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Cap. I.
Of High Treason.

By the statute of 25 E.3.1de proditionibus2 is declared in certaine particular cases, what offences shall be taken to be treason, with this restriction, that if any other case supposed to be treason should happen before any justices, the justices should tarry without going to judgment of the treason, till the case be shewed before the king and his parliament, whether it ought to be adjudged treason or other felony: therefore we will lay our foundation upon, and begin with that act of parliament, the letter whereof in proprio idiomate3 ensueth.

Also, whereas divers opinions have been before this time, in what case treason shall be said, and in what not; the king at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth: that is to say, when a man doth compasse or imagine the death of our lord the king, of my lady his queene, or of their eldest sonne and heire: or if a man doe violate the kings compagnion, or the kings eldest daughter unmarried, or the wife of the kings eldest sonne and heire: or if a man doe levie warre against our lord the king in his realme, or be adherent to the kings enemies in his realme, giving to them aide and comfort in the realme or elsewhere, and thereof be provably attainted of open deed by people of their condition. And if a man counterfeit the kings great or privie seale, or his money: and if a man bring false money into this realme counterfeit to the money of England, as the money called Lusheburgh, or other like to the said money of England, knowing the money to be false, to merchandize or make payment, in deceipt of our said lord the king and of his people. And if a man slay the chancellor, treasurer, or the kings justices of the one bench or the other, justices in eire, or justices of assize, and all other justices assigned to heare and determine, being in their place doing their offices. And it is to be understood, that in the cases above rehearsed, it ought to be judged treason, which extend to our lord the king and his royall majestie; and of such treason the forfeiture of the escheates pertaineth to our lord the king, as well of the lands and tenements holden of others, as of himself.

And albeit nothing can concerne the king, his crowne, and dignity, more then crimen laesae majestatis,4 high treason: yet at the request of his lords and commons, the blessed king by authority of parliament made the declaration, as is above-said: and therefore, and for other excellent lawes made at this parliament, this was called benedictum parliamentum,5 as it well deserved. For except it be Magna Charta, no other act of parliament hath had more honour given unto it by the king, lords spirituall and temporall, and the commons of the realme for the time being in full parliament, then this act concerning treason hath had. For by the statute of 1 H.4. cap. 10. reciting that where at a parliament holden 21 R.2. divers paynes of treason were ordained by statute, in as much as there was no man did know how to behave himselfe, to doe, speak, or say, for doubt of such paines: It is enacted by the king, the lords and commons, that in no time to come any treason be judged otherwise, then it was ordained by this statute of 25 E.3. The like honour is given to it by the statute of 1 E.6. cap. 12. and by the statute of 1 Ma. cap. 1. sess. 1. different times, but all agreeing in the magnifying and extolling of this blessed act of 25 E.3. Of this act of 1 Mariae, we shall speak more hereafter. But to proceed to give a light touch how other acts of parliament have been called. The parliament holden at Oxford, an. 42. H.3. was called insanum parliamentum.6 12 E. 2. the parliament of whitebands, albarum fibularum or metellarum,7 5 E.3. parliamentum bonum,8 10 R.2. parliamentum quod fecit mirabile,9 that wrought wonders. 21 R.2. magnū parliamentū.10 6 H.4. parliamentū indoctū,11 lack-learning parliament. 4 H.6. parliamentū fustiū, the parliament of bats. The session of parliament in an. 14. H.8. called the black parliament. The act of 1 E.6. was called parliamentū pium, the pious parliament. And the said act of 1 Mar. parliamentū propitium,12 the merciful parliament. The parliaments of queen Elizabeth stiled pia, justa, et provida.13 The parliament holden anno 21 of king James, called foelix parliamentum,14 the happy parliament. And the parliament holden in the third yeare of our soveraigne lord king Charles, benedictum parliamentum,15 the blessed parliament. The severall reasons of these former appellations appeare of record and in history, and the latter are yet fresh in memory. At the making of the statute of 25 E.3. the high courts of justice were furnished with excellent men, viz. Sir William Shardshillknight (shortly written in bookes Shard) lord chiefe justice of the kings bench, and his compagnions justices of that court; Sir John Stonor knight, commonly written in books Stone, lord chief justice of the court of common pleas, and his compagnions justices of that court; and Gervasius de Wilford, lord chiefe baron of the exchequer, men famous in their profession, and excellent in the knowledge of the lawes. At the making of the statute of 1 H.4. were Sir Walter Clopton knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir William Thirning knight, lord chief justice of the court of common pleas, and his compagnions justices of that court; and Sir John Caffie knight, lord chiefe baron of the exchequer; men equall to any of their predecessors in the knowledge of the lawes. At the making of the statute of 1 E.6. were Sir Richard Lister knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir Edward Montague knight, lord chiefe justice of the court of common pleas, and his compagnions justices of that court; and Sir Roger Cholmeley knight, lord chiefe baron of the exchequer; men of that excellency, as they were worthy of the name of The worthies of the law, At the making of the statute of 1 Mar. were Sir Thomas Bromley knight, lord chiefe justice of the kings bench, and his compagnions justices of that court; and Sir Richard Morgan, knight, lord chiefe justice of the court of common pleas, and his compagnions justices of that court; and Sir D. Brook knight, lord chiefe baron of the exchequer, men renouned for their great knowledge and judgement in their profession. All these we have named in the honour of them, and of their families and posterities, for that they in their severall times were great furtherers of these excellent lawes concerning treason. In memoria aeterna erit justus.16 And all this was done in severall ages, that the faire lillies and roses of the crowne might flourish, and not be stained by severe and sanguinary statutes. But let us come to the act it selfe, and for the better understanding thereof, and of the book-cafes, and other records grounded upon the same: let us divide this act concerning high treason into severall classes or heads, and then prosecute the same in order.

So as treason is membrum divisum,17 and these severall classes or heads are

membra dividentia.18 And if the offence be not within one of these classes or heads, it is no treason.

(1) [Treason] is derived from [trahir] which is treacherously to betray. Trahue, betrayed, and trahison, per contractionen, treason, is the betraying it selfe.

Detegit imbelles animos, nil fortiter audens Proditio.19

Inter leges Canuti, fo 1. 118. ca. 61. Proditiones (hlaford swice) numerabantur inter scelera jure humano inexpiabilia.20 Treason is divided into two parts, viz. high treason, alta proditio,21 and into petit treason, proditio parva.22 The Latin word used in law is proditio (à prodere)23 and thereof cometh proditioniè, which of necessity must be used in every indictment of treason, and cannot be expressed by any other word, peripharsis, or circumlocution.

(2) [Ad fait declarisement.]24 This law is for the most part declaratory of the ancient law, and therefore this word (declarisement) is used. Butyetthestudious reader shall observe, that in divers clauses it addeth to the former law, where-unto this word (declarisement) will sufficiently extend.

[When a man]25

This extendeth to both Sexes, Homo including both Man and Woman. This Act is generall, and therefore extendeth to persons which claimed a priviledge to be exempted from Secular Jurisdiction. (For example,)26 Adam, de Orleton Bishop of Hereford was indicted of High Treason for aiding the Mortimers.

&c. with Men, and Armour against King E.2, &c. Whereupon he was arraigned, and alledged Se absque ofsensa Dei, & Sanctxae Ecelesiae, & absque licential Domini summi Pontificis non posse nec debere respondere in hac parte.27 And thereupon the Archbishop of Canterbury, York, and Dublin, and their Suffragans came to the Barre, claimed his priviledge, and took him away, and he was so far from punishment, as he was after translated to Worcester, and after to Winchester. But this Statute (to cleare all doubts) extendeth to all persons, *28 as well Ecclestasticall as Temporall, and so hath it ever since been put in execution, as hereafter in divers Cases it appeareth. See hereafter Cap. Murdre & Larceny.

A Man that is non compos mentis,29 as shall be said more fully hereafter in the next Section, or an Infant within the age of discretion is not (un home)30 within this Statute; for the principall end of punishment is, That others by his example may feare to offend, De poena ad paucòs, metus ad omnes perveniar:31 But such punishment can be no example to Mad-men, or Infants that are not of the age of Discretion. And God forbid that in Cases so penall, the Law should not be certaine; and if it be certaine in case of Murder and Felony, à fortiori,32 it ought to be certaine in case of Treason.

If a man commit Treason or Felony and confesseth the same, or be thereof otherwise convict, if afterward he become De non sane memorie (qui patitur exilium mentis)33 he shall not be called to answer: Or if after judgement he become De non sane memorie,34 he shall not be executed, for it cannot be an example to others.

And all Aliens35 that are within the Realme of England, and whose Sove-|-raignes are in amity with the King of England, are within the protection of the King, and doe owe a locall obedience to the King, (are homes within this Act) and if they commit High Treason against the King, they shall be punished as Traytors, but otherwise it is of an Enemy, whereof you may reade at large Lib. 7. Calvins Case. fol. 6. &c 17, &c.

[Doth compasse.]36

Let us see first what the compassing or imagining the beath of a Subiect was before, and at the time of the making of this Statute, ^a37 when Voluntas reputabatur pro facto.38 And ^b39 Bracton saith, that Spectatur voluntas & non exitus, & nihil interest utrum quis occidat, aut causam mortis praebeat.40 So as when the Law was so holden, he must causam mortis praebere,41 that is, declare the same by some open deed tending to the execution of his intent, or which might be cause of death, as Justice

^c42 Spigurnel43 reporteth a Case adiudged; That a man’s wife went away her Avowterer, and they ^d44 Compassed the Death of the Husband, & as he was riding towards the Sessions of Oier and Terminer and Gaole-delivery, they assaulted him and stroke him with weapons, that he fell downe as dead, whereupon they fled; the Husband recovered and made Hue and Cry, and came to the Sessions and shewed all this matter to the Justices, and upon the Warrant of the Justices, they were taken, indicted, and arraigned; and all this speciall matter was found by Verdict; anditwasadjudged that the man should be hanged, and the woman burnt. And Sir William

Beresford Chiefe Justice of the Common Pleas said, That before him and his Companions Justices of Dier and Terminer and Gaole-delivery, a Youth was arraigned, for that he would have stolen the goods of his Master, and came to his Masters bed, where he lay asleepe, and with a knife attempted with all his force to have cut his throat; and thinking that he had indeed cut it, he fled, whereupon the Master cried out, and his Neighbours apprehended the youth; and all this matter being found by speciall Verdict, in the end he was adjudged to be hanged, &c. Quia *45voluntas reputabitur pro facto. So as it was not a bare compassing or plotting of the death of a man, either by word, or writing, but such an overt deed, as is aforesaid, to manifest the same. So as if a man had compassed the death of another, and had uttered the same by words or writing, yet he should not have died for it, for there wanted an overt deed tending to the execution of his compassing. 46^eBut if a man had imagined to murder, or rob another, and to that intent had become Insidiator viarum,47 and assaulted him, though he killed him not, nor took any thing from him, yet was it felony, for there was an overt deed. But in those dayes, in the Case of the King, if a man had compassed, or imagined the death of the King (who is the Head of the Common-wealth) and had declared his compassing, or imagination by words or writing, this had been High Treason, and a sufficient overture by the ancient Law. And herewith agree all ourancient Books. Glanvil saith, Cum quis de morte Regis, &c. infamatur, &c.48

Bracton in the title De criminibus laesae majestatis.Ipseaccusatuspraeloquutus fuit mortem regis.49 And Britton. fol. 16. Grand treason est a compasser nostre mort, and fo. 39.b. Cyface lenensor son appeale &c. que il oya mesme céi

