrey, and if he bee found to haue done it so, the King if he please may pardon him.

Marlb. cap. 25. To kill a man by mis∣aduenture shall be no murder.

But the killing of one that attempteth to robbe him (whether (e) vpon the High∣way, or (f) when men come to his house, & compasse it about to burne it (though they do not burn it) whereupon he issueth out & killeth one of them, is neither felonie, nor causeth any forfeiture at all.

Prerogatiue.

Any vnreasonable thing killing a man: As the wheele of a mill, when one falleth from the bridge into the water, and is carri∣ed by the violence of it vnder the outward wheele; the taske of Corne that a man fal∣leth from, and so receiueth his death: it, and euery thing mouing with, it is forfeit to the King. As if a man beeing vpon a Cart carrying Faggots, and binding them toge∣ther, fall downe by the mouing of one of the horses in the cart, and die of it: both that and all the other horses in the cart, and the cart it selfe, are forfeit. And these are called Deodands.

CHAP. 19.

Of Chance-Medlie.

Manslaughter is Chance-medlie, or murder.

Chance-medly is man-slaugh∣ter without former malice. As if certaine set vpon one to kill him, and I. S. hauing no malice against him, & being in the companie, and seeing them combating, take part suddenly, and toge∣ther with the rest smite him that he die, this is Chance-medlie in I. S.

CHAP. 20.

Of Murder.

MVrder is Man-slaughter vpon former mallice: which wee call prepensed malice. As if one to kil his Wife, giue her (lying sicke) poyson in a rosted apple: and she eating a little of it, giue the rest to a little child of theirs, which the husband least he should be suspected, suffereth the child to eate, who dieth of the same poyson; this is murder though the wife recouer: for the poyson ministred vpon malice prepenced, to one (which by a contingencie procureth

the death of another, whom he meant not to kill, nor bare any malice to) shall bee as great an offence, as if it had taken the ef∣fect which he meant, proceeding from a naughtie and malicious intent.

Felonie de se, That is, he that murdereth himselfe, doth onely forfeite his Chattels, But not his lands; neither doth it worke corruption of bloud, nor looseth the wiues dower, because it is no attainder indeede: But his Chattels he dotb forfeit, reall and personall goods, debts, &c. And this forfeit shall haue relation to the time of the act in his life, which was the cause of his death. So as husband and wife beeing possessed joyntly of a terme for yeares of land, and the husband drowning himself, the term is forfeite to the King; and the wife suruiuing shal not haue it: for the Kings title is from the casting of himselfe into the water, which was before the wife had any title by suruiuor. And this forfeiture is as strong to giue away the term as an expresse grant, which the husband might haue done and barred his wife.

CHAP. 21.

Of Robberie.

MIxt, is that kind of bare Felonie which riseth from the former.

Whereof there bee two sorts, Robberie, and Burglarie.

Robberie, is stealth from ones person by assault in the high-way. But if either nothing (a) bee taken, though hee command him to deliuer his purse or mo∣ney, or money taken, but (b) without put∣ting the person in feare by assault and vio∣lence (as where one is indited Quod vi & armis, apud B. in via regia ibidem xl. s. de pecu∣nijs numeratis, &c. felonice cepit de persona I. S.) it is no Robberie. And therefore in this latter case he may haue his Clergie at this day.

CHAP. 22.

Of Burglarie.

BVrglary is the night-breaking of an house, with an (a) intent to steale or kill; though none be killed, nor any thing stollen. And so it is of a (b) sta∣ble, parcell of a house, but (c) not of breaking ones Close to kil him, nor ones house, if it be but to beate him, nor though it be to kil him, if it be in the day time.

CHAP. 23.

Of pettie Treason, properly so called.

ANd of bare Felonies so much shall suffice. Pettie Treason is a Fe∣lonie, (e) For where one is arraig∣ned for falsifying the Kings seale, (which is a pettie Treason) a Char∣ter of pardon of all Felonies is a good plea. of higher nature than bare Felonie is; the punishment whereof is burning.

This is against mortall creatures, or a∣gainst God.

Against mortall creatures, as Petty-treason (properly so called) and Sodomi∣trie. Pettie treason (properly so called) is the killing of any to whom priuate obedi∣ence is due: as ones master, mistresse, hus∣band, &c. for which in stead of burning, (which the woman here shall bee) a man shall be hanged and drawne.

