Home

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Cap. II.
Of Petit Treason.

And1 moreover there is another manner of Treason, that is to say,2 when a servant slayeth his Master, or a wife her husband, or when a man secular or religious slayeth his Prelate to whom he oweth | faith and obedience. And of such treason the Escheats ought to pertain to every Lord of his own fee, &c.

It was called High or Grand treason in respect of the royall Majesty against whom it is committed, and comparatively it is called Petit Treason (whereof now this statute speaketh) in respect it is committed against subjects and inferiour persons, whereof this Act doth enumerate three kinds.

[When a servant slayeth his Master.]3

This was Petit Treason by the Common Law, for so it appeareth by the ^a4 book of 12. Ass. that a woman servant killed her Mistris, wherefore she had judgement to be burnt, which is the judgement at this day of a woman for Petit treason. And herewith agreeth 21 E.3. where the reader must know, that in stead of Mere in that case you must read Maister.

^b5 And upon this Act, if the servant kill the wife of his Master, it is Petit treason, for he is servant both to the husband and wife.

^c6 If the child commit Parricide in killing of his father or mother (which the Law-makers never imagined any childe would doe) this case is out of this statute, unlesse the childe served the father or mother for wages, or meat, drink or apparell, for that it is none of these three kinds specified in this Law. And yet the offence is far more hainous and impious in a child then in a servant, for Pecata contra naturam sunt gravissima: but the Judges are restrained by this Act, to interpret this Act, à simili or à minore ad majus,7 as hereafter shall be said. And *8 some say that Parricide was petit treason by the Common Law.

^d9 A servant of malice intended to kill his Master, and lay in wait to doe it whilest he was his servant, but did it not till a year after he was out of service, and it was adjudged Petit treason within this Act.

[Or a wife her husband.]10

^c11 This was petit treason by the Common Law, as it appeareth in our books. If the wife procure one to murder her husband, and he doth it accordingly, in this case the wife being absent is but accessory, and shall be hanged and not burnt, because the accessory cannot be guilty of Petit treason, where the principall is not guilty but of murder: and the *12 accessory must follow the nature of the principall: but if he that did the murder had been a servant of the husband, it had been treason in them both, and the wife should have been burnt. And so it is in the case before of a servant and in the case hereafter of a Clerk.

If the wife and a stranger kill the husband, it is Petit treason in the wife, and murder in the stranger, and so it is in the case of the servant next before, and of the Clerk next after.

Before this statute it was Petit treason, si quis falsaverit sigillum domini sui de cujus familia fuit.13 Britton agreeth herewith.14 But these are taken away by this Act, and all other saving these, that are here expressed.

[Or when a man secular or religious slayeth his Prelate to whom he oweth faith and obedience.]15

16 This clause is understood only of an Ecclesiasticall person, be he secular, or regular, if he kill his Prelate, or Superiour, to whom he oweth faith, and obedience, it is Petit Treason: and so it was at the Common Law. And Petit Treason both presuppose a trust and obedience in the offender, either Civill, as in the wife and servant, or Ecclesiasticall, as in the Ecclesiasticall person.

Aidors, abettors, & procurers of any of these Petit Treasons, are within this Law.17

If the servant kill his Mistris, viz. his Masters wife, this is treason (as hath been said) not by equity, for that is denied as well in Petit Treason, as High Treason, but it is within the letter of this statute,18 for she is a Master.

In High Treason there is no accessories, but all be principalls, and there-|-fore whatsoever act or consent will make a man accessory to a felony, before the act done, the same will make him a principall in case of High Treason. But in case of Petit Treason, there may be accessories, either before, or after the act done, as in case of Murder or Homicide.

Here it appeareth that Acts of Parliament may bind men of the Church, Secular, or Regular, & no benefit of Clergy allowed unto them in case of treason: but *19 hereof you shall read at large in the Exposition of the 15. chapter of Articuli cleri.20

[And of such treason the Escheats ought to pertain to every Lord of his own fee, &c.]21

22 See hereof hereafter in the chapter of Forfeiture. ^b23 If a man seised in fee of a Fair, Market, Common, rent, charge, rent seck, Warren, Corrody, or any other inheritance, that is not holden, and is attainted of felony, the King shall have the profits of them during his life: but after his decease, seeing the blood is corrupted, they cannot descend to the heir, *24 nor can they escheat because they be not holden, they perish and are extinct by Act in law: For in Escheats for Petit Treason or felony, a tenure is requisite, as well in the case of the King, as of the subject.

An Approver in case of felony, refusing the combate with the Appellee, shall have like judgement that is for Petit Treason, Probator recusans duellum adjudicatur suspendi, & trahi in odium falsae accusationis:25 but yet it is not Petit Treason, because it is none of the three specified in this Act.

The case which Shard reciteth in 40 Ass.26 that a Norman being Leader of an English ship, who had English men with him, and robbed divers upon the sea, and were taken and found guilty: and as to the Norman it was but felony (because Normandy was lost by King John, and was out of the ligeance of E.3.) and as to the English it was adjudged treason, and the offenders drawn and hanged, which was the judgement of Petit Treason: but this case must be intended to fall out before this statute of 25 E.3. for it is none of the Petit Treasons mentioned in this Act.

And27 ,28 because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time: It is accorded, that if any other case supposed treason, which is not above specified, doth happen before any Justice, the Justice shall tarry without going to judgement of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony.

[Like cases of treason.]29

In this case, the Judges shall not judge à simili,30 or by equity, argument, or inference of any treason, High or Petit, for no like case shall be adjudged treason, &c. And note this branch extendeth (as hath been said) to the offence, viz. treason, and not to tryall, judgement, or execution.

[Any other case supposed treason.]31

No other case, though of as high or higher nature, &c. shall be adjudged treason High or Petit, as before it appeareth in the case of Paricide, Anno 1 Mariae, ubi supra.

[Treason.]

Either High Treason, or Petit Treason, so as this branch extendeth as hath been said to the offence of treason only.

| [Which is not above specified.]32

33 This word [specifie] is to be specially observed, for it is as much to say, as particularized, or set downe particularly: so as nothing is left to the construction of the Judge, if it be not specified and particularized before by this Act. A happy sanctuary or place of refuge for Judges to flye unto, that no mans blood and ruine of his family do lie upon their consciences against law. And if that the construction by arguments à simili,34 or à minori ad majus35 had been left to Judges, the mischiefe before this statute would have remained, viz. diversity of opinions, what ought to be adjudged treason, whichthisstatute hath taken away by expresse words: and the statute of 1 Mar.36 doth repeate all treasons, &c. but only such as be declared and expressed in this Act of 25 E.3. wherein this word [expressed] is to be observed.

In the Parliament holden Anno 5 H.4.37 the Earle of Northumberland came before the King and Lords in Parliament, and by his Petition to the King, acknowledged to have done against his allegiance: and namely, for gathering of Power and giving of Liveries, whereof he prayeth pardon: and the rather, that upon the Kings Letters he yeelded himselfe, and came to the King unto Yorke, where he might have kept himselfe away. The which Petition the King delivered to the Justices by them to be considered. Whereupon the Lords made protestation, that the order thereof belonged to them, as Peers of the Parliament, to whom such judgement belonged in weighing of this statute of 25 E.3, &c. and they judged the same to be no treason, nor felony, but only trespasse finable at the Kings will. And the opinion in 27 Ass.38 is denied, that if one of the Indicters discover the counsell of the King, that it should be treason; because it is not specified before in this Act, and therefore neither High Treason, nor Petit Treason.

[Till the cause be shewed and declared before the King and his Parliament.]39

By this it is apparent, that any like or other case ought to be declared by the whole Parliament, (and not by the King and Lords of the Upper-House only, or by the King and the Commons, or by the Lords and Commons.) And so was it done by the whole Court of Parliament in 3 R.2. ubi supra. 5 Eliz. 18 Eliz. ubi supra, and many other Acts of Parliament.

John Duke of Gwyen and of Lancaster, Steward of England, and Thomas Duke of Glocester, Constable of England, the Kings Uncles, complained to the King,40 that Thomas Talbot Knight, with other his adherents, conspired the death of the said Dukes in divers parts of Cheshire, as the same was confessed and well knowne, and prayed that the Parliament might judge of the fault (which Petition was just, and according to this branch of the statute of 25 E.3.) but the Record saith further: whereupon the King and Lords in the Parliament adjudged the same fact to be open and High Treason: which judgement wanting the assent of the Commons, was no declaration within this Act of 25 E.3. because it was not by the King and his Parliament according to this Act, but by the King and Lords only.

[Whether it ought to be judged treason or other felony.]41

42 This Declaration may be absolute, or sub modo,43 for a time.

By this which hath been said it manifestly appeareth,44 what damnable opinions those were concerning High Treason, of Tresilian Chiefe Justice of the Kings Bench, Sir Robert Belknap Chiefe Justice of the Common Bench, Sir John Holt, Sir Roger Fulthorp, and Sir William Burghe, Knights, fellowes of the said Sir Robert Belknap, and of John Lockton one of the Kings Serjeants, that were given to King R. the 2. at Nottingham, in the Eleventh yeare of his reigne. But more detestable were the opinions of the Justices in 21 R.2. and of Hanckford and Brinchley the Kings Serjeants, (and the rather, because they took no example by the punishment of the former) which affirmed the said opinions to be good and lawfull,45 saving Sir William Thirning | Chiefe Justice of the Common Bench gave this answer: That declaration of treason not declared belongeth to the Parliament; but to please, he said, that if he had been a Lord or a Peer of Parliament, if it had been demanded of him, he would have made the like answers. These Justices and Serjeants being called in question in the Parliament holden Anno 1 H.4.46 for their said opinions, answered (as divers Lords Spirituall and Temporall did) that they durst no otherwise do, for feare of death. It was thereupon enacted, that the Lords Spirituall and Temporall, or Justices, be not from thenceforth received to say, that they durst not feare of death to say the truth. Which opinions being so manifestly against our said Act of 25 E.3. afterwards in the Parliament holden 1 H.4.47 it is affirmed by authority of Parliament, that in the said Parliament of 21 R.2. divers Statutes, Judgements, Ordinances, and Stablishments were made, ordained, and given, erroniously and dolefully in great disherison and finall destruction and undoing of many honourable Lords, and other liege people of this Realme, and of their heires forever.48 And therefore not only that Parliament of 21 R.2. and the circumstances and dependances thereupon, are wholly reversed, revoked, voided, undone, repealed, and annulled for ever, but also the Parliament holden in 11 R.2. by authority of which Parliament: Tresilian, Belknap, and the rest of those false Justices and Serjeants aforesaid were attainted, is confirmed, for that it was (as there the Parliament affirmeth) for the great honour and common profit of the Realme.

