reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate 3. All Treason includes Felony therefore if the Indictment want proditoriè a Pardon of all Felonies discharges it Now concerning the kinds of High Treason Compassing and imagining the death of the King Queen or Prince and declaring the same by some open Deed. I. What is a Compassing the death Declaring by an open act a design to Depose or Imprison the King is an Overt act to manifest the compassing of his Death II. What a King 1. A King before his Coronation a King within this Statute when the Crown descends upon him 2. A King de facto and not de jure a King within this Act and a Treason against him is punishable though the right Heir get the Crown 3. A Titular King that is not Regnant as the Husband of the Queen not a King within this Act and the Stat. 1 2. Ph. Ma. c. 10. but the Queen is 4. The right Heir to the Crown yet not in Possession therefore is not a King within this Act. III. What the King's Wife It extends not to the Queen Dowager IV. What the eldest Son and Heir of the King within this Act The second Son after the death of the eldest within the Act. The eldest Son of the Queen Regnant within the Statute The Collateral Heir apparent as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act yet Quaere V. What an Overt act requisite to make such comparing Treason 1. An Overt act must be alledged in every such Indictment proved 2. Compassing by bare words is not an Overt act as appears by many temporary Statutes against it 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act yet now it has been adjudged that words are an Overt act and the Law taken accordingly 3. Conspiring the death of the King and providing weapons to effect it or sending Letters to second it assembling People to take the King into their power Lord Cobham's writing Letters to a Foreign King to invade an Overt act Conspiring to levy War no Overt act unless levied because relates to a distinct Treason II. Treason levying War against the King 1. Conspiring or compassing to levy War without a War de facto no Treason but if a War levied the Conspirators Traytors as well as the Actors This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life 2. Raising a Force to burn or throw down a particular Inclosure only a Riot but if it had been to have gone from Town to Town and cast in all Inclosures Bradshaw's case or to change Religion or to inhance the Salaries of Labourers a levying of War because the Enemy publique 3. Joyning with Rebels pro timore mortis and recessed quam cito potuerunt ad Castles no Treason 3 Inst 10. 4. Holding a Force or Castle against the King's Force a levying of War III. Treason adhering to the King's Enemies giving them Aid within the Land and without 1. What adhering Giving Aid and Comfort to them surrendring the King's Castle for reward 2. What an Enemy The Subject of the King becoming a Rebel he that out of the Realm succours him this not adhering to an Enemy within the Clause An Enemy coming hostilely into England shall be dealt with as an Enemy executed by Marshal Law or ransomed but a Subject assisting shall be dealt with as a Traytor The Scots invading England in the Queens time adjudged Enemies though Scotland then in Amity Lord Herris Case 3 Inst p. 11. 3. Within the Land or without how that Foreign Treason shall be tried 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears the King's Signiture may be either to the Commission or Warrant thereof Treason done in Ireland is within that Statute Perrot's Case Per Stat. 28 H. 8. c. 15. Treason upon the Sea inquirable and triable by Commission in any County at Common Law it must be before the Lord Admiral IV. Treason Violation 1. The King's Wife extends not to a Dowager if she consent 't is Treason in her 2. The Prince's Wife same Law as before 3. The King 's eldest Daughter then living Thus far of Treason that relates to the King's Person and nearest Relations wherein generally 1. There must be an Overt act to manifest the Evidence and word of mouth is Overt act as it has been adjudged vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof and not by conjectures 3. He must be lawfully attaint thereof either by Confession or by his Peers in his life time And therefore if a Person be slain in open War he forfeits nothing neither can he be attaint in such case but by Parliament Thus far of Treasons relating to the King immediately now follows that which is interpretative Treason Killing the Chancellor Treasurer Justice of one Bench or other Justice in Eyre or of Assise or Oyer and Terminer in their place doing their Offices 1. This extends but to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament 2. It extends to those only during their Office 3. It