The Doctor and Student (1518)

Christopher St. Germain

If a man be outlawed of felony, or be attainted for murder or felony, or that is an Ascismus, may be slain by every stranger

Doct. It appeareth in the said sum, called summa angelica, in the 21st chapter, in the title of Ascismus, the second paragraph, that he is an Ascismus that will slay men for money at the instance of every man that will move him to it; and such a man may lawfully be slain not only by the judge, but by every private person. But it is said there in the fourth paragraph, that he must first be judged by the law as an Ascismus, ere he may be slain, or his goods seised. And it is said farther there in the second paragraph, that also in conscience such an Ascismnus may be slain, if it be done through a zeal of justice, and else not. Is not the law of the realm likewise of men outlawed, abjured, or judged for felony?

Stud. in the law of the realm, there is no such law, that a man shall be judged as an Ascismus: ne if a man be in full purpose, for a certain sum of money that lie hath received, to slay a man, yet it is no felony ne murther in the law till he hath done the act: for intent of felony nor murther is not punishable by the Common law of the realm, though it be deadly sin before God; but in treason, or in some other particular cases, by statute that, intent may be punished. And though a man in such case kill a man for money, yet he shall not be attainted that he is an Ascismus; for, as it is said before, there is no such term of Ascismus in the law of the realm: but he shall in such case be arraigned upon the murther, and if he confess it, or plead that he is not guilty, and is found guilty by twelve men, he shall have judgment of life, and of member, and shall forfeit his lands and goods. And like law is of an appeal brought of the murther; if he stand dumb, and will not answer to the murther, he shall be attainted of the murther, and shall forfeit life, lands and goods. But if he be arraigned of the murther upon an indictment at the king’s suit, and thereupon standeth dumb, and will not answer; there he shall not be attainted of the murther, but he shall have Paine fort and dure, that is to say, he shall be pressed to death, and he shall there forfeit his goods and not his lands. But in none of these cases, that is to say, though a man be outlawed for murther or felony, or be abjured, or that he be otherwise attainted; yet it is not lawful for any man to murther him, or slay him, ne to put him in execution, but by authority of the king’s laws. Insomuch that if a man be adjudged to have Paine fort and dure, and the officer beheadeth him, or on the contrary wise putteth him to paine forte and dure, where he should behead him he offendeth the law. And if an officer which hath authority to put a man to death., may not put him to death but according to the judgment, then methinketh. it should follow that, more stronger a stranger may not put such a man to death of his own authority without commandment of the law. But if the judgment be that he shall be hanged in chains, and the officer hangeth him in other things, and not in chains, I suppose he is not guilty of his death. But some say lie shall there make a fine to the king, because he hath not followed the words of the judgment.

Also, if a man that is no officer would arrest a man that is outlawed, abjured, or attainted of murther or felony, as is aforesaid, and he disobeyeth the arrest, and by reason of the disobedience he is slain; I suppose the other shall not be impeached for his death; for it is lawful unto every man to take such persons, And to bring them forth that they may be ordered according to the law. But if a Capias be directed unto the sheriff to take a man in an action of debt or trespass, there no man may take the man, but he have authority from the sheriff: and if any man attempt of his own authority to take him, and he resisteth, and in the resisting is slain, he that would have taken him is guilty of his death.