so to this purpose is the Princes case in 8. Separt where it is that the second sonne shall be Duke of Cornwall after the death of the eldest and yet it is onely limitted to the eldest sonne a collatrall Heire is also within this statute because as he conceiveth this statute intend's to provide that the next Heire to the Crowne shall be secured from danger and the case that may be likened to this is that where a writ of Aide may be brought by the next heire for the writ saith Cujus haeres apse est F. N. B. 221. F. N. B. 221. so that it appeares that it lyes onely for the heire lineall or collaterall male or female The eldest daughter is also within our Law heires Fous is also a grand heire within this Law but this imagining or compassing the death of the Grandchild or of any other heire is not treason unlesse there be a sufficient declaration of it to another for no man can judge of the thoughts for the imagination onely can be no overt act and this declaration of his imagination or compassing to I. D. is not a sufficient overt act to make him a traytor within this Law for he told him onely that he had such an imagination which is but primus motus for he doth not say that he will doe it in the Future tence for that may be treason for that it doth imply an act to be done afterward but the other is onely also against that is past then for violating the wife after that she is divorc'd this is not treason within this Law And yet the divorce is but a mensa thoro but it is such a divorce as deprives her of his company and so she is not his companion within this Law but yet she is his wife and a wife divorc't a mensa et thoro shall have her divorce because that divorce doth not dissolve the mariage but shee remaines his wife still but yet if shee hath any children during that divorce they are all bastards because shee is not to keepe her husband company a Queene Dowager is not within this Law because she is not companion to the King that then is and is not provided for by this Law for the words of the statute are if any shall violate the Kings companion The second lecture The second Lecture according to my first devision is concerning the government and that is first in the seale which is clavis regnt the second in his money and coyne the third in his offices for the first which are the seales and they are first the Great-Seale secondly the Privy-Seale and thirdly the Seale of the Exchequer and of all these Seales the common-Common-law takes speciall notice as that the King may grant to one power to make Attourney under the Privy-Seale 37. II. 6.27.6 Co. 2.17 Lams case and so is 37. H. 3.27 6. Co. 2.17 Lams case and so of the other Seales but our Law takes notice of the Seale onely as for poynt of treason for the words are exclusive to all other Seales for that being the greatest excludes all other inferiour Seales that are the least now what shall be said at counterseiting of this great Seale and that must be by making of another Seale like to this and for to seale pattents with it for to make a seale like the great Seale to put this to a peece of wax onely is no counterfiting of the great Seale but there ought to be a writing annexed unto it and then it is a counterfitting within this Law but if the Lord Keeper doth seale a pattent Nota. without speciall authority from the King yet this is no counterfeiting within this Law or if any one doe finde this great Seale or otherwayes obtain it and seales pattents therewith this is not counterfeiting neither within this Law for if the Seale be cruely and in due manner put to a pattent and afterwards the pattentee doth rate or adde to the pattent in any place Lakes ease 4. Jac. this is no counterfeiting as it is in Lakes case 4. Jac. and yet the rasing of a deed is the forging of a deed Secondly concerning counterfeiting the Kings coyne and this ought to be intended onely of the Kings owne mony for that onely is meant by this Law and not any forraigne money but forraigne money is provided for by another Law the coyning of copper if it be made currant is also within this Law for it is onely in the power of the King to imbase coyne as it is apparent in the case of mony in Davies sererts for the King is Master of the coyn Case of mony in Davies seperts but in the mirrour of Justice it is said the King cannot alter his coyne for things are not in this Law because they are not currant within this Realme forraigne money is not within this Law because at the time when this Law was made all forraigne money that was brought into this Realme was but bullon because it was a great deale worser then that of this Nation and forraigners afterwards did make their coyne finer and then it was made currant here by a statute and so within this Law If any that have authority and power to mint or coyne and he coyne pieces that are leste in weight then they ought to have beene by the authority by him given this is a counterfiting because he hath not pursued his authority and so is as if he had no authority to make