| 1486.002 |
1486 |
(Exchequer Chamber) |
Felony (Rescue) (Indictment) |
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Catesby, John JCP Iohannes Catisby Miles
Huse, William CJKB Hussey
Huse, William AG1471-1478 son Atturney
Billyng, Thomas CJKB 1469-1481
Choke, Richard JCP1461-1483 Chok (mentioned)
all the Justices (mentioned)
all (the Justices)
Townshend, Roger JCP
Bryan, Thomas CJCP Brian
Huse, William CJKB Hussey
Catesby, John JCP
Huse, William CJKB Hussey
(Nedeham, Richard JCP1457-1471)
(Littleton, Thomas JCP 1466-1481 Litilton) |
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Edward IV, King of England
(A., previous felony defendant) |
Salisbury (a great session at, under Edw. 4)
Wagon (Chariet) of St. Johns (sanctuary)
London (Londres)
(Winchester (Wynton.))
(England (Anglie)) |
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Fitzherbert Corone 48, Enditement 30
Brooke Corone 126 (not 162) & 129 (not 130), Sanctuarie 8 |
Stanford, Plees del Coron 32 c, 113 a
6 Hen. 7, fol. 12
Stanford, Plees del Coron 31, 27
1 Hen. 6, fol. 6
Stanford, Plees del Coron 30, 31 C, E
Stanford, Plees del Coron 31 C, 95 B
1 Edw. 3, fol. 17
Stanford, Plees del Coron 43 e
26 Edw. 3, Lib. Ass. pl. 2
3 Henn. 7, fol. 1, con(tra) |
the statute de frangentibus prisonam = 23 Edw. 1 (1295) (1 Stat. Realm 113) (of breaking prisons) |
| Nota, que Catesby demanda un Question, cestassavoir ou devant les Justices del' paix a Salisbury |
16 |
A felon (defendant) had been condemned before the Justices of the Peace in their Sessions.
The undersheriff (or sheriff) with his officers and ministers had brought defendant to the execution between two men.
(While going to the gallows), St. John's wagon (?) came near them with a banner.
The prisoner (defendant) put his hands on the banner, and prayed the privilege (sanctuary) of St. John's.
(Certain evilly disposed and) riotous persons of the vill (by force and arms) and others by assent, made rescue of the prisoner (defendant) from the undersheriff and his ministers (or feloniously seized the prisoner out of the sheriff's custody, took the prisoner (defendant)), and brought the prisoner (defendant) to the church (sanctuary), and maltreated the undersheriff.
Catesby JCP asked the question what was to be done (whether this (rescue) were felony or not, and if it be felony whether (the rescuers) were accessories or principals.
Huse CJKB recalled such a case between 1471 and 1478, and that the Justices had then said that a rescue out of a prison was a felony at common law, but a rescue from the person of an undersheriff or sheriff was not a felony until a statute of 1295.
Townshend JCP said that if a jury found a rescue this would be a felony, but not if the sheriff returned a rescue.
All the Justices held that in this case (if a jury found (indictment? not verdict?) the rescue), it would be a felony.
Bryan CJCP said that the rescuers would be accessories.
Huse CJKB disagreed, and said that the rescuers would be principals.
which was agreed
Catesby JCP asked how this would be found.
Huse CJKB said that this would be found well enough, because the jurors would find all the matter (as a matter) of record, and the rescue.
But it seemed that the jurors ought to have had the record 'under seal' (sub pede sigilli).
(The same question had been examined in the time of Edw. 4 after he had held a great session at Salisbury, and the Justices then present held clearly that such a rescue was a felony by common law.) |
en lour Sessions la fuit un felon condemne, & sicome l' Sousvisconte ove ses officers & ministres luy amesna al' execution entre deux homes, le Chariet de Seint Johns vient ove un banne per eux, come ils use aver, & le prisoner jette ses mains sur le banniere, & pria le privilege de Seint Johns, le quel per les riottors del' ville, & auters come semble per assente, strent rescous del' Sousviconte & ses ministres, & amesne l' prisoner al' Eglise, & l' Sousviconte malment n' avre, or que serra fait?
Huse CJKB: Tiel cas ou semblable fuit en temps le Roy E. le 4. quand jeo fui son Atturney, & quand jeo vene to Londres, jeo demandai de Billyng & Choke JCP, & Touts les Justices, le quel cest rescous fuit felony, ou nemy; Et ils Touts disoient, que le rescous d' un felone de luy prendre hors del' garde & prison, fuit touts dits felony al' Common Ley, mes del person mesme il ne fuit onques felonytanque le Statut fuit fait 'de frangentibus prisonam': et issint fuit lour diversite
Townshend JCP: Si rescous soit fait d' un felon al' Viconte, & le Viconte ceo returne, il n' est paz felony,
quod fuit concessum
(Townshend JCP, continuing:) mes si cest soit trove per Enquest, il est felony
Et issint en cest cas Touts tenoient felony
Bryan CJCP: Ils serront accessories
Huse CJKB: Non, eins principals
Quod fuit concessum
Catesby JCP: Coment serra cest trove?
Huse CJKB: Assez bien, car les Jurors troveront tout le matter de record, & le rescous: mes semble que ils doivent aver le record 'sub pede sigilli'
Quod nota |
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William Huse was Attorney General from 16 June 1471 to 7 July 1478. (No Parliament was held at Salisbury in the time of Edw. 4.) |
Catesby JCP: before the Justices of the Peace at Salisbury in their sessions there, a felon was condemned, and as the undersheriff with his officers and ministers brought him (the condemned felon) to the execution between two men, the 'wagon of St. John's' (sanctuary) came with a banner of theirs, as they used to have, and the prisoner (condemned felon) put his hands on the banner, and prayed the privilege (sanctuary) of St. John's, which by the riotors of the vill and others, as it seems, by assent, rescued (strent rescous) from the undersheriff and his ministers, and brought the prisoner (condemned felon) to the church, and treated the undersheriff badly (?) (malment n' avre), now what would be done?
Huse CJKB: there was such a case, or a similar one, in the time of Edw. 4, when I was his Attorney General (King's Attorney) (1471-1478), and when I came to London, I asked Billyng CJKB1469-1481 and Choke JCP1461-1483 and all the Justices, whether this rescue was felony or not; and they all (the Justices) said that the rescue of a felon, taking him out of custody (garde) and prison, was always a felony at common law, but (rescue) from the person himself was never a felony until the statute 'de frangentibus prisonam' (1295), and their distinction was thus
Townshend JCP: if a felon be rescued from the sheriff (Si rescous soit fait d' un felon al' Viconte), and the sheriff returns this, they will hold this no felony
which was agreed
(Townshend JCP, continuing:) but if this be found by a jury (per Enquest), it is felony
and thus in this case all (the Justices) held (this) felony
Bryan CJCP: they are accessories
Huse CJKB: no (they are not accessories), but principals
which was agreed
Catesby JCP: how will this be found?
Huse CJKB: well enough, because the jurors will find all the matter (as a matter) of record, and the rescue, but it seems that they ought to have the record 'under seal' (sub pede sigilli)
which note
(and the same question had been examined in the time of Edw. 4 after he had held a great session at Salisbury, but this was that a certain A. had been indicted of felony and arrested by the sheriff for this cause, and he had been seized and rescued from the custody of the sheriff, etc. (perhaps 1473.004 = Pasch. 13 Edw. 4, pl. 4, fol. 8b-9a, 64 SS 34); and this question was asked in the Exchequer Chamber of all the Justices of that time, that is, Billyng CJKB1469-1481, Choke JCP1461-1483, Nedeham JCP1457-1471, Littleton JCP1466-1481, and then it was held by them clearly to be felony by the common law of England, etc.)
St. John's cart or 'frary' cart, was identified in Ralph B. Pugh, 'The Knights Hospitallers of England as Undertakers', vol. 56 Speculum, no. 3, pp. 566-574 (1981). The Knights Hospitallers buried executed felons from 1276 to the Reformation, and sometimes cut down felons from the gallows who were not quite dead. Bodies were usually taken to a Pardon churchyard, according to Stow, Survey of the Cities of London and Westminster (ed. Kingsford, Oxford 1908), vol. 2, p. 82, in a closed cart, covered in black, bearing transversely a plain white cross and in front a St. John's corss, called the 'frary' cart, belonging to St. John's and enjoying the privilege of sanctuary.
The Reports of Sir John Spelman, vol. 2, 94 SS 340, and Pugh, 56 Speculum 566, 569 at note 24, noted this case |
| BL MS Hargrave 105 |
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BL MS Hargrave 105: Iohannes Catisby MIles Iusticiarius peciit hanc questionem viz vbi quidam homo apud Wynton, attinctus fuit de felonia et iudicium super eum redditum et vicecomiti deliberatus ad execucionem faciendam Et in eundo ad Furcas quidam maliciosi et riotores vi et armis etc. felonice prisonarium a custodia vicecomitis arripuerunt et ceperunt et in quandam Ecclesiam posuerunt et si prisonarium felonice rescusserunt questio fuiit si hec rescussus sit felonia vel non et si sit felonia tunc si sit accessorium vel principale et omnes Iusticiarii in Camera Scaccarii existentes preter Brian et Fairfax tenuerunt illud fore feloniam per communem legem et in parte propria viz felone feloniam per statutum et tunc non indiget iterum conuinici quia conuictus existit ad feloniam et eadem questio exacta fuerit tempore Regis Edwardi quarti postquam custodiuisset magnam Cessionem apud Salisbury set hec fuit quod quidam .a. indicatus de felonia et captus per vicecomitem ea de causa et a custodia vicecomitis rescussus et irraptus etc. et hec questio fuit petita in Camera Scaccarii de omnibus tunc Iusticiariis videlicet Billyng Chok Nedeham et Litilton Et tunc per eos tentum fuit clare feloniam per communem legem Angliae etc.
Fitzherbert Corone 48, fol. 210r-v, referred to le charet de saint John- and to l' privilege de saint John-
Brooke Corone 129, fol. 184v, mentioned le cart seint Johns vyent ove son baner & le prisoner iet ses mains sur le baner & prie le privilege de seint John
Brooke Sanctuarie 8, fol. 241r: Vide title coron 129. ou home que iect ses mains sur S. Jones banner ne poet auer ent priuilege de sanctuarie mes ceux que luy rescous ou pristeront del vicount fuerent tenus principal felons per touts les iustices, quod nota |
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| M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 125 (1945) (case 35) (Question Whether the Resue of a Felon Be Felony) |
Note
Demand
Question
Cestassavoir
Justice Of The Peace
Peace
Session
Felon
Condemnation
Undersheriff
Officer
Minister
Bringing
Execution
Wagon (Chariet)
Cart
Coming
Banner
Usage
Prisoner
Casting (jette)
Throwing
Hand
Privilege
(Sanctuary)
Riot
Rioter
Vill
Seeming
Assent
Strent
Rescue (Rescous)
Church
To The Church
Badly (malment)
Case
Similarity
Time
King
Attorney
King's Attorney
(Attorney General)
Felony
Taking
Custody (garde)
Prison
Out Of Prison
Common Law
At Common Law
Felony At Common Law
Person
Statute
Breaking
Breaking Prison
Distinction (diversite)
Sheriff
Return
Agreement (concessum)
Finding
Verdict (trove)
Jury (Enquest)
Case
Holding (tenoient)
Accessory
Principal
Sufficiency (Assez)
Well Enough
Juror
Jury
Matter
Record
Of Record
Sub Pede Sigilli
Under Seal
(Knight)
(Attaint)
(Judgment)
(Delivery)
(Gallows (Furcas))
(Malice)
(Malicious)
(Force)
(Arms)
(Force And Arms)
(Vi Et Armis)
(Seizure (arripuerunt)
(Exception)
(Party)
(Party Himself)
(Conviction)
(Examination (exacta))
(Indictment)
(Arrest)
(Clarity) |
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