to enquire of onely and certifie to the Justices of Goal Delivery but those that are against the peace simply they are to enquire and punish 3. The third is To enquire of punish and remove all publick Nusances and grievances concerning Infection of Air corruption of Victuals ease of chaffer and contract of all other things that may hurt or grieve the people in general in their health quiet and welfare And to these three ends as matters of policy subordinate the Court Leet hath power to call upon the pledges that are to be taken for the good behaviour of the Residents that are not Tenants and to enquire of all Defaults of Officers as Constables Ale-tasters c. and for choice of Constables as aforesaid The Jurisdiction of these Leets is ever remaining in the King and in that case exercised by the Sheriff in his turn which is the grand Leet granted over to Subjects but yet it is still the Kings Court. 2. To the second as was said The Election of the pety Constable is at the Court Leet by the Inquest that makes the Presentments the Election of the Head Constables is by the Justices of the Peace at their Quarter Sessions 3. To the third The Office is annual except they be removed 4. To the fourth They be men as it is now used of inferiour yea of base condition which is a meer abuse or degenerating from the first Institution for the pety Constables in Towns ought to be of the better sort of Resiants in the said Town save that they ought not to be Aged or sickly but men of able Bodies in respect of keeping Watch and toil of their place neither ought they to be in any mans Livery And the High Constables ought to be of the ablest sort of Freeholders and of the substantiallest sort of Yeomen next to the degree of Gentlemen but they ought to be such as are not incumbred with any other Office as Mayor Under-sheriff Bailiff c. 5. To the fifth They have no allowance but are bound by Duty to perform their Offices gratis which may the rather be endured because it is but Annual and they are not tyed to keep or maintain any Servants or under-ministers for that every one of the King's People are bound to assist them 6. To the sixth Upon complaint made of his refusal to any one Justice of Peace the said Justice may bind him over to the Sessions where if he cannot excuse himself by some just allegation he may be fined and imprisoned for his Contempt 7. To the seventh The Authority of Constables as it is substantive and of it self or substituted and astricted to the Warrants and Commands of the Justices of Peace so again it is Original or Additional for either it was given them by the Common Law or else annexed by divers Statutes And as for subordinate Power wherein the Constable is onely to execute the Commandments of the Justices of Peace and likewise the additional power which is given by divers Statutes it is hard to comprehend them in any brevity For that they do correspond to the Office and Authority of the Justices of Peace which is very large and are created by the branches of several Statutes which are things of divers and dispersed natures But for the original and substantive Power of a Constable it may be reduced to three heads 1. For matter of Peace only 2. For matter of Peace and the Crown 3. For matter of Nusance Disturbance and Disorder although they be not accompanied with violence and breach of Peace For pacifying of Quarrels begun the Constables may upon hot words given or likelihood of breach of peace to ensue command them in the Kings name to keep the Peace and to depart and forbear and so he may where an Affray is made part the same and keep the Parties asunder and arrest and commit the Breakers of the Peace if they will not obey and call Power to assist him for the same purpose For punishment of breach of Peace past the Law is very sparing in giving any Authority to Constables because he hath no power judicial and the Use of his Office is rather for preventing or staying of Mischief than for punishing of Offences for in that part he is rather to execute the Warrants of the Justices or when suddden matter ariseth upon his view or notorious circumstances to apprehend Offenders and carry them before the Justice of Peace and generally to imprison in like cases of necessity where the case will not endure the present carrying before the Justices And thus much for the matters of Peace For matters of the Crown the Office of the Constable consisteth chiefly in four parts 1. The first is Arrest 2. The second is Search 3. The third is Hue and Cry 4. And the 4th is Seisure of goods All which the Constable may perform of his own Authority without any Warrant of the Justices of Peace 1. For first If any man will lay Murder or Felony to another's charge or do suspect him of Murder or Felony he may declare