[510] “The name of murder (as a crime) was anciently applied to the secret killing of another which the word moerda signifies in the Teutonic Language.” (4 Bl. Comm. 194.) In support of this position, the learned Judge cites the present passage of our author’s text. Other authorities may be added. Murtre, est quant home est tue de nuit ou de repos dehors ou dedans vill. (Assises de Jerusalem, c. 85.) Porro murdrum propriè dicatur, mors alicujus occulta cujus interfector ignoratur. (Dialog. de Scacc. L. 1. s. 10. See also Bracton 121. Fleta 34. s. 6. Britton c. 6. s. 1. and c. 23.—Regiam Majestatem L. 4. c. 5.)
[511] Clamor popularis is the expression, which, on the authority of Lord Coke, I have rendered Hue and Cry. Lord Coke informs us, it was known before the conquest. (2 Inst. 171. 172.) It does not appear to have been peculiar to this country, as a similar institution seems anciently to have existed in some parts of France. (Beaumanoir c. 67.)
[512] “This Statute is not now extant,” says Lord Coke. (2 Inst. 171.)
[513] De multro (murder) vel Homicidio propinquior in genere sequelam faciendi retinet potestatem: Si autem propinquior in non ætate fuerit vel ætatem transegerit, alius propinquior interesse poterit in sequela, vel alius de genere in quem consenserit omnis parentela. (Le Grand Custum. de Norm. c. 69. See also Britton c. 1. s. 11.)
[514] Vide Co. Litt. 25. a.
[515] “And yet not of all the wives, but of her only who lieth between his arms, which is as much as to say, in whose seisin he was murdered; for if he had many wives, and all were alive at the time of his murder, nevertheless she only is admitted to bring the appeal of all the rest, whom he last took to wife; and the reason thereof is, because it belongeth not to the Temporal Court to try who was his wife of right, and which, in fact, and the appeals of all others are to be suspended, pendant the same appeal brought” (Mirror c. 2. s. 7. See also Bracton 125. a. Fleta L. 1. c. 35. and 2 Inst. 316.)
[516] Lord Coke, in two instances, cites the present chapter of Glanville as one of the authorities on which he founds his assertion, that previously to the Great Charter a woman, as well as a man, might have had an appeal of the death of any of her Ancestors. (Co. Litt. 25. b. and 2 Inst. 68.) It is impossible to conceive how Glanville corroborates this bold position. He is a very strong authority for the contrary doctrine, and excludes expressly in this chapter and by relation in the [first chapter of the present Book], a woman’s right of appeal in every instance, except that of the death of her Husband, and that of a personal injury. Bracton also in the most decided language confines a woman’s right of appeal to these two instances. (fo. 125, and 148.) Great as Lord Coke is, his deductions and citations from the more ancient writers are not by any means implicitly to be relied upon. His name has thrown a lustre over many an error. Nothing would be more easy than to adduce innumerable instances in support of the truth of this assertion.
[517] For it was a good ground of defence, that the Plaintiff was not present at the time when the mortal blow was given. (Vide 2 Inst. 316.)
[518] “Burners are those,” says the Mirror, “who burn a City, Town, House, Men, Beasts, or other Chattels, feloniously in time of peace for hatred or revenge.” (Mirror c. 1. s. 8. See also Britton chap. 19.)
[519] Roberia, so called, says Lord Coke, because the goods are taken as it were de la robe, from the Robe, that is from the person. (Co. Litt. 288. a. and 3. Inst. 67.) Cowell deduces the term from the French robbe, vestis, and Spelman from raubas, meaning the same thing. The Saxons used their term reaferar in a similar sense, reaf signifying, vestis. For Travellers had in former times rarely any thing but their dress of which they could be robbed. (See Cowell and Spelm. Gloss.) Under the Laws of Ina the punishment of Robbery was to restore the thing purloined, and to pay a fine of 60 shillings. (LL. Inæ. c. 10.)