it of that weight which he hath made it and so is the 3. H. 7 c. 10. to counterfeit a forraigne money 3. H. 7. c. 10. and to bring it over is not a counterfeiting within this Law 6. H. 7.13.1 R. 3.1 Bro. Tit. treason 27. Stam. pl. 3. D. but if one counterfeit the covne of this Kingdome beyond the Sea and brings it over and Marchandizes with it and thereby deceave our Marchants this is account fitting as in the book aforesaid and if one counterfeits the coyne of this Kingdome although he doth not put it to others yet this is a counterfiting within this Law 6. H. 7.13.1 H. 31. Bro. Tet. treas 27. Stam. ples 3. D. What shall we say the bringing in of money what not the bringing in of forraigne money ought to be intended of money that is counterfeited in another Realme and like unto ours for the words are so money and not of forraigners money if two conspire to coyne and counterfeit 19. H. 6.43 Stam. pl. 3. and one of them doth it it is treason in both 19. H. 6.43 Stam. pleas 3. a but an intention to counterfeit is not treason within this Law The Barrons of the Exchequer are within this Law and it is agreed in Tanfields case who was one of the Barrons of the Exchequer that he was within the words of the statute and the words of Oyer Determiner are within this Law but all other Judges are not as the
Ecclesiasticall Judges are not within this Law for they hold with the Court of Rome and did derive their authority from him in ancient time neither is a Constable within this Law The second case I. S. slits the great Seale and closeth it to a Commission and coynes money in the forme of shillings invertendo the armes The second case kils the Lord Keeper of the great Seale in Chancery and brings in false money like English to Marchandize knowing it to be false but doth not offer it and I. S. knowing this doth succour him The conclusion is that I. S. is a traytor in omnibus and I. D. also within this Law the first act is slighting of the Seal and putting of it to the Commission and that is treason first because that is slit whereby it is become now no Seale at all it cannot be said that this halfe is the broad Seale or that the other halse is the broad Seale fer they both together make but one broad Seale and when he hath closed them together againe and joyned them to a Commission he hath made the Seala new for it was no Seal when it was slit but now it is The second reason is in respect of the mischiefe that doth come by this translating of an old Seale to a new Commission for both the King and his Subjects are as much abused as if it had beene counterfeited and the reason of Lawes and not authority 40. Ass 33. Broait treas 17. Britta ca. 4. fo 10. ought to be our rule to goe by for indicandum est legibus non exemples and so he conceiveth the case in Bro. Tit. treason 3. to be no grand Law this was treason also at Common-law as you shall finde it exprest in Bruam ca. 4. fol. 10. and in the mirrour of Justice ca. 1. sex 6. and since the statute in the same Kings time that this statute was made in and they who knew best the reasons and grounds of this statute and the meaning thereof and were at the making therof by all likelihood did adjudge it treason to take an old Seale from an old pattent and to put it to a new one as in 40. Ass pl. 33. and 2. 〈◊〉 4.33 and Stamf. saith 40. Ass p. 33. 2 H. 4.33 that it was so adjudged in his time In all treasons that doe concerne the person of the King the judgement ought to be that he shall be hanged drawne and quartered but for other treasons that doe not imediately concerne the person of the King 1. H. 6.5 19. H. 6.47 6. H. 7.13 the judgement ought to be that he shall be drawne and hanged onely and not that he shall be quartered as it is in 1. H. 6. 5. 19. H. 6. 47. The second act is the counterfeiting of the Kings money and the inverting of the armes of the King whereby the Kings Liege people and others may be deceived for that is a sufficient alteration to make it treason although it be such a one as cannot be discern'd without speciall notice taken of it and this doth appeare by the judgement given in the Star-Chamber for the counterfeiting of farre things and it is treason for any man to beare the Kings armes as it appeares in the Earle of Surreys case The third act is the killing of the Officers of the King as of the Lord Keeper and that is treason within this Law for the Lord Keeper is now Chancelour although at that time when this statute was made the Lord Chancelours Office and the Lord Keepers Office were two severall and distinct Offices yet they are made now both one Office 5. Eliz. c. 18.25 E. 3. c. 2. and that is by the statute of 5. Eliz. ca. 18. and this statute of 15. E. 3. ca. 2. may and doth extend to that statute of 5. Eliz. which comes after as is very fully exprest to the purpose though not to this case in Co. 4. fo 4. Vernons case the statute of Marlebrige which was made 4.52 H. 3. gave the word of the tennant that held by Knight service notwithstanding he had made a feoffment by