Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

THE THIRD BOOK OF LAW. (Book 3)

CHAP. I. Of a wrong without force.

FOR of possessions (the first and hardest part of Law) we have hi∣therto spoken sufficiently. The o∣ther resteth, which ministreth Iu∣stice 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 offender is to be amerced, or to pay a petite summ of money to the King. And(a) 1.1 if he be a Lord of the Parliament (whom we call a Peer of the Realm) then a C.s. As if(b) 1.2 ones writ abate, or if in(c) 1.3 an Action of Tres∣pass

against two, for hunting and taking two Deer, one Defendant be found not guilty, the other guilty of taking only one Deer; here the Plaintiff (if he be a Peer of the Realm) shall be amerced CC. s. one C.s. against him that was found not guilty at all: the other hundred shillings against him that was acquitted of one of the Deer.

The Kings wife shall never be amer∣ced.* 1.4 And therefore a writ brought by her is good enough, though this clause, Si fecerit te securum, be left out, for she shall not be amerced for her non suit.

CHAP. II. Of Trespasses upon the Case.

OFfences without force are trespasses upon the Case, or Real wrongs.

Trespass upon the case is such an of∣fence, whereby any thing is endamaged. And is a misuser or deceit.

Misuser, when by meer wrong it is endamaged. Of which kind there be many, and those of divers sorts. As if a man ma∣liciously utter any false slander to the in∣dangering of one in Law. As to say, he hath reported that money is fallen, for he shall be punished for such a report, if it be false.* 1.5 The touching of him with some hai∣nous

crime,* 1.6 as that he hath gone about to get poison to kill the child that such a woman goeth with (yet it is no felony;) lien(a) 1.7 in wait to rob him; procured(b) 1.8 ano∣ther or agreed(c) 1.9 with another to murder him (though he were not murthered in Deed)(a) 1.10 sought his life for his land, &c. or the impairing his trade of life; as to call a merchant(b) 1.11 bankrupt (for it is his living, but so it is not of a Gentleman;) an At∣torney(c) 1.12 Ambodexter, or to say that he dealeth(d) 1.13 corruptly. But in all such cases words of choler and heat, as to call one Cosener(e) 1.14 and Crafty knave, com∣mon extortioner, and drunkard, witch, rogue, Pillory-knave, Villain (unless he say villain to such a man, or regardant to such a mannor;) words uttered in a suit of law, as to bring a Writ of forger of false deeds against a nobleman, or any other (though it be false) will bear no Action; for these are not malici∣ously. So if he be able to justifie the words, for then it is not falsly. As that he called him perjured, by reason of a perjury com∣mitted in the star-chamber, murderer, thief, or such like, upon a conjunction(f) 1.15; but not upon an Enditement or common voice and fame, though the defendant himself suspect him:(g) 1.16 If one having another mans goods(h) 1.17 convert them to his own use: if a(i) 1.18 Sheriff suffer one

in execution for debt to go at large: if a Smith(k) 1.19 cloy my horse: but not if he take him to cure (without warranting of him) and doing all he can, yet the horse impair. If being committed to the Goal, the Goaler of malice put upon me so many Irons, or otherwise use me so hardly that I become lame thereby, &c.

Statutes.

West. 1. cap. 33. He that publisheth any false news and tales, whereby discord or occasion of discord and stander may grow between the King and his people, or the Nobles, shall be kept in prison until he hath brought him forth into the court, that did speak the same.

2 R. 2 c. 11. The like for him that telleth false lies of Nobles and great Officers of the Realm, whereby discord may arise be∣tween the said Lords and Commons.

12 R. 2. c. 11. In the case of these for∣mer Statutes, if the party cannot bring forth him that spake the same, he shall be punished by the advice of the Councel.

But two above the rest do here require more special consideration; that is to say, disturbance and nusance.

Disturbance is the hindering of that which in right belongeth un∣to one to do. As for a man to use his common, to reduce a Water-course that is

misturned, to present unto a Church, &c.

* 1.20Nusance is annoyance done to ones he∣reditament. As levying a fair or market to the Nusance of anotherr Fair, or Mark∣et; building a house so near mine, that the rain which falleth from that house falleth upon mine, &c.

All manner of nusances are to be remo∣ved, and common nusances. As a wall(a) 1.21 &c. built upon the Highway, trees(b) 1.22 growing upon the river bank, whereby a water-course is stopped, any man may pull down.

* 1.23Deceit When the dammage groweth by an undue sleight. As if a man purchase a writ in my name out of the Chancery, I not knowing of it, whereby I am to pay a fine; or if one (whom I make my Attorney in a plea of land against finee) make default, whereby the land is lost: Or if in a Praecipe against divers Tenant••, a man purchaseth a protection for one of them, supposing him to be beyond sea in the Kings service, where indeed he is & al∣ways hath been in England, by means whereof the demandant is delayed: or if in a Praecipe quod reddat, the Sheriff return the Tenant summoned, where indeed he was not, whereby he loseth the land: or if in play one win anothers money with false dice, or if he that selleth any thing do up∣on the sale, warrant it to be thus and thus, whereby the other is de∣ceived.

So that the warranty must be par∣cel of the contract: for if it be(a) 1.24 after, (at another place) or(b) 1.25 a servant make the warranty upon the sale of his masters goods (which in law is the masters sale, and warranty of the servant) it is a void Warranty, and no action of deceit lieth upon it. Also the Warranty can reach but to things in being at the time, not to things to come: as that a horse (c) will car∣ry you xxx. miles a day: nor to things which may be discerned by my five senses to be otherwise, as clothes of murry colour to be blew, unless the buyer in this case be blind. But where they are warranted to be of such a length, and are not, there an action of deceit lieth: for that cannot be discerned by sight, but by a colateral proof, the measuring of them.

CHAP. III. Of certain offences punishable by amerce∣ment by the Kings Prerogative.

