sault somewhat has been said in the last chapter, and more will be said hereafter in its due place: I shall proceed therefore to other instances. The necessity of the preservation of the peace of the kingdom by the apprehending notorious malefactors excuseth [53] some acts from being felony, which in the matter of them without such necessity were felony. If a thief resist, and will not suffer himself to be taken upon hue and cry or pursuit, justiciari se noblit permittere, if he be killed by the pursuants, it is no felony; (a) de quo vide latius infra. By the statutes of 3 & 4 E. 6 cap. 5 and 1 Mar. cap. 12. If there be a riotous assembly to the number of twelve assembled to commit the disorders mentioned in those acts, the justices of the peace, the sheriff, mayor, or other officer of any corporation, &c. may raise a power to suppress and apprehend them; and, if they disperse not upon proclamation, if any of the rioters be killed, or maimed, or hurt by the justices, &c. or those assembled by them to suppress the riot, it is by this act dispunishable. It is true, this act(b) continued only during queen Elizabeth's life, and is now expired; (c) but although, perchance, as to the killing of such persons, as do not presently return upon proclamation to their homes, it needs the aid of an act of parliament to indemnify them; yet if they attempt any riotous act, and cannot be otherwise supprest, the sheriff, or justice of the peace may make use of such a force upon them for preservation of the peace, as well by the Common law, as by the statute; quod vide in Anderson's Rep. part 2 n. 49 p. 67. Burton's case in fine; and the statute of 13 H. 4. cap. 7. in principio, and 2 H. 5. cap. 8, whereby all men are bound, upon warning, to be assistant to the sheriff and justice for the suppressing of riots even by force, if it cannot be otherwise effected; so that the clauses touching this matter in the temporary statutes of 3 & 4 E. 6. and 1 Mur. are but pursuant to the law and former statutes for necessity of preserving the peace. Some of the casuists, and particularly Covarruvias, Tom .1 Defurti & rapinæ restitutione, § 3. 4. p. 473, and Gro- [ 54 ] tius de jure belli ac pacis, Lib. II. cap. 2. § 6.(d) tell us, that in case of extreme necessity, either of hunger, or clothing, the civil distributions of property cease, and by a kind of tacit condition the first community doth return, and upon this, those common assertions are grounded; "Quicquid necessitas cogit, defendit." "Necessitas est lex temporis & loci." "In casu extrema necessitatis omnia sunt communia:" and therefore in such case theft is no theft, or at least not punishable as theft; and some even of our own law(a) See Leg. Inæ, l. 25. (b) Viz. 1 Mar. cap. 12. for 3 &4 Ed. 6. cap. 5. was repealed by 1 Mar. cap. 12 (c) It was at first made to continue only till the end of the next session, but was afterwards by several new acts continued during the life of queen Mary; and by 1 Eliz. cap. 16. was continued during her life also, and has never since been revived; but in 1 Geo. 1. cap. 5. a new act was made to much the same purpose, which is perpetual. (d) See Puff. de jure naturæ, Lib. II. cap. 6. § 6. yers(e) have asserted the same; and very bad use hath been made. of this concession by some of the Jesuitical casuists in France, who have thereupon advised apprentices and servants to rob their masters, when they have judged themselves in want of necessaries, of clothes, or victuals; whereof, they tell them, they themselves are the competent judges; and by this means let loose, as much as they can, by their doctrine of probability, all the ligaments of property and civil society. I do therefore take it, that, where persons live under the same civil government, as here in England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi steal another man's goods, it is felony,(f) and a crime by the laws of England punishable with death; although the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king's mercy. For 1. Men's properties would be under a strange insecurity, being laid open to other men's necessities, whereof no man can possibly judge, but the party himself. [ 55 2. Because by the laws of this kingdom(g) sufficient provision is made for the supply of such necessities by collections for the poor, and by the power of the civil magistrate; and consonant hereunto seems to be the law even among the Jews, if we may believe the wisest of kings. Proverbs vi. 30, 31, "Men do not despise a thief, if he steal to satisfy his soul, when he is hungry; but if he be found, he shall restore seven-fold, and shall give all the substance of his house." It is true, death was not among them the penalty of theft, yet his necessity gave him no exemption from the ordinary punishment inflicted by their law upon that offence.(h) Indeed this rule, "in casu extremæ necessitatis omnia sunt communia," does hold in some measure in some particular cases, where by the tacit consent of nations, or of some particular countries or societies, it hath obtained. 1. Among the Jews it was lawful in case of hunger to pull ears of standing corn, and eat, Matth. xii. 1. §c.(i) and for one, that passed through a vineyard, or oliveyard, to gather, and eat without carrying away. Deut. xxiii., 24, 25. 2. By the Rhodian law,(k) and the common maritime custom, if (e) Britton. cap. 10. Crompt. 33. a. Plowd. 18. b. 19. a. Dalt. Just. cap. 99. (h) But their ordinary punishment being only pecuniary could affect him only when he was in a condition to answer it; and therefore the same reasons, which would justify that, can by no means be extended to a corporal, much less to a capital punishment. (i) For the Pharisees objected against it only on account of its being done on the sabbath day. Mark xi. 23. &c. Luke vi. 1. &c. (k) Vide Dig. Lib. XIV. tit. 2. de lege Rhodia de jactu, l. 2. § 2. in fine. Leg. Gulielmi Conquest. cap. 38. the common provision for the ship's company fail, the master may under certain temperaments break open the private chests of the mariners or passengers, and make a distribution of that particular and private provision for the preservation of the ship's company. Vide Consolato del Mare, cap. 256.(1) Les customes de la Mere, p. 77. 3. Nay, I find, among our English voyages to the West-Indies described by Hackluit, that it was a received custom, that if a ship wanted necessaries, and the inhabitants of the continent would not furnish them for money, they might, by the usage of the sea and nations, take provision by force, making the inhabitants reasonable satisfaction; for in these cases the common consent of nations hath made it lawful, and therefore it is lawful; 1. because necessary in extremity; 2. because there are no other means [56] to obtain it by an application to superiors; but were this done by English mariners upon the English shore, where both are under the same civil magistrate the case would be otherwise, because capable of another remedy. It is not lawful voluntarily to assist the king's enemies with money or provision, for it is an adhering to the king's enemies, and so treason within the letter of the statute of 25 E. 3. but yet, if the king's enemies come into a county with a power too strong for the county to resist, and will plunder the country, unless a composition be made with them, such a ransoming of themselves is so far from being treason, that it hath been allowed as lawful. 1. In respect of the extreme necessity. 2. Because it is a less detriment to the country, and a less supply to the enemy, than that plunder would be; and for that purpose I shall set down the case at large. M. 14 E. 2. B. R. Rot. 60. Dunelm. "Placitum de transgress, coram A. D. de Brome & sociis suis justiciariis domini Regis in episcopatu Dunelm. sede vacante anno decimo regni sui mittitur huc propter errores, &c. Juratores dicunt, quod Scoti inimici & rebelles regis prædict. die Martis in festo Sanctæ Catharina virginis anno regni regis nunc nono ingressi fuerunt terram episcopatûs Dunelm. eâ de causa, ut ipsam destruerent, & quod omnes de communitate episcopâtus prædicti tunc apud Dunelm. existentes, volentes præcavere dictorum inimicorum malitiam, ordinârunt, quod unusquisque illorum præstarent sacramentum corporale stare ordinationi, quæ pro proficuo communitatis prædictæ contingeret ordinari, qui quidem Willielmus de Heberne jurat' fuit cum aliis, &c. Item quod post consuluerunt facere finem cum prædictis inimicis, & cum eis fecerunt finem de mille & sexcent' marc'; quam quidem summam oporteret solvi incontinenti per quod, quia non habuerunt pecuniam presto, ordinârunt, quod quidam de communitate prædicta irent de domo in domum infra ball.' Dunelm. & extra, & perscrutarent ubi denarii essent in deposito, & ubicunq; denarii hujusmodi invenirentur, caperentur ad solutionem dicti finis festinand', quousq; levari possit (1) Printed at Venice 1584, in 4to. VOL. I.-8 de communitat. prædict. & satisfieri illis, quorum denarii sic capiendi fuerunt; et quod prædictus Willielmus de Kellawe simul cum quodam David de Rotheber jurat' ad perscrutandum in formâ prædictâ venit ad prædictas domos, & cistam & 701. de propriis denariis ipsius Willielmi de Heberne in cista prædicta inventas cepit. & asportavit, &c. Et juratores requisiti, si prædictus Willielmus de Heberne consentiebat captioni prædictorum denariorum, dicunt, quod non, & quia compertum est, &c. quod ubi prædicta ordinatio fuit facta de denariis in deposito perscrutand' & capiend', prædict' Willielmus de Kellawe simul, &c. cepit denarios prædict', qui fuerunt in domo & propriâ custodiâ prædicti Willielmi de Heberne & contra voluntatem suam, & etiam pro eo, quod videtur curiæ, quod prædict' Willielmus de Heberne omninò esset sine recuperare, quoad denar' suos prædict', nisi esset versus præfat' Willielmum de Kellawe, &c. qui prædictos denarios in formâ prædictâ cepit & asportavit, consideratum est, quod prædict' Willielmus de Heberne recuperet versus prædict' Willielmum de Kellawe prædictos denarios & dampna sua, quæ taxantur ad c. s. & idem Willielmus de Kellawe committatur gaolæ, &c. prætextu cujus recordi ad sectam prædicti Willielmi de Kellawe, asserentis errores & defectus in prædictis recordo and processu interesse, mandatum fuit episcopo Dunelm. quod scire fac' prædicto Willielmo de Heberne, &c. qui non venit. "Ideo processum est ad examinationem recordi per ejus defaltum, & assignat hos errores; primùm, quod nihil fecit contra pacem regis, nec denarios illos cepit vi & armis, maximè cum prædictus Willielmus de Heberne juratas fuit stare ordinationi prædictæ, & quod ipse Willielmus de Kellawe per sacramentum præhibitum injunctus fuit scrutari & denarios prædictos capere; & non est consonum, quod dictus Heberne recuperaret prædictos denarios & dampnum contra assensum & juramentum suum proprium, nec quod ipse Kellawe committeretur goalæ. "Item in hoc quod justic' fundaverunt judicium suum, quod dictus Heberne non posset habere suum recuperare de denariis prædictis, cum illud habere posset directè versus communitatem vir[58]tute ordinationis & concessionis prædictarum, &c. ob quos errores hic in judicio recitatos consideratum est, quod erronicè in primo judicio processum est, & quod idem Kellawe a gaola deliberetur, & totus processus evacuetur, &c." In Pasch. 15 Rot. 17. "Patet, quod Scoti cum hominibus de Rippon similiter concordârunt pro mille marc', nè villa comburetur.” Nota, this was an act done for the security of the country in a time of actual war and invasion by enemies, and therefore rendered that by-law and the execution thereof justifiable by reason of that necessity, which would hardly have done it in time of peace. 2. But that, which this record principally evidenceth, is, that such a supply of the king's enemies upon such a necessity in a time of war, and to prevent the devastation of the country, was not taken at all to be an adhering to, or treasonable aiding of the king's enemies." CHAPTER X. OF CONCERNING THE OFFENCE OF HIGH TREASON, THE PERSON AGAINST HAVING premised these general observations relating to all crimes, that are capital, and their punishments, I shall now descend to consider of capital crimes particularly, and therein first of high treason. And yet, before I descend to the particulars thereof, I shall premise also some things in general touching alligeance, since the specification of this offence consists principally in this aggravation, that it is contra ligeantiæ suæ debitum. The offence of high treason is an offence, that more immediately is against the person or government of the king; [59] and the greatness of the offence, and the severity of the punishment is upon these two reasons. 1. Because the safety, peace, and tranquillity of the kingdom is highly concerned in the safety and preservation of the person, dignity, and government of the king; and therefore the laws of the kingdom have given all possible security to the king's person and government under the severest penalties. 2. Because as the subject hath his protection from the king and his laws, so on the other side the subject is bound by his alligeance to be true and faithful to the king; and hence all indictments of high treason run proditoriè, as a breach of the trust, that is owing to the king; contra ligeantiæ suæ debitum, against that faith and alligeance he owes to the king, and contra pacem domini regis, coronam, & dignitatem ejus. And hence it is, that if an alien enemy come into this kingdom hostilely to invade it, if he be taken, he shall be dealt with as an enemy, but not as a traitor, because he violates no trust nor alligeance: resolved in the lord Herise's case. Co. P. C. cap. 1 p. 11. 7 Co. Rep. 6. a. Perkin Warbeck's case. But if an alien, the subject of a foreign prince in amity with the king, live here, and enjoy the benefit of the king's protection, and commit a treason, he shall be judged and executed, as a traitor; for he owes a local allegiance. 7 Co. Rep. 6. the case of Stephano Ferrara(a) a Portuguese; and the indictment shall not run contra naturalem dominum, but contra dominum suum, and conclude contra ligeantiæ suæ debitum; and such an alien was compellable to take the oath of alligeance in the leet. 2 Co. Instit. p. 121.(b) If a merchant, subject of a foreign prince in hostility with our king, come hither, after the war begun, without the king's license, or safe-conduct, such a person may be dealt with as an enemy, viz. taken, and ransomed. Mag. Chart. cap. 30. (c) (a) And Emanuel Lewis Tinoco. Hill. 36 Elix. Dyer. 145. (b) Mirroir de justice, cap. 5. § 1. n. 6. (c) Co. Instit. 58. |