colusion from which time and for 200. yeeres and more till the statute of the 4. of H. 7. ca. 17. which gave the Ward of the heire of Costigase the heire of Costigase was not in Ward and yet it is held in the 27. of H. 8.9 fol. that if Costigase after the statute of 4. H. 7. makes a feoffment in Fee by colution to defraud the Lord of his Ward that this is taken within the equity of the statute of Marlebridge and so of divers other cases that you may see there cited in Vernons case above mentioned The fourth Act is the bringing in of false money like unto our English money for to Merchandize withall and this is treason for here is not onely an intent but there is also an act joyned with this intent for he brings over this money which is the act with an intent to Merchandize The second conclusion is that I. D. is a traytour within this law and his treason doth goe or extend to all the other foure treasons that were committed by I. S. for this succouring of him after the fact committed makes him a traytour within this law and at the Common-law before the making of this Statute if a man had succoured one that had committed treason knowing him to have committed it he had bin a traytor and so if one doth now succour a fellon it is fellony in the succorour and why should it not be so in our case for the reason of law in our case is farre stronger that the succorour of a traytour should be a traytour then the succouring of a fellon should be a fellon because the offence is greater and therefore it is an aggravation of his punishment to make him that no man shall receive or succour him for we see the law inflicts a greater punishment upon a traytor then upon a fellon and that is to deterre men from such acts as those are and so it apperes that there is reason why he should be a traytour although he be not within the words of the Statute And therefore it is in the reason of the Statute Another reason is because the Statute doth not say who shall be traitors but what shall be treason and this word treason shall be taken with all its concomitants and accidents as it was at Common-law and then that was a concomitant to treason that the succoror should be a traytor Object But it is so in 3. H. 7. fol. 10. that a succoror in treason is no traitour Answ The reason of that case there is because the judgement was that he knowing eam â—roditionem predictam perpetrasse felonice hospitalis fuit and this was not grand because he was in that case indicted as an accessary and was not indicted as a traytour for there can be no accessaries in treasons Fit tit Cor. 55. Bro. tit Cor.
135. as there is in felonies and he is Enz. titl Coron 55. Bro. tit Coron 135. and for expresse authority it is in 1. H. 6.5 for if this Statute had made felony treason and one doth commit that treason and A. succours him knowing of it it had binabsurd for to have said that the succorour should have bin onely a felon but our case is stronger for this Law doth not make any one treason but onely declares what shall be adjudged treason but if this statute had exprest that all abettors should have beene traytors that then the receivers or succourers should not have beene traytors within this Law for then the intent of the makers would plainly appeare that it was not intended that the receivers or succourers after the fact should not have beene within this Law but onely the Abettors before and at the fact The third Lecture This Lecture is of petty treason and petty treason do very little differ from felonies for by the pardon of all felonies all petty treasons are pardoned Stam. as it is fol. 2.6 Stam. fo 2.6 But it hath some correspondency with other treasors and that is in respect of the duty and obedience that is dueeach to other as it is from the Subjects to the King so from the servant to the Master All servants although they receive no wages but onely meat and drinke are within this Law a servant that is not compellable to serve by this Statute yet if he doeth serve he is within this Law and so is a Bailiffe of a Mannor for if he kill that Lord of the Mannor it is pâ—tty treason within this Law Steward of a Court Leet or Court Barron is not within this law a wife divorced for adultery is within this law although a Queene divorst for adultery be not within this law as ye have heard before Ordinaties are of two sorts Ordinarius loci ordinarius Dioces Ordinarius loci Ordinarius Dioces and the superiour Ordinares they are all within this law Ordinarius loci as that of the Deane of Westminster Ordinarius Dioces is the Bishop of the Diocesse and the superiour Ordinary is the Archbishop they are all within this law in respect of the obedience that is due to them A childe killing his Father or his Mother he is within this law as you heard before although he he not named in it yet there is a majority of treason in it more then that of a servant and therefore is within that intent and reason of the law and so it is in Dalton If one command another to kill his Master who doeth it yet it is not treason within this law unlesse he be there present when the fact is done 40. Ass 25. 