Ambassadour hath by the Law of Nations and by the Civil Law of the Romans Resp forfeited all the Priviledges of an Ambassadour and is subject to punishment If a Foreign Ambassadour sayes Coke committeth here in our Realm any crime Hill 14. Eliz. The Bishop of Rosles Case Co. 4. Inst f. 153. Bulstrodes Reports 3d part The King v. March which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledg and Dignity of an Ambassadour as unworthy of so high a Placc and may be punished here as any other private Alien and not to be remanded to his Soveraign but of courtesy But if any thing be malum prohibitum by any Act of Parliament Private Law or Custom of the Realm which is not malum in se jure Gentium nor eontra jus Gentium an Embassadour residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom c. And the reason why private Aliens are bound by our Acts of Parliament Lib. 2. c. 2. nu 5. De jure belli ac Pacis Private Laws and Customs is given by the learned Grotius viz. Quia ad gubernationem Populi moraliter necessarium est ut qui ei vel ad tempus se admiscent quod fit intrando territorium ij conformes reddant ejus Populi institutis Whether a Foreign Prince Qu. 5 by his dwelling and residing here can commit Treason When a Foreign Prince comes with leave into England Resp he subjects himself under the Protection of the King of England and as by well doing he enjoyes the benefit of the Laws so by ill doing he is subject to the Equity thereof according to that saying of the Lawers He deserveth not the benefit of the Law which offendeth against the Law Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom than his that reigneth well He is thought also to be a Subject though not originary yet temporary because two absolute Princes in respect of Royal Authority cannot be in one Kingdom at once and therefore it is a received opinion of the learned in the Laws A King without his own Dominions except it be in an Expedition of War is but a private Man and consequently can neither confer nor exercise Royalties Moreover it is said that such a Prince by his offence looseth merum Imperium his meer and absolute Soveraignty and that such are subject by their dwelling only and place of abode might commit Treason and that a Prince hath power or Jurisdict over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert Contract or by offending within the Jurisdiction of his Equal Vide Cambdens Eliz. in 29. year of her Reign touching the Queen of Scots 2. Misprision of Treason Touching Misprision 4 things are to be principally observed The Etymology of the word its Description its Division and the Punishment therefore 1. The Etymology or Origination of the word Misprision cometh of the French word Mespris which properly signifieth neglect or contempt for mes in Composition in the French signifieth mal Co. 3. Inst f. 36. as mis doth in the English Tongue as mischance for an ill chance and so Misprise is ill apprehended or known 2. It s Description In legal understanding Misprision of treason is either when one knoweth that another hath committed treason and will not discover him to the King or to the Councel or to any Magistrate but doth conceal the same it is when one hath committed some hainous offence under the degree of treason 3. It s Division Misprision of treason is twofold 1. Passive called Crimen omissionis as in concealment or not discovery of treason And therefore by the Statute of 5. E. 6. concealment or keeping secret of any High treason is declared only Misprision of Treason As for example 13. El. c. 2. It is Misprision of High treason in concealing of a Bull from the Pope of Rome So the receiving of one that hath counterfeited the Kings Coyn Dyer f. 296 Coyners Case and comforting of him knowing him to have counterfeited the King Coyn is but a Misprision But by the Common Law concealment of High treason was Treason as appeareth in the Case of the Lord Scrope anno 3. H. 5 and by Bracton lib. 3. f. 118. b 119. a. And with our Common Law the words of Isocrates to Nicooles are agreable viz. Eadem poena digni sunt supprimentes hujusmodi facinus qua facinorosi 2. Active called Crimen commissionis as in committing some heinous offence under the degree of Treason 37. H. 8. Br. Tit. Treason as when one fixes an old Seale of a Patent to a new Patent of Non-Residence this is holden to be a Misprision of Treason only for it is an abuse of the great Seale and not counterfeiting of it So if a man know Money to be counterfeit and bring the same out of Ireland hither into England Co. 3. Inst f. 140. and utter it in payment this is but a Misprision and no Treason So the compassings or imaginations against the King by word without an overt Act is a High Misprision 4. The punishment of this offence In all Cases of Misprision of Treason the party offendour shall forfeit his Goods and Dutie for ever and the profits of his Lands for terme of his life and to be imprisoned during life From which punishment if any will save himself that knoweth of any High treason he ought with as much speed as conveniently he may to reveal