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 but all these are either repealed or expired Co. 3 Inst f. 140.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
Ambassadour hath by the Law of Nations and by the Civil Law of the Romans Resp forfeited all the Priviledges of an Ambassadour and is subject to punishment If a Foreign Ambassadour sayes Coke committeth here in our Realm any crime Hill 14. Eliz. The Bishop of Rosles Case Co. 4. Inst f. 153. Bulstrodes Reports 3d part The King v. March which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledg and Dignity of an Ambassadour as unworthy of so high a Placc and may be punished here as any other private Alien and not to be remanded to his Soveraign but of courtesy But if any thing be malum prohibitum by any Act of Parliament Private Law or Custom of the Realm which is not malum in se jure Gentium nor eontra jus Gentium an Embassadour residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom c. And the reason why private Aliens are bound by our Acts of Parliament Lib. 2. c. 2. nu 5. De jure belli ac Pacis Private Laws and Customs is given by the learned Grotius viz. Quia ad gubernationem Populi moraliter necessarium est ut qui ei vel ad tempus se admiscent quod fit intrando territorium ij conformes reddant ejus Populi institutis Whether a Foreign Prince Qu. 5 by his dwelling and residing here can commit Treason When a Foreign Prince comes with leave into England Resp he subjects himself under the Protection of the King of England and as by well doing he enjoyes the benefit of the Laws so by ill doing he is subject to the Equity thereof according to that saying of the Lawers He deserveth not the benefit of the Law which offendeth against the Law Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom than his that reigneth well He is thought also to be a Subject though not originary yet temporary because two absolute Princes in respect of Royal Authority cannot be in one Kingdom at once and therefore it is a received opinion of the learned in the Laws A King without his own Dominions except it be in an Expedition of War is but a private Man and consequently can neither confer nor exercise Royalties Moreover it is said that such a Prince by his offence looseth merum Imperium his meer and absolute Soveraignty and that such are subject by their dwelling only and place of abode might commit Treason and that a Prince hath power or Jurisdict over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert Contract or by offending within the Jurisdiction of his Equal Vide Cambdens Eliz. in 29. year of her Reign touching the Queen of Scots 2. Misprision of Treason Touching Misprision 4 things are to be principally observed The Etymology of the word its Description its Division and the Punishment therefore 1. The Etymology or Origination of the word Misprision cometh of the French word Mespris which properly signifieth neglect or contempt for mes in Composition in the French signifieth mal Co. 3. Inst f. 36. as mis doth in the English Tongue as mischance for an ill chance and so Misprise is ill apprehended or known 2. It s Description In legal understanding Misprision of treason is either when one knoweth that another hath committed treason and will not discover him to the King or to the Councel or to any Magistrate but doth conceal the same it is when one hath committed some hainous offence under the degree of treason 3. It s Division Misprision of treason is twofold 1. Passive called Crimen omissionis as in concealment or not discovery of treason And therefore by the Statute of 5. E. 6. concealment or keeping secret of any High treason is declared only Misprision of Treason As for example 13. El. c. 2. It is Misprision of High treason in concealing of a Bull from the Pope of Rome So the receiving of one that hath counterfeited the Kings Coyn Dyer f. 296 Coyners Case and comforting of him knowing him to have counterfeited the King Coyn is but a Misprision But by the Common Law concealment of High treason was Treason as appeareth in the Case of the Lord Scrope anno 3. H. 5 and by Bracton lib. 3. f. 118. b 119. a. And with our Common Law the words of Isocrates to Nicooles are agreable viz. Eadem poena digni sunt supprimentes hujusmodi facinus qua facinorosi 2. Active called Crimen commissionis as in committing some heinous offence under the degree of Treason 37. H. 8. Br. Tit. Treason as when one fixes an old Seale of a Patent to a new Patent of Non-Residence this is holden to be a Misprision of Treason only for it is an abuse of the great Seale and not counterfeiting of it So if a man know Money to be counterfeit and bring the same out of Ireland hither into England Co. 3. Inst f. 140. and utter it in payment this is but a Misprision and