John pur parler tiel mort, ou tiel treason &c.50 And Fleta saith in his title De crimine laesae majestatis, Si quis mortem regis ausu temerario machinatus fuerit, &c. quamvis voluntatem non perduxit ad effectum.51 And the Mirrorsaith, Crime de majestic est un peche horrible fait al roy &c. p. ceux q occirent le roy, ou compassant a faire.52 And it will delight you (in respect of reverend antiquity) to heare a president of an appeale (which then and after was in use) of high treason, en pleine pliam &c. en temps roy Edmond en cestes parolx. Rocelyn icy dit vers Waligrot illonq q a tiel iour tiel anne del raigne de tiel roy, en tiel lieu vient celuy Waligrot a céi Rocelyn, et luy trova destre en company, et en aide ensemblement ove Atheling, Thurkild, Ballard, et autres de faire prisoner, ou en tache pur occire nré seignior le roy Edmond, ou en auter manner p. coupe feloniousment, et a ceo faire fuer’ entreinres a ceo counsel celer, et a ceo felony issint fornir solong lour poier.53 By all which it is manifest, that compassing, machinating, counselling, &c. | to kill the King, though it hath no other declaration thereof but by words, was High-treasonby the Commonlaw.Andseehereafter, verb. per overt fait, et de ceo provablement, &c.54

[doth compasse or imagine.]55

So as there must be a comapassing or imagination, for an Act done per infortunium,56 without compassing, intent, or imagination: is not within this Act, as it appeareth by the expresse words thereof. Et actus non facit reum, nisi mens fit rea.58Regula.57 And if it be not within the words of this Act, then by force of a clause hereafter, viz. Et pur ceo que plusors auters, &c.59 It cannot be adjuged treason, untill it be declared treason by Parliament, which is the remedic in that case, which the makers of the law provided in that case. This compassing, intent, or imagination, though secret, is to be tryed by the peers, and to be discovered by circumstances precedent, concomitant, and subsequent, with all endeavour evermore for the safety of the King. This was the case of Sr. Walter Tirrel a French Knight, who the first day of August Ann. 13 Williel. 2. Ann. dom. 1100 being a hunting with the King in the new forest, was commanded by the King to shoot at a Hart,60Exiit ergo telum volatile, et obstante arbore in obliquum reflexum faciens, per medium cordis regem sauciavit, qui subito mortuus corruit.61

It appeareth also by the Custumer of Normandy treating of treason, and the exposition of the same, that this act was not treason.62 To calculate or seek to know by setting of a figure or witchcraft, how long the King shall raigne or live, is no treason, for it is no compassing, or imagination of the death of the King, within this statute of 25 E.3. And this appeareth by the judgement of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Queen Eliz. which before was punishable by fine and imprisonment.

63 The ancient law was, that if a mad man had killed or offered to kill the King, it was holden for treason; and so it appeareth by King Alfreds law before the Conquest, and in lib. 4. in Beverlyes case. But now by this statute and by force of these words, Fait compasser ou imaginer la mort,64 he that is non compos mentis65 and totally deprived of all compassings, and imaginations, cannot commit High Treason by compassing or imagining the death of the King: for furiosus solo ferore punitur:66 but it must be an absolute madnesse and a totall deprivation of memorie. And this appeareth by the statute of 39. H. 8.67 for thereby it is provided that if a man being Compos mentis commit High Treason, and after accusation, &c. fall to madnesse, that he might be tryed in his absence, &c. and suffer death, as if he were of perfect memory, for by this statute of 25 E.3. a mad man could not commit High Treason. It was further provided by the said Act of 33 H.8. that if a man attainted of treason became mad, that notwithstanding he should be executed; *68 which cruell and inhumane law lived not long, but was repealed, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos metus ad omnes perveniat,69 as before is said: but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty; and can be no example to others.

[Death.]70

^a71 He that declareth by overt act to depose the King, is a sufficient overt act to prove, that be compasseth and imagineth the death of the King. And so it is to ^b72 imprison the King, or to take the King into his power, and manifest the same by some overt act, this is also a sufficient overt act for the intent aforesaid.73 But peruse advisedly the statutes of 13 Eliz: cap. 1. 2. & 14 Eliz. cap. 1.

[Of our Lord the King.]74

There words extend to all his successors, as it hath been alwayes taken.

[The King.]75

Is to be understood of a King regnant, and not of one that hath but the name of a King, or a nominative King, as it was resolved in the case | of King Philip, who married Queen Mary, and was but a nominative King, for Queen Mary had the office and dignity of a king, so as she wanted within this Act of 25 E. 3. And hee that had the name, and not the office and dignity of the King was not within it. And therefore an Act was made, that to compasse or imagine the death of King Philip, &c.76 during his marriage with the Queen, was treason. A Queen regnant is within these words, (nré seignior le Roy ) for she hath the office of a King.

This Act is to be understood of a King in possession of the Crowne,76 and Kingdome: for if there be a King regnant in possession, although he be Rex de facto, et non de jure, yet is he seignior le Roy77 within the Purview of this statute. And the other that hath right, and is out of possession, is not within this Act.78 Nay if treason be committed against a King De facto, et non de jure, and after the King de jure commeth to the Crowne, he shall punish the treason done to the King de facto: And a pardon granted by a King de jure, that is not also de facto, is voyde.

If the Crown descend to the rightfull heire, he is Rex before Coronation: for by the Law of England there is no interregnum:79 and Coronation is but an ornament or solemnity of honour. And so it was resolved by al the Judges Hil. 1. Ja. in the case of Watson and Clarke Seminary priests:80 for by the law there is alwayes a King, in whose name the lawes are to be maintained, and executed, otherwise Justice should faile. Divers Kings before the Conquest voluntarily renounced their Kingly office: And so did King H.2. in the 16. yeare of his reigne, and Henry his sonne was created and crowned.

It appeareth by Britton, that to compasse the death of the father of the King,81 is treason, and so was the law holden long after that: for after King E.2. had dismissed himselfe of his kingly office, and duty, and his sonne by the name of E. 3. was crowned, and king regnant, those cursed Caitifs Thomas Gourny, and William Ocle, and others were attainted of High Treason for murthering the Kings father, who had been King by the name of E.2. and had judgement to be drawne, hanged, and quartered.

*82 The like judgement was given against Sir John Matrevers knight, and others, as being guilty of the death of the Kings uncle, Edmond Earl of Kent, which at that time (being so neer of the bloud royall) was by some holden also treason. But now this Act of 25 E.3. hath restrained High treason in case of death (al nré seignior le Roy, sa compaigne, et al eigne fitz, et heire le Roy.83

Nicholas de Segrave was charged in open parliament in praesentia dn̄i. Reg. comitum, baronum, et aliorum de consilio Regis tunc ibi existent,84 ,85 that the King in the warre of Scotland being amongst his enemies, Nicholas Segrave his liege man, and holding of the King by homage, and fealty, served him for his aid in that warre, did maliciously move contention and discord without cause, with John de Crombewell, charging him with many enormious crimes, and offered to prove it upon his body. To whom the said John answered, that he would answer him in the Kings Court, as the Court should consider, &c. and thereupon gave him his faith. After Nich. withdrew himselfe from the Kings Host, and from the Kings aid, leaving the King amongst his enemies, in periculo hostium suorum,86 and adjourned the said John to defend himself in the court of the King of France, and prefixed him a certaine day, Et sic quantum in eo fuit, subjiciens, et submittens dominium regis, et regni subiectioni dn̄i. regis Franciae, ad hoc faciendum, iter suum arripuit usque Dovoriam, ad transfrerandum, &c.87 All which the said Nich. confessed, et voluntari dn̄i. regis de alto et basto inde se submisit. Et super hoc dn̄s Rex volens habere avisamentum Comitum, Baronum, Magnatum, et aliorum de consilio suo, injunxit eisdem in homagio, fidelitate, & ligeantia quibus ei tenentur, quod ipsum fideliter consulerent, qualis poena pro tali facto sic cognito fuerit infligenda: qui omnes, habito super hoc diligenti tractaru, & avisamento, consideratis, & intellectis omnibus in praedicto facto contenus, &c. dicuut quod hujusmodi factum meretur amissionem vitae & membrorum, &c.88 So as this offence was then solemnely in parliament adjudged High treason. But this is | taken away by this Act of 25 E.3. being not under any of the classes, or heads specified in this act.

So piracy by any of the Kings subjects upon another, was taken to be treason before this Act,89 for so is the book to be intended, because a pirat is Hostis humani generis.90 But by this Act it is not now to be judged treason. See hereafter in the chapter of Piracy.

One doth marie a Queen regnant, if the husband compasse the death of the Queene, and declare the same by over act, he is guilty of treason, and punishable by this act, for to this and many other purposes, she is a distinct person by the common law. And so if a Queene wife of a King regnant, compasse the death of the King, and declare the same by overt act, she is guilty of treason, and punishable by this act. So as (that we may speak it once for all) by these and many others that might be cited,91 (some whereof shall hereafter be touched) the preamble of this act appeareth to be true, that divers opinions had been before the making of this act, what offences should be adjudged High treason, and what not.

This statute having restrained the compassing, &c. of death to the King, Queen, & Prince, it came to passe after the making of this act, that in 3 R.2.92 two Citizens of London, John Kerby Mercer, and John Algore Grocer conceiving malice against John Imperiall Janevois of S. Mary in Genoa that came as Ambassador from the state of Genoa to the King (under the Kings Letters of safe conduct, for alliance to be had betweene the King and the Duke and Comminalty of Genoa aforesaid) for that the said John Imperiall had obtained a 93 monopolie to furnish this land (keeping his staple at Southampton of all such wares as came from the Levant, so plentifully as was to be had in all the west parts of Christendome, the said John Imperiall was killed by them,94 as more at large appears by the record. And albeit the said John Imperiall was an Ambassadour under the Kings safe conduct, and the killing of him was justi belli causa,95 yet the killing of him was no treason, because it was not under any of the said classes or heads,96 until it was at that time declared by parliament in these words, Quel case examine & dispute inter les seigniors, & commons, & puis mŕe al Roy en pleine parliament, estoit illonques devant nŕe seignior le Roy declares, determinus & assentus, que tiel fait, & coupe est treason, & crime de royall majestie blemye, en quel case il ne doir allower a nulluy priviledge del clergie,97 and accordingly the said Kerby and Algore were attainted of High treason in the Kings bench, Hill. 3 R.2. ubi supra: but this declaration is taken away by the statute of 1 Mariae, as hereafter shall be said, and yet of this declaration we shall make much use hereafter.

In the 22 yeare of E.3. which was about 3 yeares before the making of this act, one John at Hill had murdered A. de Walton the Kings Ambassadour,98nuncium dn̄i regis miss. ad mandatum regis exequendum:99 this was adjudged High treason, for which he was drawne, hanged, and beheaded, &c. For true it is, quod legatus ejus vice fungitur, a quo destinatur, & honorandus est sicut ille cujus vicem gerit, & legatos violare contra jus gentium est.100 But by this Act of 25 E.3. it is restrained to the death de nŕe seignior le Roy,101 and therefore, prorex,102 is not within this statute.

[Of my Lady [his queene].]103

This word compaigne, (which is all one with consort or wife) was used, that compassing, &c. must be during the marriage with the King, for after the Kings death she is not sa compaigne, and therefore it extendeth not to a Queene dowager, and for this cause this word compaigne, was used in this Act.