the same to the King or some of his Privy Councel or any other Magisirate Note that in every Treason or felony is included Misprision and where any hath committed Treason or felony the King may cause the same to be indicted and arraigned but of Misprision only if he will 3. Robbing the Kings Treasure Crimen peculatus The Robbing the King of his Treasure Co. 3. Inst f. 112. Co. litt 90. b. 131. b. or Money is accounted Damnum inaestimabile for the Kings Treasure is the sinew of War and the honour and safety of the King in time of Peace The Civil Law doth accord with our Law in this point Pecuniae nervus Reipublicae seu belli Cur ita Imperium sine vectigalibus nullo modo esse potest Cicero Militares expensae Hostium Incursiones multa regent diligentia non possunt citra pecuniam haec agi N. 8.2.10.2 Fourscore and one persons whereof the Abbot of Westminster and 48 of his Monks were part brake into the Receipt Co. 4. Inst f. 112. and feloniously robbed the King of a hundred thousand pounds All these fourscore and one were indicted of this felony and committed to the Tower of London c. and this was the occasion of the new building of both
house and within the said act of 39. Eliz. they prayed the discretion of the Court And it was resolved upon this special verdict being removed by Certiorari into the Kings Bench and the prisoner removed by Habeas corpus that this breaking open the chamber and taking 40. pounds out thereof nulla persona being therein although there were divers persons in other parts of the house was within the Stat. of 39. Eliz. which takes away Clergy from such offenders Wherefore Clergy was denyed to the said Evans and Judgment given in the Kings Bench that he should be hanged Thus much of Burglary and likewise of House-breaking 4. Pyracy The word Pyrat Co. Lit. 391. a. 3. Instit f. 113. in Latine Pirata is derived from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which again is fetcht from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a transoundo mare of roveing upon the Sea and therefore in English a Pyrate is called a Rover and a robber upon the Sea Having shewed the Etymology I propound these Questions with their resolutions touching Piracy Whether Piracy were anciently treason Qu. 1 Before the Statute of 25. E. 3. c. 2. Resp De proditionibus if a Subject had committed Piracy upon another this was holden to be Petit treason 40. Ass pl. 25. for which he was to be drawn and hanged because Pirata est hostis humani generis and it was contra Ligeantiae suae dehitum but since the aforesaid Satute this is no treason in the case of a Subject Whether Piracy can alter property Qu 2 Piracy does not change property no more then theft at Land Hobart's Reports f. 78. Resp When goods are tortiously taken upon the Sea by Piracy Cro. 1. part Anonymus f. 685. it gaineth not any property in them against the owner and being sold on the Land unless it were in Market overt doth not alter the property The Civil Law speakes thus A Piratis aut latrenibus capti D. 49.15.19.2 liberi permanent Qui a latronibus captus est D. 49.15.24 servus latronum non est nec post liminium illi necessarium est Piratae quae capiunt non mutant dominium Grotius l. 3. c. 9. n. 16. De jure belli Whether Attainder for Piracy doth work corruption of blood or forfeiture of Lands Qu. 3 Resp If Piracy be tryed before the Lord Admiral in the Court of the Admiralty according to the Civil Law and the delinquents there attainted yet shall it work no corruption of blood nor forfeiture of his Lands otherwise it is if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15. Whether a Pardon of all felonies shall extended to Piracy Qu. 4 About the end of the Reign of Queen Elizabeth Resp certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen Co. Lit. 39. a. being not known obtained a Coronation Pardon whereby amongst other things the King pardoned them all felonies It was resolved by all the Judges of England upon conference and advisement that this did not pardon the Piracy Hill 2 Jac. Regis for seeing it was no felony whereof the Common Law took Conusance and the Stat. of 28. H. 8. did not alter the offence but ordained a Tryal and inflicted punishment therefore it ought to be pardoned especially or by words which tantamount and not by the general name of felony and according to this Resolution the delinquents were attainted and executed Thus much of Piracy 5. Burning of Houses Burning is a felony at the Common Law committed by any that maliciously and voluntarily in the night or day Co. 3. Inst f. 66. burneth the house of another Out of which we may observe two circumstances First To make it felony it must be done with malice and will for if it be done by mischance or negligence it is no felony But whether the Law doth sometime imply that the house was burnt maliciously and voluntarily may be a Quaere It is answered it does As if one intend to burn the house of A. only and not the house of B. and yet in the burning the the house of A. the house of B. is burnt in this case the burning of the house of A is felony Co 3. Inst f. 67. Plowd Com. f. 475. because it proceeded of the malicious and voluntary burning of the house of A and the event shall be coupled to the cause which was voluntarily and malicious And the rule is Involuntarium ex voluntario ortum habens moraliter pro voluntario habetur Secondly to make it felony it must be the house of another and not his own house As for example One W. Holmes was indicted in London for that he being possessed of an house in London in Throgmorton street Cro. 3. part Holmes's Case f. 377. in such a ward for six years the remainder to Is for three years the Reversion to the Corporation of Haberdashers in fee. He vi armis felouice voluntarie malitiose igne combussit c. his own house Upon this being arraigned at New-Gate he was found guilty add before Judgment this Indictment was removed by Certiorari into the Kings Bench and being argued by Grimston that it was not felony By Richardson Jones and Berkcley it was held that it was not felony to burn an house whereof he is in possession by vertue of a Lease for years For they said that burning of houses is not felony unless that they were aedes alienae And therefore Britton and Bracton mention that is felony to burn the house of another and the Year-Books and Co. lib. 11. Powlters Case which say that burning of houses generally are to be intended de aedibus alienis de non propriis And although the Indictment be ea intentione ad comburendum felonice c. yet intent only without fact is not felony Also Barkeley and Jones held that it cannot be said vi armis when it is in his possession and therefore it was resolved that it was not felony wherefore he was discharged thereof But because it was an exorbitant offence and found they ordered that he should be fined 500. pounds to the King and imprisoned during the Kings pleasure and should stand upon the Pillory with a paper upon his head signifying the offence at Westminster and at Cheap-side upon the Market day and where he committed the offence and should be bound with good sureties to his good behaviour during life Note 22 23. Car. 2. nunc Regis there is a late Act made to prevent the malicious burning of houses Stackes of Corn and Hay and killing and maiming of Cattel Touching burning the Civil Law speaks thus Qui aedes acervumque frumenti juxta domum D. 47.9.9 positum combusserit vinctus verberatus igni necari jubetur si modo sciens prudensque id commiserit Si vero casu id est negligentia aut noxiam sarcire jubetur aut
Plus est hominem veneno extinguere Doctores ad Just 4 18 5 Just 4 28 5 D 48 81 3 quam gladio occidere Lege Cornelia veneficij Capite damnantur qui artibus odiosis tam venenis quam susurris magicis homines occiderint vel mala medicamenta publice vendiderint Whether an Infant within the age of Nine years can be guilty of Murder Qu 3 Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony Sul 〈◊〉 auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo excuse And the Judges held that he ought to be hanged 3 H 7 1 b. But Fairefax said that the words of Fortescue were viz. That the Reason why a person is executed for Murder is for example that others may fear to offend But such punishment can be no example to such an Infant or to a person that hath not discretion Le Recorder de Londres monstre coment un enfant entra le age de x. ans xii ans fuit endite de mort il fuit appose de ceo il dit que il gard barbettes ove cestuy que est mort ils happen a variance per que il luy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort 3 H 7 12 b donques il trahist le corps en le corne les Justices pur sonrendr ' pur ceo que il narroit le matter playnem ent respite le Judgment plusours Justic ' disont que il fuit deigne mort c. And the Reason is quia malitia supplet etatem with this our Rule do concur the Roman Laws Impunitas delicti propter etatem non datur si modo in ea quis sit in quam crimen quod intenditur Cod 9 47 7 do Poenis Gothofredus Qu 4 cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ae supplet vel sic Malitiae non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two Sol and after they are pacified and made friends and after this upon a new occasion fall out Co 3 Inst f 51 and the one killeth the other this is Homicide but no murder because the former malice continued not So if A. command B. to kill C. and before the Act be done A. repenteth and countermandeth his Commandment and charge B. Ibid not to do it if B. after killeth him A. is not accessory to it for the malicious mind of the Accessory ought to continue to do ill untill the Act done Whether Murder can be committed of a child in utero matris Qu 5 If a Woman be quick with Child Sol and by a Potion or otherwise killeth it in her womb or if a man beat her 22 E. 3 Cor 263. 8 E. 2 Cor. 418 whereby the Child dyeth in her Body and she is delivered of a dead Child this is a great misprision and no murder But if the Child be born alive and dyeth of the Potion Battery or other cause this is murder for in Law it is accounted a reasonable Creature in rerum natura when it is born alive The Law holden in Bracton's time was si aliquis qui mulierem pregnantem percusserit vel ei venenum dederit per quod fecerit abortivus si puerperium jam formatum fuerit maxime si fuerit animatum facit homicidium And let us now see what the civil Law saith de partu abacto si mulierem visceribus suis vim intulisse D 48 8 8 quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit D 48 19 39 de partu abact◠Milesiam quandam mulierem cum esset in Asia quod ab heredibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis esse damnatam Whether it be murder in a Mother to conceal the death of her Bastard Child Qu 6 It is Enacted Sol That if any Woman be delivered of any Issue Male or Female which being born alive 21 Jac c 27 should by the Lawes be a Bastard and she endeavour privately either by drowning or secret burying thereof as that it may not come to light whether it were born alive or not but be concealed In every such case the said Mother so offending shall suffer death as in case of murder except such Mother can make proof by one witness at least that the Child whose death was by her so intended to be concealed was born dead Whether he that stabbeth another to death shall suffer Qu 7 as in case of wilful murder It is Enacted Sol That every person which shall stab 1 Jac c 8 or thrust any person that hath not then any Weapon drawn or hath not then first stricken the party which shall be so stabbed or thrust so as the person stabbed or thrust shall thereof dye within the space of six months although it cannot be proved that the same was done of malice forethought yet the party so offending and being thereof convicted by the Verdict of Twelve men Confession or otherwise according to the Laws of this Realm shall be excluded from the benefit of his Clergie and suffer death as in case of wilful murder Qu 8 Whether a Murder committed out of the Realm can be tryed by the Common Law If two of the Kings Subjects go over into a Forreign Countrey Sol 13 H 4 5 6 and fight there and the one kill the other Stamf pl. cor f. 65. Co. Lit. 70. a b this Murder being done out of the Realm cannot be for want of Tryal heard and determined by the common Law of England but it may be heard and determined before the Constable and Marshal whose Sentence is upon the testimony of witnesses and combat and accordingly where a Subject of the King was slain in Scotland by others of the Kings Subjects the Wife of the party flain had her appeal therefore before the Constable and Marshal and so it was resolved in the 35th year of Queen Elizabeth in the case of Sir Francis Drake who strook off the head of Dowtie in partibus transmarinis that his Brother and Heir might have an appeal So if a man be mortally wounded in Franee Co. Lit. 70. b. Co. 3 Inst 48 and dyeth thereof in England it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2. and 1 H. 4. c. 14. for it is not punishable by the common Law because the stroak was given there where no
Jac. in the County of Leicester who being a yong strong and lusty rogue to make himself impotent thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to strike off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber homo suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur D. 9.2.13 By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part Co. 3. Instit 118. as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24. v. 18 19.20 Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis patitur quod alteri fecit This offence of May 'em is under all felonies deserving death Co. Litt. 127. a. and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape 3 Of Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders Vide 11. Hen. 4. c. 13.1 E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will Co. Litt. 123. b. or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will Co. 3. Instit f. 60. or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished Stamf. 24. conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict If against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost her beak Tallons and train And the Virgin had in recompense all his Land and money by the Kings Warrant This was in the King Athestans dayes But in Bractons time it seemeth that these kind of Ravishers were other wise punished they lost their eyes and privy members Co. Litt. 123. b. 29. H. 6. Tit. Coron 17. Bracton lib. 3. f. 147. The Civil Law D. 48.6.6 Punitur Lege Julia de vi publica qui puerum vel foeminam vel quemquam per vim stupraverit Hitherto of the offences that touch the body and members viz. Battery Mayhem and Rape 3. Of those Offences that dispoil men of their property Those Crimes or Pleas of the Crown that deprive others of their property are two § Furtum or Theft and Burning of Houses 1. Of Theft In Theft are to be considered 3. things the Etymology of the word Furtum the definition and its several kinds Furtum a furvo id est 1. The Etymology nigro dictum Labeo ait quod clam obscuro fiat plerumque nocte vel a frraude ut Sabinus ait vel a ferendo auferendo b. 47.2 1. Just 4.1 2. vel a Groeco