| 1482.119 |
1482 |
King's Bench |
Presentment of Rape (ravishment) |
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| Mich. |
22 |
Edw. 4 |
2 |
22a-23b |
Huse, Willliam CJKB Hussey le Chief Justice
Jenney, William JKB Genney, Justice
Fairfax, Guy JKB Fairefax
Kebell, Thomas Keble, l' Apprentice
Calow, William Sjt Collow
Fairfax, Guy JKB
Calow, William Sjt Colow (mentioned) |
(Rex?) |
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B., Alice, wife of J., victim of ravishment
B., J., husband of Alice |
Sale, hypothetical manor of |
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Fitzherbert Tourne 5 (not Brooke)
Brooke Presentements 21, Lete 26, Inditementes 37 (not Judg.), Conusauns 56 |
6 Hen. 7, fol. 44
11 Hen. 7, fol. 22, 11 per Leet (?)
1 Ric. 3, fol. 1 (four times)
18 Hen. 6, fol. 13 (twice)
6 Hen. 7, fol. 4, 5 (twice)
5 Hen. 4, fol. 2, 5
41 Edw. 3, Lib. Ass. pl. 30 (twice)
7 Hen. 6, fol. 13 (twice)
3 Hen. 7, fol. 4
4 Hen. 6, fol. 9 (twice)
15 Edw. 4, fol. 12
22 Hen. 4, fol. 9 (Edw. 4?, Hen. 6?)
12 Hen. 7, fol. 10
14 Hen. 4, fol. 20, 21
Brooke Lete 6 (not Torne de vicount 5) |
Westminster 1st (1275), ch. 13 (W. prim; le statute de W. primer) (Et le Rey defent que nul ne ravie ne prenge a force damoysele dedenz age [ne par son gre ne saun son gre, ne dame ne damoisele de age] ne autre feme maugre seon, e si nul le fet, a la suite celi que suiwera dedenz les quarante jours, le Rey ne fra comune dreyture: Et si nul ne comence sa suite dedenz quarante jours, le Rey en siwera, e ces qil entrovera copable, si averont la prison de deus aunz, e puis serrunt reinz a la volente le Rey: Et sil ne unt dount estre reinz a la volente le Rey si seient puniz par plus long prison, solum ceo que le trespas le demande)
Westminster 2nd (1285), ch. 34 (ravishment) (le statut de W. 2.) (Purveu est que si homme ravist femme, espouse, damoisele, ou autre femme desoremes, par la ou ele ne se est assentue ne avaunt ne apres, eit jugement de vie e de membre, e ensement par la ou home favist femme, dame espouse damoisele, ou autre femme a force, tut seit ke ele se assente apres, eit tel jugement come avaunt est dit si il seit ateinte a le suite le Rei, e la eit le Rei sa suite; De mulieribus abductis cum bonis viri habeat Rex sectam de bonis sic asportatis, & uxor si sponte reliquerit virum suum)
statute = 5 Hen. 4 (1404), fol. 5 (cutting out tongue, puting out eyes shall incur the pain of felony)
the statute (making fine for every Trespass vi & armis)
the statute = perhaps 1 Edw. 3 (1327), stat. 2, ch. 14, or 20 Edw. 3 (1346), ch. 4 & 5, or 18 Edw. 3 (1344), stat. 1 (giving action of Maintenance)
statute = 4 Edw. 3 (1330), ch. 7 (giving Debt, Trespass, Trespass 'quare bonis asportatis in vita testatoris' to executors) (executors shall have an action of Trespass for goods taken in the testator's life)) |
| Un presentment prise devant le Viscount en son Turne fuit returne en Bank le Roy per un Cerciorari, |
84 |
A Presentment was taken before the sheriff in his Tourn.
The Presentment was returned in King's Bench by a Certiorari.
The Presentment was that defendant on such a day, year, and place had feloniously ravished a woman against the peace.
Huse CJKB said that this Presentment was void, and that the sheriff had no such power to take this Presentment.
Jenney JKB and Fairfax JKB agreed.
Kebell and Sjt Calow argued that the Presentment was good.
Fairfax JKB repeated that the sheriff could not take this Presentment.
