Chattels of A forfeited Co. ◠Inst f. 233. which he had at the time of the Verdict given and this cannot be falsified by Traverse If the Party be arraigned upon the same Indictment before Justices of Gaol delivery and is by Verdict acquitted of the Felony and that he did not fly for the same yet he shall forfeit his Goods and Chattels Co. Litt. 373. b. But such a fugam fecit may be satisfy'd by matter in Law for if the Indictment be void or insufficient there is no forfeiture 3. Of Pardons Touching Pardons these particulars are worthy of observation Pardon in Latin is called Perdonatio 1. The Etymology of the word Pardon Co. 3. Inst f. 233. which is derived a per and dono per is a Preposition and in the Saxon Tongue for is orvor as to forgive is throughly to remit and fore-think is to repeat forbear is to bear with patience A Pardon is a work of Mercy whereby the King doth remit or forgive a felonious offence 2. The Description of a Pardon perpetrated against his Imperial Crown either before Attainder or Conviction or after A Pardon says one is twofold 3. The Division of Pardons one ex gratia Regis the other per Course del Ley by Course of Law Pardon ex gratia is that which the King in some special regard of the Person or other circumstance sheweth or affordeth upon his prerogative Royal or power Pardon by course of Law is that which the Law in equity affordeth for a light offence as Homicide casual when one killeth a Man having not such meaning West Part. 2. Symb. Tit. Indict sect 46. All Pardons of Treason or Felony says Coke are to be made by the King and in his Name only and are either general or special All Pardon 's either general or special are either by Act of Parliament whereof the Court in some Cases shall take notice or by the Charter of the King which must always be pleaded And these again are either absolute or under Condition Exception or Qualification General Pardons are by Act of Parliament Co. 3. Inst f. 234. and if any of these Pardons be general and absolute the Court must take notice of them though the party plead it not but would waive the same No particular Pardon be it at the Coronation or any other 4. The Allowance of Pardons or any offence or offences whatsoever that is absolute without any condition c. need any Writ of Allowance but when the Pardon is conditional by force of the Act of 10. Co. 〈◊〉 Inst f. 234 235. E. 3. c. 2. there a Writ of Allowance out of Chaucery testifying that the Condition is performed viz. surety found according to that Act may be had or the Party may plead the finding of Surety c. and vouch the Record Touching Allowance of Pardons I shall mention two Cases out of Crokes Reports First upon the 14 day of November 1640 Sir Matthew Mennes Cro. 3. part-Mints his Case Knight of the Bath who was convicted of Man-slaughter and had his Clergy and his burning in the hand was respited and now he pleaded his Pardon whereby the burning in the hand and all other Felonies committed by him alia malefacta before 8th of July last were pardoned and there was an especial Clause that he should not find Suretys for his behaviour and the Pardon bore date 31 of Octob. last And although there were many misdemeanors by him after the said 8th of July for which he deserved to be bound to the good behaviour yet he had his Pardon allow'd and was discharged from finding Suretys c. Secondly Sir Henry Linley who was indicted of Treason Cro. 1. part Linley's Case being brought to the Bar and demanded whether he could say any thing why the Court should not proceed upon the Indictment which was before Commissioners of Oyer Terminer he produced the Queens Pardon without any Writ of Allowance thereof And Pope Second Clerk of the Crown inform'd the Court that the Presidents were that in case of Treason it was used to allow of the Pardon but not in Felony whereupon the Pardon was allowed Thus much of Pardons 4. Of Restitutions All that is forfeited to the King by any Attainder c. he may restore by his Charter But if by the Attainder the Blood be corrupted that must be restor'd by Authority of Parliament and the reason wherefore the King may by his Charters pardon the Execution and restore the Party or his Heirs to the Lands forfeited by the Attainder and remaining in the Crown is for that no Person hath thereby any prejudice but to make restitution of his Blood the King cannot do it but by Act of Parliament because it should be to the prejudice of others And the Rules are Non poterit Rex gratiam facere cum injuria damno aliorum Quod alienum est dare non potest Rex per suam gratiam Quacunqne forma Princeps alienat salvum manet Jus tertii Aliorum honores aliis damnorum