CHAP. 24.

Of Sodomitrie.

SOdomitrie is a carnall copulation against nature, to wit, of man or womā in the same Sexe, or of either of them with beasts.

CHAP. 25.

Of Heresie.

AGainst God, is that which imme∣diately is bent against his Maie∣stie, as Heresie, and Sorcerie. He∣resie is a presumptuous oppugning of an Article of Faith: whereof what it is, the Common-Law taketh no notice. But in case of Heresie, the partie before hee can be burnt, must be conuict in a Prouinciall Sinode; and after abiuration, make a re∣lapse into the same or some other Heresie.

CHAP. 26.

Of Sorcerie.

SOrcerie is a consulting with Diuels, and containeth vnder it, Coniuring, Nigromancie, and such like.

CHAP. 27.

Of Pettie Treason, growing by Prerogatiue.

HEre diuers offences are ac∣counted felonie, in respect of the Kings Prerogatiue, As to coun∣terfeit the Kings coyne, great seale, or Priuie Seale; to acknowledge any forrein person to haue any power with∣in the Realme. As (d) by pleading an Ex∣communication vnder the Popes Bull. and are punishable as Pettie Treason.

CHAP. 28.

Of High Treason.

HIgh Treason followeth, which is an offence of the Crowne, directly against the State. As in compas∣sing the death of the King: For entending his death (without more) is Treason; otherwise it is in felo∣ny, except an act be done, or the Queene his wife, or of his sonne and heire, by leuy∣ing warre within the Realme, or adhering to his enemies: or them comforting, ay∣ding, &c. and is punishable by drawing, hanging and quartering, in a man, draw∣ing and hanging in a woman.

Statutes.

25. E. 3. de prodicionibus cap. 2. It is made high treason to kill the Chancellor, Treasurer, or Iustice of either Bench.

Iustices of Eire, or of Assises, or any o∣ther Iustices assigned to heare and deter∣mine in their place, doing their office.

To counterfeit the kings mony.

To bring false coine into this Realme, counterfeit according to the mony of Eng∣land (knowing the same mony to be false) to marchandise, or make payment with it.

To counterfeit the Kings great seale, or priuie seale.

1. Mar. cap. 6. Seale manuell, priuie Sig∣net, or priuie seale.

Strange coine currant in this Rlalme.

1. & 2. Ph. & Mar. cap. 11. To bring wit∣tingly false forreine coyne hither, to the in∣tent to vtter it within the Realme.

1. Eliz. c. 11. To clip, wash, round, or file, any mony of this Realme, or currant here: and causeth forfeiture of land for life only. But no dower shall be forfeited, nor bloud corrupted.

18 Eliz. cap. 1. To Impaire, Diminish, Falsifie, Scale, or Lighten any money by any Art, waies or meanes whatsoeuer.

1. Eliz. cap. 1. Aduisedly, maliciously, and directly, to affirme, set forth, and de∣fend the third time by expresse deed or act, or to put in vre, or to execute any thing, for the defence or setting forth of the spiritual authoritie or iurisdiction of any forraine person, heretofore claimed or vsed in any of the Queenes dominions.

So for any person compellable to take the Oath.

To refuse (after lawfull tender) the Oath to acknowledge the Queene supreame go∣uernor in all causes within her dominions.

13. Eliz. cap. 1. To put in vre any bull, or instrument of absolution, or reconcilia∣tion from Rome, or to take vpon one (by

colour of any such to absolue or reconcile any person, or to publish any such Bull or instrument. To receiue such absolution, or to procure, abet, or counsell any offen∣dor to vphold him. To practise to absolue, persuade, or withdraw any person within the Queenes dominions, from their natu∣rall obedience, or (for that entent) from the Religion now established here, to the Romish religion, or to mooue them to pro∣mise obedience to the Sea of Rome, or o∣ther Estate, or willingly to bee absolued, withdrawne, or to promise such obedience.

1. Eliz. cap. 6. Maliciously, directly and aduisedly, to say or hold opinion (the second time) that the Queenes Maiestie, or her heires of her bodie, be not right Kings and Queenes of this Realme, or that any other person ought to be.

Their abbettors, procurers, counsellors, aydors, &c. To affirme by any writing, printing, deed, or Act: The first time, their abbettors, &c.

