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modities instead of money.



it is a usual practice, to the undoing
and overthrowing many young gentlemen and others,
that when men are in necessity, and desire to borrow
money, they are answered, that money cannot be had,
but that they may have commodities sold unto them upon
credit, whereof they may make money as they can :
in which course it ever comes to pass, not only that
such commodities are bought at extreme high rates,and
sold again far under foot to a double loss ; but also that
the party which is to borrow is wrapt in bonds and
counter-bonds ; so that upon a little money which he
receiveth, he is subject to penalties and suits of great
value.

150 it therefore enacteU, by the authority of this pre-
sent parliament, that it any man, after forty days from
the end of this present session of parliament to be ac-
counted, shall sell in gross sale any quantity of wares
or commodities unto such a one as is no retailer, chap-
man, or known broker of the same commodities, and
knowing that it is bought to be sold again, to help and
furnish any person, that tradeth not in the same com-
modity, with money, he shall be without all remedy by
law, or custom, or decree, or otherwise, to recover or
demand any satisfaction for the said wares or commo-
dities, what assurance soever he shall have by bond,
surety, pawn or promise of the party, or any other in
his behalf. And that all bonds and assurances what-
soever, made for that purpose directly or indirectly,
shall be uttely void.



y
286 A Draught of an Act, &fc.

0n&i)e it fttnfjer enartCU, by the authority aforesaid,
that every person, which shall after the time aforesaid
be used or employed as a broker, mean or procurer, for
the taking up of such commodities, shall forfeit for
every such offence the sum of one hundred pounds, the
same to be and shall be farther

punished by six months imprisonment, without bail
or mainpvise, and by the pillory*



[ 287 ]

A

PREPARATION

TOWARD THE

UNI ON OF THE LAWS

OF

ENGLAND AND SCOTLAND.



YOUR Majesty's desire of proceeding towards the
union of this whole island of Great Britain under one
law, is, as far as I am capable to make any opinion of
so great a cause, very agreeable to policy and justice.
To policy, because it is one of the best assurances, as
human events can be assured, that there will be never
any relapse in any future ages to a separation. To
justice, because dulcis tract us pari jitgo : it is reason-
able that communication of privilege draw on comma*
nication of discipline and rule. This work being of
greatness and difficulty, needeth not to embrace any
greater compass of designment, than is necessary to
your Majesty's main end and intention. I consider
therefore, that it is a true and received division ot law
into, jus publicum and privatum, the one being the
sinews of property, and the other of government > for
that which concerneth private interest of me um and
tuitm, in my simple opinion, it is not at this time to be
meddled with ; men love to hold their own as thov
have held, and the difference of this law carrieth no
mark of separation ; for we see in any one kingdom,
which is most at unity in itself, there is diversity of
customs for the guiding of property and private rights:
in veste varietus sit, scissura non sit. All the labour
is to be spent in the other part, though perhaps not in
all the other part ; for it may be, your Majesty, in
your high wisdom, will discern that even in that part
there will not be requisite a conformity in all' point:..
And although such conformity were to be wishe:!, yet



288 A Preparation for the Union of Laws.

perchance it will be scarcely possible in many points
to pass them for the present by assent of parliament.
But because we that serve your Majesty in the ser-
vice of our skill and profession, cannot judge what
your Majesty, upon reason of state, will leave and
take; therefore it is fit for us to give, as near as we
can, a general, information : wherein I, for my part,
think good to hold myself to one of the parallels, I
mean that of the English laws. For although I have
read, and read with delight, the Scotish statutes, and
some other collection of their laws ; with delight I say,
partly to see their brevity and propriety of speech,
and partly to see them come so near to our laws ; yet
I am unwilling to put my sickle in another's harvest,
but to leave it to the lawyers of the Scotish nation ;
the rather, because I imagine with myself that if a
Scotish lawyer should undertake, by reading of the
English statutes, or other our books of law, to set
down positively in articles what the law of England
were, he might oftentimes err: and the like errors,
I make account, I might incur in theirs. And there-
fore, as I take it, the right way is, that the lawyers of
either nation do set down in brief articles what the
law is of their nation, and then after, a book of two
columns, either having the two laws placed respec-
tively, to be offered to your Majesty, that your Ma-
jesty may by a ready view see the diversities, and so
judge of the reduction, or leave it as it is.

