Selected quad for the lemma: war_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
war_n	death_n	king_n	treason_n	2,761	5	9.5559	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44117	The learned readings of Sir Robert Holbourne, Knight upon the statute of 25 Edw. 3. cap. 2, being the statute of treasons : to which is added cases of [brace] prerogative, treason, misprision of treason, felony, &c. / written by the Right Honourable Francis Bacon ... ; and now reprinted for publick benefit.	Holborne, Robert, Sir, d. 1647.; Bacon, Francis, 1561-1626. Cases of treason.	1681 (1681)	Wing H2373; ESTC R34943	30,681	150

and no Enemies and so it is exprest in the Irish Statutes See Irish Statutes and this Statute cannot be taken according ●o Equity for it is a Penal Law and of the greatest pe●alty that is and therefore ●he aiding of Rebels cannot be meant any way the aiding of ●he King's Enemies within this Law Aiding the Enemies within or without is an aiding of those that come into the Land or of those that are without A Subject is of two sorts Subjects two sorts ratione originis and a Subject ratione loci A Subject ratione originis 1. Ratione originis cannot be an Enemy although he doth Levy War in respect of his Obedience but a Rebel he shall be A Subject ratione loci 2. Ratione loci during his residence here he can be no Enemy neither but if he goeth over Sea and then Levy War against this Kingdom or any other of his Majesties Kingdoms he is then an Enemy within this Law and no Rebel Dominium duplex There is also Dominium rectum Dominium utile for ●f a man be born within the Dominium rectum as that of Scotland in ancient time and ●here he Levy War he is an Enemy and no Rebel but if ●e be born within the Domi●ium utile and Levy War ●e is a Rebel and not an Enemy Aiding is by sending them Aid as of Victuals or of Weapons and the like by giving of them Counsel or ●y any other way whereby ●hey may receive strength or comfort from him Now for the persons by whom this Levying of War may be and as to that all Levies are within this Law as well Women as Men for Women are comprehended under this word Man Secondly Persons of all Nations that are within this Land are within this Law for as they shall have protection by the Laws of the Land so they ought at their peril to take notice of the Law so soon as they come into the Land for they ought to have notice given them and cannot alledge ignorance if it be not given them especially in such Laws as this that are so beneficial both the King and Kingdom Thirdly Persons of all Degrees as a Queen that is married to the King attempting ●he death of the King is within this Law A Forreign Ambassador is also within ●his Law but if a Foreign King should come into this Land by License and here ●ompass the death of the King ●he question will be how he ●hall be tried for he is a King here and therefore ●ught to be tried per Pares which he cannot be for o●her Honours are not allowed here Fourthly all Ages are with●n this Law as in Folks which have knowledge or men of non sanae memoriae and a mad man is also within this Law as to that part of the Statute which concerns more immediately the Person of the King for if any of them afore mentioned in this division shall compass his death it is Treason within the firs● Clause but not in the Clause of Levying War as I shal● shew you afterwards but a man that is surdus caecus mutus is not within this Law for it is impossible for him to have understanding Now for the persons against whom a King befor● his Coronation is within thi● Law Northumberland 's Case as it is in the Duke o● Northumberland's Case for h● is presently a King as soon as the other King deceaseth and there is no Interregnum for the King quatenus a King never dieth but he is said to Demise when he departs this Life and the King is Crowned because he is a King and not a King because he is Crowned a King de facto and not de jure is a King within this Law See 4 E. 4.1 9 E. 4.12 as it is in 4 E. 4.1 and 9 E. 4.12 A King conjugal or marital that takes to Wife the Queen of England is within this Law a Queen that is married although the marriage be void yet that Queen is within this Law so is a Queen married by Proxy a Queen within Age is also within this Law The first Case I. S. after the Divorce of the Wife of the Grandchild First Case and Heir apparent to the Queen doth violate her and imagine the Death of the husband and declares this to I. D. and after kills the husband of the Queen and conspir'd to Levy War against the Queen and delivers to I. D. money to buy Arms and after becomes mad and Aids the Enemies of the Queen within the Realm and then kills the Queen The Conclusion is First I. S. is a Traytor within this Law for killing the Husband of the Queen and for conspiring to Levy War and for killing of the Queen and in every one of these The second Conclusion is that I. S. is not a Traytor within this Law for imagining the death of the Grandchild and yet he is within the Case of the Law not for violating of his Wife nor for