The reports of that reverend and learned judge, Sir Richard Hutton Knight sometimes one of the judges of the common pleas : containing many choice cases, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

Mich. 3 Car.

MEmorand. That the fifth of November, at Serjeants Inne in Fleet-street, there assembled the Lord Hide, Lord Richardson, Lord Walter, Iustice Doderidge, Baron Denham, Iustice Hutton, Iustice Jones, Iustice Whitlock, Iustice Harvey, Iustice Crook, Iustice Yel∣verton, and Baron Trevor, to consider of a Case which was propoun∣ded, which was;

One receives Presse-money to serve the King in his Wars, and is in the Kings Wages, and with others is delivered to a Conductor, to be brought to the Sea-side, and with-draweth himself and runneth away without license.

The Question was, if it were Felony.

And time being given before to advise concerning it, all agreed be∣sides Yelverton and my self that it was Felony.

And the sole question is, if a Conductor be a Captain within the 7 H: 7. cap: 1. and the 3 H: 8. cap: 5. And they said, that it is not necessary that he should be such a Captain as is to lead and command them in the War, or that hath skill to instruct; But such as hath the leading of them by agreement, between the Deputy Lievtenants, and them, and that ought to provide for the Billeting of them, and to carry them to the place of Randesvous. And one part of a Captain is to conduct, al∣though that Conduxit be properly to hire a Souldier, yet this name Conductor, with whom it is so agreed by Indenture to conduct the Soul∣diers, is a Captain, within the intent of those Statutes; and if it should not be so, these Statutes (which are for the defence of the Realm) shall be of little force.

But it was agreed by them, that if these Conductors (which are so called of late times) be hired to carry them but to one place, and there another Conductor to receive them, this is not within the Statute; And it ought to be such a Conductor that can give license upon just cause to proceed. It was said, that they used to send Captains into the Country, but then they were so chargable to the Country, and full of disorder, that upon complaint of the Iustices of Peace, about 43 Eliz. this course was invented, viz. That the Deputy Lievtenants should provide for them that were pressed, for Coats and Conduct, and they sent their Souldiers to a place appointed to be delivered to certain per∣sons, whom the Queen appointed, to receive them. And it was said, that though this Case as it is propounded might be cleer, yet there are many Circumstances which ought to be proved, and that are loft to the discretion of them before that he should be tryed.

It was unanimously agreed, that if one takes Presse-money, and when he should be delivered over, he withdraw himself, that is not Fe∣lony, although he is hired and retained to serve.

But my Brother Yelverton & I were of opinion, that this new name newly invented, is not Captain within these penall Statutes, which ought to be taken strictly, vide Plowden 86. that penalties which con∣cern life shall not be taken by equity, but if they be within the words of the Statute, then they shall: As to kill his Mistresse, is within the words, for Mistresse is Master.

Another reason was, that the Statutes provide punishment for Cap∣tains which want of their number, or which pay not their Souldiers

within six daies after they have received their pay, upon pain of forfei∣ting all their Goods: And the Statute did not intend other Captains in this point, then was in the former and latter part therof.

But admitting that a Conductor is such a one to whom the Souldiers are delivered by Indenture with all Covenants usuall, viz. To pay to them their Wages, and to convey them to their appointed place, and that he may give license to depart; yet they agreed, that it is the bet∣ter and clearer way that they should be made Captains, and so named in the Indentures, for the King may change the Captain at his plea∣sure, and then it should be no question.

It was agreed, that 7 H: 7. cap: 1. extends only to them who are re∣tained and pressed to serve the King upon the Sea, or upon the Land beyond the Sea; And the Statute of 3 H: 8. cap: 5. adds only the Land here: And the Statute makes departure without license from the Captain Felony, and the Statute 3 H: 8. without license from the Lievtenant: And the Statute of 7 H: 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire, as they may try other Felonies within their Commission: The Statute of 3 H: 8. makes their tryall before the Iustices of the County, where they are taken; and this being a new Felony and made tryable against the Common Law (which appoint tryals by Iurors of the County where the Fact is committed) and appoint a speciall Iudge, viz. Iusti∣ces of Peace, that is only tryable before them, and not before Com∣missioners of Oyer and Terminer, who cannot try any thing, but that which is done in the same County: But this, if all be not done in that County where they are taken, makes it tryable only before the Iusti∣ces of Peace of the County where they are taken.

In this point all were not resolved, but required longer-time, vide 2 Inst 56.

Notes

• Resolves con∣cerning Soul∣diers.