40. Ass 25. If a wife command a servant to kill her husband and he doeth it it is treason in both within this law and so it appeares that Abettors and Partners are within the last part of this Statute concerning petty treasons although they are not named If a servant goes from his Master and then kils him this is petty treason within this law for it shall be intended that he had such an intention to kill him before he departed out of his service Bro. Titl treason 15.33 Ass 7. 33. Ass 7. And so is a quarrell in Westminster Hall the Courts sitting and then goe out of the Hall into the Pallace-Yard and then one strikes the other this is punishable with the same punishment as if he had struck him in the Hal for the punishment shal be to the losse of his hand and the forfeiture of his goods and perpetuall imprisonment as it is in Dacies case 1. and 2. Eliz. Diar 188.21 E. 3.17.21 Ass 30. in the 1. and 2. of Eliz. Diar 188. but some of these offences were treason at the Common-law as the sonne killing of the father 21. E. 3.17 and of a maid-servant killing her Mistris 21. Ass 30. if a servant kill his Mistris this is petty treason within this Law and yet she is not named but is to be intended upon the same reason with his Master 19. H. 6.47 and the obedience is due to the one aswell as to the other 19. H. 6.37 Treason ought to be fully proved as it appeares by the words of the statute and that is to be by two witnesses the proving of every treason 1. E. 6. and the statute of 1. E. 6. is not repealed as to this point by the statute of Ph. and Mary but onely the triall in the Counties and not concerning witnesles as by that statute more at large appeares and in the 14. of Eliz. in the Lord Lumlyer case 14. Eliz. Lumlies case 13. H. 8. 11. 12. Bro. tit tre 29.33 it was agreed that the statute 1. E. 6. was not reversed by the old statute The triall of Lords of Parliament ought to be per pares but in some cases he shall not have his triall per pares as in an appeale but in an indictment he shall and the indictment shall be received into Parliament because an Indictment is the Kings suit and the statute of Magna Charta is nec super cun ibimus nec super eum mittimus and this is to be intended in the Kings suit the 10. Ed. 4.6 10. E. 4.6 But a Lord may refuse his tryall per paces if he will as it was adjudged 1. of Phil. and Mar. Br. in the Lord Grayes case 1 Phi. Ma. Bro. Lo. Gr. case Pa. 13. Jac. but in the Lord of Castlehavens case it was held the contrary if a man be kil'd in rebellion he shall forfeit his lands and is a traytor but there ought to be an inquisition taken of him ond that shall be a sufficient triall As the case in Pa. 13. Jac. Br. if a man doe cast himselfe into the water and never is found after yet if it be presented by the Justice of Peace this is sufficient to make him forfeit his goods As for those treasons which are not here declared the Judges authority take indictments of them but they ought not to be proceeded to judgement for nothing is to be done in point of judgement in such a case till it be adjudged and declared in Parliament and all other treasons that are not here declared ought to be felonies at the least because felonies were made treasons before the statute and because the words of the statute are that it ought to be treason or felony but if it be but once declared in Parliament unlesse there be a Proviso that the Judges shall not proceed upon the like cases they may afterwards proceed by force of this statute They are treasons at common-Common-law notwithstanding the statute 1. Q. Mary for that did take away those treasons and Declarations of treasons that were made in Parliaments from the time of our statute to the 1. of Q. Mary but doth not take away the declarative power in our statute mentioned nor the Common-law but they doe remains still as before FINIS
THE READING IN LINCOLNES-INNE FEB 28. 1641. Vpon the STAT of 25. E. 3. cap. 2. Being the Statute of TREASONS By ROBERT HOLBORNE Esq Indici conjurationis praemia constituta Salust in Conjur Caril OXFORD Printed by Leonard Lichfield Printer to the Vniversity Anno Dom. 1642. The Reading of ROBERT HOLBORNE in Lincolnes-Inne Esq Feb. the 28. 1641. Vpon the Stat. of 25. E. 3. c. 2. being the Stat. of TREASONS BEfore the Statute Trespasses were made Felonies and Felonies were made Treasons and we could not judge which were Felonies and which were Treasons The parts of the Statute are first Declarative High treason Pettie treason And secondly Directive High treason but it did rest in the brest of the Judges that were in those dayes for the preventing of which mischiefe this Statute which I now read upon was made which hath two parts A Declarative part and that doth declare what hereafter shall be judged Treason and treason also is commonly divided into two parts that is First high Treason that is against the person of the King and that will fall out for this dayes worke Secondly petty treason which is in the latter part of the Statute as will appeare hereafter The second part of this Statute is the Directive part and directs the Judges how far to proceed upon a Fact that is not within the Statute High treason is against the person of the King or against his government viz. as against his Judges Seales and Coynes these are the Divisions that I shall make of this Law The Definition of Treason The Definition of treason It is Laesa Majest which comprehends the person of the King and his Officers of Justice For the person of the King and the treasons that are committed more immediately against his person and they are acts and persons Persons they are of two sorts persons against whom and the persons by whom these treason are committed the acts and they are divers As first compassing the death of the King and for explanation of this word compassing it is an old word signifying not a bringing to passe onely but a going about as you shall finde it in Britaine and the Mirrour of Justice but it is since called in Latin Macinatio or a going about 1. Mar. Bro. tit trea 24. and compassing is treason though no effect doe follow as a compassing to kill the King though he be not kild so a compassing without any other act is treason but there may be an act done that doth effect the death of the King and yet no treason if there be no compassing as in the case of Sir Walter Turrell who shooting at a Deere his arrow glanced against a tree Hollinshead and strucke King William Rusus upon the brest that he died and this was not treason because theâ—e was no compassing And so it is in the case of a Physitian as if the King takes paysick and dyes of the physicke working yet if it be not notoriously grosse and it doth not appeare that he did any way compasse the death of the King this is not treason within this Law for in the case of a common person if a Physâ—â—ian give one physicke whereof he dyes this is not Felony in him although the Phyhtian had no licence to practice Physicke for it is his fault that he will take physicke of him and volenti nosit injuria If the Prince in person assaults a man and drives him so hard against the wall that if hee doth not defend himselfe he will kill him and he cannot doe it without danger to the Prince in that case he ought not to defend himselfe but ought rather to dye then hazard the person of the Prince because he is caput salus Repub. and yet nature doth teach a man to defend himselfe against all danger And thus much for acts without compassing and yet some of these acts that are without compassing are left to the Jurie to judge of and some others are left to the Judges to judge of as by presumption of Law as in Murder there ought to be malice forethought and yet if an Officer in executing of his office be slaine this is Murder by the Law and yet in this case there doe not appeare any malice forethought and so in this case the Law makes an evidence for the Jurie and so in deeds of the like cases The second Act is violating and this word is derived of vi perdendo but yet it may be done without any force at all The third act is levying warre against the King what shall be said of levying warre See Saint Johns argument in Sherly of Sheffields case that may be divers wayes as if the Inhabitants of a Town will gather themselves together to pul downe the fences of a Common in which they have no interest or Common nor ever had this is treason within this Law but if they had an interest or Common there then it is no treason but if they shall doe it by force of Armes in a warlike manner qu but in the first case it is a levyings of war against this government Another levying of war may be against the King as if it be to the displacing of his Officers Nota. as in the Earle of Essex case in his comming to the Citty of London for to remove Officers that were about the Queen this was treason and so it is also to the same purpose in 1. 1. Mar. Dyer 14. Brooke tit Treason 14.8 Hen. 8. Mar. Dyer 24. so it appeares a man may levy war against the King although he hath no intent to meddle with the person of the King or any way to hurt him so you shal finde it also in Bro. title treason 14. And if any levy war without the King this is a levying of warre within the Law 8. H. 8. If two conspire to levy warre and one alone doth it this is treason in both The fourth part is to adhere to the Kings Enemies and first who shall be saidenemies within this Law Nota. See Irish statute p. secondly what shall be said adhering to them that are enemies within this Law this word Enemy cannot extend to subjects for they are Rebels and no enemies and so it is exprest in the Irish statutes and this statute cannot be taken according to equity for it is a penall Law and of the greatest pepenalty that is and therefore the aiding of Rebels cannot be meant any way the aiding of the Kings enemies within this Law aiding the enemies within or without is an aiding of those that come into the Land or of those that are without a