[And if percase any man of this Realme ride armed, &c.]49

For exposition hereof, see the Chapter hereafter against riding or going armed.

For the better instruction of the Reader to discerne what offences be High Treason or Petit Treason at this day, it shall be necessary to adde hereunto the statute of 1 Mar. whereby it is enacted,50 [That no Act, Deed, or Offence, being by Act of Parliament or Statute made treason, petittreason, ormisprision of treason, by words, writing, ciphering, deeds, or otherwise whatsoever, shall be taken, had, deemed, or adiudged to be High Treason, Petit Treason, or misprision of treason, but only such as be declared and expressed to be treason, petit treason, or misprision of treason, in or by the Act of Parliament or Statute made in the 25 yeare of the raigne of the most noble King of famous memory, King Edward the third, touching or concerning treason, or the declaration of treason, and none other, &c. Any Actor Acts of Parliament, Statute, or Statutes, had or made at any time heretofore or after the said 25 year of King E.3. or any other declaration or matter to the contrary in any wise notwithstanding.]51

Before this Act so many treasons had been made and declared by Act of Parliament since this Act of 25 E.3. some in particular, and some in generall, and in such sort penned, as not only the ignorant and unlearned people, but also learned and expert men were many times trapped and snared: and sometimes treasons made or declared in one Kings time, were abrogated in another Kings time, either by speciall or generall words: so as the mischief before 25 E.3. of the uncertainty what was treason, and what not, became to be so frequent and dangerous, as the safest and surest remedy was, by this excellent Act of 1 Mar. to abrogate and repeale all, but only such as are specified and expressed in this statute of 25 E.3. By which law, the safety both of the King and of the subject, and the preservation of the Common-weale is wisely and sufficiently provided for, in such certainty, as Nihil relictum estarbitrio Judicis.52 And certainly the two Rules recited in the Preamble of the said Act of 1 Mariae, are assuredly true. The first, [That the state of a King standeth and consisteth more assured by the love and favour of the subject toward their Soveraigne then in the dread and fear of lawes made with rigorous pains and extreme punishment for not obeying their Soveraigne.] And the other, [That lawes justly made for the preservation of the Common-weale without extreme punishment or penalty, are more often, and for the most part better obeyed and kept, then lawes and statutes made | with great and extreme punishment.] Mitiùs imperanti melius paretur.53 ,54

In which Act five notable things are to be observed. First, it extendeth (without exception) to all High Treasons made by any Act of Parliament since the said Act of 25 E.3. Secondly, to all declarations of High Treasons by any Act of Parliament since the said Act of 25 E.3. (as of the said Declaration in 3 R.2. of killing an Ambassadour and the like.) Thirdly, to all Petit Treasons made or declared by any Act of Parliament since the said Act of 25 E.3. Fourthly, albeit misprision of treason is not mentioned in the Act of 25. E.3. yet every misprision of any treason made or declared since that Act by any Act of Parliament, is abrogated. Fifthly, no offence to be treason, petit treason, or misprision of treason, but only such as he declared and expressed to be treason, petit treason, or misprision of treason by the said Act of 25 E.3. Here three things are to be observed: first, that this word [expressed] excludeth all implications or inferences whatsoever, Secondly, here misprision of treason is taken for concealement of high treason or petit treason, and only of high treason or petit treason specified and expressed in the Act of 25 E.3. Thirdly, that no former judgement, attainder, president, resolution, or opinion of Judges or Justices of high treason, petit treason, or misprision of treason, other then such as are specified and expressed in the said Act of 25 E.3. are to be followed or drawne to example: for the words be direct and plaine, [That from henceforth no Act, Deed, or offence, &c. shall be taken, had, deemed, or adiudged to be treason, petit treason, or ^a55 misprision of treason, but only such as be declared and expressed in the said Act of 25 E.3. &c. any Act of Parliament or Statute after 25 E.3. or any other declaration or matter to the contrary notwithstanding.] So as there is no high treason, petit treason, or misprision of any treason made or declared by any Act of Parliament or otherwise since the Act of 25 E.3. but only such as have been made since the said Act of 1 Mariae, and of those, only such as were made ^b56 perpetuall, and not during the life of Queen Mary or of Queen Elizabeth, whereof there be divers which now are expired, which you may reade being all in print. But there wanted nothing to the perfection of the Statute of 25 E.3. but a limitation of some certaine time wherein the offender should be accused. ^c57Post intervallum temporis accusator non erit audiendus, nisi docere potest se faisse justis rationibus impeditum.58

[Or the declaration of treason, &c.]59

^d60 Declarations made during the naturall life of Queen Elizabeth ceased by her death: for Declarations may have limitations as well as Statutes introductory of new lawes.

There is another excellent branch of a Statute made ^c61 in 1 & 2 Ph. & Mar. in these words. [And be it further enacted by the authority aforesaid, that all trials hereafter to be had, awarded, or made for any treason, shall be had and used only according to the due order and course of the Common Law.]

All trials.

^f62 Upon these words many things have been observed by others. First, that the Letter of this Act extendeth only to triall of high treasons, or petit treasons, and not to misprision. Secondly, Foraine treasons are to be tried by the statute

^g63 of 35 H.8. cap. 2. and so it was resolved by all the Justices of England in Orurks Case, and had been so resolved before. But for trials of treasons to be had in Wales, or where the Kings Writ runneth not, in such Shires as the King shall assigne by his Commission by the *64 statute of 32 H.8. ca. 5. are abrogated by this Act, because they are triable by the law. ^h65 It hath been holden, that upon the triall of misprision of treason there must be two lawfull witnesses, as well upon the triall, as upon the indictment, as it was resolved by the Justices in the Lord Lumleyes Case, Hil. 14. Eliz. reported by the Lord Dier, under his own hand, which we have seen, but left out of the print, which for other purposes is cited hereafter. Thirdly, it hath beene holden, that this Act extendeth not to the Indictment of any treason, but to the triall by Peers, if the offender be noble: or by Freeholders, if the offender be under the degree of nobility: & therefore upon the indictment which is in manner of an | accusation, by the statutes of 1. E.6. and 5 E.6.66 two lawfull witnesses are requisite: the words of the statute of 1 E.6. in the last branch be, [That none shall be indicted, arraigned, condemned, or convicted for any treason, Petit Treason, misprision of treason, or for any words before specified to be spoken, after the said first day of February, for which the same offender or speaker that in any wise suffer pains of death, imprisonment, losse or forfeiture of his goods, chatels, lands, or tenements, he be accused by two sufficient and lawfull witnesses, or shall willingly without violence confesse the same.]

Nota that [before specified] doe refer to the words mentioned before in the Act. 1. It is manifest by the connexion of the words, viz. [for any words before specified to be spoken, &c.] 2. The treasons in 25 E.3. were mentioned before. 3. The first words be [for any treason, Petit treason, misprision of treason, &c.]

And by 5 E.6. ca.11.67 it is provided by the last clause save one. [That none shall be indicted, arraigned, condemned, convicted, or attainted for any of the treasons or offencess aforesaid, or for *68 other treasons that now be, or hereafter shall be, which shall hereafter be perpetrated, committed, or done, unlesse the same offender be thereof accused by two lawfull accusers, &c. unlesse the said party arraigned shall willingly, without violence confesse the same.] Here two things are to be observed. 1. The particular penning of both these Acts, viz. indicted, arraigned, convicted, &c. and the words of 1 & 2 of Ph & Mar. extend to tryals only, & not to the indictment. 2. Two lawfull accusers in the Act of 5 E. 6 are taken for two lawfull witnesses, for by two lawfull accusers, and accused by two lawfull witnesse (as it is said 1 E.6) is all one: which word (accusers) was used, because two witnesses ought directly to accuse, that is, charge the prisoner, for other accusers have we none in the Common Law: and therefore lawfull accusers must be such accusers as Law allow. And so was it resolved in the Lo. Lumleys case by the Justices:69 for if accusers should not be so taken, then there must be two accusers, by 5 E.6. and two witnesses by 1 E.6. And the strange conceit in 2 Mar. that one may be an accuser by hearsay, was utterly denied by the Justices in the Lo. Lumleys case. And this word [awarded] in the statute of 1 & 2. Ph. & Mar. extendeth to the tryall upon the arraignment, and not to the indictment, for that is not said to be awarded.

And it was resolved by all the Justices in ^a70 Rolstons case upon the rebellion in the North, that these words [shall willingly without violence confesse the same] are to be understood where the party accused upon his examination before his arraignment, willingly confessed the same without violence; that is, willingly without any torture: and is not meant of a confession before the Judge, for he is never present at any torture, neither upon his arraignment was ever any torture offered. And here commeth another ^b71 statute made in 1 & 2 Mar. to be considered, by which it is provided, that treason for the counterfeiting and unpairing of the coin currant in this Realm, &c. the offender therein, &c. shall be indicted, arraigned, tried, convicted, or attainted by such like evidence, and in such manner and form, as hath been used and accustomed within this Realm, at any time before the first year of King E.6. &c. Wherein the speciall penning of this Act is to be observed, which in case of treason concerning the counterfeiting or impairing of coin, &c. hath by particular words restored the evidence requisite by the Common Law, before the statute of 1 E.6. as well upon the indictment as the triall. But the Act of 1 & 2 Ph & Mar.cap. 10.72 extends to trialls only in other cases of High Treason, and therefore that Act extendeth not to the indictment of other High treasons. Also it is most necessary (as many doe hold) that there should be two lawfull accusers, that is, two lawfull witnesses at the time of the indictment, for that it is commonly found in the absence of the party accused, and it may be when the party suspected is beyond sea, or in remote parts, and may be obtained thereupon; and therefore seeing the indictment is the foundation of all, it is most necessary to have substantiall proof in a cause so criminall, where probationes oportent esse luce clariores.73 | Lastly, if the indictment were part of the tryall, then ought he that is noble, and a Lord of Parliament be indicted of High Treason, &c. by his Peers: for the tryall of him (without question) must be by his Peers: but the indictment of Peers of the Realm is always by Freeholders, and not by their Peers, as hereafter shall appear. We have been the longer herein in respect of some variety of opinion (for want of due and intire consideration had of all and every part of that which hath been said) upon serious study touching this point, without respect of a common wandring opinion.74

And it seemeth that by the ancient Common law one accuser, or witnesse was not sufficient to convict any person of High Treason: ^a75 For in that case, where is but one accuser, it shall be tried before the Constable and Marshall by Combat, as by many records appeareth. ^b76 But the Constable and Marshall have no jurisdiction to hold plea of any thing, which may be determined or discussed by the Common Law. And that two witnesses be required, appeareth by our ^c77 books, and I remember no authority in our books to the contrary: and the Common law herein is grounded upon the law of God expressed both in the old and new Testament: ^d78In ore duorum aut trium testium peribit qui interficietur: Nemo occidatur uno contra se dicente testimonium.79

And this seemeth to be the more clear in the triall by the Peers, or Nobles of the Realm, because they come not de aliquo vicineto,80 whereby they might take notice of the fact in respect of vicinitie, as other Jurors may doe.

