Law, Book 3 – Book 4
The third booke of Lavv.
CHAP. 1.
Of a wrong without force.
FOr of poſſeſſions (the firſt & hardeſt part of Law) wee hauehave hitherto ſpoken ſufficiently. 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)38. E. 3. 31. 9. H. c. 2.if he be a lord of the Parliament (whom we call a Pier of the Realme) then a C. s̄. As if (b)38. E. 3. ibid.ones writ abate, or if in (c)9. H. 6. ibid.an Action of Treſpaſſe 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 amerced. 18. E. 3. 2. br. 355.And therefore a writ brought by her is good enough, though this clauſe, Si fecerit te ſecurum, be left out, for ſhe ſhal not be amerced for her non ſuite.
CHAP. 2.
Of Treſpaſſes vponupon the Caſe.
OFfences without force, are treſpaſſes vponupon the Caſe, or Reall wrongs.
Treſpaſſe vponupon the caſe is ſuch an offence, whereby any thing is indammaged: And is a miſuſer or deceit.
Miſuſer, when by meere wrong it is indammaged. Of which kind there be manie, 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 9. El. Ʋttings caſe.ſhall be puniſhed for ſuch a report, if it bee falſe. The touching of him with ſome hainous crime, as that he hath gone about to Sir Th. Cokains caſe.get poiſō to kil the child that ſuch a womā goeth with (yet it is no felonie;) lien (a)So it hath beene adiudgedin waite to robbe him; procured (b)26. El. Cracknel. 5. c.another, or agreed (c)33. El. Cebot againſt Haines adiudged.with another to murder him (though he were not murdered in Deed;) (a)27 El Hacks c.ſought his life for his land, &c. or the impairing his trade of life; As to cal a marchant (b)27. El. Bartons caſe.bankerupt (for it is his liuing, but ſo it is not of a gentleman;) an Attornie (c)26. El.Ambodexter, or to ſay that hee dealeth (d)27. El. Burc. c.corruptly. But in all ſuch caſes, words of choller and heate, as to call one coſoner, (e)All th…ſe caſes hauehave ſo beene adiudged or commonly receiued for Law. 13 H 7 per 11. El Dy. 285. 30. H 8. Br. Act. ſur caſe 104.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 (g) 7. El. Dy. 236.it is not falſely. As that he called him periured, by reaſon of a periurie committed in the Star-chamber, murderer, thief, or ſuch like, vponupon a Conuiction; (f)31 El Nowels caſebut not vponupon an Enditement or Common voice and fame, though the defendant himſelf ſuſpect him. if one hauing another mans goods, (h)It hath beene oftentimes adiudged, that in ſuch caſes the conuerſion is trauerſible.conuert them to his owne vſe: if a (i)7. H 6. 5. & 17. El. in Manſ…rs c. no action of debt lieth vponupon it (at the Common Law) but an actiō of treſpaſſe vponupon the caſe.Sherife ſuffer one in execution for debt to goe at large: if a Smith (k)48. E. 3. 6.cloy my horſe: but not if he take him to cure (without warranting of him) and doing all he can, yet the horſe impaire. If being committed to the F. N. B. 93. H.Gaole, the Gaolet of malice put vponupon 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 telleth 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 former Statutes, if the party canot bring forth him that ſpake the ſame, he ſhall bee puniſhed 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 vntounto one to doe. As for a man to vſe his Common; to reduce a water-courſe that is miſturned, to preſent vntounto a Church, &c.
Nuſance is annoyance done to ones hereditament. F N. B. 184. a F. N. B. 184. d.As leuying a Faire or market to the Nuſance of another Faire or Market, building a houſe ſo neere mine, that the rayn which falleth from that houſe falleth vponupon mine, &c.
All manner of nuſances are to be remoued, and common nuſances, As a wall, (a)33. H 6. 26.&c. built vponupon the High-way, trees (b)42. Aſſ pl. 5.growing vponupon the riuer banke, whereby a water-courſe is ſtopped, any man may pull downe.
Deceit, when the dammage groweth by F. N B. in his writ of Deceite.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 looſeth the land: or if in play one winne anothers monie with falſe dice, or if he that felleth any thing doe vponupon 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)5. 7. 41.after, (at another place) or (b)11. E. 4. 6.a ſeruant make the warrantie vponupon the ſale of his maſters goods (which in law is the maſters ſale, & warrantie of the ſeruant) it is a void Warrantie, and no Action of deceit lieth vponupon 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 vponupon 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)So are all th… precedents.in eueryevery actiō where the matter paſſeth againſt the plaintife (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)11. H. 4 45.but not in treſpaſſe, for there he ſhal be fined & impriſoned. Non-ſuit (c)22. Aſſ pl. 32.in an actiō, (d)7 H▪ 6. 36. 40. E. 3 20.fault in the original writ hee bringeth: or (by the Sherif) in the return of a writ: making (f)10 E 4 Br. amerciament 46.default when he ſhould appeare. (as the Iurors at the Habeas corpora) and whatſoeuer other offences (not beeing with force and armes) which offer no direct iniurie to a common perſon.
CHAP. 4.
Of Diſcontinuance.
HItherto of Treſpaſſes vponupon the Caſe.
A reall 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 Taile, or Fee-ſimple in anothers right, As the husband in right of his wife. A Deau ſole ſeiſed in the right of his deanrie: Deane and Chapter, Gardeine, and Chapleines; as alſo Maior, and comminaltie of lands in the right of their Corporation. 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 therefore paſſe no greater eſtate than the Grauntor had.
Statutes.
32. H. 8. cap. 28. All Leaſes by deed indented for life or yeares, by any perſon of full age, hauing an eſtate in fee or in feetaile, 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 any 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 reſerued 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 hauehave the like aduantage againſt the Leſſees, their executors 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 reſerued to the husband and wife, and her heirs, according to her eſtate of inheritance.
13. Eliz Cap 10. All grants, Feoffements, Leaſes, and other conueyances and eſtates, by any Maſter or Fellows of a Colledge, Deane and Chapter, Maſter or Gardein 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 payable, 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 reuerſion, and the accuſtomed yeerely rent ſhall be reſerued, the Leſſees charged with reparations, and it ſhall not bee aboue forty yeares. No alienation ſhall be of ſuch houſes, vnleſſe that preſently vponupon ſuch alienation 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 Biſhops, 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 onelyonly, of any land being the inheritance or free-hold of the wife, ſhal be a diſcontinuance or preiudicial to the wife, or ſuch as hauehave intereſt after her death: leaſes within the compaſſe of this Statute onelyonly except.
Warrantie of an eſtate of inheritance, or for life, deſcending vponupon him that ought to hauehave 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 warrantie is a diſcontinuance, for hee hath fee by the vſurpation.
So it ſeemeth of a collateral anceſtors releaſe, 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 entrie of thoſe that come to hauehave title after his death. If he (whoſe entrie is barred by a diſcent or diſcontinuance) hauehave the freehold caſt vponupon him by a new title, he ſhal be in of his anciēt title: which is termed a remitter. As if the heire of the diſſeiſor Lit 152.(in by diſcēt) make a leaſe for life to I. S. the remainder for life or in fee to the diſſeiſee, if Tenant in Taile diſcontinue, & then 11. E. 4. 1.diſſeiſe the diſcontinue, & die ſeiſed, whereby the lands diſcends to his iſſue; if the huſband make a feoffement in fee of land in 21. E. 3. 26.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 another 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 Iſſue 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 vntounto 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 Old Nat. Br. 135.Tenant for life, be it a mans own life, or another mans, Tenant in Dower, or by curteſie, &c.
Abatement, which is after the death of 5 H. 7. 6.one that hath the Inheritance, whether the land diſcend vntounto his heire, or he die without heire.
Of the ſecond ſort are, Diſſeiſin & vſurpation
Diſſeiſin is the ouſting of him that hath Lit. 62.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 eueryevery Lit. 52: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 99. E. 3. 15.like, that hath of ancient time beene incloſed, ſo as it is not done of purpoſe to keep him from his rent, that is no diſſeiſin.
Foreſtaller is, when the Tenant beſetteth the way with force and Armes vponupon 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, Reſcuous, and Repleuin.
Reſcuous, when either the partie hauing diſtreyued; the diſtreſſe is reſcued, or being vponupon the land to diſtreyne, cannot be ſuffered.
Repleuin is, when an Action of Repleuin is brought vponupon a diſtreſſe taken.
In a Rent-charge and a Rent-ſeck, denier.
Denier is, when the Rent (beeing demanded vponupon the Land) is not paid.
Vſurpation is, when the Church becommeth ful by the preſentment of a wrōg Patron: which is done by the inſtitution of the partie preſented.
Prerogatiue.
But againſt the King, Induction onelyonly 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 onelyonly. And the Plenartie by ſixe moneths (which barreth the right Patron 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 plenartie without making mention of any induction, but of admiſſion and inſtitution onelyonly. 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 admiſſion 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 Quare impedit, againſt a perſon imperſonee (that is, a Spirituall Bodie politique, which beeing Patron, hath the Church appropriated in ſucceſſion, (viz.) to hold to their proper vſe, without preſentation, inſtitution, 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.
Weſtm̄. 2. Cap. 5. Vſurpation vponupon Gardeins tenants in Dower, or vponupon femes couert, or houſes of religiō in time of vacation, ſhal not put the heires fems, or houſes of religion out of poſſeſſion. But faint recoueries 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 purchaſed 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 without force.
An offence with force is a Treſpas (or offence) againſt the Crowne. For in all Inditements and Inquiſitions, Stat. 37. H. 8. ca. 8. reciteth the Commō law to be ſo.of treaſon, murder, felonie, treſpaſſe, &c. vi & armis muſt be in, elſe it is not good.
Treſpaſſe is a criminal offence puniſhable by a fine vntounto 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 diſtreyne 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 impriſoned till he doe compound. Therefore after tender of his fine, the king cannot iuſtly detaine him in priſon.
Treſpaſſes touch poſſeſſions or the perſon. Poſſeſſions, when the wrong is don in them, namely in goods or land.
Treſpaſſe in goods, is the wrongful taking 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 wrongful 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 treſpaſſe is done vponupon an actual poſſeſſion thereof. For of a treſpaſſe don (a)11. H. 7. 22.after the death of the Anceſtor, and before the heires entrie: after (b)1. Mar. Pl. 142breach of the Condition, and before entrie for it: where a leaſe for yeares is made, reſeruing a rent, vponupon condition to be voyde if the rent be not paide: or after Michaelmas, 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 Park 4.not ſeiſed of the Land at the time of the treſpaſſe done; yet the Leſſor in the ſecond caſe might hauehave 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, whether 21. H. 7. 39.Coniſance may be of them to bring a Repleuin, or not: that ſo the Treſpaſſe may be diſtreyned by him that hath dammage by it. As one that hath Common 15. H. 7. 13.out of land, though he hauehave nothing in the land it ſelfe, ſo as he can hauehave 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 dammage 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 puniſh him by the Common law, if he occupie 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 F. N. B. 220. f. 1. H. 6. 1.termer for yeares of land is ouſted: Whether by the Leſſee or a ſtranger, but not a Termer for yeares of beaſts or other Chattels.
Prerogatiue.
Here (viz.) of land, which is a thing permanent for things tronſitorie and remoueable: 1. H. 7. 19.the King may be put out of his poſſeſſion, and hauehave his Action according, as rauiſhment of gard, Quare impedit, &c. But of things permanent hee cannot hauehave an Action, as a Praecipe quod reddat, eiectment of ward, &c. becauſe of ſuch things he cannot be put out of poſſeſſion: the King hauing poſſeſſion by matter of Record, or Stamf. prer. 74.other good title, none can put him out. But 8 H. 4 16. ꝑ Stāf. prer. 57.if hauing no title by matter of Record, or otherwiſe, he enter vponupon me & put me out, there if I enter againe, my entrie is lawfull, and no intruſion. So if the king ſeiſe vponupon an office, finding that his tenant died ſeiſed 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 pretence of violence, or violence indeed.
Pretence of violence, as Menaces & Aſſaults.
Menaces are threatning words of beating one, or ſuch like, through feare (a) 18. E. 4. 28.whereof ones buſineſſe is foreſlowed. For (b) 7. E. 4. 24.a menace onelyonly (without other loſſe) maketh not the Treſpaſſe, but both of them together.
CHAP. 9.
Of Aſſault.
ASſault is an vnlawfull ſetting vponupon ones perſon. As offering to (c) 40. E. 3 40.beate one, though he doe not beate one in deede, ſtriking (d)22. aſſ. pl 60.at one with an Hatchet, or ſuch like, though he do not touch him. Whether belongeth lying in waite, beſetting his mā ſion Booke of Entries fol. 552.houſe, and not ſuffering his ſeruants to goe in and out, &c.
CHAP. 10.
Of falſe Impriſonment.
VIolence indeede, is falſe impriſonment, or bodily hurt.
Falſe impriſonment is an vnlawfull reſtraint of libertie. As (a)22. aſſ. pl. 85.arreſting one againſt his will, though it be in the High-ſtreete, and he neuer put in priſon in any houſe; detaining of a woman (b)43. E. 3. 20.againſt her wil, whom he hath rauiſhed. So if a (c)22. E. 4. 45.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 ſeruant 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)43. E. 3. 33.execution vponupon a ſtatute 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 violences onelyonly, or Rape.
Outward violences only, are Batterie and maime.
Batterie is the wrongfull beating of one. But if a man will take away my goods, I may lay my hands vponupon him, and 9. E. 4. 28.diſturbe him, and (if he will not leaue) I may beate him, rather than he ſhall carrie them away, for that is no wrongfull beating.
CHAP. 18.
Of Maime.
MAime is the wrongfull ſpoyling of a member defenſiue in fight. As cutting off ones finger, knocking (b)8. H. 4. 31. Corone 458.out ones foretooth, (c)Brit. & Bract. ꝑ Stamf. 38. b.putting (a) 28. E 3. 94.out his eye, &c. Otherwiſe it is of knocking out his grinding teeth, cutting 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)9. E. 4. 26.woman againſt her will. But if the woman conceiue vponupon any (e) Brit. per Stamf. 24.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, conſent, as wel ſhe as the rauiſher be diſhabled to hauehave any heritage, dower, or Ioint-feofment after the death of their husbands and Anceſtors, and the next of bloud ſhal hauehave 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)38. H. 39.making reſcous vponupon his Writ ſerued, (b)24. E. 3. 3.going armed in his palace, &c. where ſometime the puniſhment is increaſed according to the qualitie of the offence, not onelyonly in the fine, but further, in the loſſe of member, and ſuch like. As a juror 36. H. 6. 27.appearing, and being challenged, if hee doe not appeare vponupon demand, when hee is found indifferent, ſhall bee fined by the value of his land by a yeare. He that ſmiteth a man (d)41. E. 3. Coron. 280.in Weſtminſter Hall, or a Iuror in the preſence of the Iuſtices, ſhall hauehave his right hand cut off, his land and (e) 19. E. 3. Iudgement 174.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 remaineth to ſpeake of offences againſt the Crowne, which are criminall offences, puniſhable by death.
Where further alſo all the offendors both hereditaments, As lands, rents, &c. whether for life (a)Stamf. 186 b. & 190onelyonly, or of (b)22. aſſ. pl 4 in high Treaſon.an eſtate of inheritance, & chattels, not onelyonly in poſſeſſion, (c)29. Aſſ pl. 63.but ſuch as he hath but a right to, As lands (d)6. H. 7. 9.wherof he is diſſeiſed, debts, (e)29 aſſ ibid.goods (f)50 aſſ pl. 5.to be accounted for, or wrongfully (g)29. Aſſ pl ibid.taken; But (h)29. Aſſ. ibid.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 onelyonly in felonie land of inheritance is forfeite to the Lord, as appeareth (i)chap. 16.afterwards.
Hereditaments (k)30. H. 65.from the time of the offence, (whether the attainder be by Outlawrie, verdit, or howſoeuer elſe) Chattels, though real, (l)5. Mar.as a leaſe for yeres, &c. from (m)8. E. 4. 4.the time of the attainder onelyonly. So (n)8. E. 4. ibid.as a ſale or gift before, is good, for he muſt liue of them. And therefore after enditement, and before attainder, the goods ſhall 7. H. 4. 47. Br forf. de terr. 10.not be remooued out of his houſe, but ſhal be in the keeping of his neighbors. And in theſe and all other forfeitures, as vponupon an (o)5. H. 4. forf. 32.enditement of fugam fecit, or (p)3 E. 3 corone 347.if one be taken with the manner, vponupon a robbery, or (q)22. aſſ pl. 8. ….tarrie the exigent, &c. the Towne is chargeable with the goods, and therefore (r)22. aſſ. ibid.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, VnderUnder-ſhetife, 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 impriſoned be conuict, or attainted of ſuch felony, according to the Law of England: or elſe the ſame goods otherwiſe lawfully forfeit, vponupon 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 37. H. 8. Br. d…n. 42 22. H. 6. 38.a remainder to his right heire, can neuer take effect. The eldeſt ſon attainted of felonie in his fathers life time, and him ſuruiuing, or his iſſue (a)32. H. 8. Dy. 48(if he die before) cannot inherite: and beſides, ſhall be an impediment, that the younger brother cannot, (b) 22 H 6 ibid.but it ſhall go to the Lord by eſcheat. Otherwiſe (c)32 H 8 Dy. ib.it is if the eldeſt ſonne die without iſſue in his fathers life time.
Laſtly, the wife looſeth (d)Lit. 169her dower, And notwithſtanding (e)3 & 4 Ph. & Mar. Dy. 140.the husband alien the ſame before the offence commited.
Statutes.
1. E. 6. cap. 12. No dower ſhall bee forfeit, by the husbands attainder, of any murder, or felony whatſoeuer.
Prerogatiue.
Thoſe that flie for feare of the offence 3. E. 3 corone 209. 3. E. 3. corone 289. 5. H. 4. forf 32.(we call it a Fugam fecit) forfeit their thattels Acceſſaries after the fact, that is to ſay witting mainteiners (and (f)12. E. 3. corone 377. 14. E. 2. ꝑ 19. El. Dy. 355.if it bee of one outlawed in the ſame County, though they hauehave no other notice of it) as by (g)8. E. 3 cor. 427.receiuing one that flieth for it into his houſe, and ſhutting the doore, ſo as the Countrey thinking him to be there, he eſcape whileſt no man followeth him; ayding (b) 26 aſſ pl. 47.him with money, but not with good words, as wholſome aduiſe ſpeaking or writing for his deliuerie, And therfore alſo that ſuffer (i)Stamf. 35. h.one arreſted whether by themſelues or any other to eſcape which (k) 9. H 4. 1.we call a voluntarie eſcape, are guiltie of (l) Stamf. 22. i.the ſame offence.
Prerogatiue.
Concealing the offence, without diſcouering it vntounto the king, or his Councell, or to ſome Magiſtrate, is called miſpriſion, and that forfeiteth (a) chattels, and hereditaments during their life.
CHAP. 16.
Of Felonie.
OFfences againſt the Crowne bee of two ſorts, Felony, and Hightreaſon. Felony is an offence of the Crowne not bent immediatly againſt the State, where the forfeiture of the offenders (b)27. E. 3. Eſcheate 17.inheritance is giuen to the Lord (whether it be in petie (c)22. aſſ. pl. 49.Treaſon, or other Felonie, and (d)Stamf. 198. a.at any time after he is attainted; And therefore the Lord may hauehave a writ of Eſcheat before execution. But (e)Stamf. 190. ….of lands (wherof one is ſeiſed in the right of his wife) the King ſhall hauehave the iſſues during the huſbands life.
Prerogatiue.
The King, both (f)Stamf. 190. a.here, and whereſoeuer (g)Stamf. 190. ….the offendor was diſpuniſhable of waſt (as if hee were ſeiſed of land in the right of his wife) is vtterly to waſt the inheritance, 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 hauehave 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 Stamf. 182.hanging.
This is ſimple, or mixt.
Simple, as ſtealth, and man-ſlaughter.
Stealth is the wrongfull taking of goods without pretence of title. And therefore altereth not the propertie, as a treſpaſſe 4. H. 7. 5.doth, ſo as vponupon an appeale the partie ſhall re-hauehave 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 ſeruice, imbezle, or conuert the ſame to his owne vſe, ſhall be iudged a theefe, if the value 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 22. H. 6. 21.of their gueſts ſtollen: though they let them hauehave a chamber with a key vntounto it, to keepe their goods in. But if the gueſt ſuffer with his good will a ſtranger (whom he knoweth not) to lodge with him in the chamber, and the ſtranger rob him, the Inkeeper ſhall not be charged. Otherwiſe it is, if he be lodged there by the Inne-keeper.
Prerogatiue.
Goods confisked; that is to ſay, which (a) 3. E. 3 corone 371.the théefe, attainted for ſtealing another thing, for if it bee for ſtealing the ſame goods they are ſaid to bee forfeit, and not (b) 3. 3. 3. coron. 355confisked, diſclaimeth to hauehave any propertie, in and waifes; that is to ſay, which a (c) 12. E. 45.theefe (but not one that committeth a treſpaſſe) waiueth; are the Kings, if he (whether any officer of his, or the Lord of the (d) 21. E. 4. 16.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 21. E. 4. ibid. 7. H. 4 43.ſuite; whither the theefe bee taken at his ſuite or not, conuict him afterwards vponupon an Appeale; he ſhal hauehave his goods again.
Statutes.
21. H. 8. cap. 11. The partie ſhal hauehave reſtitution of his goods without freſh ſuite, if he or any for him giuegive in euidence, by reaſon whereof the other is attainted.
The ſtealing of goods which exceed not the value of xii. b (called pettie Larcenie) 27. H. 8. 22.is a felonie (for a man may iuſtifie the calling of one theefe for ſuch an offence) that doth onelyonly forfeit his Chattels.
CHAP. 18.
Of Man-ſlaughter.
MAn-ſlaughter is the killing of any perſon (a)Stamf. 21. c.borne into the world, though he be not baptiſed. But (b)Stamf ibid. … aſſ. pl. 2.to kill an infant in venter ſa meere, is no felonie.
Statutes,
21. E. 1. Stat. de male fac⃛ in parcis: It is no Felonie for Forreſters to kill miſdoers, if they will not ſubmit themſelues.
But if one liue a yeare after an act committed, which was the cauſe of his death, as beating, (c)3. E. 3. Corone 303.poyſon (d)Stamf. 21. 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)2. H. 4. 18.chance (which we call by misfortune, or miſaduenture) in the doing a lawfull act. But not if A. B. be (f) Stamf. 16. c.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 killeth C. becauſe the thing which they were doing was vnlawfull, or in his owne defence, which we call Se defendendo, flying (g) 4. H. 7. 2.as farre as he may to ſaue his life, for otherwiſe (h) 43 aſſ pl. 31.it is felonie, though the other purſue him, doth onelyonly forfeit his chattels, and he muſt hauehave a charter of pardon.
Statutes.
Glouceſt. cap. 9. Hee that killeth a man by miſaduenture, or ſe defendendo, muſt put himſelfe vponupon the countrey, and if he bee found to hauehave done it ſo, the King if he pleaſe may pardon him.
Marlb. cap. 25. To kill a man by miſaduenture ſhall be no murder.
But the killing of one that attempteth to robbe him (whether (e)26. aſſ pl. 32.vponupon the Highway, or (f)26. aſſ pl. 23.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: (a) 8. E. 2. Corone 389.As the wheele of a mill, when one falleth from the bridge into the water, and is carried by the violence of it vnderunder the outward (b) 3 E. 3 coron. 140.wheele; the taske of Corne that a man falleth from, and ſo receiueth his death: it, and eueryevery thing mouing with, it is forfeit to the King. As if a man beeing vponupon a Cart (c) 8. E. 2. cor. 397carrying Faggots, and binding them together, 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-ſlaughter without former malice. As if 1. Mar. Pl. 100.certaine ſet vponupon one to kill him, and I. S. hauing no malice againſt him, & being in the companie, and ſeeing them combating, take part ſuddenly, and together with the reſt ſmite him that he die, this is Chance-medlie in I. S.
CHAP. 20.
Of Murder.
MVrder is Man-ſlaughter vponupon 18. El. Pl. 474.former mallice: which wee call prepenſed malice. As if one to kil his Wife, giuegive her (lying ſicke) poyſon in a roſted apple: and ſhe eating a little of it, giuegive 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 vponupon 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 effect which he meant, proceeding from a naughtie and malicious intent.
Felonie de ſe, That is, he that murdereth 3. El. Pl. 258.himſelfe, doth onelyonly 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 hauehave 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 hauehave 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 giuegive away the term as an expreſſe grant, which the husband might hauehave 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)9. E. 4 2….bee taken, though hee command him to deliuer his purſe or money, or money taken, but (b)5. El. Dy. 224.without putting the perſon in feare by aſſault and violence (as where one is indited Quod vi & armis, apud B. in via regia ibidem xl. s. de pecunijs numeratis, &c. felonice cepit de perſona I. S.) it is no Robberie. And therefore in this latter caſe he may hauehave his Clergie at this day.
CHAP. 22.
Of Burglarie.
BVrglary is the night-breaking of an houſe, with an (a)1. E. 6 Br. Corone 179.intent to ſteale or kill; though none be killed, nor any thing ſtollen. And ſo it is of a (b)1. E. 6. ibid.ſtable, parcell of a houſe, but (c)13. H. 4. 7.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.(d) Stamf. 30. b.
CHAP. 23.
Of pettie Treaſon, properly ſo called.
ANd of bare Felonies ſo much ſhall ſuffice. Pettie Treaſon is a Felonie, (e)1. E. 3. 24.For where one is arraigned for falſifying the Kings ſeale, (which is a pettie Treaſon) a Charter of pardon of all Felonies is a good plea. (f) 1. R 2 4. F. N. B. 269. b.of higher nature than bare Felonie is; the puniſhment whereof is burning.
This is againſt mortall creatures, or againſt God.
Againſt mortall creatures, as Petty-treaſon (a) 22. aſſ pl. 49. 21. E. 3. 17. Corone 477.(properly ſo called) and Sodomitrie. Pettie treaſon (properly ſo called) is the killing of any to whom priuate obedience (b) 12. aſſ pl. 30. 19. H. 6. 14. his maſters wife.is due: as ones maſter, miſtreſſe, huſband, &c. for which in ſtead of burning, (c) 1. R. 3. 4.(which the woman here ſhall bee) a man (d) 12 aſſ pl. 30. 1. R. 3. 4▪ſhall be hanged and drawne.(e) 21. E. 3. ibid. 19. H. 6. ibid.
CHAP. 24.
Of Sodomitrie.
SOdomitrie is a carnall copulation againſt nature, to wit, of man or womā F. N. B 269. b. they ſhall be burnt, and that by the common Law.in the ſame Sexe, or of either of them with beaſts.
CHAP. 25.
Of Hereſie.
AGainſt God, is that which immediately (f) Lect. Frowick. No Sanctuarie lieth in caſe of Hereſie, for it is treaſon againſt God.is bent againſt his Maieſtie, as Hereſie, and Sorcerie. Hereſie is a preſumptuous oppugning of an Article of Faith: whereof what it is, (g) F. N B. 269. b. Sorcerers, Sorcereſſes, and Heretiques ſhall be burnt, and that by the Common Law F. N. B. 269 b.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 relapſe into the ſame or ſome other Hereſie.
CHAP. 26.
Of Sorcerie.
SOrcerie is a conſulting with Diuels, F. N. B. 269. b. 45. E. 3. 17.and containeth vnderunder it, Coniuring, Nigromancie, and ſuch like.
CHAP. 27.
Of Pettie Treaſon, growing by Prerogatiue.
HEre diuers offences are accounted (a) 26. aſſ pl 63.felonie, in reſpect of the (b) 3. H. 7. 10.Kings Prerogatiue, As to counterfeit (c) 1. E. 3. 24.the Kings coyne, great ſeale, or Priuie Seale; to acknowledge any forrein perſon to hauehave any power within the Realme. As (d)30. aſſ pl. 19.by pleading an Excommunication vnderunder 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 (e) 25. E. 3. cap. 2. maketh a declaration of all theſe to bee high Treaſon.againſt the State. As in compaſſing the death of the King: For entending his death (without (f) 13. H. 8. 12.more) is Treaſon; otherwiſe it is in felony, except an act be done, or the Queene his wife, or of his ſonne and heire, by leuying warre within the Realme, or adhering to his enemies: or them comforting, ayding, &c. and is puniſhable by drawing, 1. H. 7. 24. Stamf. 182. c.hanging and quartering, in a man, drawing 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 other Iuſtices aſſigned to heare and determine in their place, doing their office.
To counterfeit the kings mony.
To bring falſe coine into this Realme, counterfeit according to the mony of England (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 Signet, or priuie ſeale.
Strange coine currant in this Rlalme.
1. & 2. Ph. & Mar. cap. 11. To bring wittingly falſe forreine coyne hither, to the intent 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 defend 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 gouernor in all cauſes within her dominions.
13. Eliz. cap. 1. To put in vre any bull, or inſtrument of abſolution, or reconciliation from Rome, or to take vponupon 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 offendor to vphold him. To practiſe to abſolue, perſuade, or withdraw any perſon within the Queenes dominions, from their naturall obedience, or (for that entent) from the Religion now eſtabliſhed here, to the Romiſh religion, or to mooue them to promiſe obedience to the Sea of Rome, or other 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 treaſon 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 hauehave the reall poſſeſſion of eueryevery 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 executed) ſhall bee impeached for any error, by the heires, or any claiming vnderunder 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 inquired 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 Hightreaſon.