33 H. 8. cap. 20. Attainder of high trea∣son by the course of the common law, or statutes of this Realme, shall be of as great force as an attainder by Parliament. And the King shall haue the reall possession of euery thing forfeited without inquisition, or office: sauing to strangers, &c.

29. Eliz. cap. 2. No attainder of high treason (for which the party is once execu∣ted)

shall bee impeached for any error, by the heires, or any claiming vnder them.

26. H. 8. cap. 13. & 5. & 6. E. 6. cap. 11. Any offence (made treason heretofore) done out of the limits of the Realme, shall be inqui∣red here by Commission, and like processe vsed, as if it had bin don within the realme.

One resiant out of the limits of the realme, may be out-lawed for high treason.

An estate taile shall be forfeit for High∣treason.

Notes

• (a)

  38. E. 3. 31. 9. H. c. 2.
• (b)

  38. E. 3. ibid.
• (c)

  9. H. 6. ibid.
• 18. E. 3. 2. br. 355.
• 9. El. Ʋttings case.
• Sir Th. Cokains case.
• (a)

  So it hath beene adiudged
• (b)

  26. El. Crack∣nel. 5. c.
• (c)

  33. El. Cebot against Haines ad∣iudged.
• (a)

  27 El Hacks c.
• (b)

  27. El. Bartons case.
• (c)

  26. El.
• (d)

  27. El. Burc. c.
• (e)

  All th••se cases haue so beene adiud∣ged or commonly re∣ceiued for Law. 13 H 7 per 11. El Dy. 285. 30. H 8. Br. Act. sur case 104.
• (g) 7. El. Dy. 236.
• (f)

  31 El Nowels case
• (h)

  It hath beene oftentimes adiudged, that in such cases the conuersion is tra∣uersible.
• (i)

  7. H 6. 5. & 17. El. in Mans••rs c. no action of debt lieth vpon it (at the Common Law) but an actiō of trespasse vpon the case.
• (k)

  48. E. 3. 6.
• F. N. B. 93. H.
• F N. B. 184. a F. N. B. 184. d.
• (a)

  33. H 6. 26.
• (b)

  42. Ass pl. 5.
• F. N B. in his writ of Deceite.
• (a)

  5. 7. 41.
• (b)

  11. E. 4. 6.
• (a)

  So are all th•• precedents.
• (b)

  11. H. 4 45.
• (c)

  22. Ass pl. 32.
• (d)

  7 H▪ 6. 36. 40. E. 3 20.
• (f)

  10 E 4 Br. amerciament 46.
• Lit 152.
• 11. E. 4. 1.
• 21. E. 3. 26.
• Old Nat. Br. 135.
• 5 H. 7. 6.
• Lit. 62.
• Lit. 52:
• 99. E. 3. 15.
• Stat. 37. H. 8. ca. 8. reciteth the Commō law to be so.
• (a)

  11. H. 7. 22.
• (b)

  1. Mar. Pl. 142
• Park 4.
• 21. H. 7. 39.
• 15. H. 7. 13.
• F. N. B. 220. f. 1. H. 6. 1.
• 1. H. 7. 19.
• Stamf. prer. 74.
• 8 H. 4 16. {per} Stāf. prer. 57.
• (a) 18. E. 4. 28.
• (b) 7. E. 4. 24.
• (c) 40. E. 3 40.
• (d)

  22. ass. pl 60.
• Booke of Entries fol. 552.
• (a)

  22. ass. pl. 85.
• (b)

  43. E. 3. 20.
• (c)

  22. E. 4. 45.
• (d)

  43. E. 3. 33.
• 9. E. 4. 28.
• (b)

  8. H. 4. 31. Corone 458.
• (c)

  Brit. & Bract. {per} Stamf. 38. b.
• (a) 28. E 3. 94.
• (d)

  9. E. 4. 26.
• (e) Brit. per Stamf. 24.
• (a)

  38. H. 39.
• (b)

  24. E. 3. 3.
• 36. H. 6. 27.
• (d)

  41. E. 3. Coron. 280.
• (e) 19. E. 3. Iudge∣ment 174.
• (a)

  Stamf. 186 b. & 190
• (b)

  22. ass. pl 4 in high Treason.
• (c)