[Their eldest sonne and heire.]104

The eldest sonne and heire of a Queen Regnant is within this Law.105 Before this Statute some did hold, that to compasse the death of any of the Kings children, was Treason. But by this Act it is restrained to the Prince, the Kings Sonne, being heire apparant to the Crowne for the time being: and he need not be the first begotten sonne, for the second after the decease of the first begotten without issue, is Fitz eigne106 within | this statute, & sic de caeteris.107 If the heire apparent to the Crowne be a collaterall heire apparent, he is not within this statute, untill it be declared by Parliament, as it was in the Duke of Yorks case.

Roger Mottimer Earle of March was in Anno Domini 1487 (11 R.2.) proclaimed heire apparent. Anno 39 H.6. Richard Duke of York was likewise proclaimed heire apparent. And so was John de la Poole Earle of Lincolne, by R.3. And Henry Marquise of Exeter, by King Henry the eighth. But none of these or of the like, are within the Purvieu of this statute. And now that we have handled compassings and imaginations, let us proceed to the residue which concerne Acts and Deeds.

Heire is here taken for heire apparant, for he cannot be heire in the life of the Father.

[If a man doe violate the kings compagnion.]108

The Mirror saith,109Crime de Majestie vers le Roy p ceux Avowterors q̄ spergissent la feme le Roy.110 Whereby it appeareth that this was High Treason by the common Law.

Violare is here taken for carnaliter cognoscere;111 ,112 and it is no treason, unlesse it be done during the marriage with the King, and extendeth not to a Queen Dowager, as hath been said. And if the wife of the King doth yeeld and consent to him that committeth this treason, it is treason in her.113

[The wife of the kings eldest sonne and heire.]114

This also extendeth to the wife of the Prince during the coverture betweene them, and not to a Dowager, and if the wife yeeld and consent to him that commits this treason, it is treason in her.

[Heire.]

Here is taken ut supra, for heire apparant.

[or the kings eldest daughter unmarried.]115

(That is,) eldest Daughter not married at the time of the Violation, albeit there had been an elder daughter then she, who is dead without issue.116 The Mirror. Avowterors q́ spergissent la file le Roy eignes legittime, avant ceo q el soit marie.117

And the reason that the eldest only is here mentioned, is, for that for default of issue Male, she only is inheritable to the Crowne.

[Or if a man doe levie warre against our lord the king.]118

^a119 This was High Treason by the Common Law, for no subiect can levie warre within the Realme without authority from the King, for to him it only belongeth. See F.N.B. 113.a. Le Roy de droit saver & defender son realme vers enemies, &c.120

^b121 A compassing or conspiracy to levie war, is no Treason, for there must be a levying of war in facto. But if many conspire to levie war, and some of them do levie the same according to the conspiracy, this is High Treason in all, for in Treason all be principals, and war is levied.

If any levie war to expulse strangers, to deliver men out of prisons, to remove Counsellors, or against any statute, or to any other end, pretending Reformation of their own heads, without warrant; this is levying of war against the King: because they take upon them Royall Authority, which is against the King. There is a diversity betweene levying of war and committing of a great Riot, a Rout, or an unlawfull assembly. ^c122 For example, as if three, or foure, or more, doe rise to burne, or put downe an inclosure in Dale, which the Lord of the Manor of Dale hath made there in that particular place; this or the like is a Riot, a Rout, or an unlawfull Assembly, and no Treason. But if they had risen of purpose to alter Religion established within the Realme, or Laws, or to go from Town to Town generally, and to cast downe Inclosures, this is a levying of war (though there be no great number of the Conspirators) within the Purvien of this Statute because the pretence is publick and generall, and not | private in particular. And so it was resolved in the Case of Richard Bradshaw Miller, Robert Burton Major, and others of Oxfordshire,123 whose Case was. That they conspired and agreed to assemble themselves with so many as they could procure at Enslowe-Mill in the said County, and there to rise, and from thence to go from Gentlemans house to Gentlemans house, and to cast downe Inclosures, as well for enlargement of High-wayes as of errable Lands. And they agreed to get Armour and Artillery at the Lord Norrys his house, and to weare them in going from Gentlemans house to Gentlemans house for the purpose aforesaid, and to that purpose they persuaded divers others: and all this was confessed by the offenders. And it was resolved, That this was a compassing and intention to levie war against the Queen, because the pretence was publick within the statute of 13 Eliz. ca.1. (the Letter whereof herein shortly followeth,) and the Offenders were attainted and executed at Enslowe Mill.

And this diversity is proved by a latter Branch of this Act.

Et si per case ascun home de cest realme chimancha arme discovert secretment ove gents armes, contre ascun autre, pur luy tuer, ou disrober, ou pur luy prender, ou retayner tanq il face fine, ou ransome pur sa deliverance, nest lentention le Roy & de son counsell, q en tiel case soit adjudge treason, mes soit adjudge felony, ou trespasse, solonq le ley del tŕe auncienement use.124 Whereby it appeareth, that bearing of armes in warlike manners, for a private revenge or end, is no levying of war against the king within this statute. So that every gathering of force is not High Treason. And so it was resolved in Parliament in 5 H.4 Rot. Parliam. nu 11. & 12.125 the Earle of Northumberlands Case.

By the said Statute of 13 Eliz. cap.1.126 it is enacted, declared, andestablished. “That during the naturall life of Queene Elizabeth, if any within the Realme or without, should compasse, imagine, invent, devise, or intend to levie war against her Majesty, within this Realme, or without, and the same declare by writing or word, &c. that it should be High Treason:” So during the life of the Queen a conspiracy to levie war was High Treason, though no war were levied; and upon that law, Bradshaw, Burton and others, were attainted of High Treason, for conspiracy only to levie war. But it was resolved by all the Justices, that it was no treason within the statute of 25 E.3. as hath been said. The words in this law are [levie guerre]127 An actual Rebellion or Insurrection is a levying of war within this Act, and by the name of levying war is to be expressed in the Indictment. If any with strength and weapons invasive and defensive, doth hold and defend a Castle or Fort against the King and his power, this is levying of war against the King within this Statute of 25 E.3.

[Or be adherent to the kings enemies in his Realme, giving to them aide and comfort in the realme or elsewhere.]128

It was resolved by all the Judges of England in the reigne of King H.8. that an Insurrection against the Statute of Labourers, for the inhansing of salaries and wages, was a levying of war against the King, because it was generally against the Kings Law, and the offenders took upon them the reformation thereof, which subiects by gathering of power ought not to do. It was specially found, that divers of the Kings subjects did minister and yeeld victuals to Sir John Oldcastle Knight, and others, being in open war against the King, and that they were in company with them in open war; but all this was found to be pro timore mortis, & quod recefierunt, quam cito procuerunt;129 and it was adiudged to be no Treason, because it was for feare of death. Et actus non facit reum, nisi mens fit rea.130 And therefore this in them was no leying of war against the King within this Act.

[Adherent.]

^a131 This is here explained, viz. in giving aide and comfort to the Kings enemies within the Realme or without: Delivery or surrender of the Kings Castles or Forts by the Kings Captaine thereof to the Kings enemie within the realme or without for reward, &c. is an adhering to the Kingsenemy, and consequently treason declared by this Act. 6.132 A. is out of | the Realme at the time of a Rebellion within England, and one of the Rebels flye out of the Realme, whom A. knowing his treason doth aide or succour, this is no treason in A. by this branch of 25 E.3. because the traytor is no enemy, as hereafter shall be said; and this statute is taken strictly.

[Enemies.]133

134Inimicus in legall understanding is hostis,135 for ^c136 the subjects of the King, though they be in open war or rebellion against the King, yet are they are not the Kings enemies, but traytors; for enemies be those that be out of the allegiance of the King. If a Subject jouyne with a foraine Enemy and come into England with him, he shall not be taken prisoner here and ransomed, or proceeded with as an enemy shall, but he shall be taken as a traytor to the King.

^d137 An Enemy comming in open hostility into England, and taken, shall be either executed by Marshall-Law, or ransomed; for he cannot be indicted of treason, for that he never was within the protection or ligeance of the King, and the Indictment of Treason saith, Contra ligeantiam suam debitam.138

^e139 David Prince of Wales levied war against E.1.This was Treason, for that he was within the homage and ligeance of the King, and had judgement given against him as a Traytor, and not as an enemy. And albeit in many presidents of Indictments, Subiects that be Rebels, and Traytors, &c. be called proditores & inimici;140 yet within this statute they are not inimici.

^f141 In the Duke of Northfolks Case the question was, a league being between the Queene of England and the King of Scots, whether the Lord Herise and other Scots in aperto praelio burning and wasting divers Townes in England without the assent of the King, were enemies in law within this statute, and resolved that they were. ^g142 See more hereafter in this third part of the Institutes. cap.49. of Piracy, &c. upon the statute of 28. H.8. cap.15.

[Or elsewhere.]143

That is to say, out of the Realme of England. But then it may be demanded, how should at this time this foraine treason be tried? And some ^h144 of our Books doe answer, that the offender shall be indicted and tried in this Realme where his land lyeth, and so it was adjudged in 2 H.4 But now by the statute of 35 H.8. cap.2. (which yet remains in force) All offences made or declared, or hereafter made or declared treasons, misprisions of treason, and concealements of treason, committed out of the Realme of England, shall be inquired of, heard, and determined, either in the Kings Bench or before commissioners in such Shire as shall be assigned by the King. If it be before Commissioners, it hath been commonly used, that the King doth write his name in the upper part of the Comminssion. But in the Case of Patrick O Cullen an Irishman, the Queene did put her Signature to the Warrant to the Lord Keeper, and not to the commission: *145 and it was holden by the Justices that the one way and the other was a sufficient assignement by the King within the statute of 35 H.8.

ⁱ146 It was resolved by all the Judges of England, that for a treason done in Ireland the offender may be tryed by the statute of 35 H.8. in England, because the words of the statute be, “All Treasons committed out of the Realme of England, and Ireland is out of the Realme of England.” And so it was resolved in Sir John Parrots Case. And our word here [per ailors elsewhere] is as much as out of the Realme of England. See Pasch. 2 H.4. coram Rege Rot. 8. Salop. Treason in Wales.

^k147 All treasons done upon the Sea shall be inquired, heard, and determined in such shires and places of the Realme as shall be limited by the Kings Commission, in like forme and condition, as if the same had been done upon the land, &c. after the common course of the lawes of this land. And by the preamble it appeareth, that it could not be tryed by the Common law, but by the Civill law before the Lord Admirall. See hereafter in the exposition of the statute of 28 H.8. cap. 15. & infra, cap. 49.

| [And thereof be provably attained of open deed by people of their condition.]148

In this branch 4 things are to be observed. ^g149 First this word [provablement ] probably, that is, upon direct and manifest proof, not upon coniectural or presumptions, or inferences, or straines of wit, but upon good and sufficient proofe. And herein the adverb [provablement ] probably, hath a great force, and signifieth a direct and plain proof, which word the King, the Lords, and Commons in Parliament did use, for that the offence was so hainous, and was so heavily, and severely punished, as none other the like, and therefore the offender must probably be attainted, which words are as forcible, as upon direct and manifest proof. Note, the word is not [probably] for then commune argumentum150 might have served, but the word is [provably,] be attainted.