no Treason So the compassings or imaginations against the King by word without an overt Act is a High Misprision 4. The punishment of this offence In all Cases of Misprision of Treason the party offendour shall forfeit his Goods and Dutie for ever and the profits of his Lands for terme of his life and to be imprisoned during life From which punishment if any will save himself that knoweth of any High treason he ought with as much speed as conveniently he may to reveal the same to the King or some of his Privy Councel or any other Magisirate Note that in every Treason or felony is included Misprision and where any hath committed Treason or felony the King may cause the same to be indicted and arraigned but of Misprision only if he will 3. Robbing the Kings Treasure Crimen peculatus The Robbing the King of his Treasure Co. 3. Inst f. 112. Co. litt 90. b. 131. b. or Money is accounted Damnum inaestimabile for the Kings Treasure is the sinew of War and the honour and safety of the King in time of Peace The Civil Law doth accord with our Law in this point Pecuniae nervus Reipublicae seu belli Cur ita Imperium sine vectigalibus nullo modo esse potest Cicero Militares expensae Hostium Incursiones multa regent diligentia non possunt citra pecuniam haec agi N. 8.2.10.2 Fourscore and one persons whereof the Abbot of Westminster and 48 of his Monks were part brake into the Receipt Co. 4. Inst f. 112. and feloniously robbed the King of a hundred thousand pounds All these fourscore and one were indicted of this felony and committed to the Tower of London c. and this was the occasion of the new building of both
nisi modum excedant quia emendationis non injurioe gratia videntur adhiberi puniuntur cum quis per iram ab extraneo pulsatus est 2. Persona nam magis delinquit qui patrem vel matrem vel dominum interficit 3. Locus qui facit ut idem sit furtum vel sacrilegium secundum hoc minor poena vel major 4. Tempus hoc discernit proedonem a fure a Burglatore furemque diurnum a nocturno 5. Quantitas hoec discernit furene ab Ambiguo plus enim peccat qui gregem surripuerit quam qui ovem 6. Eventus ut si ex voluntate conscientia certa fecerit quis aliquid sicut homicidium an ex eventu Et secundum hoc aut erit felonia aut infortunium Gothofredus on the Digest hath these words In factis dictis scriptis Consiliis Causa Persona Locus Tempus Qualitas Quantitas Eventus consideranda sunt Quintil. 6. Inst Atrocitas crescit ex his quid factum sit a quo in quem quo animo quo loco quo tempore quo modo 6. Of the Persons to be coesidered in Criminal Judgments The Persons that constitute Judgment criminal are § Parties Assistants and Judge 1. Of the Parties in Judgment Of these in their order The Parties are Accuser and Accused called sometime Appellor and Appellee sometime Indictor and Indictee Britton telleth us Cap. 22. that it is not for every Person to accuse or appeal for a Man outlawed neither he that hath forjured the Realm nor a Man attainted nor an Approver that hath failed in his probation nor an Infant within the age of 14 yeares nor a mad Man nor an Ideot nor a mute nor one that is deaf nor a leper nor a Man within Holy Orders are not receivable in Appeals c. The Mirror saith that Women Infants Ideots Lepers c. 1. sect 3. or Professours in Order of Religion or Clerks or Persons attainted of felony or non compes mentis cannot be Approvours Now an Approvour is he who hath committed some felony which he confesseth and appealeth or approveth that is to say accuseth others which were coadjutours or helpers with him in doing the same or other felonies which thing he will approve and this proof is to be either by Battaile or by the Countrey at his election that appealed This Accusation is often done before the Coroner who either is assigned to the felon by the Court to take and record that which he saith or is called by the felon himself and required for the good of the Prince and Common-wealth to record that which he shall say If upon his appeal all those Partners be convicted the King ex merito Justitioe is to pardon him But it is in the discretion of the Court either to suffer him to be an Approver 21. H. 6.29 b. 34. b. or after his approvement to respite Judgment and execution until he hath convicted all his Partners Note If a Man that is of good fame be appealed by an approver by which he is apprehended and kept in prison yet het may have a writ to be directed to the Sheriff commanding him to suffer the Party appealed to be Bayled by good sureties But if a Man appealed by an Approver be kept in prison and afterwards the Approver dieth there he may sue a Writ directed to the Sheriff to suffer him to be Bayled upon good surety if he be not a notorious felon although he be not of good fame Fitzh N.B. 250. d. Note further that before Indictment no person can approve because if his approvement be false 43. Ass Pl. 39.15 E. 3. Cor. 113.11 H. 7.5 no Judgment whatsoever he confessed can be given against him unless he be indicted and no Judgment can be given against him if his Appeal be false but of the offence contained in the Indictment and so are the Books to be understood Thus much of the Party accusing As for the party accused or appealed he is alwayes arraigned either as principal or accessary Of these distinctly and apart 1. Of Principals It is a sure rule that in alta proditione Co. 3. Inst 138. nullus potest esse accessorius sed Principalis solummodo As if many men conspire to Levy War Co. 3. Inst f. 9. and some of them do Levy the same according to the conspiracy this is High treason in all for in Treason all be principalls If a man committeth Treason 19. H. 6.47 3. H. 7.10 Co. 3. Inst f. 138. and thereby becometh a Traitor if any other man knowing him to be a Traitor doth receive comfort and aid him he is guilty of Treason as principal for that there be no accessaries in High Treason Note Co. Litt. 57. b. Co. 3. Inst 20 21.57 Inst 20 21. Co. 3. Just 138. Co. lib. 4. Vaâ—xes Case Plowd Com. 47â— Saunders's Case Co. lib. 9. Gores case that in the lowest offences there are no accessaries but all are principals as in Riots Routs c. There is another rule Nullus dicitur felo principalis nisi actor aut qui proesens aut auxilians actorem ad feloniam faciendam But this rule hath his exceptions for in ease of poysoning if one layeth poyson for one or infuseth it into a broth or the like albeit he be not present when the same is taken and either the party intended or another is poysoned yet he is a principal and in that case both the principal and procurer or accessory may be absent So there is a felony wherein all be principals Co. 2. Iust 138. Co. 3. Inst f. 61. as well before as after though they be absent at the doing of the felony but this is specially provided by the Statute of 3. H. 7. c. 2. of Taking Women against their wills Note If any be present abetting and aiding any to do an Act Co. 3. Inst f. 59. 3 4. P. M. Justice Dalisons Reports though the offence be personal and to be done by one only as to commit a Rape not only he that doth the Act is a Principal but also they that be present abetting and aiding the misdoer are principalls also 2. Of Accessary In case of felony as there be principals so there be Accessories and accessories be of two sorts by the Common Law and by the Statute Law Accessory by the Common Law is also of two sorts § 1. Accessory before the offence or fact and it is he that commandeth or procureth an other to commit felony and is not there present himself when the other doth it but if he be present then he is also a principal As where I. S. doth hold I. X. and commands I. D. to kill him whereupon I. D. doth give him a wound to his heart whereof he instantly dies It is held that both be principals because both are parties to the wound 13. H. 7.10 a. So a Woman servant conspired to rob her Mistress and
Pleas of the Crown 135 136 How they are brought to a Judicial hearing 136 Challenges to fight 107 Challenges of Jurors What number the Party may challenge what not 156 Chance-medley What it is 47 One Trained Souldier hurting another by mischance 47 Where the killing of another by misfortune shall be murder and where not 48 Where 't is Homicide in a Physician and where Covert Felony 49 Clergy In what particulars the benefit of Clergy is taken away at this day 127 A Rule touching this Clergy 128 Conviction When a Man is said to be convicted 151 Councel What advantages a Prisoner may take in case of Treason or Felony to have Council assign'd him 131 Council allow'd in Appeals but not in Indictments the reason of the diversity 131 132 A Prisoner may have Council in matters of fact 130 131 Duels They are against the Law of God Nature and the Laws of the Realm 102 The punishment of Duellists though no blood be shed 103 What Duells lawful 102 103. Error 157 Execution Where it ought to be done by a right Officer 156 Where it ought to be according to the Judgment Id. The means by which Execution may be avoided 157 Extortion What it is 96 More odious then Robbery 97 Felo de se The Description of a Felo de se 8 The reason why he forfeits Goods Ib. Where a Man shall be said Felo de se and where not 9 How Felo de se shall be enquired of where the Body cannot be found 10 His Goods not forfeited till found of Record 9 10 Where a Joyntenant becoming Felo de se shall forfeit but part where the whole 10 A Debt owing to Felo de se upon a bare Contract is not forfeitable to the King 11 Felony A Pardon of all Felonies is no Pardon of Treason at this day 135 The extent of the word Felony Ib. To break a Prison where by the Felons may escape is Felony 83 The begging of the Estate of a Delinquent before conviction and Attainder is illegal 151 Where none may seise the Goods of any Person before conviction Ib. No Goods of an Offender ought to be fearched or Inventoried before Indictment nor removed before conviction Ib. Falsifying Attainders 157 Gifts 95 96 Homicide The Etymology of the word Homicide 2 It s right division Ib. How many sorts of Homicides there be 3 What Homicides are Felony and what not Ib. The Description of Homicide 2 Homicide voluntary what it contains 3 Jus criminis what 1 Indictment The signification and derivation of the word Indictment 141 142 The difference betwixt an Appeal Indictment 142 In Indictments words are so appropriated to offences that they cannot be expressed by any other words Ibid. Rules touching Indictments 142 143 Judge No man to be Judge in his owne Cause 50 Judges in criminal Causes ought to deliver their opinion before hand 134 The duty of Judges 133 134 Who Judges of Fact and who of Law 132 133 Judgement criminal The Persons consider'd in it Assistants in it who 130 Their duty Ib. In Judgement of High-Treason or Felony what is implyed 155 156 Jurors The properties of Jurous 132 133 King His Treasure the sinews of War 96 Head and health of the Common-Wealth 1 75 87 Making War solely appertains to him 82 Larceny Larceny what 55 It s twofold 55 56 What shall be said a felonious taking what not 56 57 Whether an Infant unper the age of discretion can commit Larceny 57 58 Where there must be a felonious taking as well as a felonious carrying to make a Larceny 56 Where and where not a Feme Covert may be guilty of a Larceny 58 59 Where the Wife cannot steal the Goods of her Husband Ib. It may be committed of a thing that is delivered by Replevin 59 What shall be said a felonious carrying away to make it a Larceny 59 60 Larceny cannot be committed of Personal Goods that savor of the Realty Ibid. Where 't is Larceny to steal the sheets from the Dead 61 Where a Man may steal his own Goods Ib. Ligeance It cannot be shaken off 85 Lex Talionis 53 Libels Libel what it signifies 107 Libelling be it true or false is punishable by our Law Ib. How a Man must demean himself that finds a Libel 106 A French Libel punishable 107 A Libel punishable by Indictment Ib. Laws The Greek Law touching a Childs stealing of Goods 58 What the Civil is touching these following particulars § Self-Defence 9 A Mans Intention 9 44 Poysoning 13 Malice 14 A Woman pregnant 15 Physicians and Surgeons 49 A Mans Limbs 52 Life 8 Theft 55 An Infants stealing 58 Death 61 A Man stealing his own Goods 61 62 Robbery 64 Sacrilege 66 67 Pyrats 71 Burning of Houses 74 75 Treason 78 Calculation 80 81 Authority of making War 82 Ligeance 85 Fausonnery 86 Mad-Men 88 The Custom of places 90 Treasure 93 Robbing of Treasure 94 Gifts and Bribery 95 96 Rape 54 Riots c. 103 Force 102 Libels 107 Punishments 114 117 Personal offences 118 119 Doubtfull Interpretations 119 Circumstances 120 Principal and Accessory 128 Alienations 154 Life No Man has power over his own Life nor members 8 52 Misprisions The Derivation of the word and its Derivation 91 It is twofold 91 92 The punishment of Misprision of Treason 93 Every Treason and felony includes in it a Misprision 193 Where words without overt Act are as punishable as Misprision of Treason 92 Murder It s Derivation 8 How divided Ib. Murder how heretofore how at this day defined 11 Where a mistake in the principal shall make the Accessary guilty of murder and where not 12 What Persons are capable of being murdered 11 Poysoning the worst of Murders 13 Whether an Infant within the age of 9 years can be guilty of Murder 13 14 Where there ought to be a continued malice to make it murder and where not 14 15 Where 't is no Murder to kill an Infant en ventre de sa mere 15 Murder in a Mother to conceal the death of her Bastard-Child 16 Stabbing another where wilful murder Ib. What murders tryable before the Constable and Marshal 32 33 What Officers it is murder to kill 36 Malice Where to kill another without provocation is malice implied 33 34 How many kinds there be of malice impli'd Ib. Mayhem The signification and derivation of the word Mayhem 51 In what cases a Mayhem may be done and what not 51 Judges may use the help of Surgeons in point of a Mayhem 51 52 Mayhem how termed by the Canonists 51 Where a Man was indicted for mayming himself Ib. The antient punishment for him that maymed another 52 Maliciously to cut the nose is felony at this day 51 The degree of this offence called mayhem 53 Offences An offence or delict what 1 How many ways offences are committed Ib. What offences despoil Men of their property 54 Offences that injure Mans Body or members 50 Offences relating to life