occasionem fierinon oportet Note Of Restitutions by Parliament some be in Blood only that is to make his Resort as heir in Blood to the Party attainted and other his Ancestors and not to any Dignity Inheritance of Lands c. and this is Restitutio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 secundum quid seu in partem And some be general Restitutions to Blood Honours Dignities Inheritance and all that was lost by the Attainder Co. 3. Inst 240. and this is Restitutio in integrum and Restituere generally nihil aliud est quam in pristinum statum reducere Thus now concluding this slender Treatise with the Kings Mercy that is convey'd to his Subjects by Pardons and Restitutions I humbly apply to our most Gracious Soveraign the words which Seneca did once intimate to the Roman Emperor § Occidere contra Legem nemo potest servare nemo praeter te The Author hath written somewhat touching the Satutes of Hue and Cry for the better and more speedy apprehension of such as are guilty of Robberies which should have been placed before under the Title of Robbery but it being by some inadvertence there omitted the Printer has thought it not much amiss to put it at the end of this Discourse by way of Appendix And thus the Author treats concerning the Statutes of Hue and Cry BY the Statutes of 13. E. 1. of Winton c. 1.28 E. 3. c. 11 and 28.1 c. 17. 13. E. 1. c. 1. the Country shall answer if the Robbers be not taken By the Statute of 27. Eliz. c. 13. are enacted these particularities § 27. Eliz c. 13. 1. That the Inhabitants of a hundred shall be chargeable with the moyety where a fresh Suit shall cease 2. That the Clerk of the Peace shall prosecute the Suit which Suit commenced shall not cease upon the death or remotion of the said Clerk of the Peace 3. A Remedy
only Murther the reason of this diversity is for that the one is in subjection and oweth Obedience and not the other The wife poysoneth an Apple to the intent to poyson a stranger therewith Cromp. 20. and laid it to that purpose in a secret place and the Husband by chance eateth of it and dyeth thereof within a Year and a day this is petit Treason in the Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing Plowd Com. f 474. to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant Co 3 Just f 20. in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer The Womans Lawyer lib. 3. sect 44. the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non factum sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man stayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3.17 Book Treason 6. A Bastard killeth his Mother Crompt ' 21. this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat Dalisons Rep. 1. Mar. 1. and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more hainous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore 〈◊〉 Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane gallo gallinaceo vipera simia deinde in more profundum Culleus jactetur D. 48.9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue ◠Murder Co Litt 287 b Stamfords Plees of Crown Lib 1 or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis Quaere 1 giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound Resp whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit D 47 253 voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act Qu 2 A man may be so As
The same Law is of tiling an House and a tile fall and killeth one So if one trained Souldier hurteth another in skirmish of which hurt he dies this being by misadventure is no felony But in any of these Cases before put if a man be hurt or maimed only an Action of Trespass lieth against him that was the cause of the hurt or maime though it be done against the parties mind and will because in Civil Trespasses and injuries that are of an inferior nature the Law doth rather consider the damage of the party wronged then the mind of him that was the wrong doer Vide Hobarts Reports Weaver against Ward f. 134. But to return from whence I have made a digression It is to be considered whether he that commiteth this Homicide by misadventure in doing a lawful Act and likewise without an evil intent for if the Act be unlawful or done with an evil purpose it will prove murther 1. Touching an unlawful Act If a man shoot at a Cock or Hen or any fowl of another man and the arrow by mischance kill a man this is said to be murther for the Act was unlawful So if a man doth beat another and with intent not to kill him yet if the party be killed by this battery it is felony So if two are fighting together and a third cometh to part them and is killed by one of them two without any malice fore-thought 11. H. 7.23 a. yet this is murther in him and not Homicide by Chancemedley or misadventure because that they two that fought together were in doing of an unlawful Act. And if they were met with prepensed malice the one intending to kill the other then it is murther in them both 2. Touching an evil Intent If a man knowing that many people come in the street from a Sermon throw a stone over a wall intending only to fear them or to give them a light hurt and thereupon one is killed this is murther for he had an evil intent though that intent extended not to death and though he knew not the party slain Note though the killing of a man by misadventure Co. 3. Inst f. 57. or by chance be not felony Quia in maleficiis voluntas spectatur non exitus D. 48.8.14 yet the party guilty shall forfeit therefore all his Goods and Chattels to the intent that men should be cautious as they tend not to the effusion of mans blood I shall conclude this learning touching Homicides with somewhat appertaining to Physicians and Chirurgians If one that is of the mystery of a Physician take a man in Cure Co. 3. Just 257. and giveth him such Physick as within 3 dayes he dies thereof without any felonious intent and against his will it is no Homicide But Briton cap. 5. De Homicides saith that if one who is not of the mystery of a Physician or Chirurgion take upon him the Cure of a man and he dieth of the potion or Medicine this is saith he Covert felony In the Civill Law it is thus Medico imputari eventus mortalitatis non debet D. S 18.6.7 Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitia culpae adnumerontur Just 4.3.7 veluti si Medicus ideo servum tuum occiderit quia male secuerit aut perperam ei medicamentum dederit Thus much of the Pleas of the Crown that have relation to the life of man I proceed now to those that respect the body and members 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape Battery 1. Of Battery is when a man assaulteth and beateth another this is against the Law and Peace of the Realm which ordaineth that no man shall be his own Judge or revenger of his own private wrong but shall leave this to the Censure of the Law And this is agreable to the Roman Laws Cod. 3.5 1. Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debere In re enim propria iniquum admodum est alicui licentiam tribuere sententiae D. 50.17.176 Again Non est singulis concedendum quod per Magistratum publiâ—â— possit fieri ne occasio sit Majoris tumultus faciendi wherefore he that is so beaten may indict the other party who upon it shall be fined to the King But some there are that may in a reasonable and moderate manner chastise correct and beat others 1. In respect of power proceeding from the Law of nature as Parents may correct their own Children 2. In respect of Authority oeconomical as the Master may chastise his Servant or Apprentice 3. In respect of power arising from Civil Justice as the Gaoler and his servant the unruly prisoners the Officers him that is arrested and will not otherwise obey Also a man may justify the beating of another in defence of his own person or of the person of his Wife Father Mother or Master But when any is assaulted or beaten in Church or Churchyard Cro. 2 part Frances v. it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim 2. Of Mahim Co. Lit. 126. a. F. 288. a. or maime Mahemium cometh of the old French Mehaigne a Maime a corporal hurt whereby a man loseth the use of any member The Canonists call it Membri mutilationem or Mayhem is where by the wrougful Act of another any member is hurt or taken away whereby the party so hurt is made unperfect to fight As if a bone be taken out of the head or a bone be broken in any other part of the body or foot or hand or finger or joynt of a foot or any member be cut or by some wounds the sinews be made to shrink or other member or the fingers made crooked or if any eye be put out or the fore-teeth broken or any other hurt in a mans body by means whereof he is made the less able to defend himself or offend his enemy But the cutting of an ear or * Note that to cut maliciously the nose of another is made felony by a Law enacted in the Reign of his now Majesty nose or breaking the hinder teeth or such like is no Mayhem because it is rather a deformity of the body then diminishing of strength and that is commonly tryed by beholding the party by the Justices And if the Justices stand in doubt whether the hurt be a Mayhem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause But whether a man may be indicted for maiming himself Co. Lit. 127. a b. To this it answered that he may As it appears in the Case of one Wright anno 11.
Jac. in the County of Leicester who being a yong strong and lusty rogue to make himself impotent thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to strike off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber homo suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur D. 9.2.13 By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part Co. 3. Instit 118. as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24. v. 18 19.20 Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis patitur quod alteri fecit This offence of May 'em is under all felonies deserving death Co. Litt. 127. a. and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape 3 Of Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders Vide 11. Hen. 4. c. 13.1 E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will Co. Litt. 123. b. or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will Co. 3. Instit f. 60. or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished Stamf. 24. conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict If against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost her beak Tallons and train And the Virgin had in recompense all his Land and money by the Kings Warrant This was in the King Athestans dayes But in Bractons time it seemeth that these kind of Ravishers were other wise punished they lost their eyes and privy members Co. Litt. 123. b. 29. H. 6. Tit. Coron 17. Bracton lib. 3. f. 147. The Civil Law D. 48.6.6 Punitur Lege Julia de vi publica qui puerum vel foeminam vel quemquam per vim stupraverit Hitherto of the offences that touch the body and members viz. Battery Mayhem and Rape 3. Of those Offences that dispoil men of their property Those Crimes or Pleas of the Crown that deprive others of their property are two § Furtum or Theft and Burning of Houses 1. Of Theft In Theft are to be considered 3. things the Etymology of the word Furtum the definition and its several kinds Furtum a furvo id est 1. The Etymology nigro dictum Labeo ait quod clam obscuro fiat plerumque nocte vel a frraude ut Sabinus ait vel a ferendo auferendo b. 47.2 1. Just 4.1 2. vel a Groeco sermone qui 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant fures Imo Graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est a ferendo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dixerunt Bracton thus defines it 1. The definition Furtum est secundum Leges contrectatio rei alienoe fraudulenta cum animo furandi invito illo Domino eujus res illa fuerit Lib 3. f. 150. The Civilians thus Just 4 1.1 D. 4.7.2.1.3 Furtum est contrectatio fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus ejus possession sve quod lege naturali prohitum est admittere That Theft is forbidden by the Law of nature is manifest by these Authors 1. Cicero In vita sibi quemque petere quod pertineat ad usum non iniquum est alteri surripere jus non est Theft generally taken 3 Its species or kinds doth comprehend Larceny Robbery Burglary and Pyracy of these in order 1. Of Larceny Larceny by the Common Law is the felonious and fraudulent taking and carrying away by any man or woman Co. 3. Inst 107. of the meer personal goods of another neither from the person nor by night in the house of the owner This Larceny is twofold the one so called Simply and the other Petit or Little Larceny The first is where the thing stollen exceeds the value of 12. pence and that is felony The other which is called little or petit Larceny is where the thing stollen doth not exceed the value of 12. pence and that is not felony From the Description and Division of Larceny I proceed to propose these following Queries with Resolutions on them Whether Larceny can be committed Quaest where there is a Bailement or Delivery by the owner of the thing Larceny is perpetrated by an actual taking Resp for an Indictment Quod felonice abduxit is not good because it wanteth coepit By taking and not Bailement or delivery for that is a Receipt and not a taking and therewith agreeth Glanvil Lib. 10. c. 13. Furtum non est ubi initium habet detentionis per dominum rei But this Rule of Glanvil has its exceptions as appears by these Cases in our Law Co. 3. Inst 107.13 E. 4.9 If a Carryer hath a bale or pack of Merchandise delivered unto him to carry it to an appointed place and after he take the whole pack animo furandi this is Larceny for the delivery had taken his effect and the privity of the Bailement is determined so if he open the pack and take any thing out * Furtum sine assectu furandi non committitur Just 4.1.7