2 This word [attaint ] necessarily implyeth that he be proceeded with, and attainted according to the due course, and proceedings of law, and not by absolute power, or by other meanes, *151 as in former times had been used. ^h152 And therefore if a man doth adhere to the enemies of the King, or be slaine in open warre against the King, or otherwise die before the attainder oftreason, he forfeiteth nothing, because (as this Act saith) he is not attainted: wherein this Act hath altered that, which before this Act, in case of treason, was taken for law. And the statute of 34 E.3. cap.12. saves nothing to the King, but that which was in esse,153 and pertaining to the King of the making of that Act. And this appeareth by a judgement in parliament in Anno 29 H.6. cap.1. That *154 Jack Cade being slaine in open rebellion could no way be punished, or forfeit any thing, and therefore was attainted by that act of High treason.

[Of open deed.]155

per apertum factum,156 ,157 This doth also strengthen the former exposition of the word (provablement,)158 that it must be provably, by an open act, which must be manifestly proved.159 As if divers doe conspire the death of the King, and the manner how, and thereupon provide weapons, powder, *160 poison, assay harness, send letters, &c. or the like, for execution of the conspiracy. Also preparation by some overt act, to depose the King, or take the King by force, and strong hand, and to imprison him, untill he hath yeelded to certaine demands, this is a sufficient overt to prove the compassing and imagination of the death of the King: for this upon the matter is to make the King a subiect, and so dispoyle him of his kingly office of royall government. And so it was resolved by all the Judges of England. Hill 1 Jac. regis, in the case of the Lo. Cobham,161 Lord Gray, and Watson and Clarke Seminary priests: And so had it been resolved by the Justices, Hill.43. Eliz. in the case of the Earles of E. and of S. who intended to goe to the court where the Queen was, and to have taken her into their power, and to have removed divers of her Counsell, and for that end did assemble a multitude of people; this being raised to end aforesaid was a sufficient overt act for compassing the death of the Queen. And so by woful experience in former times it hath fallen out, in the cases of King E.2. R.2. H.6. and E.5 that were taken, & imprisoned by their subjects. And this is made more plain by the legall forme of an inditement of treason: For first it is alledged according to this act, Quod162proditorìè compassavit, & imaginatus fuit mortem & destructionem dn̄i regis, & ipsum dom, regem intersicere, &c.163 In the second part of the inditement is alledged the overt act, et ad illam nephandam, & proditoriam comapassationem, imaginationem, & propositum suum perficiend’ & perimplend’164 and then certainly to set downe the overt fact for preparation to take, and imprison the King, or any other sufficient overt act, which of necessity must be set downe in the Inditement. Hereby it appeareth how insufficeint many inditements were of High treason, wherein it was generally alledged, that per apertum factum compassavit, & imaginatus fuit mortem dom. regis, &c.165 *166 For example Term̄o Mic. anno 5 E.6. Edward Duke of Somerset was indited before Commissioners of Oyer and terminer in London, quod ipse deum prae oculis suis non habens, sed instigatione diabo-|-lica seductus, apud Holborne in parochia Sancti Andreae infra civitatem London, viz. 20 die Aprilis anno regni domini Regis Edw. sexti quinto, & diversis diebus & vicibus antea & postea falso, maliciose, & proditorie *167per aperium factum circumivit, compassavit, & imaginavit cum diversis aliis personis praedictum dominū Regem de statu suo regali deponere & deprivare, &c.168 Which Indictment,169 and all others of like forme were against law, as hath been said, and of the matter of this Indictment that noble Duke was by his Peers found not guilty. But then it may be demanded, for what offence he had judgement of death, and 2. what law made it an offence. The offence appeareth in his Indictment, for the former part thereof contained High Treason, whereof he was acquited, & the latter part contained one only offence of felony (whereof he was found guilty) in these words, Et ulterius Juratores praed. praesentant, quod praesatus Edwardus dux Somerset Deũ prae oculis suis non habens,170sed instigatione diabolica seductus 20 Maii An. regni dicti Dom. Regis Edwardi sexti quinto supradicto, ac diversis aliis diebus & vicibus antea & postea apud Holborn in praed. paroch. Sancti Andreae in civitate London, & apud diversa alia loca infra civitatem London praed. felonice ut selo dicti Dom. Regis per aperta verba & facta procuravit, movit, & instigavit complurimos subditos ipsius domini Regis ad insurgendum, & apertam rebellionem & insurrectionem infra hoc regnum Angliae movend’ contra ipsum dominum Regem, & ad tunc & ibid. felonice ad capiendum & imprisonandum prae nobilem Johannem comitem Warwick de privato consilio domini Regis ad tunc existen’, contra pacem dicti domini Regis coronam & dignitatem suam, & contra formam statuti in hujusmodi casu editi & provisi.171 The statute whereupon this Indictment was intended to be grounded, was the branch of the statute of 3 & 4 E.6.172 by which it is provided, [That if any person or persons by ringing of any Bel, &c. or by malicious speaking or uttering of any words, or making any Dutery, &c. or by any other deed or act shall raise or cause to be raised or assembled any persons to the number of 12 or above, to the intent that the same persons should do, commit, and put in use any of the acts or things above mentioned (whereof to take and imprison any of the Kings most honorable Privie Counsell was one) and the persons to the number of 12 or above so raised and assembled after request and commandement (in such sort as in that Act is prescribed) shall make their above and continue together, as is aforesaid, (in the Act) or unlawfully perpetrate, doe, commit, or put in use any of the acts or things abovesaid, that then all and singular persons by whose speaking, deed, act, or any other the meanes above specified any persons to the number of 12 or above, shall be raised or assembled for the doing, committing, or putting in use any of the acts or things above mentioned, shall be adiudged for his so speaking or doing a felon, and suffer execution of death as in case of felony, and shall lose his benefit of Sanctuary and Clergy.] Hereby it doth manifestly appeare, that the truth concerning this Noblemans attainder, and execution in divers things, is contrary to the vulgar opinion, and some of our Chronicles, and in some points contrary to law. First, that for the felony made by the said branch of the said Act he could not have had his Clergie, for Clergie in that Case is expressly ousted by the said Act. 2. That he was not indicted for going about, &c. the death of the Earle of Warwick then of the Kings Privie Counsell, but only for his taking or imprisonment, and therefore could not be indicted upon the statute of 3 H.7.173 as some have imagined. 3. That the Indictment is altogether insufficient, for it pursueth not the words or matter of the said branch of the said Act, as by comparing of them it manifestly appeareth;which (we being desirous that truth may appeare in all things) we have thought good upon this occasion to adde for advancement of truth. 4. That being but attained of felony, he could not by law be beheaded, as elsewhere we have shewed.174 And this Act that created the felony saith, that such a felon shall suffer execution of death, as in case of felony. 5. Lastly, this whole Act was justly holden to be a doubtfull and dangerous statute, and therefore was deservedly repealed. And after the fall of this Duke, see the preamble of the statute of Subsidie of 7 E.6.175

| And now to returne to Cases of High Treason. If a man be arraigned upon an Indictment of High Treason, and stand mute, he shall have suchjudgement, and incurre such forfeiture, as if he had been convicted by Verdict, or if he had confessed it. For this standeth well wit hthis word provablement, for fatetur facinus, qui judicium fugit:176 but otherwise it is in case of Petit Treason, Murder, or other Felony.177

If a subiect conspire with a foraine Prince beyond the seas to invade the Realme by open hostility, and prepare for the same by some overt act, this is a sufficient overt act for the death of the King, for by this Act of Parliament in that Case there must be an overt act.178Qui capiti, aut saluti Regis persidiose sive solus, sive servis aut sicariis mercede conductis itipatus insidiabitur, vita & fortunis ejus omnibus privator.179 So as thereby an overt act was required.

The composition and connexion of the words are to be observed, viz. [thereof be attained by overt deed.] *180 This relateth to the severall and distinct treasons before expressed, (and specially to the compassing and imagination of the death of the King, &c. for that it is secret in the heart) and therefore one of them cannot be an overt act for another. As for example: a conspiracy is had to levie warre, this (as hath been said, and so resolved) is no treason by this Act untill it be levied, therefore it is no overt act or manifest proofe of the compassing of the death of the King within this Act: for the words be (de ceo. &c.181 ) that is, of the compassing ofthe death. For this were to confound the severall Classes, or membra dividentia, & sic de caeteris, &c.182

183 Divers latter Acts of Parliament have ordained, that compassing by bare words or sayings should be High Treason; but all they are either repealed or expired. And it is commonly said, that bare words may make an Heretick, but not a Traytor without an overt act. And the wisdome of the makers of this law would not make words only to be Treason, seeing such variety amongst the witnesses are about the same, as few of them agree together. But if the same be set downe in writing by the Delinquent himselfe, this is a sufficient overt act within this statute.

184 Cardinall Poole, albeit he was a subject to H.8. and of the Kings blood, (being descended from George Duke of Clarence, Brother to King E.4.) yet he in his Booke of the Supremacy of the Pope, written about 27 H.8. incited Charles the Emperour, then preparing against the Turke, to bend his force against his naturall Sovereigne Lord and Countrey; the writing of which Booke was a sufficient overt act within this statute: and to move the Emperour the rather in that Book, he made H.8. almost as ill as the Turk, in these words, in Anglia sparsum nune est hoc semen, ut vix a Turcico internosci queat, idque authoritate unius coaluit.185

That is, per pares, or their equals, whereof we have spoken before in the exposition of the ^e189 29 Chapter of Magna Carta, Verb. per judicium parium suorum,190 and more shall be and said hereafter. This Branch (p gents de jour condition ) extendeth only to a conviction by Verdict, whereof the statute particularly speaketh; but yet where the party indicted confesseth the offence or standeth mute, he shall have judgement as in case of High Treason. For this branch being affirmative, is taken comulativè | and not privativè.191 And therefore seeing upon confession, or standing mute, the judgement in case of high treason was given at the common law, this Act being, as it hath been said, affirmative, taketh not away the same: And (to say once for al) the clause hereafter of restraint of like cases, &c. extends onely to offences, and not to tryalls, judgements, or executions.

[And if a man counterfeit the Kings great Seale.]192

All our ancient Authors agree that this was High treason by the common law; and for this offence his judgement was to be drawn, hanged, and quartered, at the common law, as in other cases of High treason, (the counterfeiting of the Kings mony excepted.) See The second part of the Institutes, W. 1 cap. 5.193

194 In ancient time every treason was comprehended under the name of felony, but not é contra:195 And therefore a pardon of all felonies was sometime allowed in case of High treason. But the law is, and of long time hath been otherwise holden:196 and if the inditement were felonicè,197 and not proditoriè,198 (for the King may lessen the offence, if it please him)199 then the pardon of felonies is good at this day, for no Inditement can be of High treason without this word (proditoriè:) and in qualiber prodicione implicatur felonia, quia in quolibt brevi de exigendo super quolibet indictamento de proditione proclamator facit sic, I. B.200 An exigent on thy head of treason and felony.

A Compassing, intent, or going about to counterfeit the great seale is no treason, but there must be an actuall counterfeiting, also it must be to the likenesse of the Kings great seale, the words be, Counterface le grand seale le Roy.201

Now it is to be seen what shall be said a forging or counterfeiting of the great seale. If the Lord Chancellor, or Lord Keeper put the great seale to a Charter &c. without warrant, this is no treason, because the great seale is not counterfeited. But it seemeth by Briton fo. 10. b. that it was treason at the common law, and of that opinion is Fleta fo. 29.a. but it is not treason now (without question) by the negative clause of this Act.

If a man take wax lawfully imprinted with the great scale from the patent, and fix it to a writing purporting a grant from the King, there have been divers opinions in this case what the offence is, which we will rehearse.

In 40. E.3.202 which was about 15. years after the making of this Act, it was not holden High treason, but a great misprision, for that it is no counterfeiting of a new, but an abuse of the true great seale.