  29. Ass pl. 63.
• (d)

  6. H. 7. 9.
• (e)

  29 ass ibid.
• (f)

  50 ass pl. 5.
• (g)

  29. Ass pl ibid.
• (h)

  29. Ass. ibid.
• (i)

  chap. 16.
• (k)

  30. H. 65.
• (l)

  5. Mar.
• (m)

  8. E. 4. 4.
• (n)

  8. E. 4. ibid.
• 7. H. 4. 47. Br forf. de terr. 10.
• (o)

  5. H. 4. forf. 32.
• (p)

  3 E. 3 corone 347.
• (q)

  22. ass pl. 8. ••.
• (r)

  22. ass. ibid.
• 37. H. 8. Br. d••n. 42 22. H. 6. 38.
• (a)

  32. H. 8. Dy. 48
• (b) 22 H 6 ibid.
• (c)

  32 H 8 Dy. ib.
• (d)

  Lit. 169
• (e)

  3 & 4 Ph. & Mar. Dy. 140.
• 3. E. 3 corone 209. 3. E. 3. corone 289. 5. H. 4. forf 32.
• (f)

  12. E. 3. corone 377. 14. E. 2. {per} 19. El. Dy. 355.
• (g)

  8. E. 3 cor. 427.
• (b) 26 ass pl. 47.
• (i)

  Stamf. 35. h.
• (k) 9. H 4. 1.
• (l) Stamf. 22. i.
• (b)

  27. E. 3. Es∣cheate 17.
• (c)

  22. ass. pl. 49.
• (d)

  Stamf. 198. a.
• (e)

  Stamf. 190. ••.
• (f)

  Stamf. 190. a.
• (g)

  Stamf. 190. ••.
• Stamf. 182.
• 4. H. 7. 5.
• 22. H. 6. 21.
• (a) 3. E. 3 corone 371.
• (b) 3. 3. 3. coron. 355
• (c) 12. E. 45.
• (d) 21. E. 4. 16.
• 21. E. 4. ibid. 7. H. 4 43.
• 27. H. 8. 22.
• (a)

  Stamf. 21. c.
• (b)

  Stamf ibid. •• ass. pl. 2.
• (c)

  3. E. 3. Corone 303.
• (d)

  Stamf. 21. d.
• (e)

  2. H. 4. 18.
• (f) Stamf. 16. c.
• (g) 4. H. 7. 2.
• (h) 43 ass pl. 31.
• (e)

  26. ass pl. 32.
• (f)

  26. ass pl. 23.
• (a) 8. E. 2. Corone 389.
• (b) 3 E. 3 coron. 140.
• (c) 8. E. 2. cor. 397
• 1. Mar. Pl. 100.
• 18. El. Pl. 474.
• 3. El. Pl. 258.
• (a)

  9. E. 4 2••.
• (b)

  5. El. Dy. 224.
• (a)

  1. E. 6 Br. Co∣rone 179.
• (b)

  1. E. 6. ibid.
• (c)

  13. H. 4. 7.
• (d) Stamf. 30. b.
• (e)

  1. E. 3. 24.
• (f) 1. R 2 4. F. N. B. 269. b.
• (a) 22. ass pl. 49. 21. E. 3. 17. Corone 477.
• (b) 12. ass pl. 30. 19. H. 6. 14. his ma∣sters wife.
• (c) 1. R. 3. 4.
• (d) 12 ass pl. 30. 1. R. 3. 4▪
• (e) 21. E. 3. ibid. 19. H. 6. ibid.
• F. N. B 269. b. they shall be burnt, and that by the com∣mon Law.
• (f) Lect. Frowick. No Sanctuarie lieth in case of Heresie, for it is treason a∣gainst God.
• (g) F. N B. 269. b. Sorcerers, Sorceres∣ses, and Heretiques shall be burnt, and that by the Com∣mon Law F. N. B. 269 b.
• F. N. B. 269. b. 45. E. 3. 17.
• (a) 26. ass pl 63.
• (b) 3. H. 7. 10.
• (c) 1. E. 3. 24.
• (d)

  30. ass pl. 19.
• (e) 25. E. 3. cap. 2. maketh a declarati∣on of all these to bee high Treason.
• (f) 13. H. 8. 12.
• 1. H. 7. 24. Stamf. 182. c.