| 1491.020 |
1491 |
King's Bench |
Indictment for Rape |
Cerciorari
Curia
Felony per Statut
Rape
Laboureurs
Couper langues
Court
Jurisdiction
Conunsance
Prerogative
Grants
Garde
Diversite
Treason
Quaere
Judicium
Quaere
Trespas |
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Common Pleas
Parliament
Convocation |
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Fitzherbert Leete 3
Brooke Inditementes 28, Lete 22, Patents 53, Mainprise 68, Fine pur contempts 38 |
shorter version 1496.026 = Pasch. 11 Hen. 7, pl. 11, fol. 22a
Hil. 14 Hen. 4, 1413.024 = Hil. 14 Hen. 4, pl. 24, fol. 20a-20b
Hil. 3 Hen. 7, fol. 1
Mich. 1 Ric. 3, fol. 1
Trin. 8 Hen. 7, fol. 1
Hil. 7 Hen. 6, fol. 12
Trin. 18 Hen. 6, fol. 11, for such matter
11 Hen. 7, fol. 22
22 Edw. 4, fol. 22, same case
1 Ric. 3, fol. 1 (twice)
4 Edw. 4, fol. 33
9 Hen. 6, fol. 44
3 Hen. 7, fol. 1
11 Hen. 4, fol. 42
14 Hen. 4, fol. 20, 21
38 Hen. 6, fol. 10
43 Edw. 3, Lib. Ass. pl. 19
19 (not 91) Hen. 6, fol. 62, 63, 64
41 Edw. 3, fol. 6
21 Hen. 6, fol. 50
22 Edw. 3, fol. 10
38 Hen. 6, fol. 10
21 Edw. 4, fol. 55 (twice)
26 Hen. 6, fol. 13
2 Ric. 3, fol. 7
1 Hen. 7, fol. 4
30 Hen. 6, fol. 25
19 Hen. 6, fol. 63
32 Hen. 6, fol. 11
14 Edw. 4, fol. 7
24 Edw. 3, fol. 25
7 Hen. 6, fol. 13
9 Hen. 6, fol. 44
22 Edw. 4, fol. 22
2 Ric. 3, fol. 10
18 Edw. 4, fol. 11
2 Hen. 7, fol. 10 contra
11 Hen. 7, fol. 22 contra |
Westminster 2nd (1285), ch. 34 (Rape cap. 34)
6 Ric. 2 (1382), [stat. 1,] ch. 6 (6 R. 2, ca. 6)
Statute of Labourers (1349), 23 Edw. 3, ch. 2 (de laborers & artificers)
5 Hen. 4 (1404), ch. 5 (5 H. 4, c. 5 (maiming) (compare 22 & 23 Chas. 2 (1670), ch. 1, sec. 7 (with malice aforethought and by lying in wait unlawfully to cut out or disable the tongue, put out an eye, etc.)
the statute = 25 Edw. 3 (1352), stat. 5, ch. 2 (petty treason) |
| Un home fuit endite per presentment in un Leet, que il tiel jour feloniousement Rapuit une |
38 |
Defendant was indicted by presentment in a Leet, that defendant on such a day had feloniousy raped a woman (une feme).
This came before the King's Bench by Certiorari.
Defendant (he who was indicted) prayed that defendant could be discharged of such felony, because it (Rape) was not to be inquired of in a Leet.
It was agreed by all the Court that a Leet could not inquire of a Rape, because Rape was not a felony at common law.
Then by advice of the Court it was awarded that defendant (he who was indicted of the Rape) would be discharged of the felony, and put in mainprise (bail) to make a fine (to the king). |
feme, & cest fuit devenu in Banc le Roy per Cerciorari,
& cesty qui fuit endite, pria que il poit estre discharge de tiel felony, pur ceo que n' est enquire in un Leet
Et fuit agre per Tout le Court, que coment que un ad un Leet del' grant le Roy, uncore il il ne poit enquerir del' Rape, pur ceo que n' est deins l' usage estre enquerir deins un Leet: car il ne poit aver auter Court quand ceo est grant, mes come cest ad estre use per Court; Et ur ceo que al' Common Ley Rape ne fuit felony, pur quel cause n' est enquerir come felony, car ceo est fait felony per le Statut Westminster 2. & Ric. 2. que donq n' est enquis, come felony; Come le Statut de laborers & artificers est enquis per le Statut, pur ceo que est cocmon nusans, & uncore n' est enquerir in Leet; Et issint est fait felony, si come home in malice purpense git in agait, & mit hors le oeil de un home hors de son test, ou mit hors son lang, est fait felony per Statut temps Hen. 4, & nient enquerir per Leet, pur ceo que ne fuit al' Common Ley use estre enquire, mes de felony al' Common Ley; Et un Court sera use & occupy come un Court ad este use: car le Common Banc ne poit enquerir de felony, &c.; Et quant ceo que est dit, pur ceo que le Roy ad granta un Leet, ceo sera pris de toutes actions avenir, come sont uses, & sont felony al' temps del' grant, come seront apres, come in grant de conusance de ple, Sir, le cas de conusance de ple est argue Hil. 14 Hen. 4 & nient adjuge, ou le grantee aura conusance del' ple del' action fait per le Statut puis le conusance; & coment que cest fuit Ley, uncore ceo n' est semble a cest cas: car le Roy poit grante chose qui n' est in luy; Come il poit grante que il sera discharge del' xv (= quinzime, fifteenth, tax) grante al' prochein Parlement, ou discharge de dismes ou de coiler de ceo est grante al' prochein Convocacion, pur ceo que cest sonne in covenant: & envers le Roy nul action gist, & pur ceo sera pris bon garrant
Vide cest matter in Ans (= Year Books)
Et si le Roy grante prochein garde, ceo est bon, &c.; Et issint le Roy poit grante conusance de touts maners d' actions avenir, & ceo est bon; Mes icy le Roy ne poit grante un Leet forsque come le Court de Leet est use, & ad este use, car il mesme ne poit aver Leet, & cest user auterment que add este use; Purque de touts choses que sont faits per le Statut, qui ne furent al' Common Ley, on ne poit enquerir in Leet, pur ceo que ne furent jamais uses estre enquis in son Leet: mes de tiels choses qui furent al' Common Ley enquerir, & sont grande punitions per Statut fait, in cest cas ils sont enquerir, mes nemy come le Statut veut, mes solonques le Common Ley; Come Petit treason fait per le Statut est enquerir come felony, per ceo que fuit felony al' Common Ley, & nemy Treason, s. servant a tuir son Maistre, & semble
Reporter (R.): Mes Quaere de Grand treason al' Common Ley, ou ceo fuit enquerir in un Lee (should be Leet): car Treason fuit al' Common Ley
Et puis per advis del Court agarde fuit, que cesty que fuit endite del' Rape fuit discharge del' felony, & mis eins mianprise a faire fine
Nota
Reporter (R.): Mes Quaere, s' il soit bon Ley, que il ferra fine pur le transgressioun in cest cas, pur ceo que coment que Rape est enquerir in Leet, & ceo est come fuit al' Common Ley, come un transgressioun, & nemy come un felony, donques cest covient estre presente come transgressioun, & nemy come felony; Ideo Quaere: car le party mit eins mainpernors pur son fine come devant, &c.
Voies Hil. 3 Hen. 7, fol. 1; Mich. 1 Ric. 3, fol. 1, Trin. 8 Hen. 7, fol. 1; Hil. 7 Hen. 6, fol. 12; Trin. 18 Hen. 6, fol. 11, pur tiel mattiere |
no felony of Rape at common law, no action lies against the king, the king can grant an exemption from or discharge of a future tax or tithe
all the Court: even though one (lord) has a leet by the king's grant, yet it (Leet) cannot inquire of the rape, because it is not within the usage (for rape) to be inquired before a Leet, becaue he (lord) cannot have another (local) court when this (Leet) is granted, but as this has been the usage (use) by (local) court; and because at common law rape was not a felony, for whch cause (rape) is not inquired as a felony, because this is made felony by the statute of Westminster 2nd (1285), ch. 34 and 6 Ric. 2 (1382), stat. 1, ch. 6, so it is not inquired as felony (at common law); as the Statute of Labourers ((1349), 23 Edw. 3, ch. 2 ) and artificers is inquired by the stautute, because it is a common nuisance, and yet this is not inquired (of) in a Leet; and so it is made a felony, as if one with malice aforethought (in malice purpense) lies in wait, and puts one's eye out of his head, or puts out his tongue, is made a felony by a statute of Hen. 4 (5 Hen. 4 (1404), ch. 5), and not inquirable by Leet, because it was not the usage at the common law to be inquired, but (only to inquire) of felony at the common law; and a (local) court will be used and occupied (by a grantee lord) as the usage (use) has been in a (local) court: because Common Pleas cannot inquire of felony, etc.; and as to what is said, because the king had granted a leet, this will be understood (pris) of all actions to come (avenir), as are used (uses), and are felonies at the time of the grant, (and) as would be afterwards, as in a grant of cognisance of pleas, Sir, the case of cognisance of pleas was argued Hil. 14 Hen. 4 (1413.024 = Hil. 14 Hen. 4, pl. 24, fol. 20a-20b) and not adjudged, whether (ou) the grantee will have cognisnce of the plea for an action made by statute since the cognisance (was granted), and even if (this was law), yet this is not like this case: because the king can grant a thing that is not in him (exception to the nemo dat quod non habet principle); as he (king) can grant that he (grantee) will be discharged from the fifteenth (tax) (xv, quinzime) granted at the next Parliament, or discharge (a grantee) from tithes of from collection of what is granted at the next Convocation (of clergy), because this sounds in Covenant (promise of future performance), and no action lies against the king (sovereign immunity principle), and so this will be understood (pris) a good warrant
see this matter in years (Ans, Year Books)
(all the Court, continuing?:) and if the king grant the next wardship, this is good, etc.; and so the king can grant cognisance of all manner of actions to come, and this is good; but here the king can only grant a Leet as the usage is of (local) courts of Leet, and as the usage (use) has been, because he himself (king) cannot have a Leet, and (the king cannot) have usage of this (Leet) otherwise than it has been used; so of all things that are done by the statute, that were not at common law, one cannot inquire in a Leet, because there was never the usage to inquire of this in his (the king's?) leet, but of such things that were at common law (a Leet will) inquire, and there are grave punishments made by statute, in this case they (offences) are inquirable, but not as the statute provides, but according to the common law; as petty Treason (is) made inquirable as felony by the statute is inquirable as felony, because this was felony at common law, and not Treason, that is, a servant slaying (tuer) his master, and the like
Reporter (R.): but query of High Treason (Grand treason) at the common law, whether (ou) this was inquirable in a Leet, because Treason was at common law
(all the Court, continuing?:) and then by advice of the Court it was awarded that he who was indicted of the Rape would be discharged of the felony, and put in mainprise (bail) to make a fine (to the king)
note
Reporter (R.): but query whether it be good law that he (defendant) will make a fine for the trespass (civil wrong) in this case, because even though Rape is inquirable in a Leet, and this is as it was at common law, like a trespass, and not like a felony, so this ought to be presented as a Trespass, and not as a felony
so query, becaue the party put in mainpernors by his fine as before, etc. |
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1491.020 = Trin. 6 Hen. 7, pl. 4, fol. 4b-5a, it was said that a case of cognisance of pleas was argued Hil. 14 Hen. 4 and not adjudged, whether (ou) the grantee will have cognisnce of the plea for an action made by statute since the cognisance (was granted) |
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Indictment
Presentment
Leet
Day
Felony
Feloniously
Rape (Rapuit)
Woman (feme)
Wife
Widow
Certiorari
He Who Was Indicted
Discharge
Inquiry
Agreement
Grant
King
King's Grant
Inquiry Of Rape
Usage
Within The Usage
Local Court
Court Usage
Usage Of Court
Common Law
At Common Law
Cause
Making Felony
Statute
Labourer
Artificer
Nuisance
Common Nuisance
Inquiry In Leet
Malice
Forethought
Malice Aforethought
Malice Prepense
Prepense
Laying
Wait
Lying In Wait
Laying In Wait
Eye (oeil)
Putting Out
Disoculation
Blinding
Head (test)
Out Of His Head
Tongue (lang)
Cutting Out Tongue
Time
Reign (temps)
Felony At Common Law
Understanding (pris)
Action
To Come (avenir)
Time Of Grant
Cognisance Of Plea
Cognisance
Jurisdiction
Case
Argument
Adjudging
Grantee
Dissimilarity
Discharge
Fifteenth
Quinzime
Tax
Parliament
Next Parliament
Tithes
Collection (coiler)
Convocation
Next Convocation
Sounding
Sound (sonne)
Covenant
In Covenant
No Action Lies Against The King
(Sovereign Immunity)
Warranty
Good Warranty
Warrant
Sight (Vide)
Year
Year Books (Ans)
Wardship (garde)
Next Wardship
Good Grant
Matter Of Action
Otherwise
Thing
Never
Punishment (punitions)
Grave Punishment
Statute
Accordingly (solonques)
Treason
Petty Treason
Treason At Common Law
Servant
Slaying (tuer)
Killing
Homicide
Master
Suchlike
Query
High Treason (Grand)
Advice
Award
Discharge Of Felony
Mainprise
Fine
Making Fine
Note
Good Law
Trespass
Fine For Trespass
Trespass At Common Law
As Trespass
As Felony
Folio |
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