In 42 E.3.203 the Abbot of Bruer caused Rob. Rigge his Commsiogne to rase a Charter of R.1. and put out the manner of Fisfetruda, and in place thereof put in Efleghe. And this offence was heard, and sentenced before the King and his Counsell in the Star-Chamber, as a great offence and misprision: for if it had been High treason, it should have had another tryall, and yet this was a great abuse of the great seal.

2 H.4.204 The taking of Great Seal from one Patent, and fixing it to a Commission to gather mony, &c. was adjudged to be such an offence, as the offender had judgement to be drawne, and hanged. The record of which case we have perused, and the effect thereof is this. The partie is indited generally for counterfeiting of the great seal, whereunto he pleaded not guilty, and the Jury found him not guilty of the counterfeiting of the great seale, as was supposed by the inditement, and found further specially, that he tooke the great seale from one patent, and put it to the commission, and that the party put the same in execution, and there judgement was given, that he should be drawne and hanged: which (whatsoever the offence was) ought not to have been given upon this verdict,205 the Jury finding him not guilty of the offence alledged in the inditement: And besides the judgement is such, as is given in case of Petit treason, and not of high treason. Hereby it appeareth how dangerous it is for any to report a case by the ear, specially concerning treason, unlesse he had advisedly read the Record: for (as I take it) the misreport of this case hath hatched errors, and he mistooke the judgment, if it had been High treason, for then it should have been drawne, hanged, and quartered.

| 37. H.8. Br. tit. Treason.206 A Chaplain had fixed such a great Seale to a Patent of dispensation with non-residence, and this was holden a misprision, and not High treason, for it was an abuse of the great seale, and no counterfeiting of it. Stanford saith that it was adjudged in his time according to the book of 2 H.4. Et sic ex errore sequitor error.207 ,208

G. Leak a clark of the Chancery joyned two cleane parchments fit for letters patents so close together with mouth glew, as they were taken for one, the uppermost being very thinne, and did put one labell through then both, then upon the uttermost he writ a true patent, and got the great seale put to the labell, so the labell and the seale were annexed to both the parchments, the own written, and the other blanck: he cut off the glewed skirts round about, and tooke off the uppermost thinne parchment (which was written, and was a true and perfect patent) from the labell, which with the great seale did still hang to the parchment, then he wrote another patent on the blancke parchment, and did publish it as a good patent. Hereupon two questions were moved. 1. Whether this offence be High treason or no. 2. If it be High treason, then whether he may be indited generally for the counterfeiting of the great seale, or els the speciall fact must be expressed. And upon conference had between the Judges, upon great advisement and consideration it was in the end, concerning the first point, resolved by the Justices (saving a very few) upon the authorities aforesaid, and for that it was no counterfeiting of the great seale within this statute, that this offence was neither High treason, nor Petit treason, because it is not within either of the branches of this statute,209 but it is a very great misprision, and the party delinquent liveth at this day. As to the 2. point it was resolved, that if the speciall matter had amounted to counterfeiting of the great seale in law within this act, then he might have been generally indited of High treason for counterfeiting the great seale. As if a man in an affray kill a Constable that comes to keep the Kings peace without any expresse malice prepensed, this is murder in law, and yet the delinquent may bee generally indited of murder by malice prepensed.

And ^a210 Fleta who wrote before this act telleth us, that Crimen falsi dicitur, cū quis illicitus (cui non fuerit ad hoc data authoritas) de sigillo regis rapto vel invento, & brevia cartasque consignaverit.211 But whatsoever offence it was before the making of this statute, it is after this statute no High treason, because it is no counterfeiture of the great seale, but a misusor thereof.

Qui^b212convictus fuerit pro falsatione sigilli dom. regis, quòd tradatur Episcopo Sarum, qui eum petiit ut clericum suum sub poena & in forma qua decet, quia videtor concilio quod in tali casu non admittenda est purgatio, &c.213 Hereby it should appeare that in those dayes a man might have had his Clergie for this offence, and therefore as some hold, it was not then holden to be High treason, & herein also is the preamble of this act, concerning divers opinions in case of treason, verified.

This statute naming the great seale and privie seale, the forging and the counterfeiting of the privie signet, or of the signe manuell was not within this statute. But by the ^c214 statute of 1 Mar. it is made High treason in both cases. Alteit that in this act there is no mention made of ^d215 ayders and consentors to this counterfeiting, yet they are within the purvien of this statute, for there be no accessaries in High treason.

[Or his money.]216 ,217

^e218 This was treason by the common law, as it appeareth by all the said ancient authors, ubi supra (verbo, Si home counterface le grand seale)219 and therefore the opinion in 3 H.7. is holden for no law, that it was but felony before this act. ^f220 The forging of the Kings coine, is High treason, without utterance of it, for by this act the counterfeiting is made High treason. See the second part of the Institutes. W. 1. cap. 15. ^g221 See Thom. Walsingham. Hypodigme Neustrie. An. Dom. 1278. Judei protonsura monetae in magna multitudine ubique per Angliam suspenduntur, &c.222

^h223Si ipse qui facit monetam authoritate regis, &c. illam facit minus in pondere | vel allaiata, viz. Alcumino vel alio falso metallo contra ordinationem, &c.224 This is there holden to be High Treason, and by that Book taken for a counterfeiter of the Kings money within the Purvien of this statute. ^a225 And herewith agreeth Britton, who saith, Des sauceres q. ount nostre monye counterfet ou pluis de allaye mise in nostre monye, q. nuster, ne serroit solonq le forme & usage de nostre Realme.226

^b227Ordeine fuit q. nul roy de cest realme ne puit changer sa money, ne impairer, ne amender, ne auter monye faire q̄ de ore & argent, sans lassent de couts les Counties.228 It was ordained, that no king of this Realme might not change his money, nor impaire, nor amend the same, nor other money make then of Gold or Silver, without assent of Parliament.

^c229 Clipping, washing, and filing of the money of this Realme, was no counterfeiting of it within this Act. And therefore being a like Case, it was declared by Parliament in Anno 3 H.5. cap. 6. to be High Treason; but that Act being repealed by 1 Mariae the statute of 5 Eliz. cap. 11. hath ^d230 declared that clipping, washing, rounding, or filing, for wicked lucre and gaine, &c. to be High Treason. And by the statute of ^e231 18 Eliz. it is declared, That if any person for wicked lucre or gaines-sake, shall by any art, wayes, or meanes whatsoever, impaire, diminish, falsifie, scale, or lighten the Kings money, &c. it is High Treason, for being a like case, it was to be declared by Parliament.

Forging ^f232 or counterfeiting of foraine money, which is not currant within the Realme, is misprision of Treason, and the offender shall forfeit, as for concealement of High Treason.

[His money.]233

^g234 This extendeth only so the Kings money coyned within this Realme; and therefore after this statute, if a man had counterfeited the money of another kingdome, though it were currant within this Realme, it was no treason, untill it was so declared by Parliament ^h235 in An. 1 Mariae, and in An. 1 & 2 Ph.& M. and the said Acts of 5 Eliz. & 18 Eliz. do extend to forrain coyne currant within this Realme. And it is holden, that at the making of this statute of 25 Edw. 3. there was no money currant within this Realme, but the Kings own coyne. ⁱ236 See the statute called Statutum de moneta magnum. & statutum de moneta parvum.237 And it is to be knowne, that if any doe counterfeit the Kings coyne contrary to this statute of 25 Edw. 3. ^k238 He shall have the punishment of his body, but as in case of Petit Treason, that is, to be drawne and hanged till he be dead, but the forfeiture of his lands is as in other cases of High Treason, for this statute is but a declaration of the Common law, and the reason of his corporall punishment is, for that in this case he was only drawne and hanged at the Common law, but a woman in that case was to be burnt.

^l239 The Abbot of Missenden in the County of Buckingham for counterfeiting and resection of the Kings money, was adjudged to be drawne and hanged, and not quartered. The want of observation of the said distinction hath made some to erre in their judgement. Nota. This Act of 25. E. 3. maketh no expression of the judgement, therefore such judgement as was at the Common law either in case of High Treason or Petit Treason must be given.

But if one be attainted for diminishing of the Kings mony upon any of the statutes made in Queen Maries time, or in the time of Queen Elizabeth, because it is High Treason newly made, the offender shall have judgement as in case of High Treason, which judgement you may see in the first part of the Institutes. Sect. 747.

^m240 And when a woman commits High Treason and is quick with childe, she cannot upon her arraignment plead it, but she must either pleade not guilty, or confesse it: and if upon her plea she be found guilty, or confesse it, the cannot alleage it in arrest of judgement, but judgement shall be given against her: and if it be found by an inquest of Matrons that she is quick with childe, (for priviment enfent241 will not serve) it shall arrest, and respite execution till she be delivered, but she shall have the benefit of that but once, though she be againe quick | with childe: so as this respite of execution for this cause is not to be granted, only in case of felony, whereof Justice Stanford speaketh,242 but in case of High Treason, and Petit Treason also.243

[If a man bring false money into this realme counterfeit to the money of England, knowing the money to be false, etc.]244

By this branch six things are to be observed. First, that the bringing in of counterfeit money, and not the counterfeiting is expressed in this word [apport.]245 Secondly, that it must be brought from a foraine Nation, and not from Ireland, or other place belonging to or being a member of the Crowne of England, and so it hath been resolved,246 so wary are Judges to expound this statute concerning Treason, and that in most benigne sense: For albeit Ireland be a distinct Kingdome, and out of the Realme of England to some purposes,247 as to Protections and fines levied, &c, as hath been said: yet to some intent it is accounted as a member of or belonging to the Crowne of this Realme. And therefore a Writ of Error is maintainable here in the Kings Beach of a judgement given in the Kings Bench in Ireland, so as the Judges did construe this statute not to extend to false money brought out of Ireland. Thirdly, it must be to the similitude of the money of England. Fourthly, that the bringer of it into this Realme, must know it to be counterfeit. Fiftly, uttering of false money in England,248 though he know it to be false and counterfeit to the likenesse of the coyne of England, is no treason within this statute, unlesse he brought it from a foraine Nation, for the words be, si home apport faux money en cest realme.249 But if money false or clipped be found in the hands of any that is suspicious, he may be imprisoned untill he hath found his warrant, per statutum de moneta magn’ vet. Mag. Cart. fo. 38. 2 parte.250 Lastly, he must merchandize therewith, or make payment thereof, expressed in these words, Pur merchandizer, on paiment faire in deceipt nostre seignior le roy & son people.251 See more, De moneta regis,252 and of the derivation thereof in The second part of the Institutes, in Artic’ super cartas, cap. 10.

[If a man slay the Chancellor, Treasurer, or the Kings Justices of one Bench or the other Justices in Eire, or Justices in Assize, and all other Justices assigned to hear and determine, being in their place doing their offices.]253

In this case albeit one intend to kill any of these here named in their place, and doing their office, and thereupon strike or wound any of them, this is no treason: For our statute saith, Si home tuast Chancelor, &c.254 If a man kill the Chancellour, &c. For if it be treason, death must ensue. And the reason wherefore it is treason in these cases is, because fitting 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. And this Act extends only to the persons here particularly named, and to no other: and therefore extendeth not to the Court of the Lord Steward, or of the Constable and Marshall, nor to the Court of the Admiralty, or any other, nor to any Ecclesiasticall Court. Nay, it extends not to the High Court of Parliament, if any Member of the Lords House, or House of Commons be slaine in his place, and doing his office, because it is casus omissus,255 and not mentioned in this Act. But in all those Cases it is wilfull murder, for the Law implyeth malice.

[And it is understood, that in the cases above rehearsed, it ought to be judged Treason, which extend to the Lord our King and his Royall Majestie: And such treason is the forfeiture of the escheates pertaineth to our Lord the King, as well as the lands and tenements holden of others, as of himself.]256

257 This is an affirmance of the Common Law, and the reason there of is, for that the offence is committed against the soveraigne Lord the King, who is the light and the life of the Common-wealth: and therefore the Law | doth give to the King in satisfaction of his offence, all the Lands, &c. which the offender hath, and that no subject should be partaker of any part of the forfeiture for this offence.

And where the words be [Lands and Tenements holden, &c.] yet the forfeiture extends to *258 rents charges, rents seck, Commons, Corrodies, and other hereditaments which are not holden, for in case of High Treason the tenure is not materiall.259

This clause hath 7. limitations. First, this Act extends not ^b260 to lands in tayle, (saving only for the life of tenant in tayle) but the forfeiture of escheats is to be understood of such Lands and Tenements, as he might lawfully forfeit. And these generall words take not away the statute of donis conditional’261^c262 but latter statutes give the forfeiture of estates in tail. 2. Nor doth this Act extend to uses, but *263 latter statutes doe name uses. 3. ^d264 For to rights of actions, where the entrie is taken away, and so is the law cleerly holden at this day. 4. Nor to any conditions, but by a ^e265 latter statute conditions, unlesse they be inseparably knit to the person, be given to the King. 5. Nor to rights of entry, where any was in the lands ^f266 by title before the treason committed, but such a right of entry is since given by latter statutes. 6. For to Lands or Tenements, or Rights ^g267in auter droit,268 as in the right of the Church, nor to lands in the right of a wife, but only during the coverture, and it extendeth to land which the offender hath ^h269 for life, for the forfeiture of the profits during his life. 7. It extendeth not to *270 a foundership of an house of religion in Free almoign, for that is annexed to the bloud of the Founder. Here goods and chattels be not named, but the forfeiture of them is implyed in the judgement.

ⁱ271Nota Lector,272 the said Acts of 26 H.8. 33 H.8. 33 H.8. 5. and 6 E.6. doe yet remain in force, notwithstanding the said statute of 1 Mar. as it hath been often adjudged and resolved, and namely Mich. 21. Ja. in the Exchequer Chamber in a writ of error, upon a judgement given in the Exchequer, between Ratcliffe, and the Lord Sheffeild, by all the Judges of England, and is agreeable to common experience.

See more of High Treason in the next Chapter following, cap. 2. verbo. Et pur ceo que plusors auters cases, &c.273

[112. ](f ) 7. E. 3. 34. 2 5. Ass. 9. 10. 7. Ass. 9.

[113. ][Ed.: turf]

[114. ](g) 45. E. 3. tit. foeffments et faits 90. 14. H. 8 6. Pl. Com. 541. b. F.N.B. 8. 12. E.3. Dower 90.

[115. ](h) Ass. p. 12. 9. E. 3. 443. 466. Domesday. 7. R. I. int. fines in Thesaur.

[116. ](i) Int. inquisit apud Launcast. anno 6. E. 1 in Thesaur. Mich 1 H. 5. coram Rege Rot. 3.in Thesaur.

[117. ][Ed.: of a fathom in the depth of the salt water.]

[118. ][Ed.: all his woods.]

[1. ]25 E. 3. cap. 2.

[2. ][Ed.: Of treason. This act is in the Statute of Purveyors (stat. 5, 1350).]

[3. ][Ed.: in its proper language.]

[4. ][Ed.: crime of lèse-majesté (i.e. treason).]

[5. ][Ed.: blessed parliament.]

[6. ][Ed.: unsound (or insane) parliament.]

[7. ][Ed.: of white buckles (or bands, according to Coke).]

[8. ][Ed.: good parliament.]

[9. ][Ed.: the parliament that wrought wonders.]

[10. ][Ed.: the great parliament.]

[11. ][Ed.: the unlearned parliament.]

[12. ][Ed.: the merciful parliament.]

[13. ][Ed.: pious, just and provident.]

[14. ][Ed.: the happy parliament.]

[15. ][Ed.: blessed parliament.]

[16. ][Ed.: He will be just in eternal memory. [cf. 1852–22].]

[17. ][Ed.: a divided limb.]

The second concerneth, violation, that is, to violate or carnally to know

[18. ][Ed.: the limbs into which it is divided.]

[19. ][Ed.: He betrays peaceful minds, treachery daring nothing boldly.]

[20. ][Ed.: Treasons are accounted among those offences which are not emendable by the law of man.]

[21. ][Ed.: high treason.]

[22. ][Ed.: petty treason.]

[23. ][Ed.: proditio (treachery) from prodere (to reveal).]

[24. ][Ed.: declaration.]

[25. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[26. ]a Rot. Romana. 17 E. 2. m. 6. Rot. Claus. 1 E. 3. part. 1. memb. 13. Artic. Cleri. 9 E. 3. cap. 15. & 16. Tr. 21 E. 3. coram Rege Rot. 173. Privilegium seculare non competit seditioso equitanti cum armus, &c. secundum leges eclesia. 25 E. 3. stat. 1. cap. 4. which was before this Act. Mich. 31 E. 3. coram Rege Rot. 55. Buck. Abbot de Misseny. See in the Chap. of Clergy in what cases the priviledge of Clergy is taken away.

[27. ][Ed.: Without offence to God and the Holy Church, and without licence of the lord high pontiff (i.e. the pope), he neither can nor ought to answer in this behalf.]

[28. ]*To persons, Eccesasticall and Temporall. Bract. lib. 3. 120. 121. 134. 135. Britton. 5. 18. Fleta. cap. 23. 30. Mirror. cap. 1. 6. cap. 2. § 11. de appeale de homicide. 3 E. 3 cor. 383. 25. E. 3. 42. cor. 139. 26. ass. 27. 3 H. 7. cap. 1. 3 H. 7. 1. 12. 21 H. 7. 3. 31. 1. Mar. Dier. 104. Tr. 32. E. 1. Coram Rege. 15. 8. E. 2. Corone. 369. 395. Custum. de Norm. cap. 79. fo. 94. 95. 33. H. 8. cap. 20. 1 & 2 Mar. c. 10.

[29. ][Ed.: Sound of mind. Having use and control of one’s mental faculties.]

[30. ][Ed.: a man (i.e. person).]

[31. ][Ed.: That the punishment may reach a few, but the fear of it affect all.]

[32. ][Ed.: So much more so, with stronger reason; much more.]

[33. ][Ed.: of unsound mind (one who suffers a loss of mind).]

[34. ][Ed.: of unsound memory or mind; synonymous with “non compos mentis.”]

[35. ]To Aliens.

[36. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[37. ]a See hereafter, cap. 73. Where & how Vuluntas reputabatur pro facto, by the ancient law, and the change thereof.

[38. ][Ed.: The intention is to be taken for the deed.]

[39. ]b Bracton, fol.

[40. ][Ed.: The intention shall be regarded, not the outcome, and therefore whether someone kills or only furnishes the cause of death is of no significance.]

[41. ][Ed.: furnish the cause of death.]

[42. ]c 15 E. 2. tit. Cor. 383.

[43. ][Ed.: The Spigurnel is the sealer of the royal writs.]

[44. ]d Note this word [compassed.]

[45. ][Ed.: Because intention is taken for the deed.] *Sid haec voluntas non intellecta fuit de voluntate nudis verbis, aut scriptus propalata, sed mundo manifescata fuit per apertum factum, Id est, cum quis dederat operam, quantum in ipse fuit, ad occidendis, & sic de similibus.

[46. ]e Insidiator viarū. See hereafter, ca. 5. De Heresie, 25. H. 3. 42. 27. ass. p. 38. 4 H. 4. ca. 2. 13 H. 4. 7. per Gascoign. But see 9. E. 4. fo. 26. Insidiator viarum without taking of some-what, resolved to be no felony, V. lib. 11. fo. 29. b. Al. Poulters Case. Vid. postea cap. 16. Robbery, in fine. Glanvil. lib. 14. cap. 14. lib. 1. c. 2. Bract. lib. 3. f. 118. Britton fol. 16. & 39. b. Note the word compasse. Fleta lib. 1. c. 21. Mirr. cap. 1. §. 5. cap. 2. §. 11. Note this word Compasse. Mirror c. 2. §. 11. De lappeale de Majestie. Rot. pat. 25. E. 3. part 1. m. 16. Vide Mic. 4. H. 4. Coram Rege. Rot. 22. See hereof more in the 57 Cha. of Appeales. Bracton, Britton, Fleta, &c.

[47. ][Ed.: Highwaymen, persons who lie in wait in order to commit some felony or other misdmeanor.]

[48. ][Ed.: Whoever is accused, etc. of the king’s death, etc.]

[49. ][Ed.: of crimes of lèse-majesté (treason). The accused discussed (or arranged) the death of the king.

[50. ][Ed.: High treason is compassing our death. [And] fo. 39b. The accuser shall make his appeal, etc. that he heard this same John speak about such death, or such treason, etc.]

[51. ][Ed.: of the crime of lèse-majesté (treason). Whoever shall inadvisedly dare to plot the death of the king, etc., even if he does not carry his intention into effect.]

[52. ][Ed.: crime of lèse-majesté (treason) is a horrible sin committed against the king, etc. by those who kill the thing or compass so to do.]

[53. ][Ed.: in full parliament, etc. in the time of King Edmund, in these words: Rocelyn, who is here, speaks against Waligrot, who is there, that on such and such a day, in such and such a year of the reign of such and such king, in such and such a place, there came this Waligrot to this Rocelyn and found him to be in company and in aid together with Atheling, Thurkild, Ballard, and others, to make prisoner or to kill our lord King Edmund, or in another way by felonious deed, and in doing this they were bound to conceal this counsel and to carry out this felony according to their power.]

[54. ][Ed.: by overt act, and thereof probably [attainted], etc.]

[55. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[56. ][Ed.: By misadventure. Homicide “per infortunium” is committed where a person, doing a lawful act, without any intention of hurt, unfortunately kills another.]

[58. ][Ed.: An act does not make [the doer of it] guilty, unless the mind be guilty, that is, unless the intention be criminal. The intent and the act must both concur to constitute the crime.]

[59. ][Ed.: and because many others, etc.]

[60. ]Mat. Par. pa. 51. Holling. pa. 26. b. Mar. Westm. W. Malmesbury.

[61. ][Ed.: Therefore he released a flying dart, and a tree standing in the way caused it to deflect and strike the king in the middle of his heart, who immediately fell dead.]

[62. ]Custum. de Nor. cap. 14. Vide inter Indictamenta de 17 E. 4. de Th. Burdit ar. sed judicandum est legibus, & non exemplis. 23 Eliz. cap. 2.

[63. ]*Inter leges Alveredi. cap. 4. Lib. 4. fo. 124. Beverlies case. Ovid. Scilicet in superis etiam fortuna luenda est. Nec veniam laeso numine, casus habet.

[64. ][Ed.: Do causes to compass or imagine the death.]

[65. ][Ed.: not sound of mind; insane.]

[66. ][Ed.: a madman is punished only by his madness.]

[67. ]33 H. 8. cap. 20.