sermone qui 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant fures Imo Graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est a ferendo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dixerunt Bracton thus defines it 1. The definition Furtum est secundum Leges contrectatio rei alienoe fraudulenta cum animo furandi invito illo Domino eujus res illa fuerit Lib 3. f. 150. The Civilians thus Just 4 1.1 D. 4.7.2.1.3 Furtum est contrectatio fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus ejus possession sve quod lege naturali prohitum est admittere That Theft is forbidden by the Law of nature is manifest by these Authors 1. Cicero In vita sibi quemque petere quod pertineat ad usum non iniquum est alteri surripere jus non est Theft generally taken 3 Its species or kinds doth comprehend Larceny Robbery Burglary and Pyracy of these in order 1. Of Larceny Larceny by the Common Law is the felonious and fraudulent taking and carrying away by any man or woman Co. 3. Inst 107. of the meer personal goods of another neither from the person nor by night in the house of the owner This Larceny is twofold the one so called Simply and the other Petit or Little Larceny The first is where the thing stollen exceeds the value of 12. pence and that is felony The other which is called little or petit Larceny is where the thing stollen doth not exceed the value of 12. pence and that is not felony From the Description and Division of Larceny I proceed to propose these following Queries with Resolutions on them Whether Larceny can be committed Quaest where there is a Bailement or Delivery by the owner of the thing Larceny is perpetrated by an actual taking Resp for an Indictment Quod felonice abduxit is not good because it wanteth coepit By taking and not Bailement or delivery for that is a Receipt and not a taking and therewith agreeth Glanvil Lib. 10. c. 13. Furtum non est ubi initium habet detentionis per dominum rei But this Rule of Glanvil has its exceptions as appears by these Cases in our Law Co. 3. Inst 107.13 E. 4.9 If a Carryer hath a bale or pack of Merchandise delivered unto him to carry it to an appointed place and after he take the whole pack animo furandi this is Larceny for the delivery had taken his effect and the privity of the Bailement is determined so if he open the pack and take any thing out * Furtum sine assectu furandi non committitur Just 4.1.7
said That bare words may make an Heretick but not a Traitor without an overt Act And therefore to make compassing by bare words or sayings High treason it must be by some particular Statute such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13.1 2. Phil. and Mar. c. 9.1 Eliz. c. 6.13 Eliz. c. 1. 14. Eliz c. 1. but all these are either repealed or expired Co. 3 Inst f. 140. yet compassings or imaginations against the King by word without an overt Act is an High misprision Note that there is a Law made for the Preservation of His now Majestie 's Person and Government 13. Car. II. Reg. c. 1. against Treasonable and seditious practises during his natural life which God long continue proceeding from Printing Writing Preaching or malicious and advised speaking Note further that to calculate or seek to know by setting of a figure or Witchcraft how long the King shall Reign or live Co. 3. Inst f. 6. is no Treason for it is no compassing or the imagination of the death of the King within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Q. Elizabeth which before was punishable by fine and imprisonment But Scipio Gentilis in his first Book De conjuratione sayes De vita Principis inquirere praesertim per Astrologos capitale esse neque hoc solum sed etiam de ea dubitare vel desperare pro crimine Majestatis bahitum esse si ea desperatio indiciis esset aliquibus patefacta Thus much of the King himself If any do compass or imagine the death of the Queen Confort or Prince 25. E. 3. c. 2. De proditionibus the Kings Son being Heir apparent to the Crown for the time being and declare it by some overt Act the very intent is Treason as in case of the King himself If a man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices assigned to hear and determine 25. E. 3. c. 2. being in their places doing their Offices And the reason wherefore it is Treason in these Cases is because sitting judicially in their places that is in the Kings Courts and doing their Office in administration of Justice they represent the Kings Person who by his Oath is bound that the same be done 2. Touching violation or Carnal knowledge To violate or to carnally know the Kings Companion 25. E. 3. c. 2. or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir apparent is High treason The reason that the eldest Daughter only is mentioned in Stat. of 25. E. 3. is for that for defaut of Issue Male she only is inheritable to Crown 3. Touching War To levy War against our Lord the King is High treason 25. E. 3. c. 2. This was so by the Common Law for no Subject can levy War within the Realm without Authority from the King for to him it only belongeth F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian is extant the Constitution of Valentinian and Valens Nulli prorsus nobis insciis atque inconsultis quorumlibet Armorum movendorum copia tribuatur Huc pertinet illud Augustius Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi Belli auctoritas atque Consilium penes Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors Co. 3. Inst f. 9. or against any Statute or to any other end pretending Reformation this is levying of War against the King because they take upon them Royal Authority which is against the King So if any with Strength and Weapons invasive and defensive doth hold and defend a Castle or Fort Co. 3. Inst f. 10. against the King and his Power this is levying of War against the King within the Statute of 25. E. 3. One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark Cro. 3. part Bensteds Cafe f. 583. wherem all the Justices and Barons were in Commission and present at which time upon Conference with all the Justices it was resolved First that going to Lambeth House in warlike manner to surprize the Arch-Bishop who was a Privy Counsellor it being with Drums and a multitude as the Indictment was to the number of 300. persons was Treason And Secondly It was resolved by ten of the said Justices seriatim that the breaking of a Prison wherein Traitors be in Durance and causing them to escape was Treason although the Party did not know that there was any Traitors three upon the Stat. of 1 H. 6. c. 5. And so to break a Prison whereby Felons escape is felony without knowing them to be imprisoned for such offence Note A Compassing or Conspiracy to levy War is no Treason for there must be a levying of War de facto 4. Touching Adhesion to the Kings Enemies If a man be adherent to the Kings Enemies in his Realm 25. E. 3. c. 2. giving to them aid and comfort in the Realm or elsewhere it is High treason Having given you the words of the Stat. 25. E. 3. I propose these Queries Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy Qu. 1 To deliver or surrender the Kings Castles Resp or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3 Whether the Aiding or succouring of a Rebel beyond Sea be Treason Qu. 1 A Resp is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream Co. 3. Inst f. 10. 13. Eliz. Dyer f. 298. whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri Qu. 2 qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England Resp and taken shall be either executed by Marshal Law or ransomed Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here 13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to
invade his Country may be charged with High treason A Consultation was had concerning John Story Doctor of Law Cambdens Eliz. f. 144 145. An. 1572. the Duke of Alva's Searcher whether he being an English Man born who in Brabant had consulted with a Foreign Princ eabout invading his Countrey and had shewed the means of Invasion might have been charged with High treason The skilfullest Lawyer affirmed that he might Whereupon he was arraigned and being to be charged with Treason for that amongst other things he had shewed to the Duke of Alva's Secretary the means to invade Eugland raise Ireland into rebellion and excite the Scots to bteak into England all at once He refused to submit himself to Tryal and to the Laws of England and affirmed that the Judges had no power over him for that he was not a Subject sworn to the Queen of England but to the King of Spain But he was condemned according to the ordinary forme of Nihil dicit Co. Lit. f. 129. a. 13. Eliz. Dyer 300. Doctor Story 's Case Co. lib. 7. Calvin's Case Cod. 10.38.4 and suffered the death of a Traitor for that no Man can shake off his Countrey wherein he is born nor abjure his native saile or his Prince at his pleasure Nemo Patriam in qua natus est exuere nec Ligeantiae debitum ejurare possit With this Law doth concurre the Civil Law Origine propria neminem posse voluntate sua eximere manifestum est 5. Touching Fausonnery Crimen falfi If a Man counterfeit the Kings Great or Privy Seale or his Money it is High treason All antient Authors agree that this was High treason by the Common Law as Braction Britton Fleta and the Mirrour 25. E. 3. c. 2. The Forging of the Kings Coyn is High treason without utterance of it for by the Act of 25. E. 3. the Counterfeiting is made High treason One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn Cro. 3 part Morgans Case 383. and Morgan for uttering those Pieces to the Kings Subjects knowing them to be counterfeit and being there upon arraigned he pleaded Not guilty And evidence being pregnant against Morgan he was found guilty and the others were acquitted And Judgment given that he should be drawn and hang'd but not to be quartered according to the opinion of Stamford f. 182. Note that by the Stat. of 5. Eliz. to clip wash 5. El. c. 11. round or file for wicked lucre and gain is declared High treason So by the Statute of 18. Eliz. 't is enacted that diminishing 18. E. c. 1. scaling or lighting of the Kings Coyn within this Realm is High treason Touching Money the Civil Law speaks thus Qui falsam monetam percusserint si id totum formare noluerunt suffragio justae paenitentiae absolvuntur D. 48.10.19 De falsa Meneta Falsa monetadeprehenditur ex materia pondere formaadulterina Gothofredus Quicunque Nummos aureos partim raserit partim tinxerit vel finxerit si quidem liberi sunt ad bestias dari si servi summe supplicio affici debent D. 48.10.8 6 and last Bringing into the Realm Counterfeit Coyn. If a Man bring false Money into this Realm counterfeit to the Money of England knowing the Money to be false to Merchandise or make payment in deceit of our Soveraign Lord the King and of his People it is High treason But note that the uttering of false Money in England though the Person know it to be false and counterfeit to the Likeness of the Coyn of England is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation for the words of the Statute are Si Home apport faux Money en cest Realm Having related the several parts or kinds of Treason within the Statute of 25. E. 3. I shall add these few Queries touching High treason and so conclude Whether a mad Man may be guilty of High treason Qu. 1 The antient Law was Resp that if a mad Man had killed or offered to kill the King it was holden for Treason Co. lib. 4. f. 124 b. Beverleys Case and so it appears by King Alfreds Law before the Conquest and in Beverleys Case for the King is Caput Salus Reipublicae a Capite bona valetudo transit in omnes and for this cause Kings Persons are so Sacred that none may offer them violence without being guilty of High treason Et pereat unus ne pereant omnes But now by the Statute of 25. E. 3. and by force of the words Fait compasser ou imaginer la mort he that is Non compos mentis Co. 3. Inst f. 6. Co. Lit. 247. b. and totally deprived of all compassings and imaginations cannot commit High treason by compassing or imagining the death of the King for furiosus solo fâ—rore punitur and furor in the Civil Law is continuata mentis alienatio qua quis omni intellectu caret If a Man commit Treason and confesseth the same or be thereof otherwise convict if afterwards he become de non sanae memoriae he shall not be called to answer or if after Judgment he become de non sanae memoriae Co. 3. Inst f. 4. Lib. 4. Beverleyes Case he shall not be executed for it cannot be example to others The Civil Law Culpam non admittit qui suae meâ—ttis non est Si per furorem aliquis parentem occiderit D. 48.9.9.2 impunitus erit Divi Fratres rescripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri Whether an Alien residing here Qu. 2 can commit High treason All Aliens that are within the Realm of England Resp Co. Litt. 192. a. Dyer 144. Co. lib. 7. Calvins Case Co. 3. Inst f 4 5. and whose Soveraign are in amity with the King of England are within the protection of the King and do owe a Local or Topical obedience to the King are within the Act of 25. E. 3. and if they commit Treason against the King they shall be punished as Traitours and the Indictment shall say contra Legeantiae debitum Whether the killing of a Foreign Ambassadour residing here be High treason Qu. 3 Albeit the malicious killing of an Ambassabour be justi belli causa Resp and contra jus Gentium yet the killing of him is no Treason within the Stat. of 25. E. 3. until itl be so declared by Parliament as it was in the Case of Kerby and Algere Co. 3. Inst f. 8. who were attainted for the killing of John Imperial Ambassadour from the State of Genoa but that Declaration was taken away by the Statnte of 1. Mar. Whether an Ambassadour Qu. 4 which raiseth Rebellion ahainst the Prince to whom he is sent may enjoy the priviledge of an Ambassadour and be not subject to punishment as an Enemy Such an
William Wallers Case f. 373 374. the Justices in the Kings Bench Chancery and Common Bench judicially sitting to hear Causes made an assault and affray upon Sr Thomas Reignolds and beat him in disturbance of the Law and contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace 33. H. 8. c. 12. where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great differenee between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the instigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure Co. 3. Inst 176. Lamb. lib. 2. c. 5. or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale Co. 3 Inst f. 9 10. which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Affembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Rioter id est Rixari Co. 3. Inst f. 176. and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H 4. 17. R. 2. c. 8.13 H 4. c. 7. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able 2. H. 5.8 ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Cross in the Parish of St. Martins aad after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5 of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note Co. 3. Inst f. 176. An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force Co. Litt. 257 a. Co. 3. Inst f. 176. three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege hominum But Coke tells