it to the Constable and the Constable ought upon such Declaration or Complaint carry him before a Justice and if by common voice or Fame any man be suspected the Constable of Duty ought to arrest him and bring him before a Justice though there be no other accusation 2. If any house be suspected for the receiving or harbouring of any Felon the Constable upon complaint or common fame may search 3. If any fly upon the Felony the Constable ought to raise Hue and Cry and search for his goods and keep them safe without impairing and to inventary them in the presence of honest neighbours 4. For matters of common Nusance and grievance they are of a very variable nature according to the several comforts which mans Life and Society requireth and the contraries which infest the same In all which be it matter of corrupting Air Water or Victuals or stopping straitning or indangering passage or general deceits in Weights Measures Sizes or counterfeiting Wares and things vendible the Office of the Constable is to give as much as in him lies Information of them and of the offenders in Leets that they may be presented But because Leets are kept but twice in the year and many of these things require present or speedy remedy the Constable in things of notorious and vulgar nature ought to forbid and repress them in the mean time 8. To the eighth They are for their Contempt to be fined and imprisoned by the Justices in their Sessions 9. To the ninth The Oath they take is in this manner YOV shall swear that you shall well and truly serve the King and the Lord of this Law-day and you shall cause the Peace of our Lord the King to be well and duely kept to your power And you shall arrest all those that you see committing Riots Debates and Affrayes in breach of Peace And you shall well and duely endeavour
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
there is an express proviso for him being the Companion for he is a Companion to the Queen A second Difference between our Case and the Case of the Mistress is that she is his Mistress but gratia and under the power of her Husband but in our Case the King marital hath a Superiority over his Wife as he is her Husband and so our Case is a farre stronger Case If a Child kills his Father or Mother this is Petty Treason and so it was also at the Common Law before the making of this Statute 21 E. 3.17 Bro. tit Sanctuar 2. Bro. tit Treas 6. 21 E. 3.17 Bro. Tit. Sanct. 2. and Bro. Tit. Treas 6. because there is a higher majority of Reason than that of a Servant which is the Reason of the Submission and Duty that is to the Father and Mother from the Child and where there is a majority of Reason or a parity of Reason for the one Case as there is for the other there is always the same Law But you will Object 1 2 Ph. Mar. c. 9. there is a Statute made 1 2 Phil. Mar. cap. 9. that if any shall imagine the death of the King that it shall be Treason and therefore he was not provided for before this Statute and therefore this Statute was made if it were Treason before this Statute then this Statute was made in vain and to no purpose That that Statute doth provide as well for the preservation of the Queen Answ as for the King and makes it Treason for any to compass the death of the Queen and therefore â—t cannot be concluded from â—hence that it was not Treason to compass her death before that Statute The second Reason is because that Statute doth provide for other matters as it doth there appear The next Point is the declaring of this his imagination to I. D. which is an Overt Act 1 Mar. Bro. tit treas 24. The second point for an overt Act is the declaring of his Mindand Intentions to others by such words as imply an Act to follow or by bidding a man to do what he hath intended or to do any thing that may tend to his purpose or by writing to declare his mind but if a man have a thought of Killing the King this is onely Primus motus and although he afterwards tells another that he had such a thought this is no Overt Act but iâ— he doth cherish this thought then it becomes his own and then he tells it to another that he hath such an intention this is an Overt Act for the words he doth speak are words executory and imply that he will do such an Act Or if A. conspire with B. to kill the King this is an Overt Act but to imagine with himself is not because it cannot come to be known words of encouragement to others is an Overt Act also For conspiring to levy War is the next and this is Treason within this Law although it be not within the words of the Statute but yet it is within the meaning and reason of the Statute for how is it possible for any to Levy War but he must conspire the death of the King Nota. or his deposing at least and the conspiring to do either of these is Treason