164 



MAXIMS OF THE LAW. 



Stamf. 16. 

 6 E. 4. 7. 



Stamf. 16. 

 B. 



B.3. H. 7. 1 



Stamf. 16. 



B. 



35 H. 6. 11. 



17 H. 4. 19. 

 Com. 98. 



REGULA VII. 



Excusat aut extenuat delictum in capitalibus, quod non 

 operatur idem in civilibus. 



IN capital causes infavorem vita, the law will not punish 

 in so high a degree, except the malice of the will and 

 intention 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 present heat : but if I give a 

 man slanderous words, whereby I damnify him in his name 

 and credit, it is not material whether 1 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 law as deeply as if he had done it of 

 malice. 



So if a surgeon authorised to practise, do, through negli 

 gence 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 misfaisance. 



So if baron and feme be, and they commit felony toge 

 ther, 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 other 

 wise, 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 they 

 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 prin 

 cipal and accessory, and if the principal die, or be pardoned, 

 the proceeding against the accessory faileth ; but in a 

 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. 