Having now rehearsed what others have said and holden, we upon due consideration had of the whole matter will set down our own opinion, and reasons, in these Four points following. First, that the statute of ^e81 5 E.6. cap. 11. is a generall law, and extends to all High treasons, as well by the Common Law declared by the statute of 25 E.3. as to any other statute made or to be made, the negative words of which statute be: [No person shall be ^f82 indicted, arraigned, convicted, condemned, or attainted for any treason, that now is, or hereafter shall be, &c.] Which words without all question are generall, and so to be taken. The words of that statute be further, [Unlesse the same offender be accused by two lawfull accusers,] These two lawfull accusers are injudgment of law taken for two lawfull witnesses, and that for two causes: First, they must be lawfull, that is, allowed by the Laws of the Realm: and by the law, upon the arraignment of the Prisoner upon the indictment of treason, no other accuser can be heard, but witnesses only. Secondly, the words of the statute are [Which said accusers at the time of the arraignment of the party accused, if they be then living, shall be brought in person before the party so accused, and avow, and maintain that which they have to say to prove him guilty of the treason., unlesse the party arraigned shall willingly without violence confesse the same,] as by that Act it appeareth. Now to avow and maintain that which they have to say, to prove him guilty of the treason, is the proper office and duty of witnesses, and so it is said in the statute of ^g83 1 E.6. c.12. in the last clause (by two lawfull witnesses.) See the statute of 5 El. c.1. where it is said [accused by good and sufficient testmony:] to the same intent, the statute of 1 & 2 Ph.& Mariae ca.11. for the word [accused.] ⁱ84Puniantor accusatores penes dominum regem, quòd amodò Rex eis de facili non credat: et talis poena fiat eis, qualis debeat fieri illis, qui injuste fideles dn̄i regis exhaeredari & desturi fecerunt, &c.85

2. That this Act of 5 E.6. extend as well to Petit Treason, as High Treason, for the words be [any treason] and so doth the statute of 1 E.6. ca.12.

3. That the statute of 1 & 2 Ph. & Mar. cap.10. doth not abrogate the said Act of 1 E.6. or of 5 E.6. For that Act of 1 & 2 Ph. & Mar. extends only to trialls by the verdict of twelve men de vicineto,86 of the place where the offence is alleadged, and ^k87 the indictment is no part of the triall, but an information or declaration for the King, and the evidence of witnesses to the Jury is no part of the triall, for by law the tryall in that case is not by witnesses, but by the ver-|-dict of twelve men, and so a manifest diversity between the evidence to a Jury, and a tryall by Jury. And the word [awarded] in that statute doth prove that that Act extended only to the venire facias88 for trial, for neither the indictment nor the evidence can be said to be awarded: Veritas quae minime defensator, opprimitur, & qui non improbat, approbat. Et sic liberè animam meam liberavi.89

^a90 The tryal against an Aliennee, that lived here under the protection of the King, and amity being between both Kings, for High treason, shall by force of this Act of 1 & 2 Ph. & Mar. be tried according to the due course of the Common Law, and therefore in that case he shall not be tried per medieratem linguae,91 as he shall be in case of Petit Treason, murder, and felony, if he prayeth it.

4. ^b92 That a tryall in a forein county upon examination before three of the Councell, &c. by the statute of 33 H.8. ca.23. is abrogated by this Act of 1 & 2 Ph. & Mar. being a tryall contrary to the due course of the Common Law, which is to have it tryed by Jurours of the proper County, ^c93 but the indictment being found in the proper County, it may be by speciall commission heard and determined before Commissioners in any forein county, but the tryall must be by Jurours of the proper county; and this is warranted by the course of the Common Law. And albeit when the Term begins, all Conmisssions of Oier and Terminer in the county where the Kings Bench sit, be suspended during the Term, yet if an Indictment be found before such Commissioners before the tearm, there may be a speciall commission made to commissioners in the same county, sitting the Kings Bench in that county, to hear and determine the same during the tearm: for the Kings Bench hath no power to proceed thereupon, till the indictment be before them. And it is the better, if the speciall commission bear Teste after the beginning of the tearm. Note a diversity between generall commissioners of Oier and Teminer, and such a speciall commission; and the Court of Kings Bench may be adjourned, and in the mean time the Commissioners may sit there.

^d94 And where it is provided by the statute of 33 H.8. cap. 23. that peremptory challenge should not from thenceforth be admitted or allowed in cases of High Treason, or misprision of treason: ^e95 This branch is abrogated by the said Act of 1 Mar. For the end of challenge is to have an indifferent tryall, and which is required by law; and to bar the party indicted of his lawfull challenge, is to bar him of a principall matter concerning his tryall: and all Acts of Parliament concerning incidents to tryalls contrary to the course of the Common law, are abrogated by the said words, [and that all trialls hereafter, &c.] but all this is to be understood of persons under the degree of Nobility; For in case of a triall of a Noble man, Lord of Parliament, he cannot challenge at all any of his Peers.

^f96 Henry Garnet Superiour of the Jesuites in England uponhisarraignment for the Powder Treason, did challenge Burrrell a Citizen of London peremptorily, and it was allowed unto him by the resolution of all the Judges, ^g97 So as in case of High Treason, or misprision of High Treason, a man maychallenge 35. peremptorily, which is under three Juries, but more he cannot.

Lastly, all statutes made before the said Act of 1 & 2 Ph. & Mar. for tryall of High Treason, Petit Treason, or misprision of Treason, contrary to the due course of the common law, are abogated by the said Act of 1 & 2 Ph. & Mar. and tryalls by the due course of the common law, with challenges incidents in those cases are restored.

^h98 If a man be indicted of High Treason, he may at this day plead a forein plea, as he might doe by the common law, and shall be tryed in the forein county: but otherwise it is in cases of Petit Treason, murder, or felony, for there it shall be tryed in the county where the indictment is taken.

And forasmuch as the proceeding against a noble Peer of the Realm, being a Lord of Parliament in some points agrees, and in other points differeth from the proceeding against a subject under the degree of Nobility: It shall be necessary to shew wherein they agree, and wherein they differ.

| 1. The Noble Peer of the Realme must be indicted before Commissioners of Oier and Teminer or in the Kings Bench,99 if the treason, misprision of treason, felony or misprision thereof be committed in that County where the Kings Bench sit, as it was resolved in the case of Tho. D. of N. in An. 13. Eliz. And this is common to both degrees to be indicted by Jurors of that County where the offence was committed.

2. When he is indicted,100 then the King by his Commission under the Great Seale constitutes some Peer of the Realme, to be hac Vice,101 Steward of England: For his stile in the Commission, is, (Seneschallus Angliae)102 who is Judge in this case of the treason or felony, or of the misprision of the same committed by any Peer of the Realm. This commission reciteth the Indictment generally as it is found: and power given to the Lord Steward to receive the Indictment, &c. and to proceed, Secundum legem & consuetudinem Angliae.103 And a commandement is given thereby to the Peers of the Realme, to be attendant and obedient to him: and a commandement to the Lieutenant of the Tower to bring the prisoner before him.

3. A Certiorari104 is awarded out of the Chancery to remove the indictment it selfe before the Steward of England indialté,105 which may either beare date the same day of the Stewards Commission, or any day after.

4. The Steward directs his precept under his seale to the Commissioners, &c. to certifie the indictment such a day and place.

5. Another Writ goeth out of the Chancery directed to the Licutenant of the Tower to bring the body of the prisoner before the Steward at such day and place as he shall appoint.

6. The Lord Steward maketh a precept under his seale to the Lieutenant of the Tower &c. and therein expresseth a day and place when he shall bring the prisoner before him.

7. The Steward maketh another precept under his seale to a Serjeant at Armes, to summon Tot & tales dominos, magnates, & proceres hujusregni Angliae praedicti R. Comitis E. pares, per quos rei veritas melius sciri poterit, quòd ipsi personaliter compareant coram praedicto Seneschallo apud Westm. tali die & hora, ad faciend, ea quae ex parte domini Regis forent facienda, &c.106 Wherein Four things are to be observed. First, that all these precepts most commonly beare date all in one day. Secondly, that no number of Peers are named in the precept, and yet there must be Twelve or above. Thirdly, that the precept is awarded for the returne of the Peers before any arraignment or plea pleaded by the prisoner. Fourthly, that in this case the Lords are not de Vicineto, andtherefore the sitting and triall may be in any County of England. And herein are great differences between the case of a Peer of the Realme, and of one under the degree of nobility.