within this Law as aforesaid and that within this word Compassing which as I said before â—s of a very large extent but I must confess the Intention is not so bad as an actual Levying of War and yet it is as bad in him that doth intend it And this Levying oâ— War doth mediately look aâ— the person of the King though not immediately and so in that respect it is Treason and so it is of deposing and so is the Statute of 1 E. 6. cap. 12. and so you shall find it in Doctor Storie 's case 13 Eliz Dyer 298. b. 1 E. 6.12 Dyer Story 's Case 13 Eliz. Dyer 298. who did conspire with a Foreign Prince to invade this Land and shewed him a means how to conquer this Kingdom and yet there was no Act done by that Prince against the Queen yet this is adjudged Treason and the reason there yielded was because this Invasion could not possibly be without great hazard and peril to the person of the Queen which is a very full Case in proving of this point 19 H. 6.47 But a conspiring to Coyn Money is not Treason within this Law because it is not against the person of the King but yet if two shall conspire to coyn Money and one doth it alone without the other yet this is Treason in both The third point is that I. S. after he became mad kills the Queen this is Treason within this Law first because a man may counterfeit himself to be mad and he may do it so cunningly as it cannot be discerned whether he be mad or no. The second Reason is in respect of the great esteem that the Law gives to the person of the King for he is the Fountain of Justice and for the proof of this point that it may be understood we ought to see what the Common Law was before the making of this Statute as to this Point and then we ought to enquire and see how the Law is altered since the making of the Statute and by this means we shall find out the Law and the reason thereof it is true that the Law without special words will not bind an Insant or a Mad-man as to the punishment of their Bodies but yet it will extend to their Lands and Estates but this our Law is no new Law but only a Declarative Law and in that Case general words will bind an Infant or a Mad-man without any special words That it was Treason at the Common Law is apparent in Britton and the Mirrour of Justice and this Statute doth not declare who shall be Traytors but what shall be Treason and therefore by this Act it is Treason in a Mad-man or whomsoever shall commit it for a Mad-man is not excepted out of this Law and to make this appear more fully you may be pleased to read the Case of Beverly See Beverleys Case Com. 124. in Com. 124. That a man that is non composmentis may commit High Treason although he cannot commit Petty Treason nor Felony Daltons Just 206. and so it is also in Dalton's Justice of Peace 206. that if a man that is non compos mentis shall kill the King this is High Treason Nay Beverley's Case goes farther and sayes That if he shall offer only to kill the King this is High Treason Nota. because the King is Caput salus Reipub. Ã Capite bona valetudo transit in omnes and for this Cause his person is so Sacred that none must offer the least violence to him but he is Reus criminis laesae Majestatis pereat unus ne pereant omnes The second Conclusion is That I. S. is
not a Traytor within this Law for imagining the death of the Grandchild yet he is within the Care and Protection of the Law for he is not within the Words of the Law but without the Intention and Reason of the Law for the words are That if any man shall compass the death of the Kings Eldest Son that is Treason but in the French Language in which this Law was first written it is Le Regne fils heir and yet if the Eldest Son dyes the second Son is within the Law because he is then the Eldest Son and so it is of the third Son for then he is also Heir Apparent and he is within the intention and meaning of this Law And so to this purpose is the Princes Case in Report 8. where it is Princes Case 8. Report that the Second Son shall be Duke of Cornwal after the death of the Eldest and yet it is only limited to the Eldest Son A collateral Heir is also within this Statute because as he conceiveth this Statute intends to provide that the next Heir to the Crown shall be secured from danger And the Case that may be likened to this is that where a Writ of Aid may be brought by the next Heir for the Writ saith Cujus haeres ipse est F. N. B. 221 F. N. B. 221. so that it appears that it lies only for the Heir Lineal or Collateral Male or Female The Eldest Daughter is also within our Law Heires Facus is also a grand Heir within this Law but this imagining or compassing the Death of the Grandchild or of any other Heir is not Treason unless there be a sufficient Declaration of it to another for no man can judge of the thoughts for the imagination only can be no Overt Act and this Declaration of his imagination or compassing to I. D. is not a sufficient Overt Act to make him a Traytor within this Law for he told him that he had only such an imagination which is but Primus motus for he doth not say that he will do it in the Future Tense for that may be Treason for that it doth imply an Act to be done afterward but the other is onely against that is past Then for violating the Wife after she is divorc'd this is not Treason within this Law And yet the divorce is but a mensa thoro but it is such a divorce as deprives her of his Company and so she is not his Companion within this Law but yet she is his Wife and a Wife divorc't a mensa thoro shall have her divorce because that divorce doth not dissolve the Marriage but she remains his Wife still but yet if she hath any Children during that divorce they are all Bastards because she is not to keep her Husband Company A Queen Dowager is not within this Law because she is not Companion to the King that then is and is not provided for by this Law for the words of the Statute are If any shall violate the Kings Companion Lecture II. THE Second Lecture The Second Lecture according to my first Division is concerning the Government and that is First in the Seal which is Clavis Regni The Second in his Money and Coyn. The Third in his Offices For the First which are the Seals and they are first The Great Seal Secondly the Privie Seal And Thirdly the Seal of the Exchequer And of all these Seals the Common Law takes special notice as that the King may grant to one Power to make one Attorney under the Privie Seale and so is 37 H. 3.27 b. Co. 2.17 Lams Case 37 H. 3.27 Co. 2.17 Lams Case and so of the other Seals but our Law takes notice of the great Seal only as for point of Treason for the words are exclusive to all other Seals for that being the greatest excludes all other inferior Seals that are the least Now what shall be said of counterfeiting of this Great Seal and that must be by making another Seal like to this and for to Seal Patents with it for to make a Seal like the Great Seal to put this to a piece of Wax onely is no counterfeiting of the Great Seal but there ought to be a Writing annexed unto it and then it is a Counterfeiting within this Law Nota. but if the Lord Keeper doth Seal a Patent without special Authority from the King yet this is no Counterfeiting within this Law or if any one do find this Great Seal or other wayes obtain it and Seals Patents therewith this is not Counterfeiting neither within this Law for if the Seal be truly and in due manner put to a Patent and afterwards the Patentee doth raze or add to the Patent in any place this is no Counterfeiting as it is in Lakes Case Lakes Case 4 Jac. 4 Jac. and yet the razing of a Deed is the forging of a Deed. Secondly concerning counterfeiting the Kings Coyn and this ought to be intended only of the Kings own Money for that only is meant by this Law and not any Foreign Money but Foreign Money is provided for by another Law The coyning of Copper if it be made Currant is also within this Law for it is only in the power of the King to imbase Coyn as it is apparent in the Case of Money in Davices Reports Case of Money in Davices Reports for the King is Master of the Coyn but in the Mirrour of Justice it is said the King cannot alter his coyn for those things are not in this Law because they are not Currant within this Realm Foreign Money is not within this law because at the time when this Law was made all Foreign Money that was brought into this Realm was but Bullion because it was a great deal worser than that of this Nation and Foreigners afterwards did make their Coyn finer and than it was made Currant here by a Statute and so within this Law If any that have Authority and Power to Mint or Coyn and he coyn pieces that are less in weight than they ought to have been by the Authority by him given this is a counterfeiting because he hath not pursued his Authority and so is as if he had no Authority to make it of that weight which he hath made it And so is the 3 H. 7. c. 10. to counterfeit Foreign Money 3 H. 7. c. 10 and to bring it over is not a counterfeiting within this Law but if one counterfeit the Coyn of this Kingdom beyond the Sea and brings it over and Merchandizes with it 6 H. 7.13 and thereby deceive our Merchants this is a counterfeiting as in the Book aforesaid And if one counterfeit the Coyn of this Kingdom although he doth not put it to others yet this is a counterfeiting within this Law 6 H. 7.13 1 H. 31. Bro. Tit. Treas 27. Stamf. Pleas 3. D. 1 R. 3.1 Bro. Tit. Treas 27. Stam. pl. 3. D. What shall
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
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