[68. ]*1 & 2 Ph. & Mar. ca. 10. a Bract. li. 3. fo. 118. Britton. cap. 8. a disheriter. Glanv. lib. 1. cap. 2. Fleta lib. 1. cap. 21. Mirror ca. 1. §. 5. Vers Roy de la re.

[69. ][Ed.: that the punishment may reach a few, but the fear of it affect all.]

[70. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[71. ]a 13 Eliz. cap. i. nota declared. Brook tit. treason. 24.

[72. ]b 1 H. 4. 1. 19. H. 6. 47. 13. H. 8. 12. vide infra verb. ¶ Per overt fait. [Ed.: of open deed.]

[73. ]3 Mar. Dier. 131. pl. 7.

[74. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[75. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[76. ]1 & 2 Phi. & Mar. cap. 10.

[77. ][Ed.: King in fact but not in law . . . the Lord King.]

[78. ]Vide 11 H. 7. c. 1. 4. E. 4. 1. 9. E. 4. 1. 2.

[79. ][Ed.: An interval between reigns. The period between the death of a sovereign and the election of another.]

[80. ]Hil. 1 Ja. in the case of Watson and Clark seminary priests. 9 F. 4. 1. b.

[81. ]See the preamble, Auxint pur ces que divers opinions ount estre eius ceux heures, que qen case doit estre dit treason, et in quel case nēi. Rot. parliam. 4 E. 3. num. 5.

[82. ]*Eodem Rot. num. 3. & 4.

[83. ][Ed.: to our lord the king, his companion, and to the king’s son and heir.]

[84. ]Plac. in Parliam. E. 1. anno regni sui 33. North. Rot. 17. & 22.

[85. ][Ed.: in the presence of the lord king, the earls, barons, and others of the king’s council then being there.]

[86. ][Ed.: in danger from his enemies.]

[87. ][Ed.: and thus, subjecting and submitting as far as he could the lordship of England to the subjection of the lord king of France, in order to do this he travelled to Dover to obtain a passage, etc.]

[88. ][Ed.: And thereof submitted himself of high and low to the will of the lord king. And thereupon the lord king, wishing to have the advice of the earls, barons, great men, and others of his council, enjoined them upon the homage, faith and allegiance with which they were bound, that they should faithfully advise him what punishment ought to be inflicted for such a deed, having been thus confessed; and, after a diligent discussion thereupon had, everything contained in the same deed having been taken into advisement, considered and understood, etc., all of them say that a deed of this kind deserves loss of life and limbs, etc.]

[89. ]40. Afs. 25.

[90. ][Ed.: An enemy of mankind.]

[91. ]Britton cap. 8. and other ancient Authors ubi supra.

[92. ]Rot. parlia. 3 R. 2. num. 18. See Placita coram rege Hill. an. 3 R. 2. (Cavendish) rot. 8. London Holl. cron. 3 R. 2. pa. 422. 60. b. & c.

[93. ]Monopoly.

[94. ]nota his end.

[95. ][Ed.: by reason of a just war.]

[96. ]2 Regum cap. 10. 4. 12. 31. The killing of a foreine Ambassadour. Honor legati, honor mittentis est, & proregis dedecius redundat in regem.

[97. ][Ed.: Which case being examined and disputed by the lords and commons, and then shown to the king in full parliament, it was therefore before our lord the king declared, determined and assented that such a deed and offence is treason, and a crime of lèse-majesté, in which case he ought not to be allowed any privilege of the clergy.]

[98. ]22. Ass. p. 49. More dun Ambassad. le roy.

[99. ][Ed.: the lord king’s ambassador sent to carry out the king’s command:]

[100. ][Ed.: that a legate functions in [the king’s] stead, and is to be honoured in the same way as the person whom he represents, and to violate legates is against the law of nations.]

[101. ][Ed.: of our lord the king.]

[102. ][Ed.: a viceroy.]

[103. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[104. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[105. ]Britton ubi supra.

[106. ][Ed.: firstborn son.]

[107. ][Ed.: and likewise concerning the rest.]

[108. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[109. ]Mirror ca. 1. §. 5. Brit. c. 23. fo. 43. 2.

[110. ][Ed.: Crime of [lèse-]majesté against the king by adulterers who defile the king’s wife.]

[111. ]33 H. 8. cap. 21.

[112. ][Ed.: Violate . . . carnally knew.]

[113. ]Pasch. 28 H. 8. in Spilmans Reports in Case of Queen Anne. 33 H. 8. ubi supra, in case of Queen Katherine.

[114. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[115. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[116. ]*Mir. cap. 1. § 5. See Brit. cap. 23. fo. 43. 44. &. cap. 29. fol. 71. 1 Mat. Parl. 2. c. 1.

[117. ][Ed.: Adulterers who defile the king’s eldest lawful daughter, before she is married.]

[118. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[119. ]a Glanvil lib. 1. cap. 2. 14. c. 1. Bracton. lib. 3. fol. 118. Britton. f. 16. &c. Fleta. li. 1. ca. 21. Mir. ca. 1. §. 5.

[120. ][Ed.: The king ought of right to preserve and defend his realm against enemies, etc.]

[121. ]b 1 Mar. 98. b. Diet. in Sir N. Thregmortons Case. See 21 E. 3. 23. 21 R. 2. cap. Repeale. 1 H. 4. cap. 3. 8 E. 3. 20. See hereafter, cap. 73. against going or riding armed.

[122. ]c Sec Rot. Parl. in Cro. Epiphan. 20 H. 1. Rot. 23. Humfrey de Case. 4 Eliz. 210. b. Dier. See the statute of 1 Mar. ca. a. By Mar. ca. 2. By which, Grand Riots, in some Cases be made felony.

[123. ]Pasch. 39. Eliz. by all the Judges of England, I being Attourney. Generall, and present.

[124. ][Ed.: And if anyone of this realm happens to ride armed, overtly (or) secretly, with men of arms, against any other, to slay him, or rob him, or take him, or detain him until he has made fine or ransom for his deliverance, it is not the intention of the king and his council that in this case it shall be adjudged treason, but it shall be adjudged felony, or trespass, according to the law of the land anciently used.]

[125. ]Rot. Parl. 5. H. 4. nu. 11,12.

[126. ]13 Eliz. cap. 1. b. The Indictments and Attainders of treason by force to this statute are not more to be followed, because the statute, which made them good, is expired. Dier, 3. & 4 Ph. & Mar. 144. 10 E. 4. 6. 1 Mar. Treason, Br. 24 Ter. Mic. 8 H. S. Mich. 7 H. 5. Coram Rege. Heref. Rot. 20.

[127. ][Ed.: levying war.]

[128. ][Ed.: This English caption is here substituted for a French captrion in the original text.]

[129. ][Ed.: for fear of death, and that they fell back as far as they could.]

[130. ][Ed.: An act does not make [the doer of it] guilty, unless the mind be guilty; that is unless the intention be criminal.]

[131. ]a Rot. Parl. 20 E. 1. nu. 2. John de Brittaines case. Rot. Parl. 33 E. 7. Rot. 6. Rob. des Ros de Werkes case. 8 E. 3. 20, 38 E. 3. 31. 2. Parl. 4. R. 2. nu 17, 18, &c. 5 R. 2. Triall 54. Hil. 18 E. 3 coram rege. Rot. 145. Eborum. 43. Ass. 28 42. Ass. 29. Gulbert de M. was a Scot. Rot. Parl. 7 R. 2. nu. 15 17. 243. 7. H. 4. 47. Cust. de Norm. ca. 73.

[132. ]b Vid. 13 Eliz. Dier. 298.

[133. ][Ed.: This and the prior English caption are in the original text.]

[134. ]See hereafter. 35 H. 8. cap. 2.

[135. ][Ed.: [inimicus] enemy; [hostis] enemy.]

[136. ]c 43 Ass. 28,29. 33 H. 6. 1. 19 E. 4. 62 & 4 Mar. Treason. Br. 32. 1 Mar. ibid. 24. 21 E. 3. 23. 22 ass. p. 49. 13 El. Dyer 298. Ex libro de Griffin de Perkin Werbeck.

[137. ]d Dier 4. Mar. fo. 145. a. Lib. 7. fo. 6. b. Calvins Case.

[138. ][Ed.: against his due allegiance.]

[139. ]e Fleta. lib. 1. c. 16.

[140. ][Ed.: traitors and enemies.]

[141. ]f Mich. 13 & 14. Eliz. per justice. 19 E. 4. 6. b. 18 H. 6. ca. 4. 10 H. 6. cap. 1.

[142. ]g 27 E. 3. cap. 13. 31 H. 6. cap. 4. 7 E. 4. 14. 13 E. 4. 9. 21 E. 3 16, 17. Regist. 129. Fit. N. B. 114.

[143. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[144. ]h 4 Ass. p. 15. 5 R. 2. ubi supra. 19 E. 4. 6. b. Dier. 3 Mar. 18 32. Pasch. 2 H. 4. coram rege. Rot. 8 Wallis. 35 H. 8. cap. 2. 3 Mar. ubi supra. 13 Eliz. Dier. 198. Stanford Pl. Cor. fo. 90. a. & b. See the first part of the Institutes, 440.

[145. ]*Hil. 36 Eliz. in the Case of Patrick O Cullen, for a Treason at Brussels in partibus Marinis.

[146. ]i 33 El. in Ornicks case. lib. 7. f. 23. Calvins case. Vid. Dier. Mich. 19 & 20 Eliz. fo. 360 lib. 11. fo. 63. in Doct. Fosters Case.

[147. ]k 23 H. 8. ca. 15. This Act concerning Treasons is not taken away by the statute of 35 H. 8. cap. 2. Vide infra cap. 49. fo. 181. of Piracy, &c. Vid. 5 Eliz. c. 5.

[148. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[149. ]g See 1 E. 6. ca. 12. the last clause. 5 E. 6. ca. 11. 1 & 2 Ph. & Mar. ca. 10. & 11. 1 Eliz. cap. 6. 13 Eliz. cap. 1. Stanf. pl. Cor. 89. & 164. Br. coron. 4. Mar. 220. Dier. 2 Mar. fo. 99.

[150. ][Ed.: common argument.]

[151. ]*Rot. parl. an. 33 E. 1. Rot. 6. Jo. Salvyns case.]

[152. ]h 43. Ass. 28. 8. E. 3. 20. 7 H. 4. 27. 34. E. 3. cap. 12. Lib. 4. fo. 57. the Sadlers case.

[153. ][Ed.: in being.]

[154. ]*29 H. 6. cap. 1.

[155. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[156. ][Ed.: by overt act.]

[157. ]vide supra verbo ¶ Mort. fo. 6.

[158. ][Ed.: probably.]

[159. ]Vide 21 R. 2. cap. 3. but it is repealed by 1 H. 4. ca. 3.

[160. ]*Hill. 36. Eliz. Docter Lopes case 13 Eliz. c. 1. Brooks. Treason 24.

[161. ]Hill. a Ja. R. Lo. Cobhams case.

[162. ]*In ancient time traditiosè, & felonicè parl. 33 E. 1. rot. 6. Robert de Ros his case, but now praeditoriè is necessarily required. vide Britton fo. 16. et 19. 1. Mar. Br. treason. 24.

[163. ][Ed.: that he traitorously compassed and imagined the death and destruction of the lord king, and to kill the selfsame lord king, etc.]

[164. ][Ed.: and in order to carry out and fulfil that his wicked and traitorous compassing, imagining and purpose.]

[165. ][Ed.: by overt act he compassed and imagined the death of the lord king, etc.]

[166. ]*Ter. Mic. 5 E. 6. Lib. Intr. Coke fo. 48a. Sanguimis maladicta sitis, &c.

[167. ]*Per. apertum factum.

[168. ][Ed.: that he, not having God before his eyes but being seduced by the instigation of the devil, at Holborn in the parish of St. Andrew within the city of London, that is to say, on the twentieth day of April in the fifth year of the reign of the lord King Edward the sixth, and on various days and in various places before and since, falsely, maliciously and traitorously by overt act went about, compassed and imagined, with various other persons, to depose and deprive the aforesaid lord king of his royal estate, etc.]

[169. ]Vid. hereafter ca. 5. de Heresie, generall Indictments against Lolards, &c.

[170. ]The residue of the Indictment of the Duke of Sumerset.

[171. ][Ed.: And moreover the aforesaid jurors present that the said Edward, duke of Somerset, not having God before his eyes but being seduced by the instigation of the devil, on the twentieth day of May in the above-mentioned fifth year of the reign of the said lord King Edward the sixth, and on various other days and in various other places before and since, at Holborn in the aforesaid parish of St. Andrew in the city of London, and at various other places within the city of London aforesaid, feloniously as a felon of the said lord king, by overt words and deeds procured, moved and instigated many subjects of the selfsame lord king to rise up and to move open rebellion and insurrection within this realm against the selfsame lord king, and then and there feloniously to take and imprison the most noble John, earl of Warwick, then being one of the lord king’s privy council, against the peace of the said lord king, his crown and dignity, and against the form of the statute published and provided for such case.]

[172. ]To take and imprison one of the Privie Councell. Contra forman. Statut. 3 & 4 E. 6. cap. 5.

[173. ]3 H.7. ca. 14.

[174. ]Lib. 9. fo. 114. in Seignior Sanchers case.

[175. ]1 Mar. cap. 12. 1 Eliz. ca. 16. 7 E. 6. ca. 12.

[176. ][Ed.: he who flees judgement confesses himself to be guilty.]

[177. ]13 Eliz. Dier 298 13 Eliz. cap. 1. Nota bene Vide supra verba Mort.

[178. ]*Inter leges Alveredi, cap. 4.

[179. ][Ed.: Whoever shall plot treacherously against the life or safety of the king, whether by himself or by servants or hired assassins, shall lose his life and all his possessions.]

[180. ]*So resolved by the Justices Pasc. 35 Eliz. which we heard and observed.

[181. ][Ed.: thereof, etc.]

[182. ][Ed.: the limbs into which it is divided (i.e. constituent parts); and likewise concerning the rest, etc.]

[183. ]a 26 H. 8. cap. 13. 1. E. 6. cap. 13. 1 & 2 Ph. & Mar. cap. 9,10. 1 Eliz. cap. 6. 13 Eliz. ca. 1,&c. 14 Eliz. cap. 1.

[184. ]b See the fourth part of the Institutes, ca. 26. Brook treason 24 writing of Letters.

[185. ][Ed.: In England this seed is now so widely scattered that it is hardly to be distinguished from Turkey, and by authority of one has coalesced.]

[189. ]e Mag. Car. ca. 29.

[190. ][Ed.: by people of their condition.]

[191. ][Ed.: communal (and not) private.]

[192. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[193. ]Bract. l. 3. fo,118. Brit. fo. 10. &c. Bract. l. 5. fo. 414. Fleta l. 1. ca. 21. Mirror ca. 1. § 6. de sausonerie. 29 Ass. pa. 49.

[194. ]*1 E. 3. tit. Chŕe F. 13. 22 Ass. Pl. 49.

[195. ][Ed.: on the contrary.]

[196. ]2 R. 3. 9.

[197. ][Ed.: feloniously.]

[198. ][Ed.: treasonably.]

[199. ]3 H. 7. 10. 2.

[200. ][Ed.: in every treason there is implied felony, because in every writ of exigent upon everyindictment for treason the crier says this.]

[201. ][Ed.: counterfeits the king’s great seal.]

[202. ]40 Ass. p. 33.

[203. ]Rot. Claus. 42 E. 3. nu. 8. in Coro.

[204. ]2 H. 4. fo. 25.

[205. ]Errores ad sua principi a referre, est refferre. To bring errors to their beginning, is to see their last.

[206. ]37 H. 8 Br. Treason.

[207. ][Ed.: And so from error follows error.]

[208. ]Stanf. Pl. Coron. fo. 3. c. Bracton agreeth with it. Ubi supra. Leaks Case. Hil. 4. Ja. R.

[209. ]40. Ass. 33. 42 E. 3. Rot. Cl. Ubi supra. 37 H. 8. Br. dev.

[210. ]a Fleta l. 1. ca. 22 Britton fo. 10. b. See before. fo. 15.

[211. ][Ed.: The crime of forgery is when anyone illicitly (to whom power has not been given for such purposes) has signed writs or charters with the kings’s seal, either stolen or found.]

[212. ]b Rot. Parl. Hil. 18 E. 1. fo. 92. nu. 125.

[213. ][Ed.: and he, having been convicted of forging the lord king’s seal, is delivered to the bishop of Salisbury, who claimed him as his clerk, under the penalty and in the form which is fitting, because it seems to the council that in such case purgation is not to be admitted, etc.]

[214. ]c 1 Mar. cap. 6. 1 & 2 Ph. & Mar. ca. 11.

[215. ]*19 H. 6. 47 3 H. 7. 10. Stanf. Pl. Coron. 3. vide postea ca. 64. Principall & access. See Mich. 13 & 14 Eliz. Dier 296. Coniers Case.

[216. ]d See Mar. Par. Anno 34 H. 3. pag. 753. de pecunia approbata & reprobata. Et Walsingham 28 E. 1. Anno Dom. 1300. stat. 31 E. 1. de weights & measures. Rast. 7.

[217. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[218. ]e Vet. Magna Chart. ca. Itin. fo. 151. a. 22 Ass. p. 49. 3 H. 7. 10. 25 E. 3. 42. b. Coro. 130.

[219. ][Ed.: “If a man counterfeit the great seal.”]

[220. ]f 6H.7.13.1R.3.1.

[221. ]g Wals. Hyp. Neustrie pa. 69. 1278. 6 E. 1.

[222. ][Ed.: The Jews were hanged in large numbers throughout England for clipping money.]

[223. ]h 3 H 7. 10. a. b.

[224. ][Ed.: If someone who makes money by the king’s authority makes it of lesser weight, or mixed with alloy, that is to say, with alchemy or other false metal, against the ordinance, etc.]

[225. ]a See Inter leges Athelstani, ca 14. Canusi, cap 61. Britton cap. 5. fo. 10. b. See the Mirror, ca. 1. §6. De la mony falsifie acc’ with 3 H. 7. and ca. 5. §. 1. and Fleta ca. 22. acc’.

[226. ][Ed.: Of forgers who have counterfeited our money, or put more alloy into our money than there ought to be according to the form and usage of our realm.]

[227. ]b Mirr. ca. 1 § 3. inter Artic. perveils royes ordeinus Rot. Par. 17 E. 3. nu. 15. Vide hic postea cap. 31. 45. E. 3. ca. 13. 9 H. 5. cap. 11. Stat. 1. See the second part of the Institutes, ca. 20 Artic. super Cart, and the exposition upon the same.

[228. ][Ed.: It is ordered that no king of this realm could change his money, or worsen or amend it, or make money other than of gold and silver, without the assent of all the counties.]

[229. ]c 3 H. 5. ca. 6. 1 E. 6. cap. 12. 5 Eliz. cap. 11.

[230. ]d Nota, for wicked lucre and gain.

[231. ]e 18 Eliz. cap. 1.

[232. ]f 14 Eliz. cap. 3.

[233. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[234. ]g See hereafter, cap. Principall & Accessory.

[235. ]h 1 Mar. cap. 6. 1 & 2 Ph. & Mar. cap. 11.

[236. ]i Ver. Mag. Carta, part. 2. fol. 38, 39, 40.

[237. ][Ed.: The great statute of money, and the little statute of money.]

[238. ]k Fleta lib. 1. c. 22 who wrote before this statute which is but a law Declaratory, as it appeareth before. 23 Ass. p. 2. Dier 6 Eliz. Term. Tr. MS. Pro tonsura monete trabe & pend. Tr. 24 H. 8. in Justice Spilmans Reports, accord.

[239. ]l Mich. 31 E. 3. coram rege. Rot. 55. Buck. within 6 yeares after making of our statute.

[240. ]m 25 E. 3. 42. b. Cor. 130. 23 Ass. p. 2. 22 Ass. p. 71. 22 E. 3. Cor. 253. 12. Ass. p. 11. 8 E. 2. Cor. 410.

[241. ][Ed.: secretly pregnant.]

[242. ]Stanford f. ult. b.

[243. ]Vid. Hereafter, cap 30. Rot. Par. 17 E. 3. nu. 15.

[244. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[245. ][Ed.: Import tax or payment.]

[246. ]7 H. 7. 1 C.

[247. ]Lib. 7. Calvins case, ubi supra.

[248. ]3 H. 7. 10.

[249. ][Ed.: If a man import false money into this realm.]

[250. ][Ed.: by the great statute of money, Old Magna Carta [and Statuta Vetera], part 2, fo. 38.]

[251. ][Ed.: to trade with or to make payment, in deceit of our lord the king and his people.]

[252. ][Ed.: concerning the king’s money.]

[253. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[254. ][Ed.: If a man kill the chancellor, etc.]

[255. ][Ed.: an omitted case.]

[256. ][Ed.: This English caption is here substituted for a French caption in the original text.]

[257. ]a Rot. Parliam. 20 E. 1 nu. 2. John de Britains case. 3 Reg. 21. 15. See inter leges Alueredi, cap. 4. ubi supra. Vita & fortunis omnibus privator. Cust. de Norm. ca. 14. 22 lib. Ass. pl 49.

[258. ]*Brook Esch 9.

[259. ]See hereafter. Verbo, Et de tiel manner de treason, &c. Otherwise it is in case of Petit Treason and felony.

[260. ]b 7 H. 4. 27. See hereafter in the title of Premunir, Verb. (de tres, &c.) Vid. 26 H. 8. cap. 13.

[261. ][Ed.: conditional gifts (i.e., the Statute of Westminster II, c. 1, De donis.)]

[262. ]c 26 H. 8 ca. 13. in fine. 33. H. 8. ca. 20. 5 & 6 E. 6. ca. 11. Lib. 7. fo. 12,13.

[263. ]*33 H. 8. ca. 20. 5 E. 6. ca 11.

[264. ]d Lib. 3 fo. 210. 7 H. 4 6 &c.

[265. ]e 33 H. 8. c. 20. lib. 7. fo. 11. Englefields case.

[266. ]f Englefields case. Ubi supra.

[267. ]g 5E.6. ubi supra. 1 Mar. Dier 123. Dier. 12 El. 289. Temps H. 8. Br. Coron. 5.

[268. ][Ed.: in another’s right. An executor, administrator, or trustee sues “in autre droit.”]

[269. ]h 1 Mar. Dier. 108.

[270. ]*24 E. 3. 33. 72. Corody Br. 5 Temps H. 8. Escheat. 239.

[271. ]i 12 El. Dier 289. Lib. 3. fo. 10. 35. Lib. 7. fo. 33. 34. lib. 8. 72. 166. lib 9. fo. 140. Stanf. Pl. Corone. 187. a.

[272. ][Ed.: Note, reader.]

[273. ][Ed.: And because various other cases, etc.]

[57. ][Ed.: The Rule.]

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