When Babingdon ▪ and other Traytors his Complices ( being in all fourteen ) were attainted for conspiring the death of Queen Elizabeth ; This Law against Traytors was executed according to tbe letter thereof , upon those seven who were executed the first day , but her Majesty was gratiously pleased to moderate the execution upon the other seven , so that they hang'd till they were dead . The Judgment given in case of high Treason is ,

THat the person attainted shall be drawn to the Gallowes at T. and there to be hanged by the neck , and cast alive upon the ground , and his bowels taken out of his body , and while he is living burned in the fire , his head cut off , his body quartered , and his head and quarters put where the King shall appoint .

In which Judgment is implyed forfeiture of all his Mannors , Lands , Tenements , and Hereditaments in Feesimple , and Fee-taile , his wife to lose her Dower , his Children become base and ignoble , and his blood so stained and corrupted that they cannot inherit to him or any other , and forfeit all his Goods and Chattels , &c.

Petit Treason .

FOr a Servant to kill his Master , was petite Treason by the common Law , 12 lib . Ass. pa 30. and ●1 Ed. 3 : Ca . 17. or if a Servant kill his Masters wife it is petit Treason , for he is a Servant to them both , 19 H. 6. For a woman to kill her Husband it was petit Treason by the common Law , 15. Ed. 2. Coron . 183. And the Law is , if a Servant after he is out of his Service kill his Master it is petit Treason , so that he did it of malice prepensed during the time that he was in his service .

If the wife procure one to kill her Husband , and he doth it accordingly , in this case the wife being absent is but accessary , and shall be hanged and not burnt , because the accessary cannot be guilty of petit Treason ▪ where the principall is but guilty of Murther ; But if he that did the Murther had been a Servant of her Husband , it has been petit Treason in them both , and the wife should have been burnt ; and so is the judgment at this day .

In time past , Voluntas reputabatur pro facto , and thereupon a mans wife who went a way with her Adulterer , compassed the death of her Husband , they assaulted him and strook him with Weapons that he fell down as dead , yet recovered , the man and woman were Indicted and Arraigned , and the speciall matter being found , the man was adjudged to be hanged , and the woman to be burnt , 15 Ed. 2 , Tit . Cor . 383.

And a Boy attempting to cut his Masters throat in his bed , and thinking he had done it , fled , but was apprehended ; and this being specially found ( though the man dyed not of the wound ) the Boy was adjudged to be hanged , because in both thes cases there was an ouert Act , which was more then a bare plotting or compassing .

By the Statute of 5. Ed. 6. Ca . 11. no man is to be indicted of high Treason , or petit Treason , but by the Testimony of two witnesses ; and 5 Eliz . Ca . 12 , accused by sufficient Testimony .

Nor ought any man outlawed to serve upon any Inquests , and therefore all Indictments found by any such shall be void and null , because they be not probi & legales homines , good and lawfull men , Stam . pl. Cor . fol. 87.

If a man be indicted of high Treason he may plead a forraign Plea , as he might do at the common Law , but not in cases of petit Treason , Murther , or Felony , for there it shall be tried where the Indictment is taken .

And the Iudgment in petit Treason is , that he shall be drawn to the place of Execution , and there to be hanged by the neck till he be dead .

But a woman is to have Iudgment to be drawn and burnt , both in case of petit Treason , and high Treason , and not to be beheaded , or hanged .

And it is a Maxime in Law , that Execution must be according to the Iudgement , though there be some examples to the contrary ; as the Lord Hungerford , 32 H. 8. who notwithstanding his judgment to be hanged , was beheaded , and so was the Duke of Somerset , 5 Ed. 6. But the Lord Dacre 33 H. ● . and the Lord Stourton 3. & 4 P. & M. were hanged according to the Iudgement .

And in case of Felony or Treason , if any person be outlawed , the Judgment upon the Exigent at the set County upon the default of the party is , Therefore by the Iudgement of the Coroner he is outlawed ; which Writ being duly returned by the Sheriff , the party outlawed shall have the same corporall punishment , and shall forfeit as much as if , he had appeared , and Iudgment had been given against him in case of Felony or Treason respectively ▪ But if the proceeding therein be erroneous , and uppon his appearance upon the Cap. ut lagatum , if it appeare so to the Court they ought not to award Execution against him .

Misprision of Treason .

BY the common Law concealment of high Treason was Treason , 3. H. 5. in the Lord Scroops case .

But by the Statute of 1 & 2 of Ph. and Ma. It was enacted , that concealing or keeping secret of high Treason , be deemed and taken only misprision of Treason ; and the Offender therein to forfeit and suffer , as in case of misprision .

The Iudgement in misprision of high Treason is by the common Law , that the Offender shall for his concealement forfeit all his goods , and the profits of his Lands during his life , and suffer imprisonment during his life . Stamp . pl. Cor . fol. 38. and 1. P. and 2 M. ca. 10.

Concealement , and not discovery of Treason is misprision of Treason ; and concealement , and not discovery of Felony is misprision of Felony , whether the Treason or Felony be by the Statute , or common Law .

A man that is present when another is slain , and doth not apprehend the Slayer , it is a misprision , and shall be fined and imprisoned for the same omission , 8. Ed. 2 ▪ Cor . 395.

To draw a Weapon in Westminster Hall upon any Judge or Justice ( though he strikes him not ) sitting the Courts , is a misprision , for which he shall lose his right hand , forfeit his lands and goods , and suffer perpetuall imprisonment , West . 1. ca. 33.

Or if in the presence of the Iudges sitting in Westminster Hall , or elsewhere , or before the Iustices of Assile , or Oyer and Terminer , any strike a Iuror , he shall have the like punishment , inter leges Aluredi , cap . 34.

Or if any strike in the Kings Pallace where he resideth , he shall lose his right hand , and be perpetually imprisoned , if he draw blood otherwise not , 33 H. cap . 12.

By which it appears that striking in Westminster Hall , the Courts sitting , &c. hath greater punishment then for meer striking ( without drawing blood ) in the Kings house .

And it is a Rule , that every Treason and Felony doth comprehend misprision of either .

All persons convicted of Offences , for which they cannot have the benefit of their Clergy , or such as might have it and cannot read , their Iudgement is to go to the place from whence they came ( viz The Prison ) and from thence to the place of Execution , and there to be hanged by the neck till they be dead .

Of Conjuration , Witchcraft , Sorcery , and Inchantment .

A Conjurer is he , that by holy and powerfull names of Almighty God invokes and conjures the divel to consult with him , or to do some Act.

A Witch is a person that hath conference with the divell to consult with him , or to do some Act.

An Inchanter is he , or she that with Verses or Songs doth adjure the divell .

A Sorcerer is so called , because he useth Lots in these divellish Inchantments .

The punishment of this Offence before the Conquest was burning , and since that time , these Offences being adjudged Idolatry and Hereticall , was also such .

But by the Statute 1 Jacobi , it was enacted , if any person shall use , practise , or exercise any Invocation or Conjuration with any evill or wicked Spirit ,

Or shall consult , covenant with , entertain , imploy , feed , or reward any evill or wicked Spirit , to , or for any intent or purpose .

Or take up any dead man , woman , and childe , out of his , or their grave , or any other place where the body resteth , or the skin , bone , or any part of a dead person , to be imployed or used in any manner of Witchcraft , Sorcery , Charm , or Inchantment .

Or shall use , exercise , or practise any Witchcraft , Inchantment , Charm , or Sorcery , whereby any person shall be killed , destroyed , wasted , consumed , pined , or lamed in his , or their body , or any part thereof .

That then every such Offendor , or Offendors , their Aiders , Abettors , and Counsellours being of any of the said Offences duly and lawfully convicted , shall suffer paines of death , as a Felon , or Felons , and shall lose the benefit of the Clergy and Sanctuary ,

Of Murder .

Definition .

MUrder is where a man of sound memory , and of the age of discretion , unlawfully killeth within any County of the Realme , any reasonable Creature in rerum natura , under the Kings Peace , with malice forethought , either expressed by the party , or implyed by Law , so as the party wounded or hurt , &c. dye of the wound or hurt , within a year and a day after the same . — Co. cap . 8.

And under the title of killing , are understood death by poysoning , any Weapon sharp or blunt , Gun , Crosbow , Crushing , Bruising , Smothering , Suffocating , strangling , drowning , burning , burying , famishing , throwing down , inciting a Dogge , or Beare , to bite or hurt , whereof death ensueth , or laying a sick man in the cold . — ib .

Of all which severall sorts of murder , poysoning was held the most detcstable , in so much as by a Statute 22. H. 8. ca. 9. it was made high Treason , and for the same the offendor should be boiled to death in hot water . And some were executed accordingly . But the Act being held too severe , was repealed : 1 Ed. 6. ca. 12. & 1. M. ca. 1.

Under the notion of reasonable Creature is comprehended , Man , Woman , Child , Subject borne , or Alien , Christian , Jew , Heathen , Turk or Infidell being under the Kings Peace .

Malice prepensed , is when one compasseth to kill , wound , or beat another , and doth it Sedato animo , which is so odious in Law , as though it be intended against one , it shall be extended against another ; so that if one , strike one when he intended to strike another , it shall be held Felony to him . Bracton lib 3. fol. 155.

For which the Indictment is , that he shall be hanged , and shall not have the benefit of the Clergy .

Of Homicide , and the several kinds therof .

FElo de se , is where a man or woman , being of sound memory , and of the age of discretion killeth himself , which being lawfully found by the Oath of twelve men , all the goods of the person so offending are forfeited , but not his Lands , for that no man can forfeit his Lands without an attaindor by course of Law , which can not be , by Felo de se .

For cutting out of Tongues , and putting out of Eyes .

BY the Statute of 5. H. 4. cap . 5. It was enacted . If any man do cut out the tongue , or put out the eyes of any of the Kings Leiges of malice prepensed , it is Felony , which Statute was made for that before thfs Statute , when one had beaten , wounded , maymed or robbed , &c. the Offendors , to the end , the party grieved might not be able to accuse them , did cut out their tongues , or put out their eyes , pretending the same to be no Felony , and therefore it was ordained and established to be Felony by this Act.

For Burglary .

A Burglar is by the common Law a Felon , that in the night breaketh or entreth into a Mansion house of another , with intent to kill some reasonable Creature , or to commit some other Felony within the same , whether his Felonious intent be executed or not : inter leges Edm. cap 6 fol. 26. and by the Law of the twelve Tables . — Si nocta furtum factum sit , jure Caesus est .

But if a mansion house stand open , and a Theefe enter into the house with a purpose to steale , though in Law this be a breaking of the house , yet it is no Burglary , because no actuall breaking of the house . But if a Theefe break a Glass-window , and with a Hook , draweth out some of the owners Goods , it is Burglary , and under the title of mansion House are contained all the outset buildings , Barnes , Stables , &c ▪

For which offences , and for breaking of a house by day , and thence taking away money or goods , to the value of five shillings , though no person be therein shall suffer death , as in case of Burglary , 39 Eliz . ca. 15.

For burning of houses .

BUrning is a Felony at the Common Law , committed by any that malitiously and voluntarily in the night , or day burneth the house of another . 3. H. 7.

And this extendeth to the burning of a Barne , ( though no parcell of the Mansion house ) if there be Corne or Hay within it .

Of Robbery .

RObbery is a Felony by the Common Law , committed by a violent assault upon the person of another , by putting him in feare , and taking from his Person his money , or any other of his Goods of any value whatsoever , inter leges Canuti cap . 61. fol. 128.

Of Hunting in the night in any Forrest , Parke , or Warren .

BY the Statute of 1. H. 7. It was enacted , That if any person or persons hereafter be convict of hunting in any Forrest , Parke , or Warren with painted faces , Visors , or otherwise disguised , to the intent they should not be known , or of any unlawfull hunting in the night , that then the same person or persons so convict to have like punition , as he , or they should have , if he , or they were convict of Felony .

Felony in wandring Souldiers , and Mariners .

BY the Statute of 39. Eliz . All idle and wandring Souldiers or Mariners , or idle persons , wandring as Souldiers or Mariners shall be reputed Felons and suffer as in case of Felony .

And if any such wandring Souldier or Mariner , or other idle person wandring as Souldier or Mariner shall forge or counterfeit any such testimoniall , as by this Act is directed , he is by this Act a Felon .

Or if he shall have with him , or them any such testimoniall forged or counterfeited , knowing the same to be such , he is also by this Act a Felon , and shall not have the benefit of Clergy , and the Justiccs of Assise , Justices of Goale Delivery , and Justices of Peace have power by this Act to heare and determine the said Felonies .

Of Felony for any having a Plague sore upon him , and goeth abroad .

BY the Statute of 1. Jac . cap . 31. It was enacted that if any person infected with the Plague commanded ( by such persons as are appointed by the Act ) to keep house , shall contrary to such commandement willfully and contemptuously go abroad , and shall converse in company , having any infectious sore upon him uncured , such person shall be adjudged a Felon , but with this Proviso ; That no attainder of Felony by vertue of this Act shall extend to any Corruption of bloud , or forfeiture of Goods , Chattells , Lands , Tenements or Hereditaments ,

Of Felony in dangerous Rogues ,

IF any dangerous Rogue that was banisht the Realme , or adjudged perpetually to the Gallies , have returned into the Realme without lawfull Licence or Warrant , it is Felony , the same to be tried where the offendor is apprehended — 39 Eliz . ca. & 1. Jac . 25.

But the Offendor may have the benefit of his Clergy .

If any Rogue after he hath beene branded in open Sessions with a Romane R. upon the left shoulder , or sent to the place of his dwelling , where he had last dwelt by the space of a yeare , or the place of his birth to be placed in labour , have offended againe in begging or wandring contrary to the said Statutes it is Felony without Clergy .

By the Statute of 8. Eliz no manner of person was to send or deliver , &c. into any Ship or bottome , any Rams , Sheep , or Lambs , or any other Sheep alive to be conveyed out of this Realme of England , Wales , or Ireland , upon paine , that he and all his Abbettors , &c. for their first offence , shall forfeit all his goods , and suffer imprisonment for one whole yeare without Bayle or Mayneprise , and at the yeares end in some Market Town in the fulness of the Market , have his left hand cut off , and all such offendors be adjudged Felons . But this Act shall not extend to corruption of blood or loss of Dower ; and the offendor may have the benefit of his Clergy , in case of the cutting off his hand , as in the case of Felony , saith Sir Ed Cooke , for which he vouches Stamf . Pleas Crown fol. 37. 6. where I finde nothing to that purpose , and must therefore take his word , that the Law is so .

Of Felony in Servants that imbezell their Masters goods committed to their trust , above 40. s .

EVery Servant to whom any Caskets , Iewells , Money or Goods of his Master or Mistress shall be delivered to keep . That if any such servant withdraw himselfe from his Master or Mistress , and go away with the said Caskets , Iewells , Money , &c : to the intent to steale the same contrary to trust , &c. Or else being in service of his said Master or Mistress , without their assent shall imbezill the same , or any part thereof , or otherwise convert the same to his own use , with purpose to steale it , the same being of the value of fortie shillings or above , shall be adjudged Felony . 21. H. 8. ca. 1. Ed 6. ca. 12. 5. Eliz . ca. 10. but the offendor may have his Clergy .

Of Larceny by the Common Law ,

IT is the fraudulent taking of an other mans moveable Goods , with an intent to steal the same against the will of the owner . Bracton lih . 3. fol. 150. & Fleta lib . 1. ca. 36.

Or , according to Sir Ed. Coke , it is the felonious and fraudulent taking or carrying away of the meer personall estate of another , neither from the person , nor by night in the house of the owner , which a Mad man that is not compos mentis , or an Infant under the age of discretion cannot committ ; nor a feme Covert , if it be done by the coercion of her Husband ; otherwise she may , and her Husband may be accessary to it , but the wife cannot be accessary to her Husband , though she know the Larceny .

There is grand Larceny , and Petit Larceny , if the Goods stole be of above twelve pence in value , then it is Grand Larceny , if under that value then it is Petit Larceny , for which the Offender , shall forfeit all his Goods , and suffer some corporall punishment , as whipping , &c. Mirror . Cap. 4. sect . de crime de Robbery ▪ and Sir Ed Coke saith ; it is a rule in Law , that if no Felony can be committed of any thing that is Ferum natura , and of age being reclaimed or made tame , that then no Felony can be of the young in the nest , kennell , or den .

And yet of some things that be Ferae natura , being reclaimed , Felony may be committed , in respect of their noble and generous nature and courage ; As all kind of Falcons , and other Hawks , if the party that steales them know they be reclaimed , Mirror ca. 1. sect 10. And so of Fishes in a trunk or Pond .

And so if Deer , wild-Bore , Conies , Craines Phesants , which serve for the food of man be made tame , the stealing of them is Larceny .

Of Maymes .

A Mayme is properly said to be , when any Member of a mans body is taken away , whereby he is become lesse able to fight or combate , as the eye , the hand , the foot or the brusing of the head , or the fore teeth . Briton fol. 48. Iustice Seton saith , That every finger of the hand shall be said to be a mayme , if it be cut off , 28 Ed. 3 But the cutting off an Eare , shall not be adjudged a mayme , yet to knock out his Teeth is a mayme , because with them he may defend himselfe in Battell .

And Bracton saith , that a mayme may be said to be when any part of a mans Body is made unable to fight ; as if the bones be broken , out of the head , or if a bone be broken , or a foot , or a hand , or a finger , or the joynt of the foot , or any member be cut off , or by reason of any blow the sinews be contracted , or the fingers made crooked , or his eye pulled out , or any thing in a mans body , whereby he is made lesse able to defend himself . Bracton cited by Stamford Cl. Cr. ca. 41. fol. 38 6 , Or to cut of the genitalls of a man . Close Rolls 13. H. 3. Camb Britton . 59. 3.

Premunire .

IT is so called of the words in the Writ , The King to the Sheriffe &c. quod premunire fac . A Bec . Nat. B. fol. 143. And was made against such as did draw the Kings subjects , to answer things , the Conusance whereof pertained to the Kings Court 2. of judgments given in the Court . And thirdly that after judgments given in the Kings Courts of Common Law of matters determinable therby : and such as did pursue in the Court of Rome , or else where any thing which touched the King , against him , his Crown and Regality of his Realm , they , their notaries , procurators &c. shall be out of the Kings protection , 16 R : 2. ca , 5. & 27. Ed: 3

Of Prophesies

● ELiz . A statute was made against Prophesie by writing , singing , or other open speech or deed , by the occasion of any Armes , Fields , Beasts , Badges , or other like things accustomed in Armes , Cognizances , or Signets ; or by reason of any time , yeer or day , to the intent thereby to make any Rebellion , Insurrection , Dissention , losse of life , or disturbance within this Realm or other the Queens Dominions . For the first offence imprisonment of his body by the space of a yeer , without baile , and 10 li. to the Queen and the Informer ; and for the second offence imprisonment during his life without baile , and to forfeit to the Queen all his Goods , and Chattels reall and personall ; so that he be impeached or accused within six months next ensuing the offence by him done .

Of Approvers .

AN Approver is a person indicted of Treason or Felony , in Prison for , the same , and not disabled to accuse , He may upon his arraignment before any Plea pleaded , and before competent Judges confesse the Indictment , and take a corporall oath to reveale all Treasons and Felonies that he knowes , and pray a Coroner before whom he is to enter his Appeale or Accusation , against all that are partakers of his offence or of his society , in committing of Treason or Felony contained in the Indictment , those partners being within the Realm ; And if upon his Appeale all those partners be convicted , the King in point of Iustice is to pardon him . But it is in the discretion of the Court either to suffer him to be an Approver , or after his Approvement to respite Judgment and Execution , untill he hath convicted all his partners 9 H. 5. Cor . 440. 1 H. 5. Cor . 441.

Nor any man attainted of Treason or Felony , because he is out of the Law , or if he be indicted and out of prison , 11 Ass. pl. 17.

Nor Women , Infants , Ideots , Lepers , Professors in order of Religion , or Clerk , or persons attainted of Felony , or non compos mentis — Mirror Ca . sect . 13

And Stamford saith , nor men above the age of seventy yeers , or maimed , because some of them cannot take an Oath , and none of them can wage battell , Stam . pl. Cor . pa. 140.

Of false Tokens and Letters in other mens names .

ANy person that shall deceitfully obtain into his hands any money , Goods Iewels , &c. of any person or persons by collour or means of any false or privie Tokens or counterfeit Letters made in other mens names , shall suffer such Correction by punishment of his body , setting upon the Pillory or other corporall pain ( except the paines of death ) as shall be to him adjudged by such before whom he shall be convicted , with a saving to the party grieved by such deceit ; such remedy by way of Action or otherwise as he might have had by the common Law , 33. H. 8. ca. 1.

Of Theft-boot .

THeft-boot is when the Owner not only knowes of the Felony , but taketh of the Theefe his Goods again , or amends for the same to favour or maintain , that is , not to prosecute him , to the intent he may escape . But in that case if he receive the Theefe himselfe , and aid and maintain him in his Felony , then he is accessary to the Felony . But if a man take his Goods again that were stollen , it is no offence , unless he favout the Theefe .

So that there is a difference when a man receives the Theft , and when he receives the Theefe .

Of Conspiracy .

BY the Statute 34. Ed. 1. Conspiracy is said to be an agreement of such as confederate , or bind themselves by Oath , Covenant , ot other Alliance , that every of them shall beare and aide the other falsly and malitiously to indict , or falsly to move or maintaine pleas , and such as cause children within age to appeale men of Felony whereby they are imprisoned and sore grieved , and such as maintain men in the Countrey with Liveries and Fees to maintaine their malitious enterprises , and this extendeth as well to takers as givers ; also Stewards and Bailiffs of great Lords , who by their Office and Power undertake to beare and maintaine quarrels or debates , that concerne other parties , then such as concerne the estates of their Lords , or themselves 4. Ed. 3. ca. 11

And this Word Conspiracy in a more speciall signification , is a Consultation and Agreement between two or more , to appeale or indict an Innocent falsely and maliciously of Felony , whom accordingly they cause to be indicted or appealed , and afterwards the party is lawfully acquitted by the Verdict of twelve men , 22 of Ed. and Magna Charta palt . fol. 111. for which the party grieved hath two remedies . First by a Writ of Conspiracy , by which he shall recover Damages . Secondly , by Indictment , upon which Indictment if the Conspirators be convict , they shall lose the freedome of the Law , they shall not be put upon any Jury of Assise , or in any other Testimony of truth , their Houses , Lands and Goods shall be seised into the Kings hands , and their Houses and Lands estrepped and wasted , their Trees rooted up and arased , and their bodies imprisoned , for that they sought by malice , falsehood , and perjury , to attaint and overthrow the Innocent , 24. Ed. 3. ca. 43.

And such persons so convicted were not main ▪ pernable , 27. lib . Assis pa , 12.