si minus idoneus sit levius castigatur Si fortuito incendium factum sit D. 49.9.11 venia indiget uisi tam lata culpa fuit ut Luxuriae aut dolo sit proxima Hitherto of criminal Pleas that are perpetrated against the King and Common-wealth mediately but principaliter in singulas personas I proceed to those that immediately touch the King and his Crown and they are 1. High Treason Crimen laesae Majestatis Stamford telleth us that the King is the Preserver nourisher and defender of all his People and that by his great travel study and labour his People only enjoy their Lives Lands and Goods And as the body of Man cannot live without a Head but will fall to the ground so the Realm cannot be governed without a Head which is the King Agreable to that of Seneca Ille est vinculum per quod Respublica cohaeret c. And therefore we his loving Subjects are obliged to watch for that him wakes for us And primum virtutis opus est servare servantem caetera If so what an abominable thing must it be to be a violator of Kingly Majesty Crime de Masesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium acousationum complementum And in the Civil Law it is said thus D. 48.4.1 Proximum Sacrilegio crimen est quod Majestatis dicitur id est crimini quo divina Majestas pulsatur High Treason does extend to several parts or kinds viz. Death to Violation to Leaving of Warr to Adhering to the Kings Enemies to Counterfeiting the Great Seal Privy Seal and the Kings Coyn to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn of these several parts in their order 1. Touching Death 1. To compass or imagine the death of the King is Crimen laesae Majestatis as appears by Britton and Fleta Briiton thus Grand Treason est a compasser nostre mort Fleta hath this words Si quis mortem Regis ausu temerario machinatus fuerit c. quamvis voluntatem non perduxit ad effectum To depose the King or to take the King by force and strong hand and to imprison him untill he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this is upon the matter to make the King subject and to despoil him of his Kingly Office of Royal Government And so it was resolved by all the Judges of England Hill 1. Jac. Regis in the Case of the Lord Cobham Lord Gray Watson and Clarke Seminary Priests So if divers conspire the death of the King and the manner how and thereupon provide weapons powder poyson assay harness send Letters c. or the like for execution of the Conspiracy this is a sufficient overt act to prove the compassing and imagination of the Kings death If any man shall attempt to make himself so strong that the King shall not be able to resist him he is guilty of Rebellion In the like manner the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing For a Rebel will not suffer that King to live or reign which may afterwards punish or revenge such the treason or Rebellion These things are confirmed 1. by the Imperial or Civil Law Vide D. 48.4.1 ad Legem Juliam Majestatis whereby to do any thing against the safety of the Prince is holden to be treason 2. By the force of reason because it cannot be that which hath once given Law to the King should ever permit that the King should recover his former Authority or live least at any time he should recover it 3. By examplss drawn out of our English History as of Edward the Second and Richard the Second who being by force of Armes gotten by Subjects into their power were not long after deposed also and made away The Civil Law Quamvis regulariter ratione solius consensus nemo ad poenam obligatur sed secuto demum actu Aliud tamen obtinet in crimine in Principe in quo voluntas punitur sed intellige talem voluntatem cum qua conjunctum est initium facti i. e. factio vel conjuratio Sola enim nuda voluntas puniri nequit Note that there is difference taken by our Law between felony and High treason for it is not felony unless there be some act done Non efficit conatus nisi sequatur effectus But if one compass or imagine the death of the King who is the Head of the Common-wealth and declares his compassing or imagination by words or Writing it is High treason Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst f. 5.12 H. 8.36 b. 13. H. 8.13 Bendlones Rep. Smith v. Spurle And therefore these following words were adjudged High treason viz. If the King dye without Issue Male that he would be King and also the party arraigned spake that if the King should commit him to Prison that he would kill him with his dagger So one Crobagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain Cro. 3. part Crohagans Case f. 332. used these words I will kill the King innuendo Dominum Carolum Regem Angliae if I may come unto him and that in August 9. Car. Regis he came into England for the same purpose To this he pleaded Not-guilty and was tryed by a Jury of Middlesex and it was directly proved by two Merchants that he spake these words at Lisbone in Spain in great heat of speech with Captain Baske and added these words Because he is an Heretick and for that his traiterous intent and the imagination of his heart is declared by these words it was held High treason by the course of the Common Law and within the express words of the Statute of 25. E. 3. And he coming into England and being arrrested by Warrant for this cause most insolently put his finger into his mouth and scornfully pulling it out said I care not this for your King c. all which speeches and actions though he now denyed the Jury found him guilty whereupon he had Judgment accordingly He confessed that he was a Dominican Fryer and made Priest in Spain And although this and his returning into England to seduce the Liege-People were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said he would not proceed against him for that cause but upon the Stat. of 25. E. 3. of Treason So one Henry Challercomb was indicted of Treason for words and was found guilty and executed So John Williams was also indicted found guilty and executed for writing a Treasonable Book called Balaam Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports It is commonly
said That bare words may make an Heretick but not a Traitor without an overt Act And therefore to make compassing by bare words or sayings High treason it must be by some particular Statute such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13.1 2. Phil. and Mar. c. 9.1 Eliz. c. 6.13 Eliz. c. 1. 14. Eliz c. 1. but all these are either repealed or expired Co. 3 Inst f. 140. yet compassings or imaginations against the King by word without an overt Act is an High misprision Note that there is a Law made for the Preservation of His now Majestie 's Person and Government 13. Car. II. Reg. c. 1. against Treasonable and seditious practises during his natural life which God long continue proceeding from Printing Writing Preaching or malicious and advised speaking Note further that to calculate or seek to know by setting of a figure or Witchcraft how long the King shall Reign or live Co. 3. Inst f. 6. is no Treason for it is no compassing or the imagination of the death of the King within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Q. Elizabeth which before was punishable by fine and imprisonment But Scipio Gentilis in his first Book De conjuratione sayes De vita Principis inquirere praesertim per Astrologos capitale esse neque hoc solum sed etiam de ea dubitare vel desperare pro crimine Majestatis bahitum esse si ea desperatio indiciis esset aliquibus patefacta Thus much of the King himself If any do compass or imagine the death of the Queen Confort or Prince 25. E. 3. c. 2. De proditionibus the Kings Son being Heir apparent to the Crown for the time being and declare it by some overt Act the very intent is Treason as in case of the King himself If a man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices assigned to hear and determine 25. E. 3. c. 2. being in their places doing their Offices And the reason wherefore it is Treason in these Cases is because sitting judicially in their places that is in the Kings Courts and doing their Office in administration of Justice they represent the Kings Person who by his Oath is bound that the same be done 2. Touching violation or Carnal knowledge To violate or to carnally know the Kings Companion 25. E. 3. c. 2. or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir apparent is High treason The reason that the eldest Daughter only is mentioned in Stat. of 25. E. 3. is for that for defaut of Issue Male she only is inheritable to Crown 3. Touching War To levy War against our Lord the King is High treason 25. E. 3. c. 2. This was so by the Common Law for no Subject can levy War within the Realm without Authority from the King for to him it only belongeth F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian is extant the Constitution of Valentinian and Valens Nulli prorsus nobis insciis atque inconsultis quorumlibet Armorum movendorum copia tribuatur Huc pertinet illud Augustius Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi Belli auctoritas atque Consilium penes Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors Co. 3. Inst f. 9. or against any Statute or to any other end pretending Reformation this is levying of War against the King because they take upon them Royal Authority which is against the King So if any with Strength and Weapons invasive and defensive doth hold and defend a Castle or Fort Co. 3. Inst f. 10. against the King and his Power this is levying of War against the King within the Statute of 25. E. 3. One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark Cro. 3. part Bensteds Cafe f. 583. wherem all the Justices and Barons were in Commission and present at which time upon Conference with all the Justices it was resolved First that going to Lambeth House in warlike manner to surprize the Arch-Bishop who was a Privy Counsellor it being with Drums and a multitude as the Indictment was to the number of 300. persons was Treason And Secondly It was resolved by ten of the said Justices seriatim that the breaking of a Prison wherein Traitors be in Durance and causing them to escape was Treason although the Party did not know that there was any Traitors three upon the Stat. of 1 H. 6. c. 5. And so to break a Prison whereby Felons escape is felony without knowing them to be imprisoned for such offence Note A Compassing or Conspiracy to levy War is no Treason for there must be a levying of War de facto 4. Touching Adhesion to the Kings Enemies If a man be adherent to the Kings Enemies in his Realm 25. E. 3. c. 2. giving to them aid and comfort in the Realm or elsewhere it is High treason Having given you the words of the Stat. 25. E. 3. I propose these Queries Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy Qu. 1 To deliver or surrender the Kings Castles Resp or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3 Whether the Aiding or succouring of a Rebel beyond Sea be Treason Qu. 1 A Resp is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream Co. 3. Inst f. 10. 13. Eliz. Dyer f. 298. whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri Qu. 2 qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England Resp and taken shall be either executed by Marshal Law or ransomed Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here 13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to
2 Petit Treason What it is 3 How many ways it happens 3 4 What may be said Petit Treason in a Servant 4 Execution of a Servants Act hath a retrospection to the Original cause Ib. What may be said Petit Treason in a Wife 5 Parricide whether Petit Treason or not 6 7 Poyson How many ways a Man may be poysoned 35 36 Piracy The Etymology of the word Pirat 70 71 Piracy where antiently Treason where not Ibid. It alters not property unless it be in Market overt Ib. Where there shall be no corruption of blood in case of piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s several sorts in our Law in the Jewish and Romane Laws 114 115 116 117 Circumstances observable relating to punishments 120 Principals In Treason all are principals 123 Rules touching principals Ib. Where a Man may be principal though he be not present at the Act. Ib. Where a Man may be principal as well before as after though he be absent at the doing of the fact 124 Where the being present and abetting an offence makes all principals though the offence be personal Ibid. Where the Attainder of an Accessary depends upon the Attainder of the principal 128 Pain Fort Dure In what cases a Man that stands mute shall have Judgement of Pain Fort and Dure and in what not 150 Where the Judgement of Pain Fort and Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 159 How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83 84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery It s definition 60 The Difference betwixt a Robber and a Cut-purse 63 What shall be a taking in case of Robbery and what shall be said a taking from his Person 63 64 65 The Thieves reception only may make a Robbery 64 Routs The description of a Rout. 98 The difference between a Levying of War and committing a great Rout c. 100 101 Rumours The punishment before the Conquest and what since of those that are authors of false Rumours 110 They were heretofore very dangerous to our Kingdom Ib. Se Defendendo What Homicide se defendendo is 44 Where a Man ought to give back to prevent Homicide where not 45 46 Sacrilege 68 69 70 Striking in the Kings Court. A diversity betwixt a stroke in or before the Courts of Justice and the Kings Courts where His Royal Person resideth 99 Where to strike in Westminst Hall or the Kings Palace is a great Misprision the punishment of it 97 98 Theft The Etymology of the word Furtum 55 Its Definition Ib. Forbidden by the Law of Nature Ib. The several sorts of Theft Ib. Treason It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 To compasse or imagine the death of the King High Treason 76 What are sufficient overt Acts to prove the imagination of the Kings death Ib. 77 In every rebellion by Interpretation of Law there is a machination against the Life of the King 77 A diversity betwixt Treason and Felony 78 Where words or Writing are sufficient overt Acts of Compassing the Kings death Ibid. Where words may make a Heretique but not a Traytor 80 No words are Treason unless made so by some particular Statute Ib. No Treason at this day but what is made by the Stat. of 25 E. 3. Where to set a figure to know how long the King shall live or Reign is no Treason Ib. Where to practise to depose the King to imprison him or to take him into their power shall be Treason 76 77 The compassing or imagining the death of the Queen or Prince is High Treason 81 Where slaying the Chancellor c. shall be High Treason Ib. Carnal knowledge of the Kings Consort the Kings Eldest Sons Wife or of the Kings Eldest Daughter Treason Ib. What shall be said Levying of Wartomake it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit Treason Ib. Where the killing of an Embassador was adjudged High Treason 89 An Embassador shall loose the Priviledges of an Embassador for committing High Treason Ib. A Foreign Prince by residing here may commit Treason 90 91 The Judgement in Treason for Counterfeiting Mony 86 Verdict The signification and derivation of the word 133 Several kinds of Verdicts Ibid.