adjudged and declared in Parliament And all other Treasons that are not here declared ought to be Felonies at the least because Felonies were made Treasons before the Stattute and because the words of the Statute are that it ought to be Treason or Felony but if it be but once declared in Parliament unless there be a Proviso that the Judges shall not proceed upon the like Cases they may afterwards proceed by force of this Statute There are Treasons at the Common Law notwithstanding the Stat. of 1 Mar. for that did take away those Treasons and Declarations of Treasons that were made in Parliaments from the time of our Statute to 1 Mar. but doth not take away the declarative Power in our Statute mentioned nor the Common Law but they do remain still as before FINIS CASES OF TREASON CHAP. I. WHERE a man doth compass or imagine the Death of the King the King's Wife the King 's eldest Son and Heir apparent if it appear by any overt act it is Treason Where a man doth violate the King's Wife the King 's eldest Daughtter unmarried the Wife of the King 's eldest Son and Heir apparent it is Treason Where a man doth levie War against the King in the Realm it is Treason Where a man is adherent to the King's Enemies giving them aid and comfort it is Treason Where a man counterfeiteth the King's Great Seal Privy Signet Sign Manual it is Treason likewise his Money Where a man bringeth into this Realm false money counterfeited to the likeness of English with intent to merchandise or make payment thereof and knowing it to be false money it is Treason Where a man counterfeiteth any Coyn current in payment within this Realm it is Treason Where a man doth bring in any money being current within the Realm the same being false and counterfeit with intent to utter it and knowing the same to be false it is Treason Where a man doth clip waste round or file any of the King's money or any Foreign Coyn current by Proclamation for gain-sake it is Treason Where a man doth any way impair diminish falsifie skale or lighten money current by Proclamation it is Treason Where a man killeth the Chancellor the Treasurer the King's Justices in Eire the King's Justices of Assises the Justices of Oyer and Terminer being in their several Places and doing their Offices it is Treason Where a man procureth or consenteth to Treason it is Treason Where a man doth persuade or withdraw any of the Kings Subjects from his obedience or from the Religion by his Majesty established with intent to withdraw any from the Kings obedience it is Treason Where a man is absolved reconciled or withdrawn from his obedience to the King or promiseth obedience to any Foreign Power it is Treason Where any Jesuit or any other Priest ordained since the first year of the Reign of Qu. Elizabeth shall come into or remain in any part of this Realm it is Treason Where any Person being brought up in a Colledge of Jusuits or Seminaries shall not return within six months after Proclamation made and within two dayes after his return submit himself to take the Oath of Supremacy if otherwise he do return and not within six months after Proclamation made it is Treason Where a man committed for Treason doth voluntarily break Prison it is Treason Where a Jaylor doth voluntarily permit a man committed for Treason to escape it is Treason Where a man relieveth or comforteth a Traitor and knoweth of the Offence it is Treason Where a man doth affirm or maintain any Authority of Jurisdiction Spiritual or doth put in ure or execute any thing for the advancement of setting forth thereof the third time it is Treason VVhere a man refuseth to take the Oath of Supremacy being tendred by the Bishop of the Diocese if he be any Ecclesiastical Person or by Commission out of the Chancery if he be a temporal Person such Offence the second time is Treason CHAP. II. The Punishment Tryal and Proceeding in Cases of Treason IN Treason the Corporal Punishment is by drawing on an hurdle from the place of the Prison to the place of Execution by hanging and being cut down alive bowelling and quartering and in VVomen burning In Treason there ensueth a corruption of blood in the Line ascending and descending In Treason Lands and Goods are forfeited and Inheritance as well intailed as Fee-simple and the profits of Estates for Life In Treason the Escheats go to the King and not to the Lord of the Fee In Treason the Land forfeited shall be in the Kings actual possession without Office In Treason there be no Accessaries but all are Principals In Treason no Sanctuary nor benefit of Clergy or peremptory Challenge is allowed In Treason if the Party stand mute yet nevertheless Judgment and Attainder shall proceed all one as upon Verdict In Treason no Counsel is to be allowed nor Bail permitted to the Party In Treason no Witnesses shall be received upon Oath for the Parties Justification In Treason if the Fact be committed beyond the Seas yet it may be tryed in any County where the King will award his Commission In Treason if the Party be non sanae memoriae yet if he had formerly confessed it before the Kings Council and that it be certified that he was of good Memory at the time of his Examination and Confession the Court may proceed to do Judgment without calling or arraigning the Party In Treason the death of the Party before Conviction dischargeth all Proceedings and Forfeitures In Treason if the Parties be once acquitted he should not be brought in question again for the same Fact In Treason no new Case not expressed in the Statute of 25 E. 3. or made Treason by any special Statute since ought to be judged Treason without consulting with the Parliament In Treason there can be no Prosecution but at the King's suit and the Kings Pardon dischargeth In Treason the King cannot grant over to any Subject Power and Authority to pardon it In Treason a Trial of a Peer of the Kingdom is to be by special Commission before the Lord high Steward and those that pass upon him to be none but Peers The Proceeding is with great Solemnity the Lord Steward sitting under a cloth of Estate with a white rod of Justice in his hand and the Peers may conferr together but are not any ways shut up and are demanded by the Lord Steward their Voices one by one and the plurality of Voices carries it In Treason it hath been an ancient Use and Favour from the Kings of this Realm to pardon the Execution of hanging drawing and quartering and to make Warrant for their beheading The Proceeding in case of Treason with a common Subject is in the Kings Bench or by Commission of Oyer and Terminer CHAP. III. Cases of Misprision of Treason WHere a man concealeth high Treason only without any consorting or abetting it is misprision of Treason
we say to the bringing in of Money what not the bringing in of Foreign Money ought to be intended of Money that is counterfeited in another Realm and like unto ours for the words are so Money and not of Foreigners Money If two conspire to Coyn and Counterfeit and one of them doth it 19 H. 6.43 Stam. pl. 3. it is Treason in both 19 H. 6.43 Stamf. Pleas 3. a. but an intention to counterfeit is not Treason within this Law The Barons of the Exchequer are within this Law and it is agreed in Tanfields Case who was one of the Barons of the Exchequer that he was within the words of the Statute and the words of Oyer and Terminer are within this Law but all other Judges are not as the Ecclesiastical Judges are not within this Law for they hold with the Court of Rome and did derive their Authority from him in ancient Time Neither is a Constable within this Law The second Case I. S. Slits the Great Seal The second Case and closeth it to a Commission and coyns Money in the form of Shillings invertendo the Arms kills the Lord Keeper of the Great Seal in Chancery and brings in false Money like English to Merchandize knowing it to be false but doth not offer it and I. S. knowing this doth succour him The Conclusion is that I. D. is a Traytor in omnibus and I. D. also within this Law the first Act is slitting of the Seal and putting of it to the Commission and that is Treason first because that is slit whereby it is become now no Seal at all it cannot be said that this half is the Broad Seal or that the other half is the Broad Seal for they both together make but one Broad Seal and when he hath closed them together again and joyned them to a Commission he hath made the Seal a new for it was no Seal when it was slit but now it is The second Reason is in respect of the mischief that doth come by this translating of an old Seal to a new Commission for both the King and his Subjects are as much abused as if it had been counterfeited and the Reason of Laws and not Authority ought to be our Rule to go by for judicandum est legibus 40 Ass 33. Bro. Tit. Treas 17. Brit. cap. 4. fol. 10. non exemplis and so he conceiveth the Case in Bro. Tit. Treas â— to be no grand Law This was Treason also at Common Law as you shall find it exprest in Britton cap. 4. fol. 10. and in the Mirror of Justice cap. 1. sect 6. and since the Statute in the same Kings time that this Statute was made in and they who knew best the Reasons and Grounds of this Statute and the meaning thereof and were at the making thereof by all likelihood did adjudge it Treason to take an old Seal from an old Patent and to put it to a new one as in 40 Ass pl. 33. and 2 H. 4.33 and Stamford saith 40 Ass pl. 33. 2 H. 4.33 that it was so adjudged in his time In all Treasons that do concern the person of the King the judgement ought to be That he shall be hanged drawn and quartered but for other Treasons that do not immediately concern the person of the King the judgment ought to be That he shall be drawn and hanged only and not that he shall be quartered 1 H. 6.5 19 H. 6.47 6 H. 7.13 As it is in 1 H. 6.5 19 H. 6.47 The second Act is The Counterfeiting of the Kings Money and the inverting of the Arms of the King whereby the Kings Liege people and others may be deceived for that is a sufficient Alteration to make it Treason although it be such a one as cannot be discerned without special notice taken of it And this doth appear by the judgment given in the Star-Chamber for the counterfeiting of Farthings And it is Treason for any man to bear the Kings Arms as it appears in the Earl of Surreys Case The third Act is The killing of the Officers of the King as of the Lord Keeper and that is Treason within this Law for the Lord Keeper is now Chancellor although at that time when this Statute was made the Lord Chancellors Office and the Lord Keepers Office were two several and distinct Offices yet they are made now both one Office 5 Eliz. c. 18 15 E. 3. c. 2 and that is by the Statute of 5 Eliz. cap. 18. and this Statute of 15 E. 3. cap. 2. may and doth extend to that Statute of 5 Eliz. which comes after as is very fully exprest to the purpose though not to this Case in Co. 4. fol. 4. Vernon's Case the Statute of Marleborough which was made 52 H. 3. gave the word of the Tenant that held by Knight-service notwithstanding he had made a Feoffment by collusion from which time and for 200 years and more till the Statute of the 4. of H. 7. cap. 17. which gave the Ward of the Heir of Costigase the Heir of Costigase was not in Ward and yet it is held in the 27 of H. 8.9 that if Costigase after the Statute of 4 H. 7. makes a Feoffment in Fee by collusion to defraud the Lord of his Ward that this is taken within the Equity of the Statute of Marleborough and so of divers other Cases that you may see there cited in Vernon's Case above mentioned The Fourth Act is The bringing in of false Money like unto our English Money for to Merchandize withal and this is Treason for here is not only an intent but there is also an Act joyned with this intent for he brings over this Money which is the Act with an intent to Merchandize The second Conclusion is that I. D. is a Traytor within this Law and his Treason doth go or extend to all the other four Treasons that were committed by I. S. for this succouring of him after the Fact committed makes him a Traytor within this Law And at the Common Law before the making of this Statute if a man had succoured one that had committed Treason knowing him to have committed it he had been a Traytor And so if one doth now succour a Felon it is Felony in the Succourer And why should it not be so in our Case For the Reason of Law in our Case is far stronger that the Succourer of a Traytor should be a Traytor than the succouror of a Felon should be a Felon because the Offence is greater and therefore it is an aggravation of his punishment to make him that no man shall receive or succour him for we see the Law inflicts a greater punishment upon a Traytor than upon a Felon and that is to deterr men from such Acts as those are And so it appears that there is Reason why he should be a Traytor although he be not within the words of the Statute And therefore it is in the Reason of the
Where a man counterfeiteth any Foreign Coyn of Gold or Silver not current in this Realm it is misprision of Treason Where a man fixes an old Seal to a new Patent it is misprision of Treason CHAP. IIII. The Punishment Tryal and Proceeding in cases of misprision of Treason THE Punishment of Misprision of Treason is by perpetual Imprisonment loss of the Issues and Profits of their Lands during Life and loss of goods and Chattels The Proceeding and Trial is as in cases of High Treason In misprision of Treason Bail is not admitted CHAP. V. Cases of Petty Treason WHere a Servant killeth his Master the Wife the Husband the Spritual man his Prelate to whom he is subordinate and oweth Faith and Obedience it is pettie Treason Where a Son killeth the Father or Mother it hath been questioned whether it be petie Treason and the late experience and opinion seemeth to sway to the contrary tho against Law and Reason in my judgment Where a Servant killeth his or her Master or Mistress after they are out of Service it is petie Treason CHAP. VI. The Punishment Tryal and Proceedings in cases of Petie Treason IN Petie Treason the Corporal Punishment is by drawing on an hurdle and hanging and in a Woman burning In petie Treason the Forfeiture is the same with the Case of Felony In petie Treason all Accessaries are but in case of Felony CHAP. VII Cases of Felony WHere a man committeth Murder or Homicide of Malice prepensed it is Felony Where a man committeth Murder that is breaking of an House with an intent to commit Felony it is Felony Where a man committeth manslaughter that is Homicide of sudden heat and not of Malice prepensed it is Felony Where a man rideth armed with a felonious intent it is Felony VVhere a man doth maliciously and feloniously burn any man's house it is Felony VVhere a man doth maliciously c. burn corn upon the ground or in stack it is Felony VVhere a man doth maliciously cut out another man's Tongue or put out his Eyes it is Felony VVhere a man robbeth or stealeth viz. taketh away another man's Goods above the value of 12 d. out of his possession with intent to conceal it it is Felony VVhere a man imbezelleth and withdraweth any of the King's Records at Westminster whereby a Judgment is reversed it is Felony VVhere a man having the custody of the King's Armour Munition or other Abiliments of VVar doth maliciously convey away the same it is Felony if it be to the value of twenty shillings VVhere a Servant hath Goods of his Masters delivered unto him and goeth away with them it is Felony VVhere a man conjures or invokes wicked Spirits it is Felony VVhere a man doth use or practise VVitchcraft whereby any Person shall be killed wasted or lamed it is Felony VVhere a man practiseth any VVitchcraft to discover Treasure hid or to discover stollen goods or to provoke unlawful Love or to impair or hurt any mans Cattel or Goods the second time having been once before convicted of like offence it is Felony VVhere a man useth the craft of multiplication of Gold or Silver it is Felony VVhere a man receiveth a Seminary Priest knowing him to be such a Priest it is Felony VVhere a man taketh away a VVoman against her VVill not claiming her as his VVard or Bond-woman it is Felony VVhere a man or woman marrieth again his or her former Husband or VVife being alive it is Felony VVhere a man committeth Buggery with man or Beast it is Felony VVhere any Persons above the number of twelve shall assemble themselves with intent to put down Inclosures or bring down prices of Victuals c. and do not depart after Proclamation it is Felony Where a man shall use any words to encourage or draw any People together ut supra and they do assemble accordingly and do not depart after Proclamation it is Felony Where a man being the King 's sworn Servant conspireth to murder any Lord of the Realm or any Privy Councellor it is Felony VVhere a Souldier hath taken any parcel of the King's wages and departeth without Licence it is Felony Where a Recusant which is a Seducer and Perswader and Enticer of the King's Subjects against the King's authority in Ecclesiastical Causes or a perswader of Conventicles or shall refuse to abjure the Realm it is Felony Where Vagabonds be found in the Realm calling themselves Egyptians it is Felony Where a Purveyor doth take without Warrant or otherwise doth offend against certain special Laws it is Felony Where a man hunts in any Forest Park or Warren by night or by day with Vizard or other disguisements and is examined thereof and concealeth his Fact it is Felony Where one stealeth certain kind of Hawks it is Felony Where a man committeth Forgery the second time having been once before convicted it is Felony Where a man transporteth Rams or other sheep out of the Kings Dominions the 2d time it is Felony VVhere a man being imprisoned for felony breaks Prison it is Felony VVhere a man procureth or consenteth to Felony to be done it is Felony as to make him accessary before the Fact Where a man receiveth or relieveth a Felon it is Felony as to make him accessary after the Fact VVhere a Woman by the constraint of her Husband in his presence joyneth with him in committing of Felony it is not Felony in her neither as Principal nor as Accessary Homicide or the killing of a man is to be considered in four kinds Chance-medley Se defendendo Man-slaughter Wilful Murder CHAP. VIII The Punishment Tryal and Proceedings in Cases of Felony IN Felony the corporal Punishment is hanging and it is doubtful whether the King may turn it into beheading in case of a Peer or other Person of Dignity because in Treason the striking off the Head is part of the Judgment and so the King pardoneth the rest but in Felony it is no part of the Judgment and the King cannot alter the execution of Law yet Presidents have been both wayes If it be upon Indictment the King may but upon an Appeal he cannot In Felony there followeth corruption of Blood except it be in cases made Felony by special Statutes with a Proviso that there shall be no corruption of blood In Felony Lands in Fee simple and goods and Chattels are forfeited and the profits of Estates for Life are likewise forfeited but not Lands intailed and by some Customs Lands in see simple are not so forfeited The Father to the Bough The Son to the Plough as in Gavel-kind in Kent and other places In Felony the Escheats go to the Lord of the Fee and not to the King except he be Lord But profits for the Estates for Lives or in Tail during the Life of Tenant in Tail go to the King And the King hath likewise annum diem vastum In Felony Lands are not in the King before Office nor in the Lord before
and no Enemies and so it is exprest in the Irish Statutes See Irish Statutes and this Statute cannot be taken according â—o Equity for it is a Penal Law and of the greatest peâ—alty that is and therefore â—he aiding of Rebels cannot be meant any way the aiding of â—he King's Enemies within this Law Aiding the Enemies within or without is an aiding of those that come into the Land or of those that are without A Subject is of two sorts Subjects two sorts ratione originis and a Subject ratione loci A Subject ratione originis 1. Ratione originis cannot be an Enemy although he doth Levy War in respect of his Obedience but a Rebel he shall be A Subject ratione loci 2. Ratione loci during his residence here he can be no Enemy neither but if he goeth over Sea and then Levy War against this Kingdom or any other of his Majesties Kingdoms he is then an Enemy within this Law and no Rebel Dominium duplex There is also Dominium rectum Dominium utile for â—f a man be born within the Dominium rectum as that of Scotland in ancient time and â—here he Levy War he is an Enemy and no Rebel but if â—e be born within the Domiâ—ium utile and Levy War â—e is a Rebel and not an Enemy Aiding is by sending them Aid as of Victuals or of Weapons and the like by giving of them Counsel or â—y any other way whereby â—hey may receive strength or comfort from him Now for the persons by whom this Levying of War may be and as to that all Levies are within this Law as well Women as Men for Women are comprehended under this word Man Secondly Persons of all Nations that are within this Land are within this Law for as they shall have protection by the Laws of the Land so they ought at their peril to take notice of the Law so soon as they come into the Land for they ought to have notice given them and cannot alledge ignorance if it be not given them especially in such Laws as this that are so beneficial both the King and Kingdom Thirdly Persons of all Degrees as a Queen that is married to the King attempting â—he death of the King is within this Law A Forreign Ambassador is also within â—his Law but if a Foreign King should come into this Land by License and here â—ompass the death of the King â—he question will be how he â—hall be tried for he is a King here and therefore â—ught to be tried per Pares which he cannot be for oâ—her Honours are not allowed here Fourthly all Ages are withâ—n this Law as in Folks which have knowledge or men of non sanae memoriae and a mad man is also within this Law as to that part of the Statute which concerns more immediately the Person of the King for if any of them afore mentioned in this division shall compass his death it is Treason within the firsâ— Clause but not in the Clause of Levying War as I shalâ— shew you afterwards but a man that is surdus caecus mutus is not within this Law for it is impossible for him to have understanding Now for the persons against whom a King beforâ— his Coronation is within thiâ— Law Northumberland 's Case as it is in the Duke oâ— Northumberland's Case for hâ— is presently a King as soon as the other King deceaseth and there is no Interregnum for the King quatenus a King never dieth but he is said to Demise when he departs this Life and the King is Crowned because he is a King and not a King because he is Crowned a King de facto and not de jure is a King within this Law See 4 E. 4.1 9 E. 4.12 as it is in 4 E. 4.1 and 9 E. 4.12 A King conjugal or marital that takes to Wife the Queen of England is within this Law a Queen that is married although the marriage be void yet that Queen is within this Law so is a Queen married by Proxy a Queen within Age is also within this Law The first Case I. S. after the Divorce of the Wife of the Grandchild First Case and Heir apparent to the Queen doth violate her and imagine the Death of the husband and declares this to I. D. and after kills the husband of the Queen and conspir'd to Levy War against the Queen and delivers to I. D. money to buy Arms and after becomes mad and Aids the Enemies of the Queen within the Realm and then kills the Queen The Conclusion is First I. S. is a Traytor within this Law for killing the Husband of the Queen and for conspiring to Levy War and for killing of the Queen and in every one of these The second Conclusion is that I. S. is not a Traytor within this Law for imagining the death of the Grandchild and yet he is within the Case of the Law not for violating of his Wife nor for aiding of the Enemies I. S. is a Traytor within this Law for killing the husband of the Queen but not within these words That whosoever shall conspire or compass the death of the King for as to that Clause he is not King for the Queen is Regent and not he and so not within that Clause nor the meaning of it but he is within this word Companion for he is as good a Companion to the Queen as the Queen is to the King and so within the same Reason of Law For the husband of the Queen in such a Case is in a better condition and plight than a Queen to a King and so upon a stronger Reason but this you must take as a Rule that I have said before viz. that this Statute is not to be taken by Equity and this you shall find as another Rule as well for the expounding this Statute as any other Bro. Treas for 12.12 ass pl. 30. that those Cases that stand upon the same Reason shall be within the same Law although not taken by Equity for where there is the same identity parity or majority of Reason in any Cases there ought to be the same Law as it is in the Statute of Gloucester concerning Waste and in this our Statute the mysteries are not named yet there is within this Law for if the Servant kills the Wife of his Master knowing her to be his Masters Wife this is adjudged Petty Treason by the Judgement of all the Judges of both Benches Com. 87.6 Fitz. Com. 7.118 Brook tit treas 8. 19 H. 6.47 Com. 87.6 Fitz. Com. 7.118 Bro. Tit. Treason 8. For as well the Mistress as the Master hath affiance in him and he ought to give Reverence to his Mistress as well as his Master and yet the Master is only named in this Statute but in our Case the express words are That if any man shall Compass the death of the Kings Companion it shall be Treason and so
Statute Another Reason is because the Statute doth not say who shall be Traytors but what shall be Treason and this word Treason shall be taken with all its Concomitants and Accidents as it was at Common Law and then that was a concomitant to Treason that the Succourer should be a Traytor But it is so in 3 H. 7. fol. 10. Object that the Succourer in Treason is no Traytor The Reason of that Case is Answ because the Judgement was that he knowing eam proditionem praedictam perpetrdffe felonice hospitalis fuit and this was not grand because he was in that Case indicted as an Accessary and was not indicted as a Traytor for there can be no Accessaries in Treasons as there is in Felonies See Fitz. Tit. Cor. 55. Fitz. Tit. Coron 55. Bro. Tit. Coron 135. Bro. Tit. Coron 135. and for express Authority it is in 1 H. 6.5 for if this Statute had made Felony Treason and one doth commit that Treason and A. succours him knowing of it it had been absurd for to have said that the Succourer should have been only a Felon but our Case is stronger for this Law doth not make any one a Traytor but only declares what shall be adjudged Treason but if this Statute had exprest that all Abettors should have been Traytors then the Receivers or Succourers should not have been Traytors within this Law for then the intent of the Makers would plainly appear that it was not intended that the Receivers or Succourers after the Fact should have been within this Law but only the Abettors before and at the Fact Lecture III. THis Lecture is of Petty Treason and Petty Treasons doth very little differ from Felonies for by the pardon of all Felonies all Petty Treasons are pardoned Stamf. fol. 2. b. Stam. fol. 2. b. but it hath some correspondency with other Treasons and that is in respect of the Duty and Obedience that is due to each other as it is from the Subjects to the King so from the Servant to the Master All Servants although they receive no Wages but only Meat and Drink are within this Law A Servant that is not compellable to serve by this Statute yet if he doth serve he is within this Law And so is a Bayliff of a Mannor for if he kill the Lord of the Mannor it is Petty Treason within this Law A Steward of a Court Leet or Court Baron is not within this Law A Wife divorc'd for Adultery is within this Law although a Queen divorc'd for Adultery be not within this Law as ye have heard before Ordinaries are of two sorts Ordinarius loci Ordinarius Dioces Ordinarius leci Ordinarius Dioces and the Superior Ordinaries they are all within this Law Ordinarius loci as that of the Dean of Westminster Ordinarius Dioces is the Bishop of the Diocess and the Superior Ordinary is the Archbishop they are all within this Law in respect of Obedience that is due to them A Child killing his Father or his Mother he is within this Law as you heard before although he he be not named in it yet there is a majority of Treason in it more than that of a Servant and therefore is within that intent and reason of the Law And so it is in Dalton If one command another to kill his Master who doth it yet it is not Treason within this Law unless he be there present when the Fact is done 40 Ass 25. 40 Ass 25. If a Wife command a Servant to kill her Husband and he doth it it is Treason in both within this Law and so it appears that Abettors and Partners are within the first Part of this Statute concerning Petty Treasons although they are not named If a Servant goes from his Master and then kills him this is Petty Treason within this Law for it shall be intended that he had such an intention to kill him before he departed out of his Service Bro. Tit. Treas 15. 33 Ass 7. 33 Ass 7. And so is a Quarrel in Westminster-Hall the Courts sitting and then go out of the Hall into the Pallace-yard and then one strikes the other this is punishable with the same punishment as if he had struck him in the Hall for the punishment shall be to the loss of his hand and the forfeiture of his goods and perpetual imprisonment as it is in Darcies Case 1 2 Eliz. Dyer 188. in the 1 2 of Eliz. Dyer 188. But some of these Offences were Treason at the Common Law as the Son killing of the Father 21 E. 3.17 21 E. 3.17 and of a Maid-servant killing her Mistress 21 Ass 30. 21 Ass 30. If a Servant kill his Mistress this is Petty Treason within this Law and yet she is not named but is to be intended upon the same reason with his Master and the Obedience is due to the one as well as the other 19 H. 6.37 19 H. 6.37 Treason ought to be fully proved as it appears by the words of the Statute and that is to be by two Witnesses for the proving of every Treason And the Statute of 1 E. 1 E. 6. 6. is not repealed as to this Point by the Statute of Phil. and Mar. but only the Trials in the Counties and not concerning Witnesses as by that Statute more at large appears And in the 14 of Eliz. in the Lord Lumley's Case 14 Eliz. Lumley's Case it was agreed that the Statute 1 E 6. was not reversed by the old Statute The Tryal of Lords of Parliament ought to be per Pares but in some Cases he shall not have his Tryal per Pares 13 H. 8.11 12. Bro. Tit. Treas 29 33. as in an Appeal but in an Indictment he shall and the Indictment shall be received into Parliament because an Indictment is the Kings Suit and the Statute of Magna Charta is nec fuper eum ibimus nec super eum mittimus and this is to be intended in the Kings suit 10 E. 4. b. 10 E. 4. b. But a Lord may refuse his Tryal per Pares if he will as it was adjudged 1 Phil. Mar. Bro. in the L. Gray's Case 1 Phil. Mar. Bro. Lord Grays Case 13 Jac. but in the Lord of Castlehaven's Case it was held the contrary If a man be kill'd in Rebellion he shall forfeit his Lands and is a Traytor but there ought to be an Inquisition taken of him and that shall be a sufficient Tryal As the Case in 13 Jac. Br. If a man do cast himself into the Water and never is found after yet if it be presented by the Justice of Peace this is sufficient to make him forfeit his Goods As for those Treasons which are not here declared the Judges Authority takes Indictments of them but they ought not to be proceeded against to Judgment for nothing is to be done in point of Judgement in such a Case till it be
Entry or Recovery in a Writ of Escheat or Death of the Party attainted In Felony there can be no proceeding with the Accessary before there be a proceeding with the Principal If he dye or plead his Pardon or have his Clergy before Attainder the Accessary can never be dealt with In Felony if the Party stand mute and will not put himself upon Tryal or challenge peremptorily above that the Law allows he shall have Judgment not of hanging but of penance of pressing to death but there he saves his Lands and forfeits only his Goods In Felony at the Common Law the benefit of Clergy or Sanctuary was allowed but now by Stat. it is taken away in most cases In Felony Bail may be admitted where the Fact is not notorious and the Person not of ill name In Felony no Councel is to be allowed to the Party no more than in Treason In Felony if the fact be committed beyond the Seas or upon the Seas super altum mare there is no Tryal at all in one case nor by course of Jury in the other but by the Jurisdiction of the Admiralty In Felony no witness shall be received upon Oath for the Parties Justification no more than in Treason In felony if the Party be non sanae memoriae although it be after the fact he cannot be tryed nor adjudged except it be in course of Outlawry and that is also erroneous In felony the Death of the Party before Conviction dischargeth all Proceedings and Forfeitures In felony if the Party be once acquit or in peril of Judgment of Life lawfully he shall never be brought in question again for the same fact In felony the prosecution may be either at the King's Suit or by way of Appeal the Defendent shall have his course and produce Witnesses upon Oath as in Civil Causes In Felony the King may grant hault Justice to a Subject with the Regality of Power to pardon it In Felony the Tryal of Peers is all one as in case of Treason In Felony the Proceedings are in the King's Bench or before Commissioners of Oyer and Terminer or of Goal-delivery and in some case before Justices of the Peace CHAP. IX Cases of Felony de se with the Punishment Tryal and Proceedings IN the Civil Law and other Laws they make a difference of Cases of Felony de se for where a man is called in question upon any capital Crime and killeth himself to prevent the Law there they give the Judgment in all points of forfeiture as if they had been attainted in their Life-time And on the other side where a man killeth himself upon impatience of Sickness or the like they do not punish it at all but the Law of England taketh it all in one degree and punisheth onely with loss of Goods to be forfeited to the King who generally grants them to his Almoner where they be not sormerly granted unto special Liberties CHAP. X. Cases of Premunire WHere a man purchaseth or accepteth any provision that is collation of any Spiritual Benefice or Living from the See of Rome it is Premunire Where a man shall purchase any Process to draw any People of the Kings Allegiance out of the Realm in plea whereof the cognizance pertains to the Kings Court and cometh not in Person to answer his contempt in that behalf before the King and his Council or in his Chancery it is Premunire Where a man doth sue in any Court which is not the King's Court to defeat or impeach any Judgment given in the Kings Court and doth not appear to answer his Contempt it is Premunire Where a man doth purchase or pursue in the Court of Rome or elsewhere any Process Sentence of Excommunication Bull or Instrument or any other thing which toucheth the King in his Regality or his Realm in prejudice it is Premunire Where a man doth affirm or maintain any Foreign kind of Jurisdiction Spiritual or doth put in ure or execution any thing for the advancement or setting forth thereof such Offence the second time committed is Premunire Where a man refuseth to take the Oath of Supremacy being tendred by the Bishop of the Diocese if it be an Ecclesiastical Person or by a Commission out of the Chancery if he be a Temporal Person it is premunire Where a Dean and Chapter of any Church upon the Conge de Lier of an Archbishop or Bishop doth refuse to elect any such Archbishop or Bishop as is nominated unto them in the Kings Letters missive it is Premunire Where a man doth contribute or give relief to any Jesuit or Seminary Priests or to any Person brought up therein and called home and not returning it is case of Premunire Where a man is a Broker of an usurious contract above ten in the hundred it is Premunire CHAP. XI The Punishment Tryal and Proceeding in Cases of Premunire THe Punishment is by Imprisonment during Life forfeiture of Goods forfeiture of Lands in fee simple forfeiture of the profits of Lands Intailed or for Life The Trial and Proceeding is as in cases of Misprision of Treason and the Tryal is by Peers where a Peer of the Realm is the Offender Striking any man in the face of the King's Courts is forfeiture of Lands perpetual Imprisonment and loss of that hand CHAP. XII Cases of Abjuration and Exile and the Proceedings therein WHere a man committeth any Felony for the which at this day he may have priviledge of Sanctuary and confesseth the Felony before the Coroner he shall abjure the Liberty of the Real and chuse his Sanctuary and if he commit any new offence or leave his Sanctuary he shall lose the Priviledge thereof and suffer as if he had not taken Sanctuary Where a man not coming to the Church and being a Popish Recusant doth perswade any the Kings Subjects to impugn his Majesties Authority in Causes Ecclesiastical or shal perswade any Subject to come to any unlawful Conventicles and shall not after conform himself within a time and make his submission he shall abjure the Realm and forfeit his Goods and Lands during Life and if he depart not within the time prefixed or return he shall be in the degree of a Felon Where a man being a Popish Recusant and not having Lands to the value of 20 Marks per annum nor goods to the value of 40 l. shall not repair to his dwelling or place where he was born and there confine himself within the compass of five miles he shall abjure the Realm and if he return he shall be in case of a Felon Where a man kills the King 's Deer in Chases or Forests and can find no Sureties after a years Imprisonment he shall abjure the Realm Where a man is a Trespasser in Parks or in Ponds of fish and after three years Imprisonment cannot find Sureties he shall abjure the Realm Where a man is a Ravisher of any Child whose Marriage belongs to any Person and marrieth the said Child after years
your self to your best knowledge that the Statutes of Winchester for Watch Huy and Cry and the Statutes made for the punishment of sturdy Beggars Vagabonds Rogues and other idle Persons coming within your Office be truly executed and the Offenders punished And you shall endeavour upon complaint made to apprehend Barreters and riotous Persons making Affrays and likewise to apprehend Felons and if any of of them make resistance with force and multitude of mis-doers you shall make Out-cry and pursue them till they be taken and shall look unto such Persons as use unlawful Games and you shall have regard unto the maintenance of Artillery And you shall well and duely execute all Process and Precepts sent unto you from the Justices of Peace of the County and you shall make good and faithful presentments of all Blood-sheds Out-cries Affrays and Rescues made within your Office and you shall well and duely according to your Power and knowledge do that which belongeth to your Office of Constable to do for this year to come So help c. 10. To the tenth The Authority is the same in substance differing onely in extent The pety Constable serving onely for for one Town Parish or Borough the Head Constable serving for the whole Hundred Neither is the petty Constable subordinate to the Head Constable for any commandment that proceeds from his own Authority but it is used that the Precepts of the Justices be delivered unto the High Constables who being few in number may better attend the Justices and then the Head Constables by vertue thereof make their Precepts over to the petty Constables 11. To the eleventh In case of necessity he may appoint a Deputy or in default thereof the Steward of the Court Leet may which Deputy ought to be sworn Now to conclude the Office of Constables consists wholly in these three things viz. Their Office concerning 1. The conservation of the Peace 2. The serving the Precepts and Warrants of the Justices 3. Their attendance for the execution of Statutes CHAP. XXI Of the Jurisdiction of Justices Itinerantes in the Principality of Wales THese Justices have power to hear and determine all criminal Causes which are called in the Laws of England The Pleas of the Crown and herein they have the same Jurisdiction that the Justices have in his Majesties Bench commonly called the Kings Bench. They have Jurisdiction to hear and determine all civil Causes which are called in the Laws of England Common Pleas and do take knowledgement of all Fines levied of Lands or Hereditaments without suing out any Dedimus potestatem and herein they have the same Jurisdiction that the Justices of the Common Pleas do execute at Westminster Also they may hear and determine all Assises upon Disseisins of Lands or Hereditaments wherein they equal the Jurisdiction of the Justices of the Assize Justices of Oyer and Terminer may hear and determine all notable Violences and Outrages perpetrated or done within their several Precincts of the Principality of Wales In the Kings Gift are 1. The Prothonotory his Office is to draw all Pleadings and to enter and engross all Records and Judgments in civil Causes 2. The Clerk of the Crown his Office is to draw and engross all Proceedings Arraignments and Judgments in criminal causes In the disposing of the Judge 1. The Marshal whose Office is to attend the Persons of the Judges at their coming sitting and going from the Sessions or Court 2. The Crier He is tanquam publicus Praeco to call forth such Persons whose appearances are necessary and to impose silence to the People There is a Commission under the great Seal of England to certain Gentlemen giving them power to preserve the Peace and to resist and punish all turbulent Persons whose misdemeanours may tend to the disquiet of the People and these be called the Justices of the Peace and every of them may well and truly be called and termed Eirenarcha The chief of them is called Cusos Rotulorum in whose custody all the Records of their Proceedings are resident Others there are of that number called Justices of Peace and Quorum because in their Commission they have power to sit and determine Causes concerning breach of Peace and misbehaviour the words of their Commission are conceived thus Quorum such and such unum vel duos c. esse volumus and without some one or more of them of the Quorum no Sessions can be holden And for the avoiding of a superfluous number of such Justices for through the Ambition of many it is counted a credit to be burthened with that Authority the Statute of 38 Hen. 8. hath expresly prohibited that there shall be but eight Justices of Peace in every County These Justices being appointed by the Lord Keeper do hold their Sessions quarterly In every Shire where the Commission of the Peace is established there is a Clerk of the Peace for the Entring and Engrossing of all Proceedings before the said Justices And this Officer is appointed by the Custos Rotulorum Every Shire hath its Sheriff which word being of the Saxon English is as much to say as Shire Reeve or Minister of the County His Function or Office is twofold 1. Ministerial 2. Judicial As touching his Ministerial Office he is the Minister and Executioner of all the Process and Precepts of the Courts of Law and thereof ought to make Return and certificate 34 H. 8. c. 16. As touching his Judicial Office he hath Authority to hold two several Courts of distinct natures The one called the Tourne because he keepeth his turn and circuit about the Shire and holdeth the same Court in several places wherein he doth enquire of all Offences perpetrated against the Common Law and not forbidden by any Statute or Act of Parliament and the Jurisdiction of this Court is derived from Justice distributive and is for criminal offences and is held twice every year The other is called the County Court wherein he doth determine all petty and small Causes civil under forty shillings arising within the said County and thereof it is called the County Court The jurisdiction of this Court is derived from Justice Commutative and is held every Month The Office of the Sheriff is annual and in the Kings gift whereof he is to have a Patent Every Shire hath an Officer called an Escheator which is an Office to attend the Kings Revenue and to seize into his Majesties hands all Lands either escheated Goods or Lands forfeited and therefore is called Escheator And he is to inquire by good Inquest of the death of the King's Tenants and to whom their Lands are descended and to seize their Bodies and Lands for Ward if they be within age and is accountable for the same and this Officer is named by the Lord Treasurer of England There are in every Shire two other Officers called Crowners or Coroners they are to enquire by Inquest in what manner and by whom every Person dyeth of a violent death and to enter the same of Record which is matter criminal and a Plea of the Crown and therefore they are called Coroners or Crowner as one hath written because their enquiry ought to be publick in corona populi 34 H. 8.20 These Officers are chosen by the Free-holders of the Shire by vertue of a Writ out of the Chancery De Coronatore elegendo And of them I need not to speak more because these Officers are in use elsewhere Forasmuch as every Shire is divided into Hundreds it is also by the said Statute of 34 H. 8. cap. 26. ordered that two sufficient Gentlemen or Yeomen shall be appointed Constables of every Hundred Also there is in every Shire one Goal or Prison appointed for the restraint of Liberty of such Persons as for their offences are thereunto committed until they shall be delivered by course of Law In every Hundred of every Shire the Sheriff thereof shall nominate sufficient Persons to be Bailiffs of that Hundred and Under-ministers of the Sheriff and they are to attend upon the Justices in every of their Courts and Sessions THE CONTENTS Of the Readings c. LEcture I. Pag. 3. The Definition of Treason 5. The first Case 20. Lecture II. 41. The Second Case 49. Lecture III. 62. The Contents of the Cases of Treason c. CHAP. I. CAses of Treason Pag. 73. Chap. II. The Punishment Tryal and Proceeding in Cases of Treason 78. Chap. III. Cases of Misprision of Treason 83. Chap. IV. The Punishment Tryal and proceeding in Cases of Misprision of Treason ibid. Chap. V. Cases of pety Treason 84. Chap. VI. The Punishment Tryal and proceedings in cases of Pety Treason 85. Chap. VII Cases of Felony 86. Chap. VIII The Punishment Tryal and proceedings in cases of Felony 93. Chap. IX Cases of Felony de se with the Punishment Tryal and Proceedings 98. Chap. X. Cases of Premunire 99. Chap. XI The Punishment Tryal and proceeding in Cases of Premunire 102. Chap. XII Cases of Abjuration and Exile and the Proceedings therein 103. Chap. XIII Cases of Heresie and the Tryal and Proceedings therein 106. Chap. XIV The King's Prerogative in Parliament 107. Chap. XV. The Kings Prerogative in matters of War or Peace 108. Chap. XVI The Kings Prerogative in matters of Moneys 110. Chap. XVII The Kings Prerogative in matters of Trade and Traffick 111. Chap. XVIII The Kings Prerogative in the Persons of his Subjects 112. Chap. XIX An Answer to the Question proposed by Sir Alexander Hay Knight touching the Office of Constables 114. Chap. XX. Three ends of the Institution of the Court Leet 118. Chap. XXI The Jurisdiction of Justices Itinerantes in the Principality of Wales Pag. 132. FINIS