extends only to killing not wounding without death But by Stat. 3 H. 7. c. 14. compassing to kill the King or any of his Councel made Felony Counterfeiting the Great Seal or Privy Seal 1. It must be an actual counterfeiting thereof compassing to do it no Treason 2. Affixing the Great Seal by Chancellor without Warrant no Treason 3. Fixing a new Great Seal to to another Patent is a great Misprision but no Treason nor a Counterfeiting within this Statute 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the Kings Coyn this was Treason at Common Law and Judgment only as of Petty Treason But whereas Clipping c. is made Treason by subsequent Statutes the Judgment is to be hang'd drawn and quartered because introductive of a new Law Herein considerable 1. What shall be a Counterfeiting Clipping Washing and Filing of Mony for lucre or gain any of the proper mony of the Realm or of other Realms allowed to be current by Proclamation not within this Statute but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower 2. What is Mony
Captains without license 2 E. 6. c. 2. idem Clergy excluded Marrying a second husband or wife the former living except 1. The man under fourteen or the wife under twelve at time of first marriage and not agreeing after first Espousals may marry a second husband or wife 2. A man or wife absent above seven years second marriage no Felony If beyond Sea then notice of life if in England then without notice 3. After a Divorce though à mensa thoro only 4. After anullity declared of second marriage by Spiritual Court Offenders have Clergy 1 Jac. c. 31. for going with a Plague sore but this discontinued Goaler compelling Prisoner through Duress to become Appelor Felony whether Appellant be acquitted or not Coining or bringing in and uttering Scotch money and 2 H. 6. c. 9. payment of blanks Offender hath Clergy Transportation of Silver or Importation of false money made Felony Offender hath Clergy Exportation of Wooll or Woolfells other than to the Staple at Calais Stealing Falcons or concealing the same after Proclamation Felony Offender hath Clergy Congregations of Masons to prevent Statutes of Labourers but this Obsolete because of the Statute 5 El. the Acts to which it relates are repealed Receiving retaining or maintaining a Jesuit or Popish Priest knowingly Clergy excluded Egyptians above fourteen years remaining here a moneth and 5 El. c. 20. takes away Clergy Felony refusing to make Abjuration and after Abjuration not to depart in some case Clergy excluded Dangerous Rogues adjudged to the Gallies and returning without license Felony but Offender hath Clergy but branded Rogue Felony and no Clergy Forging a Deed after former Conviction If a man be convict or condemned of publishing a forged Deed and after he forge a Deed this is Felony If the offence were after a former but before conviction thereof no Felony Clergy ousted Sending sheep beyond Sea after former conviction Clergy allowed Servants after decease of Master riotously spoiling Goods c. Offender shall have Clergy Servants imbezelling Goods of Master delivered to them Felony but the Statute that took away Clergy being Repealed by 1 E. 6. c. 12. they may now have Clergy Cutting Powdike Felony Offender hath Clergy Detaining persons in Cumberland against their will and giving or receiving blackmail c. Felony without Clergy Misprision of Treason NOW we come to Offences Criminal but not Capital and those of two kinds 1. Offences by Common Law 2. Offences against Statutes Offences against Common Law not Capital are either greater Offences or lesser Greater and those come under name of Misprision and those again of two sorts Negative in not doing that they ought or of Omission Positive in doing some great Misdemeanour they ought not The Negative Misprision 1. Misprision of Treason All Treason includes Misprision and Concealing of any Treason is declared Misprision only by Statute 1 2 P. M. c. 10. But this in case of bare knowledge and assent it is Treason and though Treason by Statute yet the concealing thereof is Misprision of Treason Every man therefore that knoweth Treason must with all speed reveal it to King his Privy Council or Magistrate He that receives and comforts a Traitor knowingly be it a counterfeiter of Coin or other is a Principal Traitor and not only guilty of Misprision Abingdon's Case against Opinion in Dyer 296. Conier's Case The Judgment in case of Misprision of Treason is Imprisonment during life forfeiture of Goods forfeiture of profits of Land during life 2. Misprision of Felony is either by Common Law or by Statute By the Common Law a concealment of Felony or procurement of the concealing thereof The Punishment 1. A common Person Fine and Imprisonment 2. An Officer as Sheriff Coroner Imprisonment for a year and Ransom at King's pleasure by Stat. W. 1. c. 9. By the Stat. 3 H. 7. c. 1. 33 H. 8. c. 6. one knowing of an unlawful Assembly and not discovering it within 24 hours Concealment of Jurors v. Stat. 3. Theft-boot which is more than a bare Misprision of Felony and is where the Owner doth not only know the Felony but takes his Goods again or other Amends not to Prosecute But taking the Goods barely no-offence unless he favour the Thief The punishment hereof is Ransom and Imprisonment Misprision Positive or of Commission 1. Discovery by one of the grand Inquest of the person Indicted or by Evidence against them Misprision punishable by Fine and Imprisonment but no Felony 2. A person disswading Witnesses from bringing in Evidence against a person is no Accessary but a great Misprision punishable by Fine and Imprisonment 3. Rescuing a Prisoner from Barr of B. R. Canc. B. C. or Exchequer a Misprision for which a party shall lose his Hand Goods Profits of Lands during Life perpetual Imprisonment 4. If a man strike sitting the Courts at Westminster in presence of Courts like Judgment 5. If in presence of those Courts or before Justices of Assize or Oyer Terminer a person draws his Sword upon any Judge or Justice though he strikes not or strike another like Judgment 6. Per Stat. 33 H. 8. c. 12. striking in the King's presence drawing blood loss of hand perpetual Imprisonment Fine and Ransom 7. By St. 14 El. c. 3. forging of Money not current Misprision of Treason 8. Stranger uttering false Money made within this Realm known to be Counterfeit 3 H. 7.10 9. A Lord of Parliament departing from Parliament 3 E. 3. And hither we may refer Maihem which though it be a particular Crime for which Appeal lieth yet it is not Felony of death Cutting off the hand or striking out a tooth Maihem but not cutting off the ear The Judgment is only Fine Dammages and therefore if recovery in Trespass it is a good barr in Appeal of Mayhem Offences of an Inferiour nature are either such as are committed by an Officers neglect of duty as Bribery Extorsion Or such as refer to a common person without relation to Officers and those reducible to three kinds 1. Breaches of publick Peace and therein 1. Of Affrays 2. Of Riots 3. Of Forcible Entries 4. Barretries 5. Riding armed 2. Deceipts and Cozenage 3. Nusances Decay of Bridges Decay of High-ways Inns and Alehouses Breach of the Peace AFFRAY If weapon drawn or stroke given or offered but words no Affray menace to kill or beat no Affrays but yet for safeguard of Peace Constable may bring them before Justice In Affrays considerable 1. What a private man may do Private persons may stay Affrayers till heat over and deliver them to Constable If a person hurt another dangerously private person may arrest the Offender and bring him to Goal or next Justice 2. What by a Constable 1. Affray in presence of a Constable he ought to do his endeavour to suppress it otherwise finable 2. If an Affrayer fly to a house or if
of the Grand Jury by putting and taking out Names and the Sheriff is to return the Pannel so reformed But this takes not away former Statute of 11 H. 4. nor alters it By Stat. 33 H. 6. c. 2. Special provision is made for quality of Indictor in Lancashire 3. Of which things they can Enquire Regularly they can Enquire of nothing but what ariseth within the Body of the County for which they are retorned And therefore if an Indictment for scandalous words or other matter transitory be found upon not Guilty pleaded thereunto if upon Evidence it appear to be spoken in another County Defendant is not Guilty And therefore where stroke was in one County and death in another he could not be Indicted where party died But for a Nusance in one County to another a Jury in County where Nusance is committed may Indict But divers Statutes have introduced alteration of the Law in some Capital Cases 28 H. 8. c. 15. Treasons Felonies Robberies Murders and Confederacies upon the Stat. may be enquired tried heard determined and judged in such places as shall be limited by King's Commission to be directed for the same A Treason done out of the Land it hath been held that it may be enquired of and tried where Offender landed but to amove the Question by Stat. 35 H. 8. c. 2. all Treasons and Misprisions or concealments of Treasons done out of England may be enquired heard or determined by Justices of King's Bench by persons of the County where Bench sits or before Commissioners and in such Shires as shall be appointed by King's Commission and by good men of the same Shires as if the Treasons c. had been done in the same Shires where enquired Upon this Statute 1. If Bench remove after Indictment into another County Trial shall be by persons of first County 2. The King writing his name to Commission or putting his sign to the Warrant sufficient 3. Ireland is out of the Realm to this purpose The Statutes stand unrepealed by Stat. of 1 Ma. c. but the Stat. of 32 H. 8. c. 4. for trial of Treason in Wales repealed by 1 Ma. Again by Stat. 2 3 El. c. 24. a man striken in the County of D. dies in the County of S. or Accessary in one County to Felony in another County may be indicted and tried in County where death was for Felony committed per Principal but it must be laid according to truth If Enquest conceal any matter presentable before Justice of Peace they may Impannel Inquest to enquire of such concealment and amerce Concealers by Stat. 3 H. 7. c. 1. 