as lands and goods, which, they say, are not in the same degree with that which is corporal; and1 this was the reason of the ancient lex 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 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 vitae, the law will not punish in so high a degree, except the malice of the will and intention do 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 between killing a man upon malice forethought, and upon a 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

:

1 The Camb. MS. has only:

"But when the injury is already executed and inflicted, the law can do no more but relieve a man in damages; but it will never force him to tolerate a corporal hurt, and to depend upon that inferior kind of satisfaction."

provocation or of set malice; but in an action upon the case I shall render damages alike.

1 So if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course:

Stamf. 16.

6 E. 4. f. 7. pl. 18.

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 in the same as deeply as if he had done it of malice.

Stamf. 16 b. So if a surgeon authorised to practice do, through negligence in his cure, cause the party to die, the surgeon shall not be brought in question of 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 misfeasance.

So if baron and feme be, and they commit felony together, the feme is neither principal nor accessory, in regard of her obedience to the will of her husband: but if baron and feme join in committing a trespass upon land or otherwise, the action may be brought against them both.

3 H. 7. f. 1. pl. 4.

Stamf. 16 b.

35 H. 6. f. 11. pl. 18.

So2 if an infant within years of discretion, or a madman, kill another, he shall not be impeached thereof: but if he 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 principal and accessory; and if the principal die, or be pardoned, the proceeding against the accessory Plow. f. 98. faileth: but in trespass, if one command his man to beat you, and the servant after the battery die, yet your action of trespass stands good against the master.

1 Omitted in Camb. MS.

2 The rest of the rule is omitted in the Camb. MS.

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 any circumstance or matter 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 11 H. 4. f. 12. percussor is voluntarily let go at large by the pl. 26. gaoler, and after death ensueth of the hurt; yet this is no felonious escape in the gaoler.

So if the villain strike 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 compass and imagine the death of one that after cometh to be king of the land, not being any person mentioned within the statute of 25 Ed. III., this imagination precedent is not high treason.

So if a man use slanderous speeches of a person to whom some dignity after descends that maketh him a peer of the realm; yet he shall have but a simple action of the case, and not in the nature of scandalum magnatum upon the statute.

1 So if John Stile steal sixpence from me in money, and the Queen by her proclamation doth raise monies, that the weight of silver in the piece now of six

1 Omitted in Camb. MS.

pence should go for twelve pence; yet this shall remain petty larceny, and no felony and yet in all civil reckonings the alteration shall take place; as if I contract with a labourer to do some work for twelve pence, and the enhancing of money cometh before I pay him, I shall satisfy my contract with a sixpenny piece 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 by the statute of 21 H. VIII., because he was not servant at that time.

[28 H. 8.

pl. 2.]

1 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 any accessory before the fact is subject to all the contingencies pregnant of the fact, if they be pursuances of the Plow. f. 475. 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 accessory to the murder, quia in criminalibus præstantur accidentia.

1 Omitted in Camb. MS.

REGULA IX.

Quod remedio destituitur ipsa re valet, si culpa absit.1

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 own; sometimes it will give him a more beneficial remedy.

2 And therefore if the heir of the disseisor Lit. sec. 6 3. which is in by descent make a lease for life, the remainder for life unto the disseisee, and the lessee for life die; now the frank tenement is cast upon the disseisee by act in law, and thereby he is disabled to bring his præcipe to recover his right; whereupon the law judgeth him in of his ancient right as strongly as if it had been recovered and executed by action; which operation of law is by an ancient term and word of law called a remitter.

But if there may be assigned any default or laches in him, either in accepting the freehold or in accepting the interest that draws the freehold, then the law denieth him any such benefit.

1 The Camb. MS. has: "cui actio per legem citra culpam suam eripitur, ei benignitas legis largitur rem ipsam." Harl. MS. 6688. gives both forms of the maxims.

2 The Camb. MS. omits all the cases of remitter, and the other cases down to that of the rent charge upon condition, and only has the observation: "This is the reason of a Remitter, because the law taketh away the action and suit which cannot be held against the party himself, and therefore the law without circumstance of recovery putteth him in of his best right."