It was adjourned. |
Presentment: que un J. at S. tiel jour an & lieu felonisment avoit ravish un Alice feme d' un J.B. encounter le peax, &c.
Huse CJKB: en mesme le manner est si home scie le lang hors de bouch d' ascun home, ou les oiles hors de teste de ascun home, les queux sont felonies ore per statute, lou devant le statute ne fuit ascun felony
Jenney JKB: si le Roy grant a un conisans de plee per general parolx, le grant serra prise pluis fort enconter le grant- (grantor?), come il poit per ley, & issint envers chescun grante, mes lou home claime per usage de temps d' ont, &c. ou il claime, &c. en mesme le manner come ceus que ont ewe mesme l' auctority quel ad ore, en tielx cases lour auctority serront prises stricts, & n' averont ceux que purront estre prise per l' equitie, car lour aucthority est per usage & sovent temps tiels usages sont enconter comen droit, & pur ceo le ley voet quels, &c. averont mesme l' aucthority, &c. queux averont ewe & nient pluis issint en cel case
Fairfax JKB: le power de Viscont en son Turne, & le power de Seneschale en son Lete est un & chescun d' eux est le Court le Roy, mes le Roy ad le profits de l' un & le Seignior de le soile de l' auter de le grant le Roy, & come jeo entende que touts tiels felonies ou transgressiouns que sont comen nusance al people ont les Visconts & Seneschalx power pur enquerer, come de robbrie le quel est un commen nusance & bloodshed, clipping de argent ou d' ore ou washing, night walkers, & auters semblables, queux sont nusance at comen gents, mes de mort de home ils n' ont power pur prendre enquire, car ceo n' est un comon nusance car il est le tort d' un singuler person, &c.; Et auxi si le close d' ascun home soit debruse deins le precinct de ascun Lete, ceo ne serra enquire en le Lete, & uncore le party avera son suit o pleint en le Court de le Lete, mes pur ceo que n 'est un comen nusance as auters comen gents, il ne serra enquire, mes si un fosse (= ditch) ou un pont (= bridge), &c. ne sot repelle (= repaired) ou mundes (= cleaned out), ceux serra enquire 'causa qua supra'
Kebell: come en est case chescun Vicount en son Turne ad poiar pur enquire de chescun bloud-shed, & Seneschalle aui, & Sir devnt le statute que done que quant ascun home scie le lange de ascun home hors de son bouch, quel serra felony, fuit fait, le scire d' un lange hors, &c. ne fuit forsque un bloud-shed, le quel fuit enquirable, & coment que soit fait a ore felony, cest ne abridgera la jurisdiccion, eins quel poit enquire de cest a ore; En mesme le manner devant le statute si home ust mis hors le oiles (= eyes) d' ascun home ceo ne fuit forsque un maime al party, & ore est felony per mesme le statute, & issint de le nose d' ascun home, & de ceux le Vicount ust power pur enquire, come d' un bloud shed; Et mesme le manner moy semble icy quant cel rape fuit forsque transgressioun, le Vicount ne son turne avoit poiar pur enquire de cest, & coment que soit fait a ore felony, uncore cest ne abridge le poiar, &c. come semble
Sjt Calow: quant cel rape est a ore fait felony, lou devant ne fuit felony, uncore moy semble que ils doient enquire de cest |
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Thomas Kebell was created Serjeant in 1486 (Baker, Readers and Readings, pp. 66-67). |
(mistaken belief that) rape was not a felony at common law, but only a trespass
robbery is a common nuisance, and bloodshed, clipping or washing of coins (de argent ou d' ore), nightwalkers, and suchlike