8. At the day, the Steward with six Serjeants at Armes before him takes his place under a Cloth of State, and then the Clerk of the Crown delivereth unto him his Commission, who redelivereth the same unto him.107 And the Clerk of the Crown causeth a Serjeant at armes to make three Oyes and commandement given in the name of the Lord High Steward of England to keep silence: and then is the Commission read.108 And then the Usher delivereth to the Steward a white rod, who re-delivereth the same to him againe, who holdeth it before the Steward. Then another Oyes is made, a commandement given in the name of the High Steward of England, to all Justices and Commissioners to certifie all Indictments and Records, &c. Which being delivered into Court, the Clerk of the Crown readeth the return. Another Oyes is made, that the Lieutenant of the Tower, &c. returne his Writ and Precept, and to bring the prisoner to the Bar: which being done, the Clerk reads the retorne. Another Oyes is made, that the Serjeant at armes return his precept with names of the Barons and Peers by him summoned, and the return of that is also read. Another Oyes is made, that all Earles, Barons and Peers (which by the commandement of the High Steward be summoned) answer to their names, and then they take their | places and sit down, and their names are recorded: and the entry of the Record is, that they appear, Ad faciendum ea quae ex parte Domini Regis eis injungentur.109 And when they be all in their places, and the prisoner at the Bar, the High Steward declares to the prisoner the cause of their assembly, and perswades him to answer without feare, that he shall be heard with patience, and that justice should be done.110 Then the Clerk of the Crown reades the Indictment, and proceeds to the arraignment of the prisoner, and if he plead not guilty, the entry is, Et de hoc de bono & malo ponit se super Pares suos &c.111 Then the High Steward giveth a charge to the Peers, exhorting them to try the prisoner indifferently according to their evidence.

9. The Peers are not sworn, but are charged, Super fidelitatibus, & ligeantiis Domino Regi debitis:112 for so the Record speaketh.

10. Then the Kings learned Councell give evidence, and produce their proofes for the King against the prisoner.

11. But the prisoner, when he pleadeth not guilty, whereby he denieth the fact, he needs have no advice of Councell to that plea. But if he hath any matter of law to plead, as Humfrey Stafford in 1 H.7. had, viz. The priviledge of Sanctuary, he shall have Councell assigned to him to plead the same, or any other matter in law:113 as to plead the generall pardon, or a particular pardon, or the like. And after the plea of not guilty, the prisoner can have no Councell learned assigned to him to answer the Kings Councell learned, nor to defend him. And the reason thereof is, not because it concerneth matter of fact, for Ex facto jus oricur:114 but the true reasons of the law in this case are: First, that the testimonies and the proofs of the offence ought to be so clear and manifest, as there can be no defence of it. *115 Secondly, the Court ought to be in dread of councell for the prisoner, to see that nothing be urged against him contrary to law and right: nay, any learned man that is present may informe the Court for the benefit of the prisoner, of any thing that may make the proceedings erroneous. And herein there is no diversity between the Peer and another Subject. And to the end that the triall may be the more indifferent, seeing that the safety of the prisoner consisteth in the indifferency of the Court, the Judges ought not to deliver their opinions before-hand of any criminall case, that may come before them judicially. And we reade, that in the case of Humfrey Stafford that arch-traytor,116 Hussey, Chiefe Justice, besought King Henry the Seventh, that he would not desire to know their opinions before-hand for Humfrey Stafford, for they thought it should come before them in the Kings Bench judicially, and then they would do that which of right they ought: and the King accepted of it. And therefore the Judges ought not to deliver their opinions beforehand upon a case put, and proofs urged of one side in absence of the party accused: especially in cases of high nature; and which deserve so fatall and extreme punishment. For how can they be indifferent, who have delivered their opinions before-hand without hearing of the party, when a small addition, or substraction may alter the case? And how doth it stand with their Oath, who are sworn,117 That they should well and lawfully serve our Lord the King and his people in the office of a Justice? and they should do equall law, and execution of right to all his subjects, &c. See more of this matter in the 13 Section here following.

12. There be alwayes either all, or some of the Judges ever attendant upon the High Steward, and sit at the feet of the Peers, or about a Table in the middest, or in some other convenient place.

13. After all the evidence given for the King, and the prisoners answers, and proofs at large, and with patience heard: then is the prisoner withdrawn from the Bar to some private place under the custody of the Lieutenant, &c. And after that he is withdrawn, the Lords that are tryers of the prisoner go to some place to consider of their evidence: and if upon debate thereof, they shall doubt of any matter, and thereupon send to the High Steward to have conference with the Judges, or with the High Steward, they ought to have no conference, either with the Judges or the High Steward, but openly in Court, and in the pre-|-sence, and hearing of the Prisoner; as it was resolved by all the Justices of England in the reign of King H.8. in the case of the Lord Dacres of the North.118 And this was a just resolution: for when the Lords should put a case, and ask advice thereupon, the prisoner ought by law to be present, to see that the case or question be rightly put: and therefore that nothing be done in his absence, untill they be agreed on their verdict. Hereupon it followeth, that if the Peers of the Realm, who are intended to be indifferent, can have no conference with the Judges, or with the High Steward in open Court in theabsence of the prisoner: à fortiori,119 the Kings learned Counsell should not in the absence of the party accused, upon any case put, or matter shewed by them, privately participate the opinion of the Judges: and upon so just a resolution the case succeeded well, for the Peers found the Lord Dacres not guilty.

14. A Noble man cannot waive his triall by his Peers, and put himselfe upon the triall of the Country, that is, of twelve Freeholders: for the statute of Magna Carta is,120 that he must be tried per Pares.121 And so it was resolved in the Lord Dacres case, Ubi supra.

15.*122 The Peers ought to continue together (as Juries in case of other Subjects ought to do) untill they be agreed of their Verdict: & when they are agreed, they all come again into the Court, and take their places, and then the Lord High Steward publickly in open Court, beginning with the puisne Lord, (who in the case of the Lord Dacre was the Lord Mordant,) said unto him: By Lord Mordant, Is William Lord Dacre guilty of the treasons, whereof he hath been indicted or arraigned, or of any of them. And the Lord standing up said, Not guilty: and so upward of all the other Lords seriatim:123 who all gave the same Verdict: In which case the entry is, Super quo W. Comes E. & caeteri anredicti Pares instanter super fidelitatibus & ligeantiis dicto Domino Regi dibitis, per praefatum Senescallum ab inferiori Pare usq; ad supremum separatim publice examinati dicunt, quòd W. Dominus Dacre non est culp. &c.124

16. The Peers give their Verdict in the absence of the prisoner, and then is the prisoner brought to the Bar again: and then doth the Lord Steward acquaint the prisoner with the verdict of his Peers, and give judgement accordingly, either of condemnation or acquitall. But it is not so in the case of another subject: for there the verdict is given in his presence.

17. Every Lord of Parliament, and that hath voice in Parliament, and called thereunto by the Kings Writ, shall not be tried by his Peers,125 but only such as sit there Ratione Nobilitatis,126 as Dukes, Marquisses, Countes, Viscounts or Barons, and not such as are Lords of Parliament, ratione Baroniarum, quas tenent in jure Ecclesiae,127 by reason of their Baronies which they hold in the right of the Church, as Arch-Bishops, and Bishops, and in time past some Abbots and Priors, but they shall be tried by the country, that is, by Freeholders, for that they are not of the degree of Nobility.

18. ^a128 No Noble man shall be tried by his Peers, but only at the suit of the King upon an indictment of high treason, or misprision of the same, petit treason, murder, or other felony, or misprision of the same. But in case of a Premunire or the like, though it be at the suit of the King, he shall not be tried by his Peers, but by Freeholders. And so in an Appeale at the suit of the party for petit treason, murder, robbery, or other felony, he shall be tryed by Freeholders. See more hereof in the second part of the Institutes, Magna Carta, cap. 29.

19. ^b129 And albeit a man be Noble, and yet no Lord of the Parliament of this Realm, (as if he be a Nobleman of Scotland, or of Ireland, of France, &c.) he shall be tried by Knights, Esquires, or others of the Commons. And so it is of the sonne of a Duke, Marquise, Earle, &c. he is Noble, and called Lord: and yet because he is no Lord of Parliament, he shall be tried as one under the degree of a Peer, and Lord of Parliament.

20. No Peer of the Realme, or any other subject shall be convicted by Verdict but the said offences must be found by above Four & twenty, viz. by twelve, or above, at his indictment, or by twelve Peers, or above, if he be Noble, and by | twelve, and not above, if he be under the degree of Nobility.

21. A Peer of the Realme being indicted of treason, or felony, or of misprision, as is aforesaid,130 and duly transmitted to the Lords, may be arraigned thereof in the upper House of Parliament, as frequently in Parliament Rolls it doth appeare: but then there must be appointed a Steward of England, who shall put him to answer: and if he plead not guilty, he shall be tried per Pares suos,131 and then the Lords Spirituall must withdraw, and make their proxies: but no Appeal of treason can be in Parliament, ^a132 but is ousted by the statute of 1 H.4. cap. 14.

22. ^b133 And as the beginning (viz. the finding of the indictment by Freeholders) is equall to them both: so the most extreme and heavie judgement, if they be found guilty, is equall to both, &c. which you may reade in the first part of the Institutes, Sect. 147.

23. ^c134 And though the Commission of the Lord Steward be only in these latter times hac vice, yet may the same be adjourned, as other Commissions hac vice may. And so it was holden in the Lord Dacres case. And so it was done by the Steward of England in the case of R. Earle of S. and of F. his wife, who adjourned his Commission until the next day.

24. If execution be not done according to the judgement, then the High Steward in the case of a Peer of the Realm, or the Court of Commissioners in case of another subject, may by their precepts under their seales command execution to be done according to the judgement: but in case of High Treason, if all the rest of the judgement (saving the beheading, which is part of the judgement) be pardoned, this ought to be under the Great Seale of England.

25. And when the service is performed, then is an Oyes made for the dissolving of the Commission; and then is the White Rod, which hath been borne and holden before the Steward, by him taken in both his hands, and broken over his head.

Lastly, the Indictments together with the Record of the arraignment, triall, and judgement, shall be delivered into the Kings Bench, there to be kept and inrolled.

Hitherto we have spoken when a Noble man doth appear, and plead not guilty, and put himself upon his Peers: Now let us see what shall be had against him when he is indicted, and appears not, and cannot be taken: and generally he shall be outlawed, per judicium Coronatorum.135 But how doth that stand with Magna Charta,136Nec super eum ibimus, nec. super eum mitremus, nisi per legale judicium parium suorum?137 That is to be intended, when he appears and pleads not guilty, and puts himself upon his Peers: but when he absents himself, and will not yeild himself to the due tryall of his Peers, then he shall be outlained per judicium Coronatorum, or else be should take advantage of his own contumacy, and flying from judgement. ^d138 For process to be awarded upon the indictment or appeal of treason, felony or trespas either against a Nobleman or any other, see the statute of 6 H.6. and 8 H.6. and if the process & order prescribedly those statutes be not pursued, the outlawry may be reversed by writ of error, which writ ought to be granted to him ex merito Justitiae,139 as it was adjudged in Ninian Menvils case: and those statutes doe extend as well to the Kings Bench, as to other courts having by commission power to hear and determine the same, and very few outlawries of treason or felony, are of force and validity in law, for that these Acts are not pursued.

And these Acts are well expounded by our *140 books, and therefore they shall not need to be recited at large. This is necessary to be added, that the opinion of Stanf. Pl. Cor. 182. l. upon the statute of 33 H.8. c.10 is, where the attainder is not erroneous, but lawfull by the course of the law: and so it was resolved, Tr. 28 Eliz. and thereupon ^e141 the statute of 28 Eliz. ca.2. was made, that no attainder that then was for any High Treason should be reversed for error where the party was executed. But that Act extendeth only to attainders before that Act, and where the party attainted suffered pains of death, as hath been said.

| But admitting the proces be awarded according to these statutes, & the truth is; that the party indicted of High Treasons (be he noble or other) at the time of the outlawry pronounced, is out of the realm, &c. whether may he avoid the same by writ of error? The answer is, that he might have avoided the same by writ of error at the common law: but now in case of High Treason he is barred of his writ of error by the statutes of 26 H.8. and 5 E.6.142 which statutes are expounded to extend generally to all treasons, but those statutes extend not to any other offence then high treason only, and therefore all other offences remain as they did at the common law for that point.

Now for that all indictments for any offence whatsoever, as well of Noblemen, as of any under the degree of Nobility, ought by the common law of the Realm to be by persons duly returned, and by *143 lawfull liege people, indifferent as they stand unsworn and without any denomination of any: a good and profitable law *144 was made in that behalf at the Parliament holden in 11 H.4. in these words. Item because that now of late ^a145 Inquests were taken at Westm’ of persons named to the ^b146 Justices, without due return of the Sherif, of which persons some were ^coutlawed before the said Justices of record, and some fled to Sanctuary for treason, and some for felony, there to have refuge; by whom as well many offenders were indicted, as other lawfull liege people of our Lord the King, not guilty by conspiracy, abetment, and false imagination of other persons for their speciall advantage and singular lucre, against the course of the common law used and accustomed before this time. Our said Lord the King for the greater ease and quietnesse of his people, will and granteth, that the same indictment so made, with all the dependance thereof be ^d147 revoked, adnulled, void, and holden for none for ever. And that from henceforth no indictment be made by any such persons, but by enquests of the Kings lawfull ^e148 liege people, in the manner, as was used in the time of his Noble Progenitors, returned by the Sherifs, or baylifs of franchises, without any ^f149 denomination to the Sherifs, or baylifs of franchises before made by any person of the names, which by him should be impanelled, except it be by the officers of the said Sherifs or baylifs of franchises sworn and known to make the same, ^g150 and other officers to whom it pertaineth to make the same according to the law of England. And if any indictment be madehereafter in any point to the contrary, that the same indictment be also void, revoked, and for ever holden for none.

The body of this Act consisteth upon two distinct Purviens or Branches, the one to remedy a mischief past, the other to provide for the time to come. The first branch consisteth of a preamble, and a purvien: and the preamble containeth these eight parts. First, it sheweth divers inquests had been taken at Westminster by persons named to the Justices. Secondly, without duereturn of the Sherif. Thirdly, of which some were outlined before the said Justices of record. Fourthly, some fled to Sanctuary for treason, and some for felony. Fifthly, by whom many offenders were indicted. Sixthly, some not guilty, Seventhly, by conspiracy, &c. Eighthly, that all this was against the course of the common law. By the body of the Act, it is enacted that the same indictment, with all the dependence thereof, be revoked, and made void. Then followeth the second branch or purvien for the time to come, and this purvien consisteth of divers parts: First, in describing by what persons indictments ought to be found, and therein 1. privatè,151 that is, not by any such persons, having reference to the preamble, which persons we have before particularly distinguished. 2. Positivè,152 that all indictments must be found by persons of these qualities. 1. They must be the Kings lawfull liege people. 2. Returned by the sherifs, or baylifs of franchises, and other officers to whom it pertaineth. 3. Without any denomination to the sherifs, baylifs, or other officers: and this purvien is in affirmance, and declaratory of the Common law.

The second part of the purvien is introductory of a new law, viz. that if any Indictment be made hereafter in any point to the contrary, that the same indictment be void, revoked, and holden for none. Wherein these two things are to | be observed: 1. That this is a generall law, and extendeth to all indictments for any crime, default, of offence whatsoever: for the words be [if any indictment] generally without naming of any Court, or before whom. 2. If the indictment be found by any persons that are outlawed or not the Kings lawfully liege people, or not lawfully returned, or denominated by any, viz. by all are any of these, that then the indictment is void, for the words be, [if any indictment be made hereafter in any point to the contrary, &c.] Upon this statute in the case of Robert Scarlet before the Justices of Assise at Bury in the County of Suffolk, in Sommer Vacation, 10 Ja. R. these points were resolved and adjudged: First, where at the Sections of the Peace holden at Woodbridge in the said County of Suffolk, Robert Scarlet by confederacy between him and the Clerk, that was to read the pannell of the grand Jury returned by the Shirif, (whereof he was none, albeit he laboured the Sherif to have returned him) that the Clerk should read him as one of the pannell, which was done accordingly, and he sworn. It was resolved and adjudged that this case was within this statute, for that he was not returned by the Sherif. Secondly, that where the rest of the great inquest giving faith to him indicted seventeen honest and good men upon divers penall statutes, which was done by the said Robert Scarlet maliciously: It was resolved and adjudged, that albeit he *153 alone was sworn without the return of the Sherif, and all the rest duly returned, yet that this case was within this statute, and all the indictments found by him and the rest were void by this statute: for hereby it appeared what mischief such a one might doe. Thirdly, that Robert Scarlet upon this case had offended against the said Act, and might be indicted thereupon: and accordingly he was upon sufficient proof of the fact, as is aforesaid, indicted upon the said Act, and pleaded not guilty, and was found guilty. Fourthly, that this Act extended not only to indictments of treason and felony, but of all other offences and defaults whatsoever, according to the generality of the words. Fifthly, consideration was had of the Act of 3 H.8. cap.12.154 andresolved clearly that this statute had not altered the Act of 11 H.4 in. any thing concerning the offence of Scarlet, as upon that, which shall be said of the Act of 3 H.8. shall appear. And upon hearing of Councell learned what they could say in arrest of judgement, at last judgement was given, that he should be fined and imprisoned, and ordered by the Court that no process should goe out upon the said indictments found by the said great inquest, whereof Scarlet was one.

But not withstanding this good law, through the subtilty, & untrue demeanor of Sherifs, and their Ministers, great extortions and oppressions be and have been committed and done to many of the Kings subjects by means of returning at Sections holden within counties and shires for the body of the shire, the names of such persons as for the singular advantage, &c. of the said Sherifs and their Ministers, will be wilfully forsworn and perjured by the sinister labour of the said Sherifs and their Ministers, by reason whereof many substantiall persons, the Kings true subjects have been wrongfully indicted of murders, felonies, and misdemeanors: and sometime by labour of the said Sherifs and their Ministers, divers great felonies and murders have been concealed, &c. For remedy of which mischiefs it is enacted by the said statute of 3 H.8. cap.12. That the Justices of Gaol Delivery, or Justices of Peace, whereof one to be of the Quorum, in their open Sessions may reform the panell returned by the Sherif to inquire for the King, by putting to and taking out the names of the persons so impanelled by the discretion of the said Justices, &c. and that the Sherif shall return the panells so reformed. This Act extends only to Justices of Gaol Delivery, and of the Peace: The body of the Act for offences is generall and evident. Vide 11 H.7. cap.24.155

Nota Lector,156 that the aforesaid Parliament of 11 H.4. begun in Quindena Hilarii, Anno 11 H.4. and the same tearm, viz. Hill 11 H.4. fo.41.157 it was according to the said Act of 11 H.4. resolved by Gascoign Chief Justice, and all the rest of the Justices, that an indictment of felony found by an inquest before 3 H.9. whereof one was outlawed of felony, and another was acquited by the | general pardon, so as they were not probi et legales homines158 to enquire as the law willeth, and after the party had pleaded not guilty to the felony, it was awarded, that all the indictments by them found, were adnulled and made void. Herewith agreeth Stanford in his Pleas of the Crown, fo. 87. & 88. Vide F. tit. Indictment 25. & Coron. 89. and Brook tit. indictment. 2.159 Note the Act saith, that they were outlawed before themselves, so as the Court may take knowledge thereof of themselves, or of any other, as amicus curiae:160 but the safest way for the party indicted is to plead, upon his arraignment, the speciall matter given unto him by the statute of 11 H.4. for the overthrow of the indictment, with such averments, as by law are required, (agreeable to the opinion of the Lord Brook. Ubi supra.) and to plead over to the felony, and to require councell learned for the pleading thereof, which ought to be granted,161 and also to require a copy of so much of the indictment, as shall be necessary for the framing of his plea, which also ought to be granted. And these Laws made for indifferency of Indicters, ought to be construed favourably, for that the indictment is commonly found in the absence of the party, and yet it is the foundation of all the rest of the proceeding.