CErtain offences against the Law, are in nature of trespasses upon the case, and by the Kings prerogative pu∣nishable like to them. As suing an action without just cause, or giving just cause of an action: for(a) 1.26 in every action where the matter passeth against the Plaintiff (be it by verdict, demur, or other∣wise) the Plaintiff is to be amerced, and the Defen. in debt, detinue, covenant, replevin,

Quid juris clamat, &c.(b) 1.27 but not in Tres∣pass, for there he shall be fined and impri∣soned. Non-suit(c) 1.28 in an action(d) 1.29 fault in the original writ he bringeth: or (by the Sheriff) in the return of a Writ making(f) 1.30 default when he should appear (as the Ju∣rors at the Habeas corpora) and whatsoe∣ver other offences (not being with force and arms) which offer no direct injury to a common person.

CHAP. IV. Of discontinuance.

HItherto of Trespasses upon the case.

A real wrong is that which medleth with the Freehold otherwise than it ought, and is a discontinuance or ouster.

Discontinuance, when he that hath an estate tail, or Fee-simple in anothers right, as the husband in right of his wife. A Dean sole seised in the right of his Deanrie, Dean and Chapter, Gardein and Chaplains; as also Major, and Com∣monalty of lands in the right of their Corporation, maketh a larger estate of the land than he may. As by a Fine or Feoffment for life of the Lessee, in tail or in fee, which is called a discon∣tinuance. But the Grant of a Rent, re∣lease or confirmation to a Lessee for years in fee, make no discontinuance, for they

pass without livery, and therefore pass no greater estate than the Grantor had.

Statutes.

32 H. 8. cap. 28. All leases by deed indent∣ed for life or years, by any person of full age, having an estate in fee or in fee-tail, in his own right, or in the right of his Church, or wife, or joyntly with his wife, shall be perfectly good.

This extendeth not to Leases of land in the hands of any Farmer, by vertue of a∣ny old Lease, unless the same be expired, surrendred or ended within a year after the making of a new; nor to the grant of any reversion, or to any lease of land which hath not most commonly been lett, or occupied in farm by the space of twen∣ty years next before, nor to any Lease made without impeachment of Waste, or made for above twenty years, or three lives from the day of making. And that there be reserved yearly payable to the Lessors, their heirs and Successors, ac∣cording to their estates, the rent accusto∣mably yielded within twenty years next before: which heirs and successors shall have the like advantage against the Les∣sees, their Executors and Assigns, as the Lessor himself might. Provided the wife be made party to every lease by the hus∣band of any land of her inheritance. The lease to be made by Indenture in both their names, and she to seal the same, and the rent to be reserved to the husband

and wife, and her heirs, according to her estate of inheritance.

13 El. c. 10. All Grants, Feoffments, Leases, and other conveyances and estates, by any Master or Fellows of a Colledge, Dean and Chapter, Master or Gardein of an Hospital, Parson, Vicar, &c. other than for xxi. years. or three lives, from the time of such lease or grant, reserving the ac∣customable yearly rent, yearly payable, shall be void.

14 Eliz. cap. 11. The Statute 13 El. c. 10. before, shall not extend to grant as∣surance, or lease of any house in City, Borough, Town corporate, or Market Town, or within the Suburbs (the same not being their dwelling house, or having above ten acres of ground belonging to it.) Provided the lease shall not be made in reversion, and the accustomed yearly rent shall be reserved, the Lessees charged with reparations, and it shall not be above forty years. No alienation shall be of such houses, unless that presently upon such a∣lienation there be an absolute purchase in fee simple of other lands of as great value.

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

and covenants for renewing or making of any lease, contrary hereunto, or to 13 El. C. 10. before, shall be void.

1 El. not printed the like (as 13 El. C. 10. before) for Archbishops and Bishops, unless it be of estates made to the King, his heirs and Successors.

32 H. 8. c. 28. No fine, feoffment, or other act by the husband only, of any land being the inheritance or freehold of the wife, shall be a discontinuance or prejudi∣cial to the wife, or such as have interest af∣ter her death: leases within the compass of this Statute only except.

Warranty of an estate of inheritance or for life, descending upon him that ought to have such estate, maketh a discontinu∣ance. As if tenant in tail of an advowson in gross, suffer an usurpation by 6 months, the release of a collateral ancestor with a warranty is a discontinuance, for he hath fee by the usurpation.

So it seemeth of a collateral ancestors release, with warranty to the Grantee in fee of a rent or advowson in gross by Tenant in tail. But if tenant in tail of a rent or ad∣vowson in gross grant it in fee with war∣ranty, this is no discontinuance, but at the pleasure of the issue.

Discontinuance taketh away the entry of those that come to have title after his death. If he (whose en••ry is barred by a descent or dis∣continuance)

have the Freehold cast upon him by a new title, he shall be in of his ancient title: which is termed a remitter. As if the heir of the disseisor (in by des∣cent) make a lease for life to I.S. the re∣mainder for life or in fee to the disseisee,* 1.31 if tenant in tail discontinue,* 1.32 and then disseise the discontinue, and die seised, whereby the lands descend to his issue; if the husband make a feoffment in fee of land in the right of his wife,* 1.33 and take back an estate in fee to him and his wife. In these cases the disseisee after the death of I. S. the issue in tail, and the wife surviving, her husband is remitted: but if the husband survive, her heir 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 tail before, though the helr of the discontinue were within age at the time of the descent to the issue in tail, yet his entry is gone for ever, by reason the Issue is remitted.

CHAP. V. Of Intrusion, Abatement, Dis∣seisin and usurpation.

OVster is, when the Freeholder is ousted, or put out. And therefore it gaineth a Freehold unto the party,

This ouster is of a Freeholder in Deed or in Law. Of the first sort are Intrusion or Abatement.

Intrusion,* 1.34 which ia after the death of Tenant for life, be it a mans own life or another mans, Tenant in Dower, or by courtesie, &c.

Abatement, which is after the death of one that hath the inheritance,* 1.35 whether the land dsecend unto his heir, or he die without heir.

Of the second sort are disseisin and u∣surpation.

Disseisin is the ousting of him that hath a Freehold in Deed:* 1.36 which of a rent or other profit is by the disturbing of him in the means of coming to it. As in every rent, whether Rent-service. Rent-charge, or Rent-seck, Encloser and Forestaller.* 1.37

Encloser is, when the Tenant enclo∣seth the Land so as he cannot come to distrein, or to demand it, But if it be

a Park or such like, that hath of ancient time been enclosed, so as it is not done of purpose to keep him from his rent,* 1.38 that is no disseisin.

Forestaller is, when the Tenant beset∣teth the way with force and Arms upon his coming. Of which nature also is the menacing of him that for doubt of some bodily hurt, death or loss of member he dare not come.

In a Rent-service and rent-charge, Rescous and Replevin.

Rescous, when either the party having distrained, the distress is rescued, or be∣ing upon the land to distrain, cannot be suffered.

Replevin is, when an action of reple∣vin is brought upon a distress taken.

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

Denier is, when the Rent (being de∣manded upon the land) is not paid.

Vsurpation is, when the Church be∣cometh full by the presentment of a wrong Patron: which is done by the institution of the party presented.

Prerogative.

But against the King Induction on∣ly d••th it. Therefore at the Com∣mon

Law, in a Quare impedit, Plenarty day of the Writ purchased, is a good plea, though it be by institution only. And the Plenarty by six Months (which barreth the right Patron of his quare impedit, by the Statute Westm. 2. c. 5.) is accounted from that time between common persons. So is it for the King when he presenteth. And in these cases the Ordinary may certifie a plenarty without making mention of any induction, but of admission, and institution only. But against the King plenarty is accounted from the time of in∣duction, and not before. And if a Patron that holdeth of the King, present, and die after admission and institution of his Clark, and before induction; the King shall pre∣sent a new. Otherwise it is in the case of a common person. But plenarty is no plea in a quare impedit, against a person imper∣sonee (that is, a fpiritual body politick, which being Patron, hath the Church ap∣propriated in succession (viz) to hold to their proper use, without presentation, in∣stitution, or induction of any Incumbent) for his plea must be, That the Church is full of his presentment, which a person impersonee cannot say.

Statutes.

Westm. 2. c. 5. Usurpation upon Gar∣deins, tenants in Dower, or upon femes co∣vert, or houses of religion in time of vaca∣tion, shall not put the heirs femes, or houses of Religion out of possession. But

faint recoveries shall not be avoided in such eases by way of Plea.

Plenarty is no plea in a quare impedit or darrein presentment, if the Writ be pur∣chased within vi. moneths.

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

CHAP. VI. Of Trespasses in Goods.

SVch is the nature of an Offence without force.

An offence with force is a trespass, or offence against the Crown.* 1.39 For in all Inditements and Inquisitions, of trea∣son, murder, felony, trespass, &c. vi & armis must be in, else it is not good.

Trespass is a criminal offence punish∣able by a fine unto the King. So is eve∣ry contempt punishable: and for this reason no action of Trespass lieth for the Lesse for years, against the Lessor, (though he distrein without cause) for that the Statute of Marlebridge, c. 4. is, That he shall not be punished by fine and ransom; which, if he be attained in this action, he must need•• be, and for this the party must be imprisoned till he do compound. Therefore after tender af his fine, the King cannot justly detain him in prison:

Trespasses touch possessions or the person. Possessions, when the wrong is done in them, namely in goods or land.

Trespass in goods is the wrongful ta∣king of them with pretence of title. And therefore altereth the property of those goods. So as one cannot declare in an Acti∣on of trespass, that the defendant took his horse at S. and carried him to D. and there killed him against the peace, &c. For by wrongful taking, the property being di∣vested out of the plaintiff, and vested in the defendant, consequently it follow∣eth, that he cannot kill his own horse a∣gainst the peace.

CHAP. VII. Of Trespass in Land.

TRespass in land is, when the trespass is done upon an actual possession thereof. For of a trespass done(a) 1.40 after the death of the Ancestor, and before the heirs entry, after(b) 1.41 breach of the Condition, and before entry for it: where a lease for years is made, reserving a rent, upon condition to be voyd if the rent be not payd: or after Michaelmas, & before the Lessees entry, where a lease for years is made to begin at that day: no action lieth for the heir in the first case, for the lessor in the second, nor for the les∣see in the third;* 1.42 because they were not

seised of the Land at the time of the trespass done; yet the lessor in the second case might have made a new lease before his entry; for the first Lease was meerly void. and the Lessee in the last case might be∣fore Michaelmas grant away his term.

* 1.43Where beasts or any other chattels, shocks of Corn, or whatsoever else, whe∣ther Conisance may be of them to bring a replevin, or not: that so the trespass may be distrained by him that hath dammage by it.* 1.44 As one that hath Common out of land, though he have nothing in the land it self, so as he can have no action of tres∣pass against the owner of the beasts, for their entry into the land, nor the grass wasted, &c. yet he may distrain them dammage feasant, because of the dammage he sustaineth. But so cannot Cesti qui use: for he hath nothing at all to do in the land, save that there is a confidence between the feoffees and him: but the feoffees may punish him by the Common Law, if he oc∣cupy the land, for he is but a meer stran∣ger. And if a stranger of his own head drive out beasts that are dammage feasant, rhe owner of the beasts shall punish him, for he is endammaged by this driving out, and the other hath no loss.

* 1.45Hither belongeth ejectment, when a termer for years of land is ousted: Whether by the Lessee or a stranger, but not a Termer for years of beasts or other Chat∣tels.

Prerogative.

Here (viz.) of land, which is a thing permanent: for things transitory and re∣moveable the King may be put out of his possession, & have his action according,* 1.46 as ravishment of gard, quare impedit, &c. But of things permanent he cannot have an Action, as a Praecipe quod reddat, ejectment of ward, &c. because of such things he can∣not be put out of possession:* 1.47 the King having possession by matter of Record, or other good title, none can put him out. But if having no title by matter of Re∣cord, or otherwise, he enter upon me,* 1.48 and put me out, there if I enter again, my entry is lawful, and no intrusion. So if the King seise upon an office, finding that his tenant died seised but of an estate for life, the reversion to another; he in the rever∣sion may enter, and make a feoffment: for the King seiseth by colour of a Record, which record giveth him no title indeed.

CHAP. VIII. Of Menaces.

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

Pretence of violence, as Menaces and Assaults.

Menaces are threatning words

of beating one,(a) 1.49 or such like, through fear whereof ones business is foreslowed.(b) 1.50 For a menace only (without other loss) ma∣keth not the trespass, but both of them to∣gether.

CHAP. IX. Of Assault.

(c) 1.51ASsault is an unlawful setting upon ones person. As offering to beat one though he do not beat one indeed, striking(d) 1.52 at one with an Hatchet, or such like, though he do not touch him. Whither belongeth lying in wait, besetting his mansion house,* 1.53 and not suffering his servants to go in and out, &c.

CHAP. X. Of false Imprisonment.

VIolence in deed, is false imprison∣ment or bodily hurt.

False imprisonment is an unlawful re∣straint of liberty. As(a) 1.54 arresting one against his will, though it be in the High∣street, and he never put in prison in any house; detaining of a woman(b) 1.55 against her will, whom he hath ravished. so if a(c) 1.56 master imprison one with∣out cause, and deliver the key of the door

to a servant that hath notice of his wrong∣ful imprisonment of him, if the servant de∣liver him not, he shall be punished in an action of false imprisonment. But if the imprisonment be upon a false and feigned suit, as in suing(d) 1.57 execution upon a Sta∣tute merchant, when the money is paid; yet no action of false imprisonment lieth, for he is imprisoned by course of Law.

CHAP. XI. Of Battery.

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

Outward violences only, are Bat∣tery and Maim.

Battery is the wrongful beating of one. But if a man will take away my goods,* 1.58 I may lay my hands upon him, and disturb him, and (if he will not leave) I may beat him, rather than he shall carry them away; for that is no wrongful bearing.

CHAP. XII. Of Maim.

MAim is the wrongful spoyling of a member defensive in sight.(a) 1.59 As cut∣ting off ones finger, knocking(b) 1.60 out ones fore-tooth(c) 1.61, putting out his eye, &c. Otherwise it is of knocking out his grind∣ing teeth, cutting off ones ear, nose, &c. for these are but deformities.

CHAP. XIII. Of Rape.

THese are outward violences only: Rape is the carnal abusing of a(d) 1.62 woman against her will. But if the wo∣man conceive upon any carnal abusing of her, that is no rape, for she cannot con∣ceive unless she consent.

Statutes.

6 R. 2. c. 6. If the woman after rape con∣sent, as well she as the ravisher be disabled to have any heritage, dower, or Joynt fe∣offment after the death of their husbands and Ancestors, and the next of blood shall

have litfe to enter incontinently.

CHAP. XIV. Of Contempts.

CErtain offences against the King are in the nature of trespasses, and are termed contempts: as(a) 1.63 making rescous upon his Writ served(b) 1.64, going armed in his Palace, &c. where sometime the pu∣nishment is increased according to the qua∣lity of the offence, not only in the fine,* 1.65 but further, in the loss of member, and such like. As a Juror appearing, and being chal∣lenged, if he do not appear upon demand, when he is found indifferent, shall be fined by the value of his land by a year. He that smiteth a man(d) 1.66 in Westminster Hall, or a Juror in the presence of the Justices, shall have his right hand cut off,(e) 1.67 his land and chattels forfeited, and in the latter case be committed to perpetual prison.

CHAP. XV. Of Offences against the Crown.

THus much then of Trespass: It remain∣eth to speak of Offences against the Crown, which are criminal Offences punishable by death.

Where further also all the offenders both hereditaments, as lands, rents, &c. whether for life(a) 1.68 only or of(b) 1.69 an estate of inheritance, and chat∣tels not only in possession,(c) 1.70 but such as he hath but a right to, as land,(d) 1.71 whereof he is disseised, debts,(e) 1.72 goods(f) 1.73 to be accounted for, or wrongfully(g) 1.74 taken; But(h) 1.75 not such as he is to recover, but damages for, as in battery, &c. are forfeit to the King. And that as well in Felony, as Treason, save only in Felony Land of inheritance is forfeit to the Lord, as appeareth(i) 1.76 afterwards.

Hereditaments(k) 1.77 from the time of the offence (whether the attainder be by Outlawry, verdict, or how soever else) Chattels though real,(l( 1.78 as a lease for years, &c. from(m) 1.79 the time of the at∣tainder only. So(n) 1.80 as a sale or gift be∣fore, is good, for he must live of them. And therefore after enditement, and be∣fore attainder, the goods shall not be re∣moved out of his house, but shall be in the

keeping of his neighbours. And in these and all other forfeitures, as upon an(o) 1.81 en∣ditement of fugam fecit, or(p) 1.82 if one be taken with the manner upon a robbery, or(q) 1.83 tarry the exigent, &c. The Town is chargeable with the goods, and therefore(r) 1.84 may seise them wheresoever they be.

Statutes.

31 E. 3. c. 3. No man nor town shall be charged in the Exchequer, by the extract of the Justices, of the Chattels of fugitives, or felons, if they can shew that another is chargeable.

1 R. 3. c. 3. No Sheriff, Under-Sheriff, or Escheator, Bayliff of Franchises, nor any other person take or seise the goods of any person arrested or imprisoned, be∣fore that such persons so arrested and im∣prisoned be convict, or attainted of such felony, according to the Law of England: or else the same goods otherwise lawfully forfeit, upon pain to forfeit the double va∣lue of the goods so taken, to him or them that shall be thereby indammaged, by acti∣on of debt in this behalf to be pursued.

The blood also is here corrupted.* 1.85 So as a remainder to his right heir can ne∣ver take effect. The eldest son attaint∣ed of felony in his fathers life time, and him surviving, or his issue(a) 1.86 (if he die before) cannot inherit: and besides, shall be an impediment, that the younger bro∣ther

cannot,(b) 1.87 but it shall go to the Lord by escheat. Otherwise(c) 1.88 it is, if the eldest son die without issue in his fathers life time.

Lastly, the wife loseth(d) 1.89 her dower, and notwithstanding(e) 1.90 the husband alien the same before the offence committed.

Statutes.

1 E. 6. c. 12. No dower shall be forfeit, by the husbands attainder, of any murder or felony whatsoever.

Prerogative.

* 1.91Those that flie for fear of the offence (we call it a Fugam fecit) forfeit their Chattels. Accessaries after the Fact, that is to say, witting maintainers (and(f) 1.92 if it be of one outlawed in the same County; though they have no other no∣tice of it) as by(g) 1.93 receiving one that flyeth for it into his house, and shutting the door, so as the Countrey thinking him to be there, he escape whilst no man followeth him;(h) 1.94 ayding him with money, but not with good words, as wholsom ad∣vise, speaking o•• writing for his delivery And therefore also that suffer(i) 1.95 one ar∣rested whether by themselves or any other to escape,(k) 1.96 which we call a voluntary e∣scape,(l) 1.97 are guilty of the same offence.

Prerogative.

Concealing the Offence, without dis∣covering it unto the King, or his Coun∣cel, or to some Magistrate, is called mis∣prision; and that forfeiteth (a) Chattels, and hereditaments during their life.

CHAP. XVI. Of Felony.

OFfences against the Crown be of two sorts, Felony, and High-treason. Felony is an offence of the Crown, not bent immediately against the State, where the forfeiture of the offenders(b) 1.98 inheritance is given to the Lord. (whether it be in petty(c) 1.99 trea∣son, or other Felony, and(d) 1.100 at any time after he is attainted; And therefore the Lord may have a Writ of Escheat be∣fore Execution. But(e) 1.101 of lands (where∣of one is seised in the right of his wife) the King shall have the issues during the husbands life.

Prerogative.

The King, both(f) 1.102 here, and where∣soever(g) 1.103 the offender was dispunishable of waste (as if he were seised of land in the right of his wife) is utterly to waste the inheritance, by rooting up the

houses and trees, plowing up the mea∣dows, digging up the land, &c. And this is in detestation of the offence.

Statutes.

Magn. Ch. C. 22. The King shall have the land by a year and a day, and then render it to the Lord of the fee.

Prerogative, c. 15. giveth the King the profits by a year and a day, and more∣over the wasting of it.

CHAP. XVII. Gf Stealth.

FOlony is a bare Felony, or petty treason.

* 1.104Bare Felony is a Felony of the low∣est nature, and is punishable by hanging.

This is simple or mixt.

Simple, as stealth and manslaughter. Stealth is the wrongful taking of goods without pretence of title.* 1.105 And therefore altereth not the property, as a trespass doth, so as upon an appeal the party shall re-have them.

Statutes.

21. H. 8. c. 7. (made perpetual. 5 El. c 18) The servant that hath any goods or chat∣tels delivered him to keep by his master, and (with an intent to steal) doth either, go away therewith, or being in service imbezle, or convert the same to his own use, shall be judged a thief, if the va∣lue of the goods amount to xl. s.

This extendeth not to apprentices, or any person within eight years of age.

Inne-keepers must answer for goods of their guests stollen:* 1.106 though they let them have a chamber with a key unto it, to keep their goods in. But if the guest suffer with his good will a stanger (whom he knoweth not) to lodge with him in the chamber, and the stranger rob him, the Inn-keeper shall not be charged. Other∣wise it is, if he be lodged there by the Inn-keeper.

Prerogative.

Goods confisked, that is to say,(a) 1.107 which the thief attainted for stealing ano∣ther thing,(b) 1.108 for if it be for stealing the same goods they are said to be forfeit and not confisked.(c) 1.109 disclaimeth to have any property, in and Waifes that is to say, which a thief (but not one that committeth a trespass) waiveth are the Rings, if he (whether any of∣ficer of his, or the Lord of the Franchise,(d) 1.110

seise them before the partie from whom they were stolen. But if the party from whom they were stolen seise them first (though it be not in xx. years after they be stolen) or doing his diligence to appre∣hend the thief,* 1.111 which is called fresh suit, whether the thief be taken at his suit or not, convict him afterwards, upon an ap∣peal; he shall haue his goods again.

Statutes.

2. H. 8. C, 11. The party shall have re∣stitution of his goods without fresh suit, if he or any for him give in evidence, by rea∣son whereof the other is attainted.

* 1.112The stealing of goods which exceed not the value of xiid (ealled petty Larce∣ny) is a felony (for a man may justifie the calling of one thief for such an offence) that doth only forfeit his Chattels.

CHAP. XVIII. Of Man-slaughter.

MAn-slaughter is the killing of any person(a) 1.113 born into the world, though he b•• no•• baptized. But(b) 1.114 to kill an infant in venter sa meere, is no fe∣lony.

Statutes.

21. E. 1. Stat. de malefact. in parcis: It is no Felony for Foresters to kill mis∣doers, if they will not submit themselves.

But if one live a year after an act com∣mitted which was the cause of his death, as beating,(c) 1.115 poyson(d) 1.116 given him. &c. It is no felony in him that did the Act: but this death shall be accounted a n••tu∣ral death.

The killing of one by(e) 1.117 chance (which we call by m••s••ortune, or misadven••ure) in the doing a lawful act.(f) 1.118 But not if A. B. be fighting, and C. coming between to part them, be slain by either of them both without any ill intent, for that is felony at the least, if not murder in him that killeth C. because the thing which they were doing was unlawful:(g) 1.119 or in his own defence, which we call Se d••f••ndend••,(h) 1.120 flying as far as he may to save his life; for otherwise it is felony, though the o∣ther pursue him: doth only forfeit his Chattels, and he must have a charter of pardon.

Statutes.

Glocest. c. 9. He that killeth a man by misadventure or se defendend••, mu•••• put himself upon the Countrey, and if 〈◊〉〈◊〉 be found to have done it so, the King, 〈◊〉〈◊〉 he please, may pardon him.

Marl. C. 25. To kill a man by misad∣venture shall be no murder,

But the killing of one that attempteth to rob him whether(e) 1.121 upon the high-way or if(f) 1.122 when men come to his house, and compass it about to burn it (though they do not burn it) whereupon he issueth out and killeth one of them, is neither Felo∣ny nor causeth any forfeiture at all.

Prerogative.

Any unreasonable thing killing a man. As the wheel of a mill,(a) 1.123 when one falleth from the bridge into the water, and is ca∣ried by the violence of it under the out∣ward wheel; the task of Corn that a man falleth from,(b) 1.124 and so receive his death: it, and every thing moving with it, is for∣feit to the King. As if a man being up∣on a Cart carrying Faggots,(c) 1.125 and binding them together, fall down by the mo∣ving of one of the Horses in the Cart, and die of it: both that and all the other hor∣ses in the Cart and the Cart it self, are forfeit. And these are called Deodands.

CHAP. XIX. Of Chance-Medly.

MAnslaughter is Chance-Medly or murder.

Chance-Medly is manslaughter with∣out former malice. As if certain set up∣on one to kill him, and I. S. having no malice against him,* 1.126 being in the com∣pany, and seeing them combating, take part suddenly, and together with the rest smite him that he die, this is chance med∣ly in I. S.

CHAP. XX. Of Murder.

MVrder is manslaughter upon former malice, which we call prepensed ma∣lice. As if one to kill his wife,* 1.127 give her (lying sick) poyson in a rosted apple: & she eating a little of it, give the rest to a little child of theirs, which the husband lest he should be suspected, suffereth the child to eat, who dieth of the same poyson; this is murder though the wife recover: for the poison ministred upon malice pre∣pensed, to one (which by a contingency

procureth the death of another, whom he meant not to kill, nor bare any malice to) shall be as great on offence, as if it had ta∣ken the effect which he meant, proceed∣ing from a naughty and malicious intent.

* 1.128Felony de s, that is, he that murdreth himself, doth only forfeit his Chattels, but not his lands; neither doth it work corruption of bloud, nor loseth the wives dower, because it is no attainder indeed. But his Chattels he doth forfeit, real and personal goods, debts, &c. And this forfeit shall have relation to the time of the act in his life, which was the cause of his death. So as husband and wife being possessed joyntly of a term for years of land, and the husband drowning himself, the term is forfeit to the King, and the wife surviving shall not have it: for the Kings title is from the casting of himself into the water, which was before the wife had any title by survivor.

And this forfeiture is as strong to give away the term as an express grant, which the husband might have done and barred his wife.

CAAP. XXI. Of Robbery.

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

Whereof there be two sorts, Robbery and Burglary.

Robbery is stealth from ones person by assault in the high way. But if either nothing(a) 1.129 be taken, though he com∣mand him to deliver his purse or money, or money taken, but(b) 1.130 without putting the person in fear by assault and violence (as where one is indited, Quod vi & armis apud B. in via regia ibidem xl. s. de pe cunijs numeratis, &c. felonice cepit de person•• I. S.) it is no Robbery. And therefore in this latter case he may have his Clergy at this day.

CHAP. XXII. Of Burglary.

BVrglary is the night-breaking of an house, with an(a) 1.131 intent to steal or kill; though none be killed, no•• any thing stolen. And so it is of a(b) 1.132 stable, parcel of a house, but(c) 1.133 not of break∣ing ones close to kill him, nor ones house, if it be but to beat him, nor though it be to kill him, if it be in the day time.(d) 1.134

CHAP. XXIII. Of petty Treason, properly so called.

ANd of bare Felony so much shall suffice. Petty treason is a Felony:(e) 1.135 For where one is arraigned for falsify∣ing the Kings Seal (which is a petty Treason) a charter of pardon of all Felo∣nies is a good plea,(f) 1.136 of higher nature than bare Felony is; the punishment whereof burning.(a) 1.137

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

(b) 1.138Against mortal creatures: as Petty treason (properly so called) and Sodo∣mitrie. Petty treason (properly so cal∣led) is the killing of any to whome pri∣vate obedience is due:(c) 1.139 (d) 1.140 as ones master, mistress husband, &c. for which instead of burning,(e) 1.141 (which the woman here shall be) a man shall be hanged and drawn.

CHAP. XXIV. Of Sodomitry.

SOdomitry is a carnal copulation a∣gainst nature, to wit,* 1.142 of man or wonan in the same sex, or of either of them with beasts.

CHAP. XXV. Of Heresie.

(f) 1.143AGainst God, is that which is imme∣diately is. bent against his Majesty as Heresie, and Sorcery. Heresie is a presumptuous oppugning of an Article of Faith: whereof what it is, the Common Law taketh no notice,(g) 1.144 But in case of Here∣sie, the party before he can be burnt, must be convict in a Provinciol Sinod;* 1.145 and after abjuration, make a relapse into the same or some othet Heresie.

CHAP. XXVI. Of Sorcery.

* 1.146SOrcery is a consulting with Divels, and containeth under it, Conjuring Necromancie, and such like.

CHAP. XXVII. Of Petty Treason growing by Prerogative.

(a) 1.147HEre divers offences are accounted Felony, in respect of the Kings Prerogative;(b) 1.148 as to counterfeit the Kings coyn,(c) 1.149 great Seal or privy Seal; to ac∣knowledge any foreign person to have any power within the Realm. As(d) 1.150 by pleading an excommunication under the Popes Bull; and are punishable as Pet∣ty Treason.

CHAP. XXVIII. Of High Treason,

HIgh Treason followeth, which is an offence of the Crown,(e) 1.151 directly against the State. As in compassing the death of the King: For intending his death (without more) is Treason; o∣therwise it is in felony, except an Act be done. Or the Queen his wife,(f) 1.152 or of his Son and Heir, by levying war within the Realm, or adhering to his Enemies, or them comforting, aiding,* 1.153 &c. and is punishable by drawing hanging and quartering in a man, drawing and hanging in a woman,

Statutes.

25. E. 3. de proditionibus cap. 2. It is made high treason to kill the Chancel∣lor, Treasurer, or Justice of either Bench, Justices of Eire, or of assizes, or any other Justices assigned to hear and deter∣mine in their place, doing their office.

To counterfeit the Kings money.

To bring false coyn into this Realm, counterfeit according to the money of England (knowing the same money to be false) to merchandise, or make payment with it.

To counterfeit the Kings great Seal, or Privy Seal.

1. Mar. c. 6. Seal manual, Privy Sig∣net, or Privy Seal.

Strange coyn current in this Realm.

1 & 2. Ph. & Ma. cap. 11. To bring wit∣tingly false foreign coyn hither, to the intent to utter it within the Realm.

1. El. c. 11. To clip, wash, round or file, any money of this Realm, or current here: and causeth forfeiture of land for life only. But no dower shall be forfeited nor blood corrupted.

18. El. c. 1. To impair, Diminish, Falsifie, Scale, or Lighten any money by any art, ways or means whatsoever.

1. Eliz. c. 1. Advisedly, maliciously, and directly to affirm set forth, & defend the third time by express deed or act, or to put in ure, or to execute any thing, for the defence or setting forth of the spiritu∣al authority or jurisdiction of any fo∣reigne person, heretofore claimed or used in any of the Queens Dominions.

So for any person compellable to take the Oath.

To refuse (after lawfull tender) the oath to acknowledge the Queen supream go∣vernor in all causes within her dominions

13. El. c. 1. To put in ure any Bull or instrument of absolution, or reconcilia¦tion from Rome, or to take upon one (by

colour of any such to absolve or reconcile any person, or to publish any such, Bull or instrument, To receive such absolution, or to procure, abett, or counsel any offendor to uphold him. The practice to absolve, perswade, or withdraw any person within the Queens dominions, from their natural obedience, or (for that intent) from the Religion now established here, to the Ro∣mish Religion, or to move them to pro∣mise obedience to the sea of Rome, or o∣ther Estate, or willingly to be absolved, withdrawn, or to promise such obedience.

1. Eliz. cap. 6. Maliciously, directly, and advisedly, to say or hold opinion (the second time) that the Queens Majesty, or her heirs of her bodie, be not right Kings and Queens of this Realm, or that any o∣ther person ought to be.

their abettors, procurers, counsellors, ayders, &c. To affirm by any writing, printing deed, or act, the first time, their abettors, &c.

33. H. 8. c. 20. Attainder of high treason by the course of the common law, or sta∣tutes of this Realm, shall be of as great force as an attainder by Parliament. And the King shall have the real possession of every thing forfeited without inquisition or office: saving to Strangers, &c.

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

shall be impeached for any error, by the heirs, or any claiming under them.

26. H. 8. c. 13 & 5. & 6. E. 6. cap. 11. Any offence (made treason heretofore) done out of the limits of the Realm, shall be in∣quired here by Commission, and like pro∣cess used, as if it had been done within the realm.

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

An estate tail shall be forfeit for High-treason.

Notes

• (a) 1.1

  38 E. 3. 31. 9 H. 6. 2.
• (b) 1.2

  38 E. 3. ib.
• (c) 1.3

  9 H. 6. ibid.
• * 1.4

  18 E. 3. 2. br. 355.
• * 1.5

  9 El. Ʋttings case.
• * 1.6

  Sir Tho. Co∣kains case.
• (a) 1.7

  So i•• hath been adjudged.
• (b) 1.8

  26 El. C••a••knel 5 c.
• (c) 1.9

  34 El. Cebot against Haines adjudged.
• (a) 1.10

  27 El. Hack's case.
• (b) 1.11

  27 El. Bar∣rons case.
• (c) 1.12

  26 El.
• (d) 1.13

  27 El. Burc. case.
• (e) 1.14

  All these ca∣ses have so been adjudged or commonly re∣ceived for Law. 13 H. 7. per 11. El. Dy. 285. 30 H. 8. Br. Act. sur case 104.
• (f) 1.15

  31 El. No∣wels case.
• (g) 1.16

  7 El. Dy. 236.
• (h) 1.17

  It hath been oftentimes adjudged that in such case•• the reversion is tra∣versible.
• (i) 1.18

  7 H. 6. 5. & 17 El. in Mansers case no action of debt lieth upon it (at the Common Law) but an action of Tres∣pass upon the case.
• (k) 1.19

  48 F. 3. b. F.N.B. 93. H.
• * 1.20

  F.N.B. 184. a. F.N.B. 184. d.
• (a) 1.21

  33 H. 6. 26.
• (b) 1.22

  42 Ass. pl. 5.
• * 1.23

  F.N.B. in his Writ of deceit.
• (a) 1.24

  5. 7. 41.
• (b) 1.25

  11 E. 4. 6.
• (a) 1.26

  So are all precedents.
• (b) 1.27

  11 H. 4. 45.
• (c) 1.28

  22 ass. pl. 32.
• (d) 1.29

  7 H. 6. 36. 40 E. 3. 20.
• (f) 1.30

  10 E. 4. br. amerciamen. 46.
• * 1.31

  Lit. 152.
• * 1.32

  11 E. 4. 1:
• * 1.33

  21 E. 3. 26.
• * 1.34

  Old Nat. Br. 135.
• * 1.35

  5. H. 7. 6.
• * 1.36

  Lit. 62.
• * 1.37

  Lit. 52.
• * 1.38

  99 E. 3. 15.
• * 1.39

  Stat. 37. H. 8. c. 8. reciteth the Common Law to be so.
• (a) 1.40

  12. H. 7 22.
• (b) 1.41

  1 Mar. Pl. 142.
• * 1.42

  Park. 4.
• * 1.43

  21 H. 7. 39.
• * 1.44

  15 H. 7. 13.
• * 1.45

  F.N.B. 220. f. 1. H. 6. 1.
• * 1.46

  1 H. 7. 19.
• * 1.47

  Stamf. prer. 74.
• * 1.48

  8 H. 4. 16 per Stamf. pr. 57.
• (a) 1.49

  18 E. 4. 28
• (b) 1.50

  7. E. 4. 24.
• (c) 1.51

  40 E. 3. 40
• (d) 1.52

  22. ass. pl. 40
• * 1.53

  Book of entries Fol. 552
• (a) 1.54

  22 Ass. pl 85.
• (b) 1.55

  43 E. 3. 20
• (c) 1.56

  22 E. 4. 45.
• (d) 1.57

  43 E 3. 3
• * 1.58

  9 E. 4. 28.
• (a) 1.59

  18 E. 3. 94.
• (b) 1.60

  8 H. 4. 31. Cor. 458.
• (c) 1.61

  Brit. & Bra. p. Stamf. 38. b.
• (d) 1.62

  9 E. 4. 6. Br. per Sl. 24.
• (a) 1.63

  38 H. 3. 9.
• (b) 1.64

  24 E. 3. 3.
• * 1.65

  36 H. 6. 27.
• (d) 1.66

  41 E. 3. Cor. 280.
• (e) 1.67

  19. E. 3. Judgment 174
• (a) 1.68

  Stamf. 116. b. & 190.
• (b) 1.69

  26 ass. pl 4 in high treason.
• (c) 1.70

  22 ass. pl. 63
• (d) 1.71

  6 H. 7. 9.
• (e) 1.72

  29 ass. ibid.
• (f) 1.73

  10 ass. pl. 5.
• (g) 1.74

  29 ass. pl. ibid.
• (h) 1.75

  29. ass. ibid.
• (i) 1.76

  chap, 16.
• (k) 1.77

  30. H. 6. 5.
• (l( 1.78

  2 Mar.
• (m) 1.79

  8 E. 4. 4.
• (n) 1.80

  8. E. 4. i••. 7 H. 4. 47. B••. forg. de ter. 10.
• (o) 1.81

  5 H. 4. forf. 32.
• (p) 1.82

  3 E. 3. cor. 377
• (q) 1.83

  22 ass. pl. 8.
• (r) 1.84

  22 ass. ibid.
• * 1.85

  37 H. 8. Br. de. 42. 22. H. 6. 38:
• (a) 1.86

  32 H. 8. Dy. 48.
• (b) 1.87

  22 H. 6. ib.
• (c) 1.88

  32 H. 8. Dy. ibid.
• (d) 1.89

  Lit. 169.
• (e) 1.90

  3 & 4 Ph.
• * 1.91

  3 El. 3. cor. 209. 3 E. 3. cor. 289. 5 R. 4. f••rf. 32.
• (f) 1.92

  2 E. 3. cor. 377. 14 E. 2. P. 19. El. Dy. 355.
• (g) 1.93

  8 E. 3. cor. 427.
• (h) 1.94

  26 Ass. pl. 47.
• (i) 1.95

  Sta••f 35. h.
• (k) 1.96

  9 H. 4. i.
• (l) 1.97

  Stamf 22. s.
• (b) 1.98

  27. E. 3. Es∣cheat 17.
• (c) 1.99

  22. ass. pl. 49
• (d) 1.100

  Sta. 198. a.
• (e) 1.101

  Sta. 190. c.
• (f) 1.102

  Sta. 190. a.
• (g) 1.103

  Sta 190. c.
• * 1.104

  Stamf. 182.
• * 1.105

  4 H. 7. 5.
• * 1.106

  22. H. 6. 21.
• (a) 1.107

  3. E. 3. Cor. 371.
• (b) 1.108

  3. E. 3. Cor. 355.
• (c) 1.109

  12. E. 4. 5.
• (d) 1.110

  21. E. 4. 16.
• * 1.111

  21. E. 4. ibid. 7. H 4. 43.
• * 1.112

  27. H. 8 22.
• (a) 1.113

  Stamf. 21. c.
• (b) 1.114

  Stamf. ibid. 3 ass. pl. 2.
• (c) 1.115

  3. E. 3. coron 303.
• (d) 1.116

  S am. 21. d.
• (e) 1.117

  2. H. 4. 18.
• (f) 1.118

  Stamf. 16. c.
• (g) 1.119

  4. H. 7. 2.
• (h) 1.120

  43. ass. pl. 3.
• (e) 1.121

  26. ass. pl. 32
• (f) 1.122

  26. ass. pl. 23
• (a) 1.123

  8. E. 2. Cor: 389.
• (b) 1.124

  3. E. 3. Cor. 140.
• (c) 1.125

  8. E. 2. Cor. 397.
• * 1.126

  1 Mal. Pl. 242.
• * 1.127

  18 El. Pl. 474.
• * 1.128

  3. El. Pl. 258
• (a) 1.129

  9. E. 4. 26.
• (b) 1.130

  5. E.D. 224
• (a) 1.131

  1. E. 6. Br. Corrone. 179.
• (b) 1.132

  1. E. 6. ibid.
• (c) 1.133

  13. H. 4. 7.
• (d) 1.134

  Stamf. 30. b.
• (e) 1.135

  1 E. 3. 24.
• (f) 1.136

  1. R. 2. 4. F.N B. 269. b.
• (a) 1.137

  22. ass. pl. 49 21. E. 3. 17. Cor. 477.
• (b) 1.138

  12. ass. pl. 30 19 H. 6. 14 his masters wife
• (c) 1.139

  1 R. 3. 4.
• (d) 1.140

  12 ass. pl 30 1 R. 3. 4.
• (e) 1.141

  21. E. 3. ib. 19. H. 6. ib.
• * 1.142

  F.N.B. 269. b. they shall be burnt, and that by the Common Law.
• (f) 1.143

  Lect. Frow. No Sanctuary lieth in case of heresie, for it is treason against God.
• (g) 1.144

  F.N.B. 269 b.
• * 1.145

  Sorcerers and Sorceresses, & Hereticks shall be burnt, and that by the com∣mon Law. F.N.B. 269. b.
• * 1.146

  F.N. B. 269. b. 45. E. 3. 17.
• (a) 1.147

  26. ass. pl. 63
• (b) 1.148

  3. H. 7. 10
• (c) 1.149

  1. E. 3. 24.
• (d) 1.150

  30. ass. pl. 19
• (e) 1.151

  25. E. 3. c. 2 maketh a decla∣ration of all these to be high Treason.
• (f) 1.152

  13. H. 8. 12.
• * 1.153

  1. H. 7. 24. Stamf. 1. 82. c.