4. Before whom found Of this before 5. The form of Indictments 1. By Statute 4 H. 4. c. 2. Insidiatores viarum depopulatores to be omitted in Indictments and if inserted yet Clergy not thereby taken away 37 H. 8. c. 8. Indictment what to be quashed for want of words viz. gladiis baculis cultellis 2. At Common Law Want of certainty vitiates want of year day and place Indictment for Escape of one taken on suspicion of Felony without shewing what Felony Mal. Indictment for receipt of a Felon without shewing who secured Mal. Indictment for making Alchimy ad instar pecuniae Regis without shewing what money Mal. Indictment quod cepit or furatus est without saying felonice abduxit equum without saying cepit or carnaliter cognovit without saying Rapuit or Bulglariter when it should be for Burglariter or if Felony before Justice of Peace without saying necnon ad diversas felonias if in murder with a Gun without saying percussit Mal. Indictment supposing the stroke 1. Augusti death 2. Augusti sic felonice murdravit 1. Augusti Mal. but sic murdravit modo forma praed ' or praed ' 1. Augusti Bon. Indictment quod dedit mortalem plagam circa pectus Mal. but in sinistram partem ventris circa Bon. Indictment de morte cujusdam ignoti or felonice cepit bona c. cujusdam ignoti or domus Ecclesiae Bon. 1. Proof upon Indictments In case of Treason or Misprision by the Stat. 1 E. 6. c. 12. 5 E. 6. c. 7. there ought to be lawful Accusers 1. Eye witnesses upon every Indictment An Accuser by hearsay is no lawful Accuser within this Statute The necessity of such proof upon Indictment of Treason is not taken away by Stat. 1 2 Ph. Ma. c. 11. but only in the case of counterfeiting Coin But these Witnesses need not be present with the Indictor but they may send to them in writing Process NOW we come to those Proceedings that are common for most part both to Appeals and Indictments And 1. Of Process 1. Upon an Indictment or Appeal of death but one Cap. and then Exigent but in case of Robbery then by Stat. 25 E. 3. c. 14. two Capias's then Exigent but this Stat. extends not to death 2. Indictments or Appeals of Trespass or any Felony and Trespass against a person of another County after one Cap. a second Cap. with Proclamations shall be granted to the Sheriff of that County wherein he is supposed to be conversant before an Exigent shall issue per Stat. 8 H. 6. c. 10. And upon this Statute Process shall go to a County Palatine and if in the Indictment he be stiled nuper de and so in several Counties then second Cap. shall go to every County Principal and Accessary IF one present did nothing but yet came to assist party if need or if one hold the party while Felon strike him or if one present his weapon to the other that strikes for they are praesentes auxiliantes or confortantes But if one come casually not of the Confederacy though he hinder not the Felony he is neither Principal nor Accessary although he apprehend not the Felon In some cases a person absent may be Principal 1. He that puts poison into any thing to poison another though not present when taken and so it seems are all those that are present when the poison is so infused and consenting thereto 2. If upon the same Ground or in the same House though not within view of Fact when many come to do an unlawful act See before Lord Dacres and Budsey's Case in Murder and Robbery 3. By special Act of Parliament or upon the Stat. 3 H. 7. c. 2. 8 H. 6.12 Accessary before he that commandeth or assenteth to the committing of a Felony and is absent when done 1. In Manslaughter there can be no Accessary before because done without premeditation 2. Where Receipt to make an Accessary must be knowing him to be such But if a man be Attaint of Felony in the County of A. the Law presumes notice thereof in the same County therefore the receipt of him in the same County seems Accessary contrary if in another Videtur cognitio requisite in utraque 3. Receipt of a Felon that hath given Bond to appear at next Session
Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos