22. Ass. pl. 56. 6. E. 4.7. distressed, and to save mine own life I set fire on mine 12 H.8.10. own house, which spreadeth and taketh hold on the per Brooke other houses adjoining, this is not justifiable, but I am subject to their action upon the case, because I cannot rescue mine own life by doing any thing against the commonwealth: but if it had been but a private trespass, as the going over another's ground, or the breaking of his inclosure when I am pursued, for the safeguard of my life, it is justifiable. per Sares. This rule admitteth an exception when the law intendeth some fault or wrong in the party that hath brought himself into the necessity; so that it is necessitas culpabilis. This I take to be the chief reason why seipsum defendendo is not matter of justification, because the law intends it hath a commencement upon an unlawful cause, because quarrels are not presumed to grow but upon some wrongs in words or deeds on either part, and the law thinking it a thing hardly tri4 H. 7. 2. able in whose default the affray or quarrel began, supposeth the party that kills another in his own defence not to be without malice; and therefore, as it doth not touch him in the highest degree, so it putteth him to sue out his pardon of course, and punisheth him by forfeiture of goods: for where there can be no malice nor wrong presumed, as where a man assails me to rob me, and I kill him; or if a woman kill him that assaileth to ravish her, it is justifiable without pardon. Stamford, 21. 21 H. 7. 13. So the common case proveth this exception, that is, Stamf. 16. if a madman commit a felony, he shall not lose his life for it, because his infirmity came by the act of God: but if a drunken man commit a felony, he shall not be excused, because his imperfection came by his own default; for the reason of loss and deprivation of will and election by necessity and by infirmity is all one, for the lack of arbitrium solutum is the matter: and therefore as necessitas culpabilis excuseth not, no more doth infirmitas culpabilis. REGULA VI. Corporalis injuria non recipit æstimationem de futuro. THE law, in many cases that concern lands or goods, doth deprive a man of his present remedy, and turneth him over to some further circuit of remedy, rather than to suffer an inconvenience: but if it be a question of personal pain, the law will not compel him to sustain it and expect a remedy, because it holdeth no damages a sufficient recompence for a wrong which is corporal. As if the sheriff make a false return that I am summoned, whereby I lose my land; yet because of the inconvenience of drawing all things to incertainty and 5 Ed. 4. 80. delay, if the sheriff's return should not be credited, I am excluded of any averment against it, and am put to mine action of deceit against the sheriff and somners: 3 H. 6. 3. but if the sheriff upon a capias return a cepi corpus, et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my impri sonment. So if a man menace me in my goods, and that he will burn certain evidences of my land which he hath in his hand, if I will not make unto him a bond, yet if I enter into bond by this terror, I cannot avoid it by plea, because the law holdeth it an inconvenience to avoid specialty by such matter of averment; and therefore I am put to mine action against such menacer: but if he restrain my person, or threaten me with bat- 7 Ed. 4. 21. tery, or with burning of my house, which is a safety and protection to my person, or with burning an instrument of manumission, which is evidence of my enfranchisement; if upon such menace or duresse I enter into a bond, I shall avoid it by plea. So if a trespasser drive away my beasts over ano- 13 H. 8. 5. ther's ground, I pursue them to rescue them, yet am I 21 H. 7. 28. trespasser to the stranger upon whose ground I come: but if a man assail my person, and I fly over another's ground, now am I no trespasser. This ground some of the canonists do aptly infer out of the saying of Christ, Amen, est corpus supra vestimentum, where they say vestimentum comprehendeth all outward things appertaining to a man's condition, as lands and goods, which, they say, are not in the same degree with that which is corporal; and this was the reason of the ancient ler Stamf. 16. 6 Ed. 4. 7. Stanf. 16. B. talionis, oculus pro oculo, dens pro dente, so that by that law corporalis injuria de præterito non recipit æstimationem: but our law, when the injury is already executed and inflicted, thinketh it best satisfaction to the party grieved to relieve him in damages, and to give him rather profit than revenge; but it will never force a man to tolerate a corporal hurt, and to depend upon that same inferior kind of satisfaction, ut in damagiis. REGULA VII. Excusat aut extenuat delictum in capitalibus, quod non operatur idem in civilibus. In capital causes in favorem vitæ, the law will not punish in so high a degree, except the malice of the will and intention appear; but in civil trespasses and injuries that are of an inferior nature, the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer: and therefore, The law makes a difference upon killing a man upon malice fore-thought, and upon present heat: but if I give a man slanderous words, whereby I damnify him in his name and credit, it is not material whether I use them upon sudden choler and provocation, or of set malice; but in an action upon the case I shall render damages alike. So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course; but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will, and he shall be punished for the same as deeply as if he had done it of malice. So if a surgeon, authorised to practise, do through negligence in his cure cause the party to die, the surgeon shall not be brought in question for his life; and yet if he do only hurt the wound, whereby the cure is cast back, and death ensues not, he is subject to an action upon the case for his misfaisance. So if baron and feme be, and they commit felony together, the feme is neither principal nor accessary, in regard of her obedience to the will of her husband: but if baron and feme join in a trespass upon land or otherwise, the action may be brought against them both. B. So if an infant within years of discretion, or a B. 3 H.7.1. madman, kill another, he shall not be impeached Stamf. 16. thereof: but if they put out a man's eye, or do him like corporal hurt, he shall be punished in trespass. So in felonies the law admitteth the difference of s5 H. 6. 11. principal and accessary, and if the principal die, or be pardoned, the proceeding against the accessary faileth; but in trespass, if one command his man to beat 17 H. 4.19. another, and the servant after the battery die, yet an Com. 98. action of trespass stands good against the master. REGULA VIII. Estimatio præteriti delicti ex post facto nunquam crescit. THE law construeth neither penal laws nor penal facts by intendments, but considereth the offence in degree, as it standeth at the time when it is committed; so as if a matter or circumstance be subsequent, which laid together with the beginning should seem to draw to it a higher nature, yet the law doth not extend or amplify the offence. Therefore, if a man be wounded, and the percussor 11 H. 4. 12. is voluntarily let go at large by the goaler, and after, death ensueth of the hurt, yet this is no felonious escape in the gaoler. So if the villain striketh mortally the heir apparent of the lord, and the lord dieth before, and the person hurt, who succeedeth to be lord to the villain, dieth after, yet this is no petty treason. So if a man compasseth and imagineth the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 21 Ed. III. this imagination precedent is not high treason. So if a man use slanderous speeches upon a person to whom some dignity after descends that maketh him peer of the realm, yet he shall have but a simple action of the case, and not in the nature of a scandalum magnatum upon the statute. So if John Stile steal six-pence from me in money, and the queen by her proclamation doth raise monies, that the weight of silver in the piece now of six-pence should go for twelve-pence, yet this shall remain petty larceny, and not felony: and yet in all civil reckonings the alteration shall take place; as if I contract with a labourer to do some work for twelvepence, and the inhancing of money cometh before I pay him, I shall satisfy my contract with a six-penny piece, being so raised. So if a man deliver goods to one to keep, and after retain the same person into his service, who afterwards goeth away with his goods, this is no felony 28 H. 8. by the statute of 21 H. VIII. because he was not servant at that time. pl. 2. com.175. In like manner, if I deliver goods to the servant of I. S. to keep, and after die, and make I. S. my executor; and before any new commandment or notice of I. S. to his servant for the custody of the same goods, his servant goeth away with them, this is also out of the same statute. But note that it is said præteriti delicti; for an accessary before the act is subject to all the contingen18 Eliz. cies pregnant of the fact, if they be pursuances of the same fact: as if a man command or counsel one to rob a man, or beat him grievously, and murder ensue, in either case he is accessary to the murder, quia in criminalibus præstantur accidentia. REGULA IX. Quod remedio destituitur ipsa re valet si culpa absit. THE benignity of the law is such, as, when to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse; for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law without any act of his |