aiding of the Enemies I. S. is a Traytor within this Law for killing the husband of the Queen but not within these words That whosoever shall conspire or compass the death of the King for as to that Clause he is not King for the Queen is Regent and not he and so not within that Clause nor the meaning of it but he is within this word Companion for he is as good a Companion to the Queen as the Queen is to the King and so within the same Reason of Law For the husband of the Queen in such a Case is in a better condition and plight than a Queen to a King and so upon a stronger Reason but this you must take as a Rule that I have said before viz. that this Statute is not to be taken by Equity and this you shall find as another Rule as well for the expounding this Statute as any other Bro. Treas for 12.12 ass pl. 30. that those Cases that stand upon the same Reason shall be within the same Law although not taken by Equity for where there is the same identity parity or majority of Reason in any Cases there ought to be the same Law as it is in the Statute of Gloucester concerning Waste and in this our Statute the mysteries are not named yet there is within this Law for if the Servant kills the Wife of his Master knowing her to be his Masters Wife this is adjudged Petty Treason by the Judgement of all the Judges of both Benches Com. 87.6 Fitz. Com. 7.118 Brook tit treas 8. 19 H. 6.47 Com. 87.6 Fitz. Com. 7.118 Bro. Tit. Treason 8. For as well the Mistress as the Master hath affiance in him and he ought to give Reverence to his Mistress as well as his Master and yet the Master is only named in this Statute but in our Case the express words are That if any man shall Compass the death of the Kings Companion it shall be Treason and so

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 ●t cannot be concluded from ●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 i● 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 ●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 o● War doth mediately look a● 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. à 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

adjudged and declared in Parliament And all other Treasons that are not here declared ought to be Felonies at the least because Felonies were made Treasons before the Stattute and because the words of the Statute are that it ought to be Treason or Felony but if it be but once declared in Parliament unless there be a Proviso that the Judges shall not proceed upon the like Cases they may afterwards proceed by force of this Statute There are Treasons at the Common Law notwithstanding the Stat. of 1 Mar. for that did take away those Treasons and Declarations of Treasons that were made in Parliaments from the time of our Statute to 1 Mar. but doth not take away the declarative Power in our Statute mentioned nor the Common Law but they do remain still as before FINIS CASES OF TREASON CHAP. I. WHERE a man doth compass or imagine the Death of the King the King's Wife the King 's eldest Son and Heir apparent if it appear by any overt act it is Treason Where a man doth violate the King's Wife the King 's eldest Daughtter unmarried the Wife of the King 's eldest Son and Heir apparent it is Treason Where a man doth levie War against the King in the Realm it is Treason Where a man is adherent to the King's Enemies giving them aid and comfort it is Treason Where a man counterfeiteth the King's Great Seal Privy Signet Sign Manual it is Treason likewise his Money Where a man bringeth into this Realm false money counterfeited to the likeness of English with intent to merchandise or make payment thereof and knowing it to be false money it is Treason Where a man counterfeiteth any Coyn current in payment within this Realm it is Treason Where a man doth bring in any money being current within the Realm the same being false and counterfeit with intent to utter it and knowing the same to be false it is Treason Where a man doth clip waste round or file any of the King's money or any Foreign Coyn current by Proclamation for gain-sake it is Treason Where a man doth any way impair diminish falsifie skale or lighten money current by Proclamation it is Treason Where a man killeth the Chancellor the Treasurer the King's Justices in Eire the King's Justices of Assises the Justices of Oyer and Terminer being in their several Places and doing their Offices it is Treason Where a man procureth or consenteth to Treason it is Treason Where a man doth persuade or withdraw any of the Kings Subjects from his obedience or from the Religion by his Majesty established with intent to withdraw any from the Kings obedience it is Treason Where a man is absolved reconciled or withdrawn from his obedience to the King or promiseth obedience to any Foreign Power it is Treason Where any Jesuit or any other Priest ordained since the first year of the Reign of Qu. Elizabeth shall come into or remain in any part of this Realm it is Treason Where any Person being brought up in a Colledge of Jusuits or Seminaries shall not return within six months after Proclamation made and within two dayes after his return submit himself to take the Oath of Supremacy if otherwise he do return and not within six months after Proclamation made it is Treason Where a man committed for Treason doth voluntarily break Prison it is Treason Where a Jaylor doth voluntarily permit a man committed for Treason to escape it is Treason Where a man relieveth or comforteth a Traitor and knoweth of the Offence it is Treason Where a man doth affirm or maintain any Authority of Jurisdiction Spiritual or doth put in ure or execute any thing for the advancement of setting forth thereof the third time it is Treason VVhere a man refuseth to take the Oath of Supremacy being tendred by the Bishop of the Diocese if he be any Ecclesiastical Person or by Commission out of the Chancery if he be a temporal Person such Offence the second time is Treason CHAP. II. The Punishment Tryal and Proceeding in Cases of Treason IN Treason the Corporal Punishment is by drawing on an hurdle from the place of the Prison to the place of Execution by hanging and being cut down alive bowelling and quartering and in VVomen burning In Treason there ensueth a corruption of blood in the Line ascending and descending In Treason Lands and Goods are forfeited and Inheritance as well intailed as Fee-simple and the profits of Estates for Life In Treason the Escheats go to the King and not to the Lord of the Fee In Treason the Land forfeited shall be in the Kings actual possession without Office In Treason there be no Accessaries but all are Principals In Treason no Sanctuary nor benefit of Clergy or peremptory Challenge is allowed In Treason if the Party stand mute yet nevertheless Judgment and Attainder shall proceed all one as upon Verdict In Treason no Counsel is to be allowed nor Bail permitted to the Party In Treason no Witnesses shall be received upon Oath for the Parties Justification In Treason if the Fact be committed beyond the Seas yet it may be tryed in any County where the King will award his Commission In Treason if the Party be non sanae memoriae yet if he had formerly confessed it before the Kings Council and that it be certified that he was of good Memory at the time of his Examination and Confession the Court may proceed to do Judgment without calling or arraigning the Party In Treason the death of the Party before Conviction dischargeth all Proceedings and Forfeitures In Treason if the Parties be once acquitted he should not be brought in question again for the same Fact In Treason no new Case not expressed in the Statute of 25 E. 3. or made Treason by any special Statute since ought to be judged Treason without consulting with the Parliament In Treason there can be no Prosecution but at the King's suit and the Kings Pardon dischargeth In Treason the King cannot grant over to any Subject Power and Authority to pardon it In Treason a Trial of a Peer of the Kingdom is to be by special Commission before the Lord high Steward and those that pass upon him to be none but Peers The Proceeding is with great Solemnity the Lord Steward sitting under a cloth of Estate with a white rod of Justice in his hand and the Peers may conferr together but are not any ways shut up and are demanded by the Lord Steward their Voices one by one and the plurality of Voices carries it In Treason it hath been an ancient Use and Favour from the Kings of this Realm to pardon the Execution of hanging drawing and quartering and to make Warrant for their beheading The Proceeding in case of Treason with a common Subject is in the Kings Bench or by Commission of Oyer and Terminer CHAP. III. Cases of Misprision of Treason WHere a man concealeth high Treason only without any consorting or abetting it is misprision of Treason

THE LEARNED READINGS OF Sir Robert Holbourne Knight Attorney General to King Charles I. UPON The STATUTE of 25 Edw. 3. Cap. 2. Being the Statute of TREASONS To which is added Cases of Prerogative Treason Misprision of Treason Felony c. Written by the Right Honourable FRANCIS BACON Lord Verulam Viscount St. Alban And now Reprinted for the Publick Benefit Indici conjurationis praemia constituta Salust in Conjur Catil LONDON Printed for Sam. Heyrick at Grayes-Inn-Gate in Holborn and Matthew Gilliflower in Westminster-Hall 1681. ERRATA PAge 5. Line 4. for Dejective read Directive pag. 20. lin ult for kill read kills pag. 21. lin 12. for Case r. Care pag. 23. l. 14. for mysteries are read mistress is ibid. l. 15. for there read she p. 35. l. 19. for without read within p. 36 l. 7. for Regne read Rigne p. 37. l. 10. for Aid r. Ayel ibid. l. 18. for Heires Facus r. Haeres Factus p. 49. l. 15. for I. S. r. I. D. p. 55. l. 6. for word r. Ward ibid. l. 14. l. 15. l. 17. for Costigase read Cesty que use THE LEARNED Readings OF Robert Holbourne Esq Lecture I. BEfore the Statute Trespasses were made Felonies Felonies were made Treasons and we could not judge which were Felonies and which were Treasons but it did rest in the breast of the Judges that were in those days For the preventing of which mischief this Statute which I now Read upon was made which hath two Parts The parts of the Statute are first Declarative A Declarative part and that doth declare what shall hereafter be judged Treason And Treason also is commonly divided into two parts that is First High Treason High Treason that is against the Person of the King and that will fall out for this days Work Secondly Petty Treason Petty Treason which is in the latter part of the Statute as will appear hereafter The second part of this Statute is the Dejective part And secondly Dejective High Treason and directs the Judges how far to proceed upon a Fact that is not within the Statute High Treason is against the person of the King or against his Government viz. as against his Judges Seals and Coyns These are the Divisions that I shall make of this Law The definition of Treason It is Lesa Majest The definition of Treason which comprehends the Person of the King and his Officers of Justice For the Person of the King and the Treasons that are committed more immediately against his Person and they are Acts and Persons Persons they are of two sorts Persons against whom and the Persons by whom these Treasons are committed The Acts and they are divers As first Compassing th● Death of the King And fo● explanation of this word Compassing it is an old word signifying not a bringing t● pass only but a going about as you shall find it in Britto● and the Mir. of Just but it is since called in Latine Machinatio and a going about 1 Mar. Bro. tit Treas 24. or compassing is Treason though no effect do follow as a compassing to kill the King though he be not kild so a compassing without any other Act is Treason But there may be an Act done that doth effect the death of the King and yet no Treason if there be no compassing as in the Case of Sir Walter Terril who shooting at a Deer his Arrow glanced against a Tree and struck King William Rufus upon the breast that he died Hollingshead and this was not Treason because there was no compassing And so it is in the Case of a Physitian as if the King takes Physick and dyes of the Physick working yet if it be not notoriously gross and it doth not appear that he did any way compass the Death of the King this is not treason within this Law for in the Case of a common person if a Physitian give one Physick whereof he dyes this is not Felony in him although the Physitian had no License to practice Physick for it is his fault that he will take Physick of him and volenti non fit injuria If the Prince in person assaults a man and drives him so hard against the Wall that if he do not defend himself he will kill him and he cannot do it without danger to the Prince in that Case he ought not to defend himselfe but ought rather to dye than hazard the person of the Prince because he is Caput salus Reipub. and yet Nature doth teach a man to defend himselfe against all danger And thus much for Acts without compassing And yet some of these Acts that are without compassing are left to the Jury to judge of and some others are left to the Judges to judge of as by presumption of Law as in Murder the●● ought to be malice fore●thought and yet if an Officer in executing of his Office b● slain this is Murder by th● Law and yet in this Cas● there do not appear any malice fore-thought and so in this Case the Law makes an Evidence for the Jury and so in deeds of the like Cases The second Act is Violating and this word is derived of vi perdendo but yet it may be done without any force at all The third Act is Levying War against the King And what shall be said of Levying War that may be divers ways As if the Inhabitants of a Town will gather themselves together to pull down the Fences of a Common See Saint John's argument in Sherly of Shefield's Case in which they have no Interest or Common nor ever had this is Treason within this Law but if they had an Interest or Common there then it is no Treason but if they shall do it by Force of Arms in a War-like manner Qu. but in the first Case it is a Levying of War against this Government Another Levying of War may be against the King Nota. as if it be to the displacing of his Officers as in the Earl of Essex his Case in his coming to the City of London for to remove Officers that were about the Queen this was Treason and so it is also to the same purpose in 1 Mar. Dyer 24. and so it appears 1 Mar. Dyer 24. A man may Levy War against the King although he hath no intent to meddle with the person of the King or any way to hurt him and so you shall find also in Bro. Tit. Treason 14. Brok tit Treason 14. And if any Levy War without the King this is a Levying of War within the Law 8 Hen. 8. 8 H. 8. If two conspire to Levy War and one alone doth it this is Treason in both The fourth part is to Adhere to the King's Enemies Nota. ●nd first who shall be said ●o be Enemies within this Law ●econdly who shall be said Adhering to them that are E●emies within this Law This word Enemy cannot extend ●o Subjects for they are Rebels