Jus pitblicum I will divide, as I hold it fittest for the
present purpose, into four parts. The first, concerning
criminal causes, which with us are truly accounted
public? juris, because^both the prejudice and the pro-
secution principally pertain to the crown and public
estate. The second, concerning the causes of the
church. The third, concerning magistrates, offices,
and courts: wherein falleth the consideration of your
Majesty's regal prerogative, whereof the rest are but
streams. And the fourth, concerning certain special
politic laws, usages, and constitutions, that do import
tbe public peace, strength, and wealth of the king-
dom. In which part 1 do comprehend not only con-



A Preparation for the Union of Laws. 289

stant ordinances of law, but likewise forms of adminis-
tration of law, such as are the commissions of the
peace, the visitations of the provinces by the judges
of the circuits, and the like. For these in ray opinion,
for the purpose now in hand, deserve a special ob-
servation, because they being matters of that tempo-
rary nature, as they may be altered, as I suppose^in
either kingdom, without parliament, as to your Ma-
jesty's wisdom may seem best ; it may be the most
profitable and ready part of this labour will consist in
the introducing of some uniformity in them.

To begin therefore with capital crimes, an rst
that of treason.

CASES OF TREASON.

WHERE a man doth compass or imagine the death
of the King, if it appear by any overt act, it is treason. .

Where a man doth compass or imagine the death
of the King's wife, if it appear by any overt act, it is
treason.

Where a man doth compass or imagine the death of
the King's eldest son and heir, if it appear by any overt
act, it is treason.

Where a man doth violate the King's wife, it is
treason.

Where a man doth violate the King's eldest daugh-
ter unmarried, it is treason.

Where a man doth violate the wife of the King's
eldest son and heir, it is treason.

Where a man doth levy war against the King and
his realm, it is treason.

Where a man is adherent to the King's enemies,
giving them aid and comfort, it is treason.

W T here a man counterfeited! the King's great seal,
it is treason.

Where a man counterfeiteth the King's privy seal,
it is treason.

Where a man counterfeiteth the King's privy signet,
it is treason.

VOL. iv. u



A Preparation for the Union of Lotos.

Where a man doth counterfeit the King's sign ma-
nual, it is treason.

Where a man counterfeits the King's money, it is
treason.

Where a man bringeth into the realm false money y
counterfeited to the likeness of the coin of England,
with intent to merchandise or make payment there-
with, and knowing it to be false, it is treason.

Where a man counterfeited any foreign coin cur-
rent in payment within this realm, it is treason.

Where a man doth bring in foreign money, being
current within the realm, the same heing false and
counterfeit, with intent to utter it, and knowing the
same to be false, it is treason.

Where a man doth clip, wash, round, or file any of
the King's money, or any foreign coin current by pro-
clamation, for gain's sake, it is treason.

Where a man doth any ways impair, diminish, fal-
sify, scale, or lighten the King's money, or any foreign
moneys current by proclamation, it is treason.

Where a man killeth the Chancellor, being in his
place and doing his office, it is treason.

Where a man killeth the Treasurer, being in his
place and doing his office, it is treason.

Where a man killeth the King's Justice in eyre, be-
ing in his place and doing his office, it js treason.

Where a man killeth the King's Justice of assise,
being in his place and doing his office, it is treason.

Where a man killeth the King's Justice of Oycr and
Terminer, being in his place and doing his office, it is
treason.

Where a man doth persuade or withdraw any of the
King's subjects from his obedience, or from the reli-
gion by his Majesty established, with intent to with-
draw him from the King's obedience, it is treason.

Where a man is absolved, reconciled, or withdrawn
from his obedience to the King, or promiseth his obe-
dience to any foreign power, it is treason.

Where any Jesuit, or other priest ordained since
the first^year of the reign of Queen Elizabeth, shall
come info, or remain in any part of this realm, it is
treason!



A Preparation for the Union of Laws.

Where any person being brought up in a college of
Jesuits, or seminary, shall not return within six months
after proclamation made, and within two days after
his return submit himself to take the oath of supremacy,
if otherwise he do return, or be within the realm, it
is treason.

Where a man doth affirm or maintain any authority
ofjurisdiction spiritual, or doth put in use or execute
any thing for the advancement or setting forth thereof,
uch otfence, the third time committed, is treason.

Where a man refuseth to take the oath of supremacy,
being tendred by the bishop of the diocese, if he be an
ecclesiastical person ; or by commission out of the
chancery, if he be a temporal person ; such offence,
the second time, is treason.

Where a man committed for treason doth voluntarily
break prison, it is treason.

Where a jailor doth voluntarily permit a man com-
mitted for treason to escape, it is treason.

Where a man procureth or consenteth to a treason,
it is treason.

Where a man relieveth or comforteth a traitor, know-
ing it, it is treason.

The punishment ', trial, and proceedings in cases of

treason.

In treason, the corporal punishment is by drawing
on a hurdle from the place of the prison to the place
of execution, and by hanging and being cut down
alive, bowelling, and quartering : and in women by
burning.

In treason, there ensueth a corruption of blood in
the line ascending and descending.

In treason, lands and goods are forfeited, and inher
ritances, as well intailed as fee simple, and the profits
of estates for life.

In treason, the escheats go to the King, and not to
the lord of the fee.

In treason, the lands forfeited shall be in the King's
actual possession without office.

u 2



292 A Preparation for the Union of Lazes.

In treason there be no accessaries, but all are prin-
cipals.

In treason, no benefit of clergy, or sanctuary, or pe-
remptory challenge.

In treason, if the party stand mute, yet nevertheless
judgment and attainder shall proceed all one as upon
verdict.

In treason, bail is not permitted.

In treason, no counsel is to be allowed to the party.

In treason, no witness shall be received upon oath
for the party's justification.

In treason, if the fact be committed beyond the
seas, yet it may be tried in any county where the King
will award his commission.

In treason, if the party be non sana memorise, yet
if he had formerly confessed it before the King's
council, and that it be certified that he was of good
memory at the time of his examination and confession*
the court may proceed to judgment without calling or
arraigning the party.

In treason, the death of the party before conviction
dischargeth all proceedings and forfeitures.

In treason, if the party be once acquitted, he shall
not be brought in question again for the same fact.

In treason, no new case not expressed in the statute
of 25 Ed. III. nor made treason by any special statute
since, ought to be judged treason, without consulting
with the parliament.

In treason, there can be no prosecution but at the
King's suit, and the King's pardon dischargeth.

In treason, the King cannot grant over to any sub-
ject power and authority to pardon it.

In treason, a trial of a peer of the kingdom is to be
by special commission before the Lord High Steward,
and those that pass upon him to be none but peers:
and the proceeding is with great solemnity, the Lord
Steward sitting under a cloth of estate with a white
rod of justice in his hand : and the peers may confer
together, but are not any ways shut up : and are de-
manded by the Lord Steward their voices one by one,
and the plurality of voices carrieth it. In treason, it



A Preparation for tJie Union of Laws. 2&S

hath been an ancient use and favour from the Kings
of this realm to pardon the execution of hanging,
drawing, and quartering : and to make warrant for
their beheading.

The proceeding in case of treason with a common
subject is in the King's bench, or by commission of
Oyer and Ter miner.

MISPRISION OF TREASON.

Cases of misprision of treason.

WHERE a man concealeth treason only, without
any comforting or abetting, it is misprision of treason.

Where a man counterfeiteth any foreign coin of gold
or silver not current in the realm, it is misprision of
treason.

The punishment, trial, and proceeding in cases of
misprision of treason.

The punishment of misprision of treason is by per-
The proceeding and trial is, as in cases of treason.

petual imprisonment, loss of the issues of their lands

during life, and loss of goods and chattels.
In misprision of treason bail is not admitted.

PETIT TREASON.

Cases of petit treason.

WHERE the servant killcth the master, it is petit
treason.

Where the wife killeth her husband, it is petit
treason.

Where a spiritual man killeth his prelate, to whom ?
he is subordinate, and oweth faith and obcdiencc > it is
petit treason.

Where the son killeth the father or mother, it hath
.been questioned whether it be petit treason, and the
late experience and opinion scemeth to weigh to
the contrary, though against law and reason in my
judgment!



A Preparation for the Union of Laws.

The punishment, trial, and proceeding in cases of
petit treason.

In petit treason, the corporal punishment is by draw-
ing on an hurdle, and hanging, and in a woman
burning.

In petit treason, the forfeiture is the same with the
case of felony.

In petit treason, all accessaries are but in case of
felony.

FELONY.

Cases of felony.

WHERE a man committeth murder, that is homi-
cide of prepensed malice, it is felony.

Where a man committeth manslaughter, that is ho-
micide of sudden heat, and not of malice prepensed,
it is felony.

Where a man committeth burglary, that is, breaking
of an house with an intent to commit felony, it is
felony.

Where a man rideth armed, with a felonious intent,
it is felony.

Where a man doth maliciously and feloniously burn
a house, it is felony.

Where a man doth maliciously and feloniously burn
corn upon the ground, or in stacks, it is felony.

Where a man doth maliciously cut out another's
tongue, or put out his eyes, it is felony.

Where a man robbeth or stealeth, that is, taketh
away another man's goods, above the value of twelve-
pence, out of his possession, with an intent to conceal
it, it is felony.

Where a man imbezzleth or withdraweth any of the
King's records at Westminster, whereby any judg-
ment is reversed, it is felony.

W r here a man that hath custody of the King's armour,
munition, or other habiliments of war, doth maliciously
convey away the same, to the value of twenty shillings,
it is felony.



A Preparation for the Union of Laws.

Where a servant hath goods of his master's delivered
unto him, and goeth away with them, it is felony.

Where a man conjures, or invocates wicked spirits,
it is felony.

Where a man doth use or practise any manner of
witchcraft, whereby any person shall be killed, wasted,
or lamed in his body, ^t is felony.

Where a man practiseth any witchcraft, to discover
treasure hid, or to discover stolen goods, or to provoke
unlawful love, or to impair or hurt any man's cattle or
goods, the second time, having been once before
convicted of like offence, it is felony.

Where a man useth the craft of multiplication of
gold or silver, it is felony.

Where a man committeth rape, it is felony.
Where a man taketh away a woman against her will,
not claiming her as his ward or bondwoman, it is
felony.

Where any person marrieth again, her or his former
husband or wife being alive, it is felony.

Where a man committeth buggery with man or
beast, it is felony.

Where any persons, above the number of twelve,
shall assemble themselves with intent to put down in-
closures, or bring down prices of victuals, etc. and do
not depart after proclamation, it is felony.

Where a man shall use any words to encourage or
draw any people together, uf supra, and they do as-
semble accordingly, and do not depart after proclama-
tion, it is felony.

Where a man being the King's sworn servant, con-
spireth to murder any lord of the realm or any of the
privy council, it is felony.

Where a soldier hath taken any parcel of the King's
w-ges, and departeth without licence, it is felony.

Where a man recetveth a seminary priest, knowing
him to be such a priest, it is felony.

Where a recusant, which is a seducer, and persuader,
and inciter of the King's subjects against the King's
authority in ecclesiastical causes, or a .persuader of



296 A Preparation for the Union of Laws.

conventicles, Kc. shall refuse to abjure the realm, it is
felony.

Where vagabonds be found in the realm, calling
themselves Egyptians, it is felony.

Where a purveyor taketh without warrant, or other-
wise doth offend against certain special laws, it is
felony.

Where a man hunteth in any forest, park, or warren,
by night or by day, with vizards or other disguise-
ments, and is examined thereof and coricealeth his
fact, it is felony.

Where a man stealeth certain kinds of hawks, it is
felony.

Where a man committeth forgery the second time,
having been once before convicted, it is felony.

Where a man transported rams or other sheep out
of the King's dominions, the second time it is felony.

Where a man being imprisoned for felony, and
breaks prison, it is felony.

Where a man procureth or consenteth to a felony to
be committed, it is felony, as to make him accessary
before the fact.

Where a man receiveth or relieveth a felon, know-
ing thereof, it is felony, as to make him accessary after
the fact

Where a woman, by the constraint of her husband,
in his presence, joineth with him in committing of
felony, it is not felony, neither as principal nor as
' accessary.

The punishment y trial, and proceeding in cases of

felony.

In felony, the corporal punishment is by hanging,
and it is doubtful whether the King may turn it into
beheading in the case of a Peer or other person of dig-
nity, because in treason the striking off the head is
part of the judgment, and so the King pardoneth the
rest : but in felony it is no part of the judgment, and
the King cannot alter the execution of law; yet pre-
cedents have been both ways.



A Preparation for the Union of Laws.

Tn felony, there followeth corruption of blood, ex-
cept it be in cases made felony by special statutes,
with a proviso that there shall be no corruptionof blood.

In felony, lands in fee simple and goods are for-
feited, but not lands intailed, and the profits of estates
for life are likewise forfeited : And by some customs
lands in fee simple are not forfeited ;

The father to the bough, son to the plough ;
as in Gavelkind in Kent, and other places.

In felony, the escheats go to the lord of the fee, and
not the vKing, except he be lord : But the profits of
estates for lives, or in tail during the life of tenant in
tail, go to the King ; and the King hath likewise, in
fee simple land sholden of common lords, annum, diem,
t v as turn.

In felony, the lands are not in the King before
office, nor in the lord before entry or recovery in writ
of escheat, or death of the party attainted.

In felony, there can be no proceeding with the
accessary before there be a proceeding with the prin-
cipal; which principal if he die, or plead his pardon,
or have his clergy before attainder^ the accessaries
can never be dealt with.

In felony, if the party stand mute, and will not put
himself upon his trial, or challenge peremptorily above
the number that the law allows, he shall have judgment
not of hanging, but of penance of pressing to death;
but then he saves his lands, and forfeits only his goods.

In felony, at the common law, the benefit of clergy
or sanctuary was allowed ; but now by statutes it is
taken away in most cases.

In felony, bail may be admitted where the fact is not
notorious, and the person not of evil fame.

In felony, no council is to be allowed to the party,
no more than in treason.

In felony, no witness shall be received upon oath
for the party's justification, no more than in treason.

In felony, if the fact be committed beyond the seas,
or upon the seas, super altum mare, there is no trial at
all in the one case, nor by course of jury in the other
case, but by the jurisdiction of the Admiralty.



A Preparation for the Union of Laws.

In felony, if the party be non sanx memorise, al-
though it be after the fact, he cannot be tried nor ad-
judged, except it be in course of outlawry, and that
is also erroneous.

In felony, the death of the party before conviction
dischargeth all proceedings and forfeitures.

In felony, if the party be once acquitted, or in peril
of judgment of life lawfully, he shall never be brought
in question again for the same fact.

In felony, the prosecution may be either at the King's
suit, by way of indictment, or at the party's suit, by
way of appeal ; and if it be by way of appeal, the de-
fendant shall have his counsel, and produce witnesses
upon oath, as in civil causes.

In felony, the King may grant, hault justice to a
subject, with the regality of power to pardon it.

In felony, the trial of Peers is all one as in case of
.treason.

In felony, the proceedings are in the King's bench,
or before Commissioners of Oyer and Terminer, or of
goal delivery, and in some cases before justices of
peace.

Cases of Felon ia de se, ivith the punishment, trial, and
proceeding therein.

In the civil law, and other laws, they make a dif-
ference of cases of felon i 'a de se : for where a man
is called in question upon any capital crime, and
Icilleth himself to prevent the Jaw, they give the same
judgment in all points of forfeiture, as if they had been
attainted in their life-time : And on the other side,
where a man killeth himself upon impatience of sick-
ness or the like, they do not punish it at all : but the
law of England taketh it all in one degree, and punish-
eth it only with loss of goods to be forfeited to the
King, who generally granteth them to his Almoner,
where they be not formerly granted unto special
liberties.



A Preparation for the Union of Laws.

OFFENCES OF PR^EMUNIRE..

Cases of Prcc-munire.

WHERE a man purchaseth or accepteth any
provision, that is, collation of any spiritual benefice
or living from the see of Rome, it is case of prie-
munire.

Where a man shall purchase any process to draw any
people of the King's allegiance out of the realm, in
plea, whereof the cognisance pertains to the King's
court, and cometh not in person to answer his con-
tempt in that behalf before the King and his council,
or in his chancery, it is case of praemunire.

Where a man doth sue in any court which is not the
King's court, to defeat or impeach any judgment
given in the King's court, and doth not appear to
answer his contempt, it is case of praemunire.

Where a man doth purchase or pursue in the court
of Rome, or elsewhere, any process, sentence of ex-
communication, bull, instrument, or other thing which



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 25 of 46)