procure none to inhabit them, nor any workmen to repair them, and so they fall down: in all these cases I am excused in waste. But of this last learning, when and how the act of God and strangers do excuse, there be other particular rules.

But then it is to be noted, that necessity privilegeth only quoad jura privata; for in all cases, if the act that should deliver a man out of the necessity1 be against the commonwealth, necessity excuseth not: for privilegium non valet contra rempublicam; and, as another saith, necessitas publica major est quam privata: for death is the last and farthest point of particular necessity, and the law imposeth it upon every subject that he prefer the urgent service of his prince and country before the safety of his life. As if in danger of tempest those that are in the ship throw overboard other men's goods, they are not answerable; but if a man be commanded to bring ordnance or munition to relieve any of the king's towns that are distressed, then he cannot for any danger of tempest justify the throwing them overboard: for there it holdeth which was spoken by the Roman, when they alleged the same necessity of weather to hold him from embarking, necesse est ut eam, non ut vivam. So in the case put before of husband and wife; if they join in committing treason, the necessity of obedience doth not excuse the offence as it doth in felony, because it is against the commonwealth.

per Shelly.

So if a fire be taken in a street, I may justify the pulling 13 8. f. 16. down of the wall or house of another man to save the row from the spreading of the fire; but if I be assailed in my house, in a city or town, and be distressed, and to save my life I set fire on mine own house, which spreadeth and taketh hold on the 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 anything 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.

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 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

1 i. e. I suppose, ex necessitate.

4 H. 7. f. 2.
pl. 3.
Stamford,
f. 15.

Stamf. f. 16.

without some wrongs either in words or deeds on either part; and the law, thinking it a thing hardly triable 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 that assaileth me, or if a woman kill him that assaileth her to ravish her, it is justifiable without any pardon.

So the common case proveth this exception; that is, 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 infirmitas culpabilis excuseth not, no more doth necessitas culpabilis.

4. f. 93, 94, &c.

REGULA VI.

Corporalis injuria non recipit æstimationem de futuro.2

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 question of personal pain, the law will not compel him to sustain it and expect remedy; because it holdeth no damages a sufficient recompense 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 drawLong 50 Ed. ing all things to incertainty and delay if the sheriff's return should not be credited, I am excluded of my averment against it, and am put to mine action of deceit against the sheriff and summoners: but if the sheriff upon a capias return cepi corpus, et quod est languidus in prisona, there I may come in and falsify the return of the sheriff to save my imprisonment.

3 H. 6. f. 3. pl. 3.

So if a man menace me in my goods, as that he will burn

1 Omitted in Camb. MS.

2 The words de futuro are omitted in the Camb. MS. as is the contrast with the lex talionis applied de præterito, in the last paragraph of the rule.

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 a specialty by such matter of averment; and therefore I am put to mine action against such a menacer: but if he restrain my person, or threaten me with battery, or 7 Ed. 4. f. 21. with burning 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 make a deed, I shall avoid it by plea.

So if a trespasser drive away my beasts over another's ground and I pursue them to rescue them, yet am I 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: Annon 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 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.

pl 24.

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 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.

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."

Stamf. 16.

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

Stamf. 16 b.

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

Stamf. 16 b. 35 H. 6. f. 11. pl. 18.

Plow. f. 98.

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

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.

So 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 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.

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

Omitted in Camb. MS.

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

should seem to draw to it a higher nature, yet the law doth not

extend or amplify the offence.

pl. 26.

Therefore if a man be wounded, and the percussor is volun- 1 H. 4. f. 12. tarily let go at large by the 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 sixpence 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., be- [28 11. 8. cause he was not servant at that time.

2 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.

pl. 2]

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 same fact; as if a man com- Plow. f. 475, mand 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.

2 Omitted in Camb. MS.