To draw to an end concerning Tryals: It is regularly true, that by the Common law the tryall shall be in the County, where the indictment is taken: and by the aforesaid Act of 35 H.8.162 treasons and misprisions of treasons committed or done out of the Realm, &c. shall be enquired of, heard, and determined before the Justices of the Kings Bench, &c. Now the case fel out upon this statute to be thus: *163 One was indicted before the Justices of the Kings Bench, at the Tearm holden at Hertford, by a Jury of the County Hertford, for divers high treasons committed out of this Realm and after the tearm was adjourned to Westm. in the County of Midd. The question was, by which of the Counties the party indicted should be tried: And it was resolved, that he should be tried by men of that County where the indictment was taken. But otherwise it is upon the statute of 5 El. ca.1.164 the case being, that Horn Bishop of Winch. tendred to Edmond Bonner late Bishop of London,165 in the County of Surrey, within his Dioces the oath of Supremacy according to the Act of 1 Eliz. which Bonner refused, and this was certified by the Bishop of Winch. into the Kings Bench, then sitting at Westminister in the County of Midd. Now by the statute of 5 El. he that refuseth the oath is to be indicted of a Premunire166 by a Jury of Midd. as a Jury of that County might doe for any offence done in that County, and extendeth only to the indictment, where the words of the Act of 35. H.8. be, [shal be enquired of, heard, and determined,] the question upon the statute of 5 Eliz. was, if Bonner should appear and plead not guilty, by what County he should be tried, whether by a Jury of Midd. where the indictment was, or by a Jury of Surrey, where the offence was committed; and resolved that he should be tried by a Jury of Surrey: for the statute of 5 El. extendeth to the indictment only, and leaveth the triall to the Common law, which appointeth tryall to be, where the offence is committed, and so a manifest diversity between the two cases: for regularly by the Common Law in all Pleas of the Crown, Debet quis juri sabjacere, ubi deliquit.167 ,168

It is now necessary to be known, how Prisoners (to speak once for all) committed for treason, or any other offence ought to be demeaned in prison. Bracton saith, Solent praesides in carcere continendos damńare, ut in vincalis contineantur, sed hujusmodi interdicta sunt à lege, quia carcer ad continendos, non ad puniendos haberi debeat:169 And in another place he saith, Cum autem taliter captus coram Justic. est producendus, produci non debet ligatis manibus, (quamvis interdum gestans compedes proptere vasionis pericu’um,) et hoc ideo, ne videatur coactus ad aliquam purgationem suscipiendam.170

^a171 If felons come in judgement to answer, &c. they shall be out of Irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will. ^b172 And in another place he saith, and of prisoners we will that none shall be put in Irons, but those | which shall be taken for felony, or trespas in Parks or Vivaries or which be found in arerages upon account,173 and we defend that otherwise they shall not be punished nor tormented. ^c174Omnes autem attachiabiles licet vicocomiti in prisona custodire, &c. nos tamen ad puniend’, sed ad custioniend’ &c.175^d176 It is an abuse that prisoners be charged with Irons, or put to any pain before they be attainted.

^e177Quidam facerdos arraniatus de felonia posuit se super patriam, &c stetit ad barram in ferris, sed per praeceptum Justic. liberator à ferris.178 And there is no difference in law, as to a Priest and a Lay man, as to Irons.

^f179Presentat quod ubi quidam Roberrus Bayhons de Tanesby captus fuit, &c in prisona castri Lincoln detentus pro quodam debito Statut. mercatorii incustodia Tho. Boteler Constabularii castri de Lincoln ibi praed. Tho. le Botelet posuitipsum Robertum in profundo Gaole inter lenones in vili prisona contra *180formam Statut.&c. & eodem profoundo detinuit, quousque idem Robertus fecit finem cum eo de 40 s. quos ei solvit per extorsionem.181

So as hereby it appeareth, that where the law requireth that a prisonershould be kept in salva & arcta custodia,182 yet that that must be without pain or torment to the prisoner.

Hereupon two questions do arise, when and by whom and Rack or Brake in the Tower was brought in.183

To the first, John Holland Earle of Huntingdon, was by King H.6 created Duke of Exeter, and Anno 26 H.6.184 the King granted to him the office of the Constableship of the Tower: He and William De la Poole Duke of Suffolk, and others, intended to have brought in the Civill Lawes.185 For a beginning whereof, the Duke of Exeter being Constable of the Tower first brought into the Tower the Rack or Brake allowed in many cases by the Civill Law;186 and thereupon the Rack is called the Duke of Exeters Daughter, because he first brought it thither.

To the second upon this occasion, Sir John Fortescue Chiefe Justice of England, wrote his Book in commendation of the lawes of England; and therein preferreth the same for the government of this countrey before the Civill Law; and particularly that all tortures and torments of parties accused were directly against the Common Lawes of England, and showeth the inconvenience thereof by fearfull example, to whom I refer you being worthy your reading. So as there is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in.

And the Poet in describing the iniquity of Radamanthus, that cruell Judge of Hell, saith,187

Castigatque, auditque dolos, subigitque fateri.188

First, he punished before he heard, and when he had heard his deniall, he compelled the party accused by torture to confesse it. But far otherwise doth Almighty God proceed postquá reus diffamatus est. 1. Vocat. 2. Interrogat. 3. Judicat.189 ,190 To conclude this point, it is against Magna Carta, cap. 29. Nullus liber homo, &c. aliquo modo destruatur, nec super cum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, aut per legem terrae.191 And accordingly all the said ancient Authors are against any paine, or torment to be put or inflicted upon the prisoner before attainder, nor after attainder, but according to the judgement. And there is no one opinion in our Books, or judiciall Record (that we have seen and remember) for the maintenance of tortures or torments, &c.

And now, to conclude this Chapter of Treason.192 It appeareth in the holy Scripture, that traytors never prospered, what good soever they pretended, but were most severely and exemplarily punished: As ^a193 Corah, Dathan and Abiram, by miracle: Dirupta est terra sub pedibas eorum, & aperiens os suum de voravit illos, &c.194^b195 Athalia the daughter of Amri, interfecta est gladio.196^c197 Bagatha and Thara against Assuerus, Apponsus est uterq; corum in patibula.198^d199 Absolon against David. Suspensus in arbore, & Joab infixit tres Lanceas in corde ejus.200^e201 Achitophel with Absolon against David. Suspendio interiit,202 he hanged | himselfe. ^f203 Abiathar the traiterous High Priest against Solomon. Abiathar Sacerdoti dixit Rex, &c. Et quidem vir mortis es, sed hodiè te non interficiam, &c. Ejecit ergo Solomon Abiathar, ut non esset Sacerdos.204^g205 Shimei against David, gladio interfectus,206^h207 Zimri against Ela, who burnt himselfe. ⁱ208Theudas (qui occisus est, & circiter 400 qui credebant ei, dispersi sunt & redacti ad nihilum)209 and Judas Galilaeus, ipse periit, & omnes quotquot consenserunt ei, dispersi sunt.210 Lastly, ^k211 Judas Iscariot, secundum nomen ejus vir occisionis,212 the traytor of traytors. Et hic quidem possedit agrum de mercede iniquitatis suae, & suspensus crepuit medius, & diffusa sunt omnia viscera ejus.213

Peruse over all our Books, Records, and Histories, and you shall finde a principle in law, a rule in reason, and a trial in experience, That treason doth ever produce fatall & finall destruction to the offender, and never attaineth to the desired end, (two incidents inseparable thereunto.) *214 And therefore let all men abandon it, as the most poisonous bait of the Devill of hell, and follow the precept in holy Scripture, Feare God, honour the King, and have no company with the Sedicious.

See more of Treason in the next Chapter of Misprision, &c. and in Principall and Accessory, in the title of Judgement and Execution: and in the Chapter of Monomachia, single combate, &c. the residus of this Act of 25 E.3.

[1. ][Ed.: The text of this paragraph is an English translation in the First Edition. The text of the original French, which preceded this paragraph in that edition, has been omitted.]

[2. ]Britton ca. 3. & cap. 22.

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

[4. ]a 52 Ass. p. 30. 21 E. 3. 17. F. coron. 447. Statham tit. cor. 21 E. 3. 22 Ass. p. 49.

[5. ]b 19 H. 6. 47. Pl. Com. 86. b. Dier. 3 Mar. 128. 7 El. 235.

[6. ]c Exodus, c. 21. v. 15. 17. Lev. 20. v. 9. 1 Mar. per Bromley & Portman of the report of Justice Dalison. vid. 1. R. 3. 4. In culeo paricide cum simia cane, gallo, & serpent: inclusi mari olim mergebantur: sed nos non habemus talem consuetudenem.

[7. ][Ed.: Sins against nature are the worst. . . . from like [to like], or from lesser to greater.]

[8. ]*22 E. 1. Math. Par. 874.

[9. ]d 33 Ass. p. 7. Li. 1. f. 99. Shelbys case. 10 H. 6. 47. Pl Com. 260.

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

[11. ]e 15 E. 2. Coron. 383. 19 H. 6. 47. See c. Pr. & Acc’ Dier. 34 H. 8. 50. Dier. 16 El. 332. Saunders case. Pasch. 32 E. 3. Rot. 62. coram rege. Ph. Cliftons case.

[12. ]*40 Ass. p. 15.

[13. ][Ed.: if anyone forged the seal of his lord, whose servant he was.]

[14. ]Fleta li 1. ca. 22. Britton fo. 16.

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

[16. ]19 H. 6. 47.

[17. ]40 Ass. ubi supra. &16Fl. ubi sup.

[18. ]19 H. 6. 47. by all the Judges.

[19. ]a See the 2. pt of the Institutes. Artic. cleri. ca. 15. Hil. 3 R. 2. coram rege Rot. 8. London, Jo. Imperials case.

[20. ][Ed.: Articles of the Clergy, 9 Edw. 2. st. 1 (1315).]

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

[22. ]For Escheats see the 1. part of the Institut. Sect. 1. fo. 13. a.

[23. ]b See before ca. 1. verbo, Dèes térres & tenements, b&c.

[24. ]* See 1. pt of the Institutes fo. 13. verb. Averala terre per escheat. Mic. 4 H. 4. coram rege. Rot. 22. Anglia.

[25. ][Ed.: An approver refusing battle is adjudged to be hanged and to attract the odium of a false accusation.]

[26. ]40 Ass. 25. Vide 2 H. 5. cap. 6.

[27. ]Rerum progressus ostendunt multa, qua initio previderi non possunt.

[28. ][Ed.: The text of this paragraph is an English translation in the First Edition. The text of the original French, which preceded this paragraph in that edition, has been omitted.]

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

[30. ][Ed.: from like [to like].]

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

[32. ]See the exposition upon the statute De frang. prisonam. 1 H. 6. 5. 9 E. 4. 26, &c. See 1 Mar. of Justice Dalisons Report, ubi supra.

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

[34. ][Ed.: from like [to like].]

[35. ][Ed.: from lesser to greater.]

[36. ]1 Mar. cap. 1.

[37. ]Rot. Parl. 5 H. 4. nu. 11, 12. See nu. 15. Ibid.

[38. ]27 Ass. p. 63.

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

[40. ]Rot. Par. 17. R. 2. nu. 20.

[41. ]13 El. cap. 1, 2. 14 El. ca. 1,2,&c.

