much of the business of those charges, that are given to the grand jury by the justices in their several sessions; and they were for the most part heretofore contained in certain articles or heads of inquiry delivered out in writing to the several inquests, and were often stiled Capitula Placitorum Corona; such were those of R. 1. mentioned by Hoveden, p. 744, 783. which were delivered to the inquisitors in every wappentach or hundred, and to the justices itinerant to make inquiry upon, and by them to the grand inquests; and such were those Articuli itineris declared by Bracton, Lib. III. de corona, cap. 1. and printed in the old Magna Charta for the justices in eyre to make inquiry upon, which I shall not here repeat at large, but shall take them up as I shall have occasion to use them.

The order which I shall observe in these Pleas of the Crown will be this:

I. In the first book I will consider of capital offenses, Treason and Felonies; which book will be divided into two parts:

1. The enumeration of the kinds of treasons and felonies as well by common law, as by acts of parliament. 2. The whole method of proceedings in or upon them. II. The second book will treat of matters criminal, that are not capital; and

III. The third book will be touching franchises and liberties.(*)

(*) That which is here offered to the public, is only the first of these books, consisting of two parts; the other two books having, as I have been credibly informed, never been composed by our author.

HISTORIA PLACITORUM CORONÆ.

PART I.

CHAPTER I.

CONCERNING CAPITAL PUNISHMENTS.

BEING to treat concerning capital offences; it will not be amiss to premise something touching capital punishments.

Laws, that are introduced by custom, or instituted by the legislative authority for the good of civil societies, would be of little effect, unless they had also their sanctions, imposing penalties upon the offenders of those laws.

These penalties are various according to the several natures of the offences, or the detriment that comes thereby to civil societies; some are only pecuniary; some corporal, but not capital, such as imprisonment, stigmatizing, banishment, servitude, and the like; others are capital, ultimum supplicium, or death; and that death sometimes accompanied with greater, sometimes with less degrees of severity.

So that, although offences against the good of human society be many of them prohibited by the laws of God and nature, yet the punishments of all such offences are not determined by the law of nature to this or that particular kind, but are for the most part, if not altogether, left to the positive laws and constitutions of several kingdoms and states. And therefore, although most certainly the penalties instituted by God himself among his ancient people upon the breach of their laws were with the highest wisdom fitted to that state, and all laws and instituted punishments should come up as near to [ 2 ] that pattern, as may be; yet as to the degrees and kinds of

punishments of offences in foro civili vel judiciario they are not obliging to all other kingdoms or states, but all states, as well christian as heathen, have varied from them.

And therefore it will not be amiss to instance in the various kinds of punishments inflicted by the several laws of several countries, especially in those two offences of homicide and theft, which are the most common and obvious offences in all countries.

By the ancientest divine law, that we read, the punishment of homi

VOL. 1.-1

cide was with death. Gen. ix. 6. "Whosoever sheds man's blood, by man shall his blood be shed."(a)

And the judicial law given by Moses was pursuant to it, with some temperaments and explanations. Exod. xxi. 12, 13, 14. "He, that smiteth a man, so that he die, shall surely be put to death. And if a man lie not in wait, but God deliver him into his hand; then I will appoint thee a place, whither he shall flee. But if a man come presumptuously upon his neighbour to slay him with guile; thou shalt take him away from mine altar, that he may die." And v. 18, 19. "And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keepeth his bed; if he rise again, and walk abroad upon his staff, then shall he that smote him, be quit; only he shall pay for the loss of his time, and for his cure."

And what this delivery by God of a man into his neighbour's hand is, is best expounded Deut. xix. 4, 5, 6, 11, 12. "Whoso killeth his neighbour ignorantly, whom he hated not in time past, as where a man cleaveth wood, and the ax flieth from the helve, and killeth a man, he shall fly to the city of refuge,(b) lest the avenger(c) · [3] of blood pursue, and slay him while his heart is hot; whereas he was not worthy of death, in that he hated him not in time past: But if any man hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally, that he die, and he fleeth to one of those cities, the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die."(d)

Again; Exod. xxii. 2. "If a thief be found breaking-up, and be smitten, that he die, there shall no blood be shed for him; if the sun

(a) This law being given to Noah, from whom all men are derived, is not peculiar to the Israelites; but, as our author observes below, is binding on all mankind.

(b) Concerning these cities of refuge, see Exod. xxi. 13. Numb. xxxv. Deut. iv. 41 & seq. Josh. xx. xxi. Selden: de jure naturali, &c. Lib. IV. cap. 2.

(c) Who this avenger of blood was, is no where expressly said, it is generally supposed that he was the next heir to the person slain. See Selden: de jur. nat. Lib. IV. cap. 1. & de successionibus in bona defuncti : but the truth is, the Hebrew words Goel ha dam, here rendered the avenger of blood, should be rendered the next of blood, for Goel properly signifies one of the same kindred; it is so rendered Ruth ii. 20. and iii. 9, 12. and is usually expressed in the Septuagint by axivar, which denotes one near of kin.

(d) If there was no avenger of blood, or if he would not or could not kill the slayer, the slayer was capitally punished by a judicial sentence; and no ransom or recompense was admitted. Numb. xxxv. 31. Selden: de jur. nat. Lib. IV. cap. 1. in fine; even though the person slain should before his death desire that the slayer should be forgiven. Maimonides More Nevochim, Pars III. c. 41. for all voluntary homicide was inexpiable, as appears from Numb. xv. 27. 31. and the case of David in the matter of Uriah, Ps. li. 16. There was one case indeed of capital homicide, wherein a ransom was allowed, viz. If an ox were wont to push with his horn, and it had been testified to his owner, and he had not kept him in, so that he had killed a man or a woman, the owner was to be put to death, he being looked on as the author of the murder, who would not prevent it, when he had warning, and might have done it; however, this being a case of gross negligence, rather than wilful malice, he was permitted to redeem his life by paying the ransom, which was laid upon him. Exod. xxi. 29, 30. the price of a servant was thirty shekels of silver. Ibid. v. 32, and that of a freeman was generally double, viz. sixty shekels. Maimon. More Nevochim, Pars III. cap. 40.

This was also felony by the common law of England, for by such sufferance the owner seemed to have a will to kill. Stamf. P. C. 17. Fitz. Cor. 311. Vide post c. 33 note.

be risen upon him there shall be blood shed for him; for he should make full restitution; if he have nothing, then he shall be sold for his theft."

Upon these judicial laws, these things are observable; 1. That by these laws the killing of a man by malice forethought, or upon a sudden falling out, were both under the same punishment of death.(e) 2. That the killing of a man by misfortune was not liable to the punishment of death, by the sentence of the judge; but yet [ 4 ] the avenger of blood might kill him, before he got to the city

of refuge. (f) 3. The killing of a thief in the night was not liable to punishment of death; but if it were in the day-time, it was punishable with death. 4. Though there is no express law touching killing a man in his own defence,(g) yet it seems the custom of the Jews, and the interpretation of the Jewish doctors, excused that fact from the punishment of death. (h) 5. That the usual manner of the exeeution of the sentence of death was stoning, and sometimes strangulation.(i)

Now I will consider some of the laws of other nations in reference to homicide; wherein though there is a great analogy in many things between the laws of the Jews, and the laws of other countries; so that a man may reasonably collect, that these judicial laws of the Jews were taken up by other nations, as the grand exemplar of their judicial laws; yet in some things they departed from them in the particular constitutions and customs of other countries.

Among the leges Atticæ collected by Mr Petit, Lib. VII. tit. 1. these were many of the laws concerning homicide.

(e) The law was general, "That whoever smiteth a man, so that he die, shall surely be put to death." Exod. xxi. 12. There were indeed some exceptions from this general law, but setting aside the case of a house-breaker in the night, they all related to casual involuntary homicides; there is not one exception of a voluntary designed killing, whether sudden or premeditated, whatever interpretations might be afterwards made by the Jewish Rabbis, who made the commandments of God of none effect through their traditions, (Matt. xv. 6.) so that there is nothing in the Jewish law to countenance the distinction made by the laws of England between murder and manslaughter; a distinction, which serves to show, that though the laws of England be much severer than the other in the case of theft, yet they are much milder in the case of homicide.

(ƒ) Unless he fled to the altar, which was also looked on as a place of refuge, it being probable from Exod. xxi. 13, 14. that the altar was the place of refuge before the cities of refuge were appointed. (See Bracton of the English Law of Asylum.) See Selden: de jur. nat. Lib. IV. cap. 2. If he did escape to the city of refuge, he was obliged to remain there till the death of the high priest, for the avenger of blood might kill him wherever be found him out of the borders of the city. Numb. xxxv. 25-32. Selden: ubi supra & de Synedriis, Lib. II. cap. 7. But after the death of the high-priest, he was at liberty to go where he would; for the reason hereof see Maimonides More Nevochim, Pars III. cap. 40, and Ainsworth on Numbers xxxv. 25.

(g) This was a case so plainly justifiable by the law of nature, that it needed no positive law; however, the permission to kill a thief, who should be found breaking up in the night, seems to be an express allowance of killing in one's own defence; for the reason of that law is manifestly founded on the principle of self-preservation. Nam adversus periculum naturalis ratio permittit se defendere. Digest. Lib. 9. Tit. 2. l. 4.

(k) When done in defence of life or chastity; because, when lost, they are irreparable, see Selden: de jur. natur. Lib. IV. cap. 3. Maimon. More Nevochim, Pars III. cap. 40. (i) Sometimes the execution was by burning; as in the case of a priest's daughter, who had played the whore. Levit. xxi. 9. Sometimes by decollation, which was the usual way for murder. Selden: de Synedriis, Lib. II. cap. 13. De jur. natur. Lib. IV. cap. 1.