Huse CJKB: I understand the power (jurisdiction) of the sheriff in his Tourn and the power (jurisdiction) of the steward (Seneschal) of any lordship (S-nr) in his Leet is all the same (tout un) in power (jurisdiction), and as I understand they do not have power to inquire in their Tourn or Leet of anything except of such who commit felony and trespass at common law, and not of others, because what they (sheriffs and stewards) have power to inquire (about) are such things (tiels) that the sheriffs, etc. have inquired of previously from time immemorial, etc. and so it seems to me that this Presentment is void, because before the statute of Westminster 1st (1275), at common law even though women (femmes) had been ravished, there was not any manner of punishment (about which) to inquire of this for the king, but for the party (victim) (there was) a writ of Trespass on the case (transgressioun sur case), etc.; and by the statute of Westminster 1st (1275), ch. 13, it was provided (done) that if any woman (feme) be ravished, etc. that then the party who is aggrieved would have his suit within 40 days, and if not (sinon) then the king would have the suit, and the punishment of this statute is imprisonment for 2 years and (the defendant) will be fined (rents, statute: serrunt reinz), and if they (defendant) do not have sufficient to have (paid the fines), etc. then imprisonment according to the discretion, etc. of the Justices, so before this statute there was not any punishment as to the king, and now by this statute it (ravishment, rape) is made inquirably by the king where beforehand it was not; and afterwards came the statute of Westminster 2nd (1285), ch. 34, which provides (done) that if any woman (feme) be ravished against her will, that it would be a felony, and (the defendant) would have judgment of life and of member, so before the statute this was only trespass, and now it is felony by this statute, so I say for my opinion that inasmuch as neither the sheriff in his Tourn nor the steward (in his Leet), etc. has power to iqnuire of other things except what was inquirable by the common law (only common law felonies), andd those (ravishment or rape) were not inquirable before the aforesaid statute, so it seems to me that the inquiry is void, in the same manner as if one cut (scie) the tongue (le lang) out of anyone's mouth, or (cut) the eyes out of anyone's head, which are felonies now by statute, where before the statute was not any felony, the sheriff has no power (jurisdiction) (to take Presentments), etc.
Jenney JKB (in agreement): and I say that there is a distinction (diveresity) where one claims an authority (auct') or a power (jurisdiction) by grnt, and where he claims it by usage, as if the king grant to one cognisance of pleas by general words, the grant will be taken most strongly against the grantor (?) (enconter le grant-) (contra proferentem principle), as it can be by law, and so against every grantor (?) (envers chescun grant-), but where one claims by usage from time immemorial, etc. or he claims (cognisance of pleas) etc. in the same manner as those who have had the same authority that he (claimant) has now, in such cases their authority will be interpreted (prises) strictly (narrowly, stricts) and they will not have those (powers) that can be taken (prise) by the equity (per l' equite), because their authority is by usage and oftentimes such usages (customs) are against common right, and so the law provides (voet) that they etc. have the same authority, etc. that they have hadn and no more, so in this case, even though the sheriff in this Tourn and the steward in (his) Leet had used to inquire of all felonies, except of homicide (mort de home), yet even though this (ravishment) be now made a felony, yet they will not have power (jurisdiction) to inquire of this, etc. because it (ravishment) was not a felony at the common law, when their authority commenced; and also if the power of the sheriff in his Tourn will be so extensive (cy grand) it was only (forsque) in vain to make Justices by commission to inquire of the peace, etc. or to make Justices of Oyer and terminer, etc.
Fairfax JKB: it seems to me (that) the inquiry is void, and as has been said, the power (jurisdiction) of a sheriff in his Tourn, and the power of a steward in his Leet is one (un, the same) and each of them is the king's court (le Court le Roy), but the king has the profits of the one and the lord of the soil (has the profits) of the other by (de) the king's grant, and as I understand that for all such felonies or trespasses that there are, such as nuisance to the people, the sherifs and stewards have power to inquire, such as of robbery which is a common nuisance, and bloodshed, clipping of silver or of gold (coins) or washing, nightwalkers, and other suchlike, which are nuisances to common folk, but of homicide (mort de home) they have no power to take inquiries, because this is not a common nuisance, because it is the wrong (le tort) to an individual person (d' un singuler person), etc.; and yet the view of frankpledge rehearsed that their (sheriffs' and stewards') power is to inquire of all felonies, but it (view of frankpledge) is not a statute, because it is only a rehearsal, and even though it be misrehearsed (misreherse), this ought not prejudice the common law, nor oblige this, etc.; and also if anyone's close be broken within the precinct of any Leet, this will not be inquired (about) in the Leet, and yet the party will have his suit and plaint in the court of the Leet, but because it is not a common nuisance to other common folk, it will not be inquired (about), butif a ditch (fosse) or a bridge (pont) be un repaired (ne sont repelle) or cleaned out (mundes), these will be inquired (about) for the aforesaid reason (causa qua supra), so it seems to me that because it (ravishment) is not a common nuisance, and was not inquirable by the king before the statute of Westminster 1st (1275) ch. 13, etc. so it seems to me that the Presentment is void
Kebell: it seems to me that the Presentment is good, because as I understand the sheriff in his Tourn can inquire of all trespasses of which the king is to have advantage, so even though this (ravishment) is now made a felony, yet it seems to me this does not abridge the (sheriff's) jurisdiction, because as I understand, if a Court has a jurisdiction to inquire of a thing, even though this (ravishment) be made by statute into another nature (felony) than it was before (trespass), yet it seems to me this would not abridge the power (jurisdiction) of the Court, as in this cse every sheriff in his Tourn has power to inquire of every bloodshed, and (every) steward (Seneschalle) also and Sir, before the statute that provides that when one cuts the tongue of another out of his mouth, it will be a felony, was made, the cutting of a tongue out (of one's mouth) was only a bloodshed, which was inquirable, and even though it be mae now a felony, this will not abridge the jurisdiction, but he (sheriff) can inquire of this now; in the same manner before the statute if one had put out another's eyes this was only a maiming (maime) to the party (victim), and now it is a felony by the same statute, and thus of (cutting off) anyone's nose, and of these the sheriff has power to inquire, as of a bloodshed, and even though it be made a felony now, yet the (sheriff's) jurisdiction is not abridged, but he can inquire of this bloodshed at this day, etc.; and in the same manner it seems to me here when this rape was only a trespass, the sheriff in his Tourn had power to inquire of this, an even though it be made a felony now, yet this does not abridge the power, as it seems
Sjt Calow: it seems to me that the presentment is good, because the view of frankpledge is that the sheriff (in his Tourn), etc. and the steward (in his Leet), etc. have power (jurisdiction) to inquire of all felons, but homicide (de mort de home) is excepted, but of all others (felonies) they have (power to inquire), etc. so it seems to me that even if before they were made felony he (sheriff) did not have power to inquire of this, yet now when it is made felony he ought to have (power to inquire), etc., as in a similar case if the king grants me that I will have cognisance of all pleas within my manor of Sale, and then another action is founded or made, where there was no such action before, as such (actions) that are given by statute, as a writ of Maintenance, and others, as it seems to me, in such cases by force of the first grant he will have powr to hold plea in such actions, and yet at the time of the grant there was no such action, and so it seems to me in this case when they (the sheriffs) in their Tourn have power (jurisdiction) to inquire of all felonies, except of homicide, when this rape is now made a felony, where before it was not a felony, yet it seems to me that they (the sheriffs) ought to inquire of this
Fairfax JKB: as to the case that is put by Sjt Calow of the cognisance (of pleas), I say that in some (ascun) cases he will have cognisance of such new actions, which did not exist before (ne fueront devant), and in come (cases) not, because for such actions that did not exist before, (such) as a writ of Debt was given aganst administators, where before the statute there was no such action, there he will have cognisance, in teh same manner if one has coginsance (of pleas) and then the statute was (made that) provides that for every Trespass vi & armis (with force and arms) etc. he (defendant) will make fine, the grantee will have the action in the same form, and the reason (cause) is because there was an action at common law of this name, that is, writ of Debt, and writ of Trespass, and so it will be a writ of Trespass 'quare bonis asportatis in vita testatoris' (for goods taken during the testator's life), which is given by statute for executors, where before they (executors) did not have any remedy, and in this case also he (sheriff) will have cognisnce (of pleas) even though (coment) this action was ordained since the grant, because there was an action of this name, that is, 'writ of Trespass' at common law, etc., but if an action be given by statute since the cognisance (of pleas was) granted where there was no manner of action of this name previously, such as Maintenance, Conspiracy, Decies tantum, and such, and of those he (sheriff) will not have cognisance, and so note the distinction |
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Fitzherbert Tourne 5, fol. 222r, ated Mich. 22 Edw. 4, fol. 22: Home endicte en Tourne del vicount n ad power d enquerer de assaut en son Tourne mes de sank espend &c. & si home endict en le Tourne del vicount &c. loyalment il ne serra mis a respondre de ceo devant les Justices de peace mes serra fine sanz responde aver &c. vide en title d' accion sur le case 22 Hen. 6, quel chose serra enquere en Leete |
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Presentment
Sheriff
Before The Sheriff
Tourn
Return
Certiorari (Cerciorari)
Day
Year
Place (lieu)
Felony
Feloniously
Ravishment
Wife
Peace
Against The Peace
Chief Justice
Seeming
Voidance
Void Presentment
Power
Taking Presentment
Understanding (entend)
Steward (Seneschal)
Lord
Leet
Inquiry
Thing (chose)
Trespass
Common Law
At Common Law
Power To Inquire (poiar)
Time Immemorial
Statute
Manner
Punishment
King
For The King
Inquiry For The King
Party
Case
Trespass On The Case (transgressioun sur case)
Aggrieved
Grievance
Suit
Forty Days
King's Suit
Imprisonment
Two Years
Fine (rents, reinz)
Sufficiency
Insufficiency
Discretion
Discretion Of Justices
Against His Will
Against Her Will
Will (volunt)
Judgment
Life
Member
Life And Member
Judgment Of Life And Member
Opinion
Inquirable
Before The Statute
Void Inquiry
Cutting (scie)
Tongue (lang)
Mouth (bouch)
Eye (oiles)
Head (teste)
Distinction (diversity)
Claim
Authority
Grant
By Grant
By Usage
Usage
Cognisance
Cognisance Of Pleas
Word (parolx)
General Word
Interpretation (prise)
Strength (fort)
Grantor
Against The Grantor
(Contra Proferentem)
By Law
Usage From Time Immemorial
Strictness
Strict Interpretation
Equity
By The Equity
Equity Of The Grant (?)
Oftentimes (sovent temps)
Right
Common Right
Against Common Right
Usage (use)
Homicide (mort de home)
Commencement
Extension (grand)
Large Authority
More Authority
In Vain
Making Justice
Commission
By Commission
Inquiry Of The Peace
Justice Of The Peace
Peace
Oyer And Terminer
Justice Of Oyer And Terminer
King's Court
Court Of The King
Profits
Profits Of Justice
Soil
Lord Of The Soil
King's Grant
Nuisance
Common Nuisance
People
To The People
Robbery
Blood
Bloodshed
Clipping
Clipping Of Money
Money (argent)
Silver (argent)
Gold (ore)
Washing
Washing Of Coins
Night
Walking
Nightwalker
Similarity
Suchlike
Common Folk
Folk (gents)
Taking Inquiry
Wrong (tort)
Individual (singuler)'
Person
Individual Person
Sngular Person
View
Frankpledge
View Of Frankpledge
Rehearsal
Misrehearsal
Prejudice
Prejudice Of Common Law
Obligation
Close
Breaking Close
Precinct
Plaint
Court Of The Leet
Local Court
Ditch (fosse)
Bridge (pont)
Repair (repelle)
Cleaning Out (mundes)
Cause
Causa Qua Supra
Apprentice
Advantage
King's Advantage
Abridgement
Jurisdiction
Abridgement Of Jurisdiction
Nature
Nature Of Action
Mayhem (maime)
Maiming
Nose
Rape
Good Presentment
Exception
Manor
Foundation
Foundation Of Action
Action
Maintenance (offence)
Holding Pleas
Time
Putting (mise)
New Action
Debt
Writ Of Debt
Administrator
Trespass Quare Vi & Armis
Vi & Armis
Vi Et Armis
Force
Arms
Force And Arms
With Force And Arms
Quare Vi & Armis
Fine
Making Fine
Grantee
Form
Action At Common Law
Name
Writ Of Trespass
Trespass De Bonis Asportatis In Vita Testatoris
De Bonis Asportatis
Goods
Carrrying Off
Testator
Executor
Remedy
No Remedy
Ordaining
Ordinance
Conspiracy
Decies Tantum
Note
Adjournment
Folio |
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