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

[43. ][Ed.: conditional.]

[44. ]Anno 21 R. 2. in Latin.

[45. ]11 R. 2. ca. 1., & 4.

[46. ]Rot. Pall. 1 H. 4. nu. 97 Melius est omnia mala pati quam malo consentive.

[47. ]1 H. 4. ca. 3.

[48. ]See the consequence of erroneous opinions in case of high treason. 1. H. 4. cap. 4.

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

[50. ]1 Mar. ca. 1. Sessione prima. The like statute was made, Anno 1 E. 6. ca. 12. See the statute of 1 H. 4 ca. 10. to the like effect.

[51. ]Inter leges Canuti cap. 7. Inprimis justae leges ut efferantur injusitae deprimantur. Aliter in antiquo 10 MS. Inprimis ut justae leges erigantur, injustae subvertantur.

[52. ][Ed.: Nothing is left to the whim of the judge.]

[53. ][Ed.: The milder the ruler, the better he is obeyed. [Seneca, De Clementia, i. 24, 8.].]

[54. ]Seneca.

[55. ]a That is, of such treason, high or petit, as is expressed in the Act of 25 E. 3. and of no other treason.

[56. ]b 1 Mar. ca. 6. 1 & 2 Ph. & Mar. cap. 11. 5 Eliz. ca. 1. & 11 18 Eliz. cap. 1 13 Eliz. cap. 2 23 Eliz. ca. 1 27 Eliz. ca. 2 3 Jac. cap. 4.

[57. ]c Bracton lib. 3. fol. 118. b.

[58. ][Ed.: After a lapse of time an accuser will not be heard, unless he can show that he was hindered for just reasons.]

[59. ]13 Eliz. cap. 1 14 Eliz. cap. 1 and cap. 2.

[60. ]d 13 Eliz. cap. 1 14 Eliz. cap. 1. & cap. 2.

[61. ]e 1 & 2 Ph. & M. cap. 10.

[62. ]f See the second part of the Institutes, Mag. Charta. cap. 29. Verbo (per judicium parium.)

[63. ]g 35 H. 8. ca. 2. 3 Mar. Dier 132. lib. 7. fo. 23. in Calvins case. Pasch. 33 Eliz. Orurks case.

[64. ]* 32 H. 8. cap. 4.

[65. ]h 1 E. 6. ca. 12. 5 E. 6. ca. 11. Both which are mentioned in the next Section. Hill. 14. Eliz. Dier MS. Nota. This is the last resolution of the Judges in this point. At this time Catlin and Dier were Chiefe Justices, and Sanders Chiefe Baron, &c.

[66. ]1 E. 6. cap. 12. 5 E. 6. ca. 11. See 13 El. cs. 1. See before Verb. [De ceo provablement soit attaint.]

[67. ]See 1 El. ca. 6. Stanf. pl. Coron, 89. & 164. 4 Mar. Coron. Br. 220. Dier. 2 Mar. 99. & 3 Mar. 132.

[68. ]*Nota the generality of these words. Regula Verba generalia generaliter sunt intelligenda. See hereafter c. 49. of Piracy, &c.

[69. ]Hil. 14. El Lo. Lumleys case. ubi supra. 2 Mar. Dier. 99. 100. Thomas Case.

[70. ]a Mich. 13 & 14 El. Rolstons case.

[71. ]b 1 & 2 Ph. & Mar. c. 11. supra.

[72. ]1 & 2 Ph. & Ma. cap. 10.

[73. ][Ed.: proofs ought to be clearer than light.]

[74. ]See Magna Cart. c. 29. and the exposition thereupon.

[75. ]a Pat. 25. E. 3. part. 1. nu. 16. Rot. Parl. 21 R. 2. nu. 19. 21. the D. of Norff. case. Rot. Pat. 3 H. 4. Balleshuls case. Rot. Vascon. 9 H. 4. nu. 14. John Bolemers case. Rot. Parl. 2 H. 6. nu. 9. the Earl of Ormonds case. Rot. Pat. 8 H. 6. pt. 2. nu. 7. between Upton and Dowy. Vide the 4. part of the Institutes. cap. the Court of Chivaliry, &c. See Bract. lib. 3. fo. 119. a.

[76. ]b 13 R. 2. ca. 2.

[77. ]c Mirror ca. 3. §. ordenance de attaint. Bract. l. 5. f. 354. 48 E. 3. 30. 35 H. 6. 46. Fort. ca. 32. 15 E. 4. f. 1. Pl. Com. fo. 8.

[78. ]d Deu. 17. 6. 19. 15. Mat. 18. 16. John 18. 23. 2 Cor. 13. 1. Heb. 10. 28.

[79. ][Ed.: He who ought to be slain shall perish by the mouths of two or three witnesses; but no one shall be killed when there is only one witness against him.]

[80. ][Ed.: from any venue (i.e. neighbourhood).]

[81. ]e And so I hold the statute of 1 E. 6. c. 12. to be a generall Law, and to extend to all high treasons, &c.

[82. ]f Nota as well upon the indictment as the arraignment of treason there ought to be two accusers. See Dier 2 & 3. Ph. & Mar. 132.

[83. ]g 1 E. 6. ca. 12. the last clause. 5 El. ca. 1. 1 & 2 Ph. & Mar. ca. 11. Bract. li. 3. f. 118. Qui accusat integrae samae fit, & non criminosus.

[84. ]i Star. de Kenelw. secunda parte Vet. Mag. Cart. cap. 16.

[85. ][Ed.: The accusers shall be punished by the lord king, so that thereafter the king should not so easily believe them; and such punishment shall be given them as ought to be given them that unjustly cause the faithful subjects of the lord king to be disinherited and destroyed.]

[86. ][Ed.: from the neighborhood, or vicinage.]

[87. ]k See the first part of the Institutes. Sect. 194. See Fortescue ca. 26,27. Juries ought to be informed by evidences, and witnesses.

[88. ][Ed.: Writ to the sheriff of the county in which a cause is to be tried, commanding him that he “cause to come” before the court, on a certain day twelve good and lawful men of the body of his county qualified according to law, by whom the truth of the matter may be the better known, and who are in no wise of kin either to the plaintiff or to the defendant, to make a jury of the county between the parties in the action, because as well the plaintiff as the defendant, between whom the matter in variance is, have put themselves upon that jury, and that he return the names of the jurors, etc.]

[89. ][Ed.: Truth, when not defended, is oppressed; and he who does not disapprove, approves; and so I have freely delivered my mind.]

[90. ]a 27 E. 3. ca. 8. 28. E. 3. ca. 18. 8 H. 6 ca. 29. 1 Mar. fo. 144. Shirleys case, & so it was resolved by all the Judges Hil. 36 El. in the case of Doctor Lopez, Emanuel Loysie, and Stephen Ferreira de Gama.

[91. ][Ed.: by [a jury] half of [a foreign] tongue.]

[92. ]b 33 H. 8. c. 23. 3 Mar. Dier 132. Dier 12. El. 286. b. li. 11. fo. 63. a. in Doctor Fosters case.

[93. ]c 27 Ass. p. 1. 21 Ass. p. 12. W 1. c. 3. &c. Mic 25 & 26 El. per les Justices in Somerviles and Ardens case. Dier 12 El. 286. b. All this was resolved Mic. 1. Ja. in Sir Walter Raleighs case. Pl. Com. 388. Count de Leicesters case.

[94. ]d 33 H. 8. c. 23.

[95. ]e And so it was resolved. An. 1 Ja. in Sir Walter Raleighs case, by all the Judges and had been resolved so before. Stan. pl. cor. 157.

[96. ]f 3 Ja. R. in Garnets case. And so was it resolved M. 25 & 26 El. in Somerviles & Ardens case.

[97. ]g Br. tit. Challenge 217.

[98. ]h 22 H. 8. c. 14. 32 H. 8. c. 3. See 4. H. 8. c. 2. and 22 H. 8. c. 2. pleading &c. for being taken out of Sanctuary in a forain county in case of murder or felony. See hereafter. ca. Sanctuary, all sanctuaries taken away: & note that the stat. of 22 H. 8. &c. extend only to Indictments and not to Appeals.

[99. ]1 H. 4. 1.

[100. ]1 H. 4. 1. 10 E. 4. 6. b. 13 H. 8. 12.

[101. ][Ed.: for that occasion.]

[102. ][Ed.: Seneschal of England; the Lord Steward’s title.]

[103. ][Ed.: According to the law and custom of England.]

[104. ][Ed.: Writ of common law origin issued by a superior to an inferior court requiring the latter to produce a certified record of a particular case trial herein.]

[105. ][Ed.: without delay.]

[106. ][Ed.: Such and so many lords, great men and nobles of this realm of England who are peers of the aforesaid R., earl of E., by whom the truth of the matter may be better known, that they do personally appear before the aforesaid steward at Westminster on such and such a day and hour, to do what should be done on behalf of the lord king, etc.]

[107. ]1 H. 4. 1.

[108. ]1 H. 4. 1.

[109. ][Ed.: To do what they should be enjoined to do on behalf of the lord king.]

[110. ]1 H. 4. 1.

[111. ][Ed.: And thereof for good and ill he puts himself upon his peers, etc.]

[112. ][Ed.: Upon the faiths and allegiances due to the lord king.]

[113. ]In Scotland in all criminall cases, yea in cases of High Treason, Pars rea may have Councell learned. Vide hereafter upon the statute of 31 Eliz. concerning witnesses.

[114. ][Ed.: The law arises out of the fact.]

[115. ]* See more here of ca. 63. Councell learned in Pleas of the Crown.

[116. ]1 H. 7. fo. 26.

[117. ]18 E. 3.

[118. ]Pasch. 26 H. 8. in the case of the Lord Dacres of the North reported by Justice Spilman which we have seen.

[119. ][Ed.: with stronger reason.]

[120. ]Mag. Cart. ca. 29.

[121. ][Ed.: by peers.]

[122. ]* Resolved by all the Judges. Mich. 13 & 14 El. in the case of Tho. Duke of Norff. 1 H. 4. fo. 1. 10 E. 4. 6. b. 13 H. 8. fo. 12. Tr. 26 H. 8. Spilmans Report.

[123. ][Ed.: one by one.]

[124. ][Ed.: Whereupon W., earl of E., and the other aforementioned peers, upon the faiths andallegiances due to the said lord king, being forthwith publicly and severally examined by the said steward, from the lowest peer to the highest, say that W., Lord Dacre, is not guilty, etc.]

[125. ]Rot. Roman 17 E. 2. m. 6. Adam Orleton B. of Hereford. 2 H. 4. Marks B. of Carlisle. Stanf. Pl. Coron. li. 3. ca. 62. fo. 153. in Temps H. 8.

[126. ][Ed.: by reason of nobility.]

[127. ][Ed.: baronies which they hold in right of the church.]

[128. ]a 10 E. 4. 6. b. Mag. Cart. c. 29.

[129. ]b 11 E. 3. bre. 473. 8 R. 2. proces. pl. ultimo 20 E. 4. 6. 20 El Dier 360. 38 H. 8. Br. treason. Seignior Sancars case. Lib. 9. fo. 117.

[130. ]10 E. 4. 6. Rot. Par. 21 R. 2 Countee de Arundels case. Rot. Parliam. 5 H. 4. nu. 11,12. 31 H. 6. nu. 49. Countee de Devons case. 28 H. 6. nu. 19. Duke of Suff.

[131. ][Ed.: by his peers.]

[132. ]a 1 H. 4. cap. 14.

[133. ]b 1 H. 4. 1. Stanf. Pl. Coron. 182. E. K. See hereafter cap. judgement and execution.

[134. ]c Pasch. 26 H. 8 ubi supra. 1. 5 E. 4. 33. 12 H. 4. 20.

[135. ][Ed.: by judgment of the coroners.]

[136. ]Mag. Cart. ca. 29.

[137. ][Ed.: Nor shall we go upon him, nor send upon him, except by the lawful judgment of his peers.]

[138. ]d See hereafter in the chapter of judgement & execution concerning reversing of Outlawries. 6 H. 6. c. 1. 8 H. 6. ca. 10. Mich. 26 & 27 Eliz. in br̃e de error coram Rege in Ninian Menvills case Utlary de haut treason reverse in Bank le Roy.

[139. ][Ed.: out of favour to justice.]

[140. ]* 19 H. 6. fo. 1. 2. 11 H. 6. 54. 1 E. 4. 1. 30 H. 6. proces. 192. 31 H. 6. 11. Vide F. N. B. 115. l Li. Intr. R. f. 122. Stanf. Pl. cor. 68. 69. 182. l.

[141. ]e 28 El. ca. 2.

[142. ]See the first part of the Insti. Sect. 26 H. 8. cap. 13. 5 E. 6. cap. 11. 12 El. Dier 287.

[143. ]* Artic. sup. cart. cap. 9. 28 E. 1. 20 E. 3. cap. 6. 34 E. 3. c. 4. 42 E. 3 c. 11. Regist. 172. Rast. pl. 117.

[144. ]* 11 H. 4. ca. 9.

[145. ]a Stanf. pl. cor. 87. c.

[146. ]b Rot. Parl. 11, H. 4. nu. 15. in the kings bench.

[147. ]d Vid. 11 H. 4. fo. 41. 21 H. 6. 30. 9 E. 4. 16. 3 H. 6. 55. 26 Ass. 28. d 11 H. 4. 41.

[148. ]e 14 H. 4. 19.

[149. ]f 21 E. 3. 5. 15 E. 3. chal. 113, 27 Ass. pa. 65. 28 Ass. 24. 22 49 E. 3. 1. 49 Ass. 1. 28. 43 E. 3. chall. 94. 6 R. 2. chall. 102. 7 H. 4 10. 21 E. 4. 74. 19 H. 6. 9. 21 H. 6. 12. 14 H. 7. 1.

[150. ]g Nota.

[151. ][Ed.: taking away (i.e., negatively).]

[152. ][Ed.: Positively.]

[153. ]*47 E. 3. 1. 7 H. 4. 10. 21 E. 4. 74.

[154. ]3 H. 8. ca. 12]

[155. ]Vid. 11 H. 7. c. 24.

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

[157. ]Hil. 11 H. 4. f. 41.

[158. ][Ed.: fit and lawful men.]

[159. ]Stanf. Pl. cor. 87,88. F. tit. Indictment 25. & Coron. 89. Br. tit. indict. 2.

[160. ][Ed.: friend of the court, a third party appearing to argue a point by grace of the court.]

[161. ]Vid. lestatutes de 1 R. 3. ca. 4. 33 H. 6. c. 2. W. 2. ca. 13. 1 E. 3. stat. 2. ca. 17 All tending that indictments may be duly had.

[162. ]Dier 3 Mar. 131, 132. Stanf. pl. cor. 90. 35 H. 8. ca. 2.

[163. ]* Mich. 35 & 36 El. in the case of Francis Dacres.

[164. ]5 El. cap. 1.

[165. ]Mich. 6 & 7 El. Dier fo. 234. Bonners case.

[166. ][Ed.: The offense of introducing foreign influence into the kingdom, used to regulate Catholics.]

[167. ][Ed.: One [everyone] ought to be subject to the law [of the place] where he offends.]

[168. ]Bract. lib. 3. fo. 154. b. Vincula qui sensit, didicit succurrere vinctis. Bract. lib. 3. fo. 105. a. Stanford 78. Bract. li. 3. f. 137. Note Shackells about the feet ought not to be, but for fear of escape. Mirror c. 2. §. 9.

[169. ][Ed.: Gaolers are accustomed to inflict harm upon prisoners, as by keeping them in shackles, but such things are forbidden by law, because a gaol ought to be for containment and not for punishment.]

[170. ][Ed.: When such a person is arrested in order to be produced before a justice, he ought not to be produced with his hands tied (except occasionally handcuffs to prevent escape) and this is because it ought not to appear that he has been brought to undergo any expiation.]

[171. ]a Brit. c. 5. fo. 14.

[172. ]b Cap. 11. fo. 17.

[173. ]W. 2. c. 1. after judgement. Lib. 3. fo. 44. Lib. 8. fo. 100. 24 H. 8. Dier 249. Pl. Com. 360. a.

[174. ]c Fleta li. 1, ca. 26.

[175. ][Ed.: All other attachable persons the sheriffs may keep in prison, etc.—not, however, to punish them, but to keep them, etc.]

[176. ]d Mirror c. 5. §:l.

[177. ]e § E. 2. cor. 432.

[178. ][Ed.: A certain priest, being arraigned of felony, put himself upon the country, and stood at the bar in irons, but by command of the justices he was freed from the irons.]

[179. ]f Tr. 7 E. 3. coram rege Rot. 44.

[180. ]* 1 E. 3. c. 7.

[181. ][Ed.: [It is presented] that, whereas a certain Robert Bayhens of Tanesby was arrested and detained in prison in Lincoln Castle for a certain debt of statute merchant, in the custody of Thomas Boteler, constable of Lincoln Castle aforesaid, there the aforesaid Thomas le Boteler put the selfsame Robert in a deep gaol amongs the pimps (lenones) in a vile prison, contrary to the form of the statute, etc., and detained him in the same deep place until the same Robert made fine with him for forty shillings, which he paid him by extortion.]

[182. ][Ed.: in safe and strict custody.]

[183. ]Tortures, the rack, &c.

[184. ]Rot. Pat. 26 H. 6.

[185. ]Rot. Parl. 28 H. 6. nu. 30.

[186. ]Hollenshed. pa. 670. &c. Innocentem cogit mentiri dolor. Fortescue. ca. 22. fo. 24.

[187. ]Virgil.

[188. ][Ed.: He chastises and hears charges of wrongdoing and forces confession. (Virgil, Aeneid, 6. 567.)]

[189. ][Ed.: after the accused person has been charged, firstly to summon, secondly to interrogate, thirdly to adjudge.]

[190. ]Luke 16. 1., 2. &c. John 7. 51. Nunquid lex nostra judicat hominem nisi prius audierit ab ipso?

[191. ][Ed.: No free man, etc. shall be in any way destroyed, nor shall we go upon him, nor send upon him, except by the lawful judgment of his peers, or by the law of the land.]

[192. ]Proditor illudit verbis, dum verbera cudit.

[193. ]a Numb. 16. 31, 32. & 27. 3.

[194. ][Ed.: The earth broke up beneath their feet, and its opening mouth devoured them, etc.]

[195. ]b 2 Regum 11. 16.

[196. ][Ed.: is killed by the sword.]

[197. ]c Esth. 12. 2,3.

[198. ][Ed.: each of them was hanged on a gibbet.]

[199. ]d 2 Sam. 18. 9. 14.

[200. ][Ed.: hanged in a tree, and Joab thrust three darts into his heart.]

[201. ]e 2 Sam. 17. 23.

[202. ][Ed.: died by hanging [himself].]

[203. ]f 1 Reg. 2. 26, 27.

[204. ][Ed.: The king said to Abiathar the priest, etc., ‘You are a man worthy of death, but today I will not kill you, etc.’ Therefore Solomon thrust out Abiathar from being a priest.]

[205. ]g 2 Sam. 16. 5, 6 1 Reg. 2. 8. &c. 46.

[206. ][Ed.: killed by the sword.]

[207. ]h 1 Regum 16. 9. &c. 18.

[208. ]i Act. Apost. 5. 36,37.

[209. ][Ed.: who was slain, and around four hundred who believed in him were scattered and reduced to nothing.]

[210. ][Ed.: Judas of Galilee . . . perished, and all those who agreed with him were dispersed.]

[211. ]k Act. Apost. 1. 18. Math. 27. 5. laqueo se suspendit Qui molitur insidias in patriam, id facit quod insanus nauta perforans navem in qua ipse illeg.

[212. ][Ed.: Judas Iscariot, in accordance with his name a man of slaughter.]

[213. ][Ed.: And this man purchased a field with the gains of his iniquity, and fell headlong in the middle of it, and all his bowels gushed out.]

[214. ]*Felix quem faciunt aliena periculi cautum. Prov. 24. 21.

Home

The Forum

Econlib

The Library

Other Sites

The Library

Return to Title Page for Selected Writings of Sir Edward Coke, vol. II

The Online Library of Liberty

A project of Liberty Fund, Inc.

Search this Title:

Also in the Library:

Cap. II. Of Petit Treason. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

Part of: Selected Writings of Sir Edward Coke, 3 vols.

About Liberty Fund: