A treatise of the antiquity, authority, vses and jurisdiction of the ancient Courts of Leet, or view of franck-pledge and of subordination of government derived from the institution of Moses, the first legislator and the first imitation of him in this island of Great Britaine, by King Alfred and continued ever since : together with additions and alterations of the moderne lawes and statutes inquirable at those courts, untill this present yeare, 1641 : with a large explication of the old oath of allegeance annexed.

The Second part of this Treatise, Which Containes, Subjectum visus Franciplegus, OR, The matters there inquirable, and presentable.

HItherto I have onely touched the Antiquitie and Authoritie of Court Leets, and the first institu∣tion or derivation of that, and all other subordinate Courts of In∣stice. Not unaptly nor unneces∣sarily will follow, the usefull handling of the Subject of the Court Leet, or the matters and misdemeanors whereof that Court doth chal∣lenge peculiar Iurisdiction, which doe all of them depend either upon the libertie of the Common law, or upon the power of Statute law.

The first Statute law that directs the matters

of inquirie at the Leet, is the Act for view of Franckpledge, made 18 Edw. 2. which was but an affirmance of the Common law; and in that Statute are comprised and enumerated 33. seve∣rall particular branches of misdemeanors inqui∣rable at the Leet, which so farre as they may concerne the moderne Iurisdiction of this age, and are neither obsolete not antiquare, yee shall finde in this insuing tract; according to a pre∣scribed method, though distinguished from the rest by quotations of the Statute, and they are divided into two sorts.

1. They are either matters inquirable, and not punishable, as Treasons, Petty treasons, Praemu∣nires, and Felonies, and all of them to be pub∣lished for the disciplining of his Majesties leige people, that they might not plead igno∣rance of the lawes of the Realme; But (as for Petty treasons and Felonies) for that they are contra Coronam & dignitatem, by the Sta∣tute of 1 Edw. 3 cap. 17,* 1.1 which literally doth command, That all Sheriffes and Bayliffes of liberties, and all others which take Indict∣ments at their Tournes, or elsewhere, where indictments ought to bee taken, shall take In∣dictments by rolle indented, whereof one part shall remaine with the indictors, and the other part with him that taketh the inquest, so that the indictments shall not be imbezelled, as they have beene in times past, and so that one of the enquest may shew the one part of

the Indenture to the Iustices when they come to make deliverance.

Yet this Statute by the generall words doth extend to Stewards of Leets and all others;* 1.2 Also such inquisitions in Tournes, and conse∣quently in Leets, are void, if every of the Indi∣ctors S. (Jurors) are not of good fame, and may expend 20. shillings by the yeare of Freehold, or 26. shillings 8. pence, of Coppihold in the same Countie, and this by the Statute of 1 R. 3 cap. 4. Stamf. plit. Coron. li. 2, cap. 24, fo. 85, 86, 87.

2. The second sort are matters here inquirable, presentable, and punishable.

For the first it may seeme unnecessary to en∣quire at the law day of those things which the Court hath not power to correct and punish, and which the authoritie of Instices of peace doe daily meet with, But there are two reasons to cleare the doubt and approve the inquiry of them.

1. The benefit of Escheats of lands and forfei∣ture of goods and Chattells: for upon convi∣ction of any offender, in cases of Felonies, their lands doe escheat unto the King if they bee holden of him, or to the Lord, of whom they are holden, Saving to the King, the waste thereof for a yeare and a day; and therefore it is to be inquired what lands, tenements, and goods the offender hath, for they accrew to

the King, if the Lord hath not a grant of Cat∣talla felonum by Charter from the King, 9 H. 7, fo. 23, 29.

2.* 1.3 The second reason Id. from the mouth of a Reverend Iudge, who in a speech of his con∣cerning the necessitie of Leets and law-dayes, said that a Leet was Schola insigniendi juvenes, a Schoole to direct and instruct young men to know the ancient lawes of the Kingdome, and to prepare them for greater imployments at greater meetings, as the Assises, Gaole de∣liverie and Sessions of the peace.

The first sort of offences which concerne power of inquirie, but not of punition, are Trea∣sons, Premunire, Pettie-trea∣sons, and Felonies.

HIgh Treasons, which Glanvill lib. 1, cap. 2, cals, Crimen laesae Majest. ut de nece vel sedic. personae Domini Regis, velregni, vel exercitus, Brit∣ton ca. 29, title Tournes de Viscounts, giveth dire∣ctions for inquiring at the Sheriffes Tourne of the mortall enemies of the King or the Queene, or their children, or of their consenters.

And long after that, by the Statute of 25. Ed. 3, cap. 2, a declaration was made what offences should be adjudged, High, or Pettie treason.

If any person doe imagine or compasse the death of our Lord the King, or of the Queene, or

of their eldest sonne and heire, It is High trea∣son, Crimen laesae Majest. by the ancient common law, For Princeps censetur una persona cum ipso Rege.

Or if a man doe violate the Kings compani∣on, or the Kings eldest daughter unmarried, or the wife of the Kings eldest sonne and heire.

Or if a man doe levie warre against the King in his Realme, or be adherent to the Kings ene∣mies, in his Realme, giving them aide or com∣fort there, or elsewhere.

Other Treasons which doe not touch the person of the King so neere.

IF any counterfeit the great seale, privie seale, or the money of this Realme.

Or if any bring false money into this Realme counterfeit to the mony of England, knowing it to be false; to marchandize, or make payment in deceipt of the King, and his people.

If any doe falsly forge or counterfeit any coine of gold or Silver, which is not the proper coine of this Realme, and is or shall be currant within this Realme.

If any doe forge or counterfeit the sign man∣nuall, privie signet, or privie seale.

If a man slay the Chancellor, Treasurer, or the Kings Iustices of the one bench, or the other, Iustices in Eyre, or Iustices of Assise, or any o∣ther

Iustices being in their places doing their offices.

All those before cited and all ayders, procu∣rers, and abbetters, shall be deemed and ad∣judged Traitors, and shall incur••e all paines and for feitures, as in cases of High treason is used and ordeyned, 1 Mar. ca. 6.

If any for wicked lucre or gaine doe clip, wash, round, or file any monie, which is or shall be the coine of this Realme, or the monie there∣of, or the coines or monie of another Realme, which is or shall be allowed to be currant with∣in this Realme, or the Dominions thereof, it is high treason, 5 Eliz. 11.

The forfeiture by the Statute is of goods, but of lands only during life, and no corruption of blood, nor forfeiture of dower.

It was first declared high Treason, 3 H. 5, af∣terwards abrogated, 1 Mar. 1, and revived by this Statute, of 5 Eliz. 11.

Premünire and Treason.

FOr the preservation of the dignitie of the im∣periall Crowne of England,* 1.4 it was enacted, 5 Eliz. ca. 1. That if any person of any estate, dignitie, or degree soever, should by writing, ci∣phring, printing, or preaching, deed or act, advi∣sedly and wittingly extoll or set forth the autho∣ritie

of the Bishop of Rome, used or usurped with∣in this Realme, or any the Dominions there∣of, every such person, their abbetters, procurers, and counsellers, being lawfully indicted or pre∣sented within one yeare after such offence com∣mitted, and being lawfully convicted or attain∣ted shall incurre the penaltie of Premunire, provi∣ded by the Statute of Provision, made Anno 16 Rich. 2.

And if any person, or persons, their abbetters, or procurers, after such conviction and attainder, doe eftsoons commit the same offences, and be thereof duly convicted and attainted, shall incur the paines and forfeitures of high Treason.

In like danger are they, who refuse to take the oath of supremacie prescribed, 1 Eliz. 1, which for the first offence is Premunire. And if any the persons appointed by this Act, to take the said oath, doe after the space of three moneths, next after the first tender thereof, the second time re∣fuse, or doe not take and pronounce it, shall also be adjudged in the case of high Treason, and this Statute requires a publication hereof at the Leete.

But this Act shall not extend to make any cor∣ruption of blood, disinherison of any heire, forfeiture of any dower, nor the prejudice of any right or title of any persons, other than the right or title of the offender during his, her, or their life only.

Nota, the penaltie in a Premunire is described 22 Edward 3.1, and 16 Richard 2.5, to bee ou•• of the Kings protection, to forfeit lands, goods, and chattels, and their bodies to bee taken, imprisoned, and ransomed at the Kings pleasure, But by this Statute of 5 Eliz. 1, It is not lawful to kill any attainted in Premunire.

Pettie Treason.

IF any servant kill his or her Master or Mi∣stresse, or a man secular or religious killeth his Prelate or Ordinarie, to whom he oweth faith and obedience, it is pettie treason in them and the abbetters, 25 Edward 3, 2.

If a woman killeth her husband, in regard of the subjection and obedience which she oweth to him, it is petty treason, 19 Henry 6, fol. 47.

If a servant after he bee out of service killeth his Master, so as it be done out of a prepensed malice whilest he was in service, It is pettie trea∣son though not express••ly within the letter of the Statute of 25 Ed. 3.

It is pettie treason in a sonne who killeth his mother, and he shall be drawne and hanged, and so was the opinion of Thorpe, 12 Edward 3, 17. where a man killed his mother, took Sanctuary, and was drawne from thence and convicted, Cromp. Iust. fo. 15.

Note that in all Petty Treason Felony is inclu∣ded, but not è contra, and it was affirmed 22 li. Ass. that a pardon of all felonies would servef••r Pett••e Treason, which is the reason that all Petty Treasons are inquireable as fel••∣nies in the Tourne and Leet.

The escheats hereof pertaine to every Lord of his owne fee, and the reason is, because such Treason doth not touch the King him∣selfe.

Felonies.

ALL Felonies at the Common law are here inquirable as felonies, saving the death of a man and Rape, which are here to bee inquired as trespasse, 7 Henry 6, fo. 13. 6 Hen. 7, fo. 4, 41 Ass. plit. 30.

Of Felonies here inquirable there are these foure severall sorts insuing, viz.

• 1 Such as doe concerne the ademption of Life.
• 2 Or hurt of bodie, without privation of Life.
• 3 Or the spoliation, and taking away of goods
• 4 Or the taking away, wasteing, and consu∣ming of life, bodie, and goods.

All privation of Life is comprehended under the generall name of Homicide, But as one writes,

Ex diversa interficientis intentione hoc diversas & appellationes & causas habet, The intention of the Actor doth alter the appellation of the Act.* 1.5 A learned Writer of the lawes of Scotland doth set forth duo genera homicid••i, one which is called Murdrum; and the second sort, which is called simplex homicidium, and both are inqui∣able at the Leete as Bloodshed.

Murder.

MVrther is, where any of prepensed malice doth kill another feloniously (felleo animo) whether it be openly or secretly, and whether the partie be an English man, or any other what∣soever, so as he liveth in the Realme under the Kings protection. And all homicide which is done in this manner is called murder to this day for the name of murder was never changed, but: the law doth retaine it continually for the hain∣ousnesse of the crime, to put a difference between that and other homicide, and as a Civilian writes, Quicquid a praecedenti malitia, vel ferro, vel veneno,* 1.6 vel modo quocunque perpetratur, illud murdrum dicitur.

It was the crying scarlet sinne of Caine in the first infancy of the world, and hath beene, and is so horrid and detestable, as that by the Sta∣tutes of 2 Edward 3, 2, and 14 Edward 3, 15, a Charter of pardon was not to be allowed in such a case.

By the Statute of 13 Richard 2, Stat. 2 c. 1, It

was provided, that if the charter of the death of a man were alleadged before any Justices, and if upon a good inquest of the Visne where the dead was slaine, they did finde that it was done by a∣waite, assault, or malice prepensed; the Charter should be disallowed, and further it should bee done as the law commanded.

Hence it was that a charter of pardon of all felonies will not discharge a Murther, without expresse words.

And here in the dutie and legiance of a Sub∣ject, I cannot pretermit the remembrance of his now gratious Majesties tender and in∣comparable care in pursuance of the true in∣tention of those ancient lawes, by rejecting and denying all suggestions and suites for pardons in cases of murder, rape, and such like heinous crimes, which to the comfort of all his true and loyall subjects hee hath suffici∣ently demonstrated, by the equall and exem∣plary distribution of his justice, aswell to the tallest Cedars as to the lowest shrubs of his Kingdome.

Man-slaughter.

ALL simplex homicidium or Manslaughter are distinguished from Murders, by reason they are done suddenly, and upon hot blood without malice forethought. In ancient times, if a man

did lye in waite to kill another, it was felonie, quia voluntas profacto, but now exitus in malificiis spectatur, & non voluntas duntaxat.

These two are called homicidium voluntarium, the first aggravated by the name of Murder, ex praemeditato, which (as Bracton noteth) is com∣mitted, Ex od••o vel causa lucri nequiter & in Felonia.

The second in regard of the sudden act not premeditate nor forethought, is qualified by the name of Manslaughter, and hath the benefit of Clergie, in resemblance to the law of Moses; who so killed his neighbour ignorantly whom he hated not in times past had the favour to flye unto one of the Cities of refuge, Deut 19.4.

There are two other sorts of Homicide, one ex necessitate, in defence of a mans selfe, the other, ex casu, or by misfortune, both here inquirable by the common law.

In the first, the necessitie must be so great, as that it may be deemed inevitable, or else that homicide is not excusable, the definition of it is rendred by M. Stamford, li. 1, cap. 7.

If a man make an affray upon another, and the party assaulted doth flie so farre as he can, for safeguard of his life, so that hee bee driven to a streit, beyond which he cannot escape, and the other still continue the assaulting of him, In this case if he strike and kill the assaultant, It is homicide se defendendo.

But the matter must be specially found upon the Inquisition or Indictment. And 2. presi∣dents of such inquisitions are set forth by Ma∣ster Weste ti••. Indictments.

Yet he forfeiteth his goods, and must pur∣chase his Charter of pardon for the same, by the Statute of Glonc. cap. 9.

Homicide casuall or by misfortune or misad∣venture, is defined by Moses, the patterne for all Law-makers, Dent. 19.5. When a mangoeth in∣to a wood with his neighbour to hew wood, and his hand fetcheth a stroke with the Axe to cut downe the tree, and the head slippeth from the helve, and ligh∣teth upon his neighbour that hed••e, he shall flee to one of those cities and live.

So that in this case or the like, as throwing a barre, or stone, or shooting an arrow at a marke, or in doing any other lawfull act, without an e∣vill intent, it is homicide by misadventure, and the Actor shall (instead of Moses Citie) have his refuge to the mercie of his Majesties crowne for a pardon of grace, by the Statute of Glone. c. 9. as in the case of se defendendo.

But note as a rule, in all unlawfull actions or attempts the event is not excusable, as if two or more commit an affray, and a third person comes betweene them to keepe the peace, and is slaine, albeit this accident was without an evill intent, yet in regard of the unlawfulnesse of the occasion (as the affray, contrapacem) It is selo∣nie

in the manslayer, and not misadventure, Fitz. tit. Coro. 180.22. lib. Ass.

Felonies which doe concerne the hurt, dishonour, and detriment of the bodie, without privation of life.

Rape.

IF any man ravish any woman, be she widow, or maid, she not assenting before nor after, or if it be done with force she assenting after, every such person and the aiders and abetters are in the case of felony, by the statute of Westm. 2 cap. 24.

A pardon of all Felonies in generall words, doth not discharge a Rape, without speciall words by the Statute of 25 Edw. 3. ca. And the benefit of Clergie is taken away by the Sta∣tute of 18 Eliz. cap. 6.

It was ever anciently enquirable at the Tourn and Law day, where it was not presented before the Coroner, 18. E. 2.

Vpon a presentment before the Sheriffe in his Tourne, and returned upon a Certiorari into the Kings bench, of a Rape feloniously committed, it was the opinion of Hussey chiefe Iustice, and o∣ther Iudges, 22 Edw, 4. fol. 22. that the present∣ment

was void, and that the power of a Sheriffe in his Tourne, and of a Steward in the Leet, be∣ing all one, they had no authoritie to enquire of any things, but such as were felonies, and tres∣passes by the common Law. Yet it seemes the wisedome of the common Law thought fit to continue and maintaine the enquirie of that and other offences at Tourns and Leets, in the same nature and condition as they were before the al∣teration by Statutes. And though the Statute lawes have in many cases enlarged and extended the punishment, yet have they not abridged the ancient discipline and jurisdiction of those Courts.

All Rapes are here inquirable as trespasses, and so it appeares by Fitz. in his Court Leet, and in M. Kitchin, and all other tracts of this nature.

Phisyognomie defaced or disfigured.

IF any put out any mans or womans eyes, or cut out their tongues, or noses, or disfigure a∣ny member to the intent they should not see, nor speake, it was and is inquirable as bloodsheds, Fitz. Leet 1 Mariae. And yet by the Statute of 5 Hen. 4 cap. 5. The malicious cutting out of the tongue, or pulling out of the eyes of the Kings liege people, were made felonie, and not without good ground, sithence they are the principall members to glorifie almighty God:

The eyes to looke up to heaven, I will (saith the Psalmist 12 1.) Lift up mine eyes unto the hils from whence commeth my help, And Psal. 123. Ad tele∣vavi oculos meos, Vnto thee lift I up mine eyes, O thou that dwellst in the heavens.

The tongue to chaunt and send up the sweet incense of prayers and praises to the mercie seat of heaven, It must be malice in excesse, that dare adventure the depriving and defacing of those instruments and organs of Gods glory.

Felonies which concerne the taking away, waste∣ing, and consuming of Life, Bodie, and Goods.

Sorcerers, Conjurers, and Witches.

ALL Sorcerers, Conjurers, and Witches, which sort of offenders were by the common law guilty of felony, and were to be burnt; Fitz. Nat. fo. 269. who cites for his authority Britton lib. 1. cap. 17. It was death by the law of Mo∣ses, Thou sh••lt not suffer a witch to live, Ex. 21.18.

A man or woman that hath a familiar spirit. or that is a wizard, shall be surely put to death, they shall stone them with stones, their blood shall bee upon them, Levit. 20.27.

For the repressing of those abominable offen∣ces, divers lawes were made 33. Hen. 8.8. and diverse other succeeding statutes, All repealed,

5 Eliz. 16. And that Stature adnulled by An. 1 Iacobi 12. By which for the better restreyning the said offences, and more severe punishing the same, It was enacted,

That if any should practise or exercise any invocation, or conjuration of any evill and and wicked spirit.

Or should consult, covenant with, imploy, or reward any evill and wicked spirit, to or for any intent or purpose.

Or take up any dead woman or child out of their grave or other place of rest, or the skin, bone or any other part of any dead person, to bee used in any manner of Witchcraft or Sorcerie.

Or shall use or exercise any Witchcraft, Sorceric, Charme or Inchantment whereby any person shall be killed, destroyed, wasted, consumed, pined or lamed in their bodies, or any part thereof,

It shall be felonie in them, their aiders, ab∣betters, and counsellors, without pri∣viledge of Clergie or Sanctuary.

And if any by such practices shall take upon them to declare where any treasure of gold and silver should or might be found, or had in the earth, or other secret places, or any goods lost should be found.

Or to the intent to provoke any person to un∣lawfull lust.

Or whereby any person should be destroyed, hurt, wasted or impaired in their bodies, cattell,

or goods, although the same be not effected and done.

The first offence is imprisonment for one whole yeare without baile, and once in every quarter of that yeare to stand in the Pillory in a market towne, in open market or saire by the space of six houres, and there to confesse their offence.

And the second offence felony, without any priviledge of Clergie or Sanctuary.

This Statute so exactly deciphering these of∣fenders, doth seeme to receive its light from the Levi••icall law, Deut. 18. vers. 10, 11, 12, Those that ••asse through the fire, that use divination, or are observers of times, or an inchanter, or a Witch, or a charmer, or consulter with familiar spirits, a Wizard, or a Necromancer, all that doe these things are an abomination to the Lord, &c.

These offences are inquirable at the Tourne and Leet by the Common Law.

Felonies which concerne the goods of any person, and first of Gods House.

Sacriledge.

SAcrilegious ••obbing of Churches or Chap∣pels, or other holy places, and taking away any ornaments out of them feloniously, is here inquitable as Felonie.

Such as Lyc••••••chus the wicked Church rob∣ber is described to be, Maccha. 2.4.42. who for his offence was stoned by the multitude.

Such offenders in our daies have not the bene∣fit of Church or Clergie.

Frustra petit auxilium Ecclesiae, quipeccat con∣tra Ecclesiam.

Latrocinium. Thest.

ALL Theft called by the Law Larceny, Latro∣cinium, (which Bracton describes to be, Con∣trectatio rei alienae fraudulenta, animo furandi, in∣vito illo, Cujus res fuerit) is either de re magna, of any thing above 12 pence, or de re parva, under twelve pence.

But note that this Contrectatio rei alienae, must be of personall things, and not of reall things, as to cut downe a tree and carrie it a∣way, Or to take away a boxe with Charters, Or to take and carrie away treasure trove, any wrecke of Sea, or wayfe or strayes is not felo∣ny, Quia Dominus rerum non apparet.

Cut-Purses, or Pick-Purses.

A Kinde of evill disposed persons, felons and theeves by the law, which commonly u∣surpe amongst themselves a wicked brother∣hood, and live by the spoile of good and true

Subjects, by felonious slights and devices, from which they have their appellation, they set up their shop every where, not only in places of commerce, as markets, and faires, and other po∣pular meetings, but in the sacred places of pie∣tie and justice, nay at the very execution of ma∣lefactors, which should bee a terrour to them. Britton cites the inquirie of them at the Tournes, and Stat. 8 Eliz. 3, bars them of their Clergie.

Petit Larceny.

PEtit Larceny is parvum Latrocinium, of any thing under twelve pence, as Hens, Capons, Pigs, Geece, Chickens, Sheaves of Corne in harvest, and such like. And for such pettie things, the rule of the Law, Nullus Christian mor∣ti tradatur,* 1.7 sed allo modo castigabitur, which is now by whipping, for the Law will not suffer the least offence to escape without its proporti∣on of punishment, Ne facilitas veniae, praebeat ali∣is materiam delinquendi.

Other sorts of Felonies.

Felonious taking of Doves in Dove-houses, so as they be not in their savadge or flight, for then they are nullius in bonis, is felonie, and by the common Law here inquirable.

Taking young Pidgeons out of their nests, or young Goshawkes in their nests, which cannot

fly nor goe, Tr. 18 Edward 4, 10 Edward 4, folio 15.

Taking fish out of a pond, stewes, or truncks, or any place set a part for a mans private pro∣pettie, and not in a common river, Or taking a∣ny Cignets, Swans marked, or Peacocks, or a∣ny tame domesticke Deere, knowing it to bee domesticke.

All other thefts, which are Felonies at the common Law, are here inquirable, To touch some few for instruction of youth.

If a Taverner put a peece of plate before one to drinke, who carries it away, it is felonie, because he had not the possession but the use of it.

If any Butler or Cooke who hath any vessels or plate to use, doth carrie them away, it is felo∣nie, because the possession, was alwaies in the owner.

If I deliver the key of my chamber to ano∣ther, and he goes and takes my goods out of my chamber, it is felonie.

If I bargaine with one to carry certaine chests to a place, and hee taketh and carrieth them to another place, and breaketh them open, and ta∣keth away the goods within them feloniously, and converts them to his owne use; It is felonie, for he did not pursue his Bargaine.

If I deliver a Tun of Wine to one to carrie, and he taketh out 20 Gallons, or more, or lesse, it is felonie.

And in like case, If I deliver goods to one to carry to a place, and after he hath carried the same thither, he steales them away, it is felonie, for that the privitie of the deliverie was there de∣termined.

To take the flesh of any tame or wilde foule, or beast, (that is dead) out of the possession of an∣other man.

Or to take the wooll from the sheepes back, or to take the skin or tallow, and leave the bo∣die behinde, is felonie, Stamford fo. 25.

Many more might be reckoned, but the di∣stinction of an••mo furandi being observed; this may serve instar omnium.

Burning of Houses.

IF any shall feloniously burne any dwelling House, or any Barne adjoyning, or any stacks or mowes of Corne, neare any Barne or dwel∣ling house in the night time, it was felonie at the common Law, and the offenders no way reple∣viseable. As appeares by the Statute of Westm. 1. cap, 15. No. M. 11 H. 7, fo. 1. One indicted for burning of a Barne feloniously in the night time adjoyning to an house, was attainted of fe∣lonie by the common Law.

Bracton notes, that this crimen incendii, must be done nequiter & in felonia, vel ob inimicitias, viz. wickedly, feloniously, or for enmitie, otherwise (saith he) if it be done by chance or negligence Tunc civiliter agitur contratales, &c. An action

of the Case lyeth, M. Britton li. 1. ca. 17. fo. 16. affirmes that such felonious incendiaries were burnt, For in quo quis peccat, in co punietur, Fitzh, Nat. fo. 269.

There are two grand felonies which commonly ayme at Contrectationem rei alienae, and though lit∣tle be acted, yet are they aggravated by the will of the offenders, viz. Burglary and Robbery.

Burglarie.

IF any man in the time of peace, after Sunset, and before the sun rising (that is to say) in the night time, cum facta silentia tectis) shall breake any Houses, Churches, Walls, Towers or Gates, with a felonious intent, to rob, or kill, or com∣mit some other felony, though nothing be car∣ried away, It is Burglary, the indictment must be quod noctanter fregit.

If a man hath a mansion house, and he and all his familie are (upon accident) absent some part of the night out of the house, and in the meane time one comes and breakes the house to commit felonie, it is Burglary, for although nei∣ther the owner nor any of his familie bee in the house, yet it is domus mansionalis.

By the same reason, if a man hath two hou∣ses, and dwelleth sometimes in the one, and sometimes in the other, And in the night time when the family are out, one of them is bro∣ken by theeves, It is Burglary, Co. li. 4 fo. 40.

Bracton notes, that if the owner of a house in a case of Burglary, defends himselfe in his house, and the Burglo be slam, So as the owner could not o herwise defend himselfe, invasor inultus remanebit, the owner shall not be punished, For saith he, Non est dignus pace qui non vult servare eam, &c.

Robbery.

RObberie, or (as Bracton termes it) rapine, is when a man taketh any thing from the per∣son of a man feloniously, though it bee but the value of a pennie, is here inquirable. The law was ancient (and so still remaines in the case of Burglarie) That if a man were taken depraedan∣do, or deburglando, though he tooke or carried nothing away, it was Felonie; it is otherwise now in the case of Robbery, unlesse some thing be taken away.

In both these the benefit of Clergie is ta∣ken away by the Statute of 18 Eliz. c. 6.

Accessaries before and after the Fact.

IN Felonies, there are and may be Accessaries, If one procure or command another to com∣mit a fe••onie, though hee bee not present at it, when it is perpetrated, this procurer or com∣mander is an Accessary before the fact.

If any person receive a felon having know∣ledge of the fact which he committed, or doe favour or aide him, he is an Accessarie after the fact, Stamford fo. 40. If there were no receivers, there would not be so many theeves.

In the arrest and apprehension of any the offenders before mentioned, the law is care∣full to have them brought to examination and tryall, and to prevent all escapes which are either voluntarie or negligent, as also all rescous of felonies.

Escape voluntarie.

IF any bee arrested for felony or any other crime, and afterwards the partie in whose cu∣stodie he remaines, doth suffer him to goe at large whither he will, it is a voluntarie escape. And if the arrest of him (who escaped) were for Treason or Felonie, it shall be adjudged the like against him who suffered the escape, and so in a trespasse, Et sic de singulis, Stamford fo. 33.

Escape negligent.

EScape negligent, when one arrested for felo∣ny escapeth against the will of him who doth arrest or keepe him, and is not freshly pursued nor taken before the pursuer loseth the sight of him, though he after take him, It is

fineable according to the quality of the of∣fence.

Rescue de felon

IF any shall presume to rescue and set at liberty by fraud or force any person apprehended or arrested for felonie, it is felonie in the rescuer, and here inquirable, 1 Henry 7.9.

{inverted ⁂}

Notes

• * 1.1

  1 Edw. 3. C. 17
• * 1.2

  1 Rich. 3. c. 4.
• * 1.3

  Instice Flem∣ming.
• * 1.4

  5 Eliz. c. 1:
• * 1.5

  Skeny l. Regiae Majest.
• * 1.6

  Cowel instit.
• * 1.7

  Stamsord.