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Hijioria Placitonim Corona.



THE

HISTORY

OF THE

3^leas of t^t Croton.

By sir MATTHEW HALE,

LORD CHIEF JUSTICE OF THE COURT OF KING'S BENCH.

PUBLISHED FROM THE ORIGINAL MANDSCRIPTS

By SOLLOM EMLTN, of Lincoln s-Inn, Ef^.



ADDITIONAL NOTES AND REFERENCES TO MODERN CASES CON-
CERNING THE PLEAS OF THE CROWN.

Bv GEORGE WILSON, Serjeant at Law.



A NEW EDITION.



AN ABRIDGMENT OF THE STATUTES RELATING TO FELONIES

CONTINUED TO THE PRESENT TIME, WITH NOTES

AND REFERENCES,

By THOMAS DOGHERTY, Efq.

OF CLIFFORD'S-INN.



%n €tDo aolunte0»



VOL. IL



nu



Printed by E. Rider, LiU/c- Britain,
FOR T.PAYNE, H. L.GARDNER, W.OTRIDGE, E. A N D K . BR K E A ND
J. RIDER, J. BUTTERWORTH, W. CLARKE AND SON, R. PHENEV,
J. CUTHELL, J. WALKER, J. BAGSTER, AND K. BIC KERSX Af t.

1 8 O 0.



■•/5



■!■



/



T
\ZO0



TABLE

O F

THE SEVERAL CHAPTERS

CONTAINED IN THE

SECOND PART.



Chap. I. nrOUCHING the King's bench. Page 1

"^ Chap. II. Concerning the courts before the lord High-

fteward, and the Steward of his inajefty's houfliold. 7

Chap, III. Touching fpccial comniifilons of oyer and terminer, and

their kinds and power. 1

Chap. IV. Concerning general commifllons o/ oyer a«^ terminer. 22

Chap. V. Touching Jullices o/'gaol-dchveiy. 32

Chap. VI. Touching the power o/ Jullices of aflifc and nlfi prius with

relation to felony. 3 9

v^ Chap. VII. Concerning the comnaifTion of peace, and the power therc-

^ of in relation to felonies. 42

^ Chap. VIII. Concerning the Coroner and his court, and his authority

In pleas of the crown. 53

~ Chap. IX. Concerning the ^c\\K^ his power In picas of the crown, as

3 well by co)nmiJfion as In his Turns. 69

^b Chap. X. Concerning the apprehending and arrefling of felons and

//W/«;i ^j' private perfons, awi^efcapcs. T-

Chap. XI

7614G4



A TABLE OF THE SEVERAL CHAPTERS

Chap. XL Concerning arrefts or apprehenfion of felons or perfons fuf-
pcded of felony by an officer. Page 85

Chap. XIL 0/*aiTefts of felons upon hue and cry ra'ifed. 9S

Chap. XIII. Arrejls of felons virtutc praecepti, or o/" warrants. 105

Chap. XIV. Concerning the office of a juftice, when a per/on charged
or fufpe^cd of idouy is brought before him. 120

Chap. XV. Concerning h^'il and imLinprUc. 124

Chap. XVL Concerning the JIatutes of ZA> E. 3. 1 R. 3. 3 H. 7. 1 &
2 P. & M. 2 & 3 P. & ]VL in relation to bailment of prifoners.

136

Chap. XVII. Concerning the fourth general, namely^ the various
manner ef bailing of prifoners. 140

Chap. XVIII. Concerning warrants to fearch for flolen goods, and
fei/.Ing of them. 149

Chap. XIX. Concerning prefentments, inqulfitlons, and inJiftments,
and their kinds. 152

Chap. XX. IVhcrc a man fliall be put to anfwer in criminal and
capital offenfes without indi6lment at the king^s fuit. 156

Chap. XXI. Who may be indi^torsj and where and how returned.

* 152

Chap. XXII. Concerning the demeanor of the grand inqueft in rela-
tion to their prefentments. 1 57

Chap. XXIII. Concerning the forms of indiflments in cafes capital,
and firfi touching the form of the caption returned upon a certiorari-

165

Chap. XXIV. Concerning the body of the indictment in cafes capital,
and the feveral parts thereof and the forms requifite therein. 168

Chap. XXV. Concerning the forms of indictments /«^«r/;V2r/flr, and
the feveral pans thereof. 174

Chap, XXVI. C(5««/«i«^ procefs upon iudiclments. 194

Chap. XXVII. Touching certiorari out of the King's bench. 210

Chap. XXVIII. Touching the arraignment of offenders in capital
offenfes. 216

Chap. XX! X. Concerning the plea of the prifoner upon his arraign-
ment^ and firfi of his confeffion of the fait charged^ and approving
others. 225

Chap. XXX. Concerning the pleas of the prifoner upon his arraign-
ment, and firfi concerning pleas in abatement of the indi6tment.

236
Chap. XXXL



CONTAINED IN THE SECOND PART.

Chap. XXXI. Ctncerning pleas it. bar of an i iJitJment of felony or

trcafon, aw^/^/y? o/'autcrfoits acquit. Page 210

Chap. XXXII. Concerning the plea of 2i\Mc\{o\is attaint or convi6t of

the Jame felony, or any other of cnfe. 251

Chap, XXXIII. Concerning pleas to the felony, viz. Not guilty. 255
Chap. XXXIV. Touching the trial of offenders by jury, and firfi the

procefs. 2J9

Chap. XXXV. Concerning challenges, fl«Jy7>_/? o/" peremptory chal-
lenges. 267
Chap. XXXVl. Concerning challenges for caufe in cafe of indi6lments

for treafon or felony. 27 1

Chap. XXXVII. Co«f^rK/M^ evidence fl«^ witnefles. 276

Chap. XXXVIII. Concerning evidence in writing, 234-

Chap. XXXIX. Concerning evidences requifite or allowed by a6ls of

parliament, and prefumptive evidence. 286

Chap. XL. Concerning variance between the indidlment and evidence,

and where the evidence proves the indidment, and where not. 291
Chap. XLI. Concerning the demeanor of the jury, and how their

verdi6l is to be given. 293

Chap. XLII. Concerning the mifdcmeanors of jurors, and iheir

punifhment. 306

Chap. XLIII. Concerning ftanding mute, and the pimifliment of

penance, o peine fort Sc dure. Sl^

Chap. XLIV. Concerning clergy, hQW it flood at common law, and

how generally at this day. 323

Chap, XLV. In what ofFenfes clergy is allowable or not. 330

Chap. XLVI. Where and in what ofFenfes, that were capital at

common law, clergy is taken away in part or in whole, by ads of

parliament Jubfequent to 25 E. 3. and fit Jl o/ petit treafon. SS't

Chap. XLV II. Concerning the alteration made by fever a I Ilatutes /«

cafas of murder, raanflaughter, rape, and wilful burning of houfes

or barns with corn. 343

Chap. XLVIII, Concerning clergy in robbery from the houfe, or

robbery fi'om the perfon. 348

Chap, XLIX, Concerning clergy in burglary. 360

Chap. L. Concerning clergy in fimple larciny and other felonies. 364i
Chap. LI. IVhat pcrfons are or are not capable of clergy. 371

Chap. HI. At what time clergy is io be allowed. 371

Chap. LIII.



A TABLE OF THE 5EVERAL CHAPTERS, (sfc.

Chap. LIII. Concerning the manner how, aw^f the Judge by and before

•whom cicigy is to be prayed or allowed. Page 380

Chap. LIV. Concerning the confequences of chrgy granted or prayed.

382
Chap. LV. Concerning judgments in the fever al kinds o/" capital offenfes.

391
Chap. LVI. X^oncerning giving «/ judgment, by whom, and when.

40 ;
Chap. LVIl. Concerning executions. 406

Chap. LYlli. Concerning reprieves before or after judgment* 41^



11 1 S T O R I A



H I STORI A

PLACITORUM CORONiE.



PART II.



CHAP I.

Touching the king's bench.

HAVING gone through the feveral kinds of capital oftenfes, I
fliould now, according to my firft propofed method, proceed
to the enumerating and confidering of offenfes that are not capital ;
but I (liall referve that for the third part of this tra6late.

1. Becaufe the fuhje6l thereof is very large, numerous and various,
and would exhauft too much of that time I have or can fpend from
other employments.

2. Becaufe the method, order and rules of proceeding in captital
caufes, is different from any other courfe of proceeding in other cri-
minal caufes, and hath an appropriate method of proceeding by-
law configned to it, and therefore they are fitted to be handled to-
gether.

And in this bufmefs I ihall proceed in things as they arifc in the
order of proceeding in capital caufes : Flrji, I fliall take - -,
a very brief account of the courts and jurifdi6lions wherein
they are to be decided ; and this I fhall not do at large, but fo far
forth only as it relates to proceedings in capital caufes : and when I
have bricHy paffed over that, then, fecondly, I Ihall proceed with the
whole traft of proceeding in criminal caufes, from the firfi: purfuit
of the offender to his execution ; as ,iiamely, arreft, procefs, out-

VoL. II. B lawrv.



1 HISTORIA PLACITORUM CORONA.

]a\vry, arraignment, pleading, challenge, trial, clergy, fandluary,
judcrment, reprieve, execution, i^c. in the very fame order as a courfe
of proceeding in capital caufes lies.

I. I begin with the jurifdidions, wherein caufes of this nature are
handled.

And altho the court of parliament is the higheft court in this king-
dom, and a court wherein proceedings capital have been often heard
and determined, yet 1 ihall decline that bufinefs, ]. Becaufe the
courfe of proceeding in parliament is in a different method and or-
der, than what is ufcd in other ordinary courts. 2. Becaufe the
inftances are many and various, and will take up a volume to give
an account of them. 3. Becaufe I have elfcwhere gathered up fome
obfervations of that kind already.

The higholt ordinary court of juftice next to the court of par-
liament, is the court of king's bench ; I ihall not at large purfue
the jurifdiiSlion of this court, for it hath been done to my hands
amply already (a).

But I ftiall only confider it with relation to capital proceedings,
namely, treafons and ftlonies, and that very briefly ; and therein,
] . Concerning the jurifdi^lion of the court in this particular. 2 Con-
cerning the power of the judges of this court out of court, ia rela-
tion to matters of crime or mifdemeanor.

7'he court of king's bench confifts ot two kinds of jurifdi6lIons
v/z. the civil jurifdi6tion or the plea-fidc, and the criminal juiifdli^lion
or the crown-fidc.

Till the time of Edward 11. the matters of both kinds were entered
promifcuouflv in the rolls ; but then the rolls were difci imina-
•-'^■^ cd, and t^iofe of the crown-hde, entitled Rex, tho botii
were filed np together in the fame bundles.

And thus it continued very long, but of later times th'j records
of the plSas are bound up by tliemfelvcs, and the records of the
pleas of the crown bound up by tliemfelvcs, a;id kept in the crown-
office, under the immediate cull.ody of the coroner of the king's
bench, who Is alfo the king's attorney in that court, and clerk of
the crown.

In cafes criminal, the court of king's bench Jiave a different kind

of proceeding touching offenies arifing in the fame county where

they fit, and offenfes in other counties, and removed before them by

Certlorayi.

I*) By lord Cvit^ 4 h.f'u. ca^, 7.

In



HISTORIA PLACITORUiM CORONA. 3

In the county where the couit fits, there is every term a grand in-
cu'.cft, wlio are to prcllnt all matters criminal arifmg within that
countv, and then the fame court proceeds upon inditftment fo taken ;
or if in the vacation- time there be any indiiflment of felony before
the jiiHices of the peace, oytr and tetm'incr, or gaol-delivery there fit*
ting, it may be removed by Ctrtiorat i into the king's bench, and
they may proceed de die in diem, and there need not be fifteen days
between the Trjie and return of the Feni/e facias, becaufc the ofFenfe
arifeth in the fame county.

But if an indi>5lmcnt of felony be removed out of another county
than where the king's bench fits, and the prifoncr comes in either
gratis, or by Habeas Corpus, or procefs, there muft be fifteen days be-
tween the Tc/le and the return of the Venire facias. 9 Co. Rep. lis.
h. lord Sanc/iar's cafe.

At common law, if a lecord of an indicftment, or other thing come
into the court before the filing thereof, the court may remand it ; for
'till it be filed it is no record of the court ; but if it be once filed, it
is not to be remanded.

But if the ifluc be joined, the tranfcript may be fent down to be
tried by Nif prius ; but the original record remains in the king's
bench. 5 Mania, B. Coron. 2Z\.

But by the flatute of 6 H. 8. cap. 6. in cafes of indidtments (f
murder, or other felony removed into that court, the court may re-
mand the indi6tmcnts, and the bodies of the prifoners to the jullices
of the peace, gaol-delivery, and other juflices, where the _ _
felony was committed, commanding them to proceed there- •- t" J
upun, as if the prifoner or indidtment had never been removed.

The court of king's bench is in the county where it fits, a court
in eyre and more, 21 AJji-z. 1. and alfo the fovereign court of gaol-
delivery and oyer and tommer. y Co. Rep. 118. a. lord Sanc/iar's

cafe.

And therefore when the ccurt of king's bench comes into any
county, there can be no feffion of the comm.iflion of gaol-delivery,
or oyer and terminer, oi peace during the term-time, while the court
fi;s ; it doJi not determine the commifTiou, but fufpcnds their feifion
durint^ the term ; for in the vacation- time, they may proceed again
upon theii fo.mer commiiTion, a'nd lb it is not like a new commilfion,
v.'hich after publication fuperfedcs the former, de cm infra, lord San'
char's cafe, ubi fupra.

B 2 But



4



HISTORIA PLACITORUM CORONiE.



But if an indi(5lment be found before commiflioners of oyer and
terminer in the vacation-time in the county where the king's bench
fits, or in any other county in term or vacation, there may ifllie a
fpecial commifTion to determine that indi6lment, with a writ to the
iormer commiflioners to deliver it to the new commiflioners ; and
thefe fpecial commiflioners may fit in the term-time in the county
where the king's bench fits ; but then the king's bench muft adjourn
during that feffion of this fpecial commiffion : ruled in Sir If alter
Rawleigh^ cafe, M. 1 Jac. Co. P. C. cap. 2. p. 21. Dyer 286. i>.
Ploivd. Com. 390. earl of Lelcejler's cafe, wherein is the whole order
of fuch commiflion. 4 Co. Lijiit. p. 73.

The court of king's bench is the fovereign court of oyer and ter-
tniner, therefore tho fome adls limit proceedings in fome criminal
caufes to the juftices of oyer and terminer, yet the king's bench may
proceed upon them ; but juftices of peace cannot, as upon 5 E/iz.
cap. 14. for forgery, 8 H. 6. cap. 12. ftealing records, ^c.

If a perfon attainted in the country be removed by Habeas Corpus^
and the record removed alfo by Certiorari, this court may award ex-
ecution. M. 5 Car. I. B. R. Coxe's cafe fl;J.
r -, This court is alfo the fovereign coroner o( Enjrland, and
*- ^ -i therefore may take appeals of death, is'c. by bill. 4 Co. Inji.
p. 73.

Where judgment of death is given In the king's bench, the exe-
cution is to be made by the marfhal of the court; for the prifoner
is fuppofed to be in cuftodia marefcalli ; and the entry is always, Et
prtvceptum e/i marefcallo, is^c. quod facial exccutioncm periculo incinn-
bente ; quod vide Co. Entries in title Indidment, per totiim \ but tlicre
may be a mandate to the flieriff of the county wherein execution is
to be made, to be aflifting ; and thus it was done in H. 24 Car. 2.
in the cafe of Brown, who had judgment of death in the king's bench
for a felony committed in Middiejex, and executed by the marfhal
in Surrey, becaufe the prifon was there ; but he might have done it
in Middle/ex, for he is a minifter of the king's bench in each county ;
and fo it might be, tho the felony had been done in any foreign
county removed by Certiorari (cj.

By the ftatute of 33 jF/. 8. cap. 12. felonies, l£^c. within the king's
palace arc made triable before the lord fteward, and a fpecial order

(bj Cre. Cfr. 176. tcforc mcntioad, Pgrth />• 464.

fc) Thut it was done in AJtboe's cafe



MISTORIA PLACITORUM CORONAS. S

of trial dialled by that ftatute, namely, by the king's fervants in his
cliequcr-roll ; yet for a felony within the kind's palace, if the king s
bench be fitting in the fame county, the prorcc-ding may bt; in the
king's bench; for the ftatute of 33 H. 8. being in the affirmative is
not exciufive of the king's bench for felonies that were before that,
10 Co. Rep. Ti. h. But indeed where a felony is de novo created,
and with it a new fpitial form of proceeding, as by the fcatute of 3
//. 7. cap. 14. for confpiiing the death ©f the king. '^c. it is not tri-
able in the king's bench, nor in any other form tlian is limited by
that aa. M. 20 Jac. B. R. Ca/ilc's cafe fdj.
Now concerning the juftices of the king's bench.
They are in their perfons confervators of the peace throughout
England without any other commifTion ; and any of them may iflTue
out their warrants for apprehending of a malefadtor, or fur r /- -i
furety of tlie peace in any county of Englandy namely, to ^
apprehend and bring him before a juflice of peace in the county
where he is apprehended ; and this warrant is dirc(5led under their
hand and feal to iheriffs, conilables, and other officers. Each judge
of that court hath a tipftafF attending him, being a deputy to the
marftial for the execution of his office in tliat fpecial fervice ; and
the chief juflice, or any one of the other judges of that court, may
by the cuftom of that court, ore teims, command the tipftafF to ap-
prehend any perfon for matters of mifdemeanois relating to the court,
or other mifdemeanors, and bring him before him, and fuch arrefl: is
juftifiable without any other warrant, and without lliewing the caufe.
T, 1 V Car. B. R. 2 RoL Mr. p. 558. Throgmorion -ainA Allen.

1"he chief julHce of the king's bench is not that 'JujTiciarivA AngUce
which was antiently in ufe ; for that Jujildarius Avglia had, in ef-
fe6l, all the jurifdi61:ion both civil and criminal, that is in the king's
bench, chancery, common pleas, and exchequer, and miglu and did
fit in any of thofe courts as the chief judge of them, as appears by
many evident inflances.

But the chief juftic of the king's bench hadi in the court of king's
bench, as one of the judges thereof, that part of the jurifdivflion of
the Jujiiciarius Angl'ue, which concerns criminal caufes, and the in-
fpedlion and reformation of the judgments of other courts.

It is true he is frequently called chief juftice oi England, becaufe
he prefidcs in that court where the JuJiic'iar'iHs Anglice did mofl tre-

(J} Cro. Jac. 463.

B 3 quently



6 HISTORIA PLACITORUM CORON^E.

quently and naturally fit as the king's deputy in adminiftration of
juftice; but it is a mifconclufion that therefore lie is that Afognus
'Juftlaar'ttis Jnglite, which was in ufe before the time o{ Henry III.

He is created by writ, and always was; but the 'Ji'filc'iar'ius Arigl'iee
by patent.

3 Blackf. Com. ch. 4. p. 41, 4 Blackf. Com. ch. 19. p. 165. 2 Hav.k. P. C. ch. 5.



[ 7 J C H A P. II.

Concerning the courts before the lord high fteward, and the fleward oi
his majcfty's houlhold.

TOUCHING ihc farmer of thefe, it is inflituted for the trial of
peers of the lealm : more cannot be faid touching it, than is
already faid by my lord Coke, 4 Injl. cap. 4. Co. F. C. cap. 2. p. 28.
^ fequentlbus, and becaufe it doth not concern the ufual and common
proceedings againfc common perfons, I Hiall difmifs it.

Touching xhc fccond, namely, the proceeding before the lord flew-
ard of the honfhold, i^c. for treafons, and murder, and manilaughter,
and larciny done within the king's palace.

This court is eftablilhed, and the method of proceeding therein
punftually delivered by the ftatute of 33 H. 8. cap. 12. which will
not need much explanation, only thefe things are confiderable
therein.

1. As to their power of hearing and determining treafons in that
court, it Teems to be wholly abrogated and repealed by the ftatute of
1 is^ 2 P.i^ M. cap. 10.

2. Whereas by that a6l, clergy is talcen away in cafes of man-
naughtcr,^felonious ftealing of goods in the king's houle of the value
of tv<'clvc-pcnce ; it fcems to me clergy is reftored in tlicfe cafes by
the a(5l of 1 E. 6. cap. 12. tlio the party be convict according to the
Aatute of 33 H. 8.

3. Whereas breiiking of the king'b hcufe with intent to flcal, is

made felony by that ftatute without benefit of clergy, that breaking

of the king's houfe is become no felony by the ftatute of 1 E. 6.

cap. 12. and 1 Mar. cap. 1. tho he be arraigned before the fteward

of tlic AIarJIiaif(a according to that a6l.

4. The



IlISTORIA PLACITORUM CORONiE. «

4. The ofFcnfe of felonious ftcaling of the king's goods of the
value of twclve-pei\cc, or hreaking the king's lioufe to fteal the goods,
is limited bv that a6l to be tried before the il:e\varil q^. \\\(t Marjhalfea^
and others afTociated to him by the flitule, but not before the lord
ftcward, or treafurcr, or comptroller of tliehoufhold, as manflaughter
or murder is dire6ted to be tried or determined by that ftatute, nor
by tlie king's fervants.

b. It feems to me, that by the dire6i:ion of diat av5\ the proceeding
of the lord Aeward, or flcward of the A4arjhalfca^ is to be by a feflion
within the king's houfe or palace where tlie felony is committed ;
aiid that ftatutc limits the pierin^l of the king's palace for that pur-
pofe, v'lz. zvh/iln any edifices, places, courts, gardens, orchards, privy-
walks, tilt-yards, "wood yards, tennis-plays, cock-fghts, /fowling alleys^
near adjoinin?^ to any of the houfes aforcfaid, and being part of tJie famcy
or zvithin 200 foot of the Jlandai d of any ontivard gate, or gates of any
of the houfes above rehear fed, commonly ufed for any pafjagc out of, or
from any of the houfes above rehearfcd.

And therefore if it is confiderablc, whether as to tills purpofe, vi'z.
for trial of felonies within the king's palace, the extent of the king's
palace of IFhitehall limited, or rather extended by the acl of 28 H. S-
cap. 1 2. be not rcftrained ; for by that flatute that new palace of
Jiliiteh(dl, the old palace of IVefminflcr, St. James's park, and the
flrcct leading from Charing-Crofs to the fan£luary-gate of JVeflminJlcry
and all the houfes and buildings on both fides of the ftrect from the
Crofs to IVcfiminfer-hall, and between the water of Thames on the
eaft and the park-wall on the weft, and all the foil of the old palace
are made parcel of the new palace.

Upon this doubt I did advife, that the lord fteward upon a late
occafion upon this a£l fliould not fit in IVeflminfler-hall, but in
irhite-hall, according to the reftriflion of the ftatute of 33 H. S.
which was after the ftatute of 28 H. 8. and feems as to this purpofe
to reftrain it ; but this advice was not followed, for he fat in M <jl-
viinfer- hail.

Atho this ad ered\s a new kind of jurifdidion, and that p ,
without any commifTion, yet it being an ak5t a(fl in the affir- L -^ J
mative, it doth not exclude the jurifdidtion of the king's bench, nor
ot commifTioncrs of oyer and terminer to hear and determine thefe of-
fenfcs, tho committed in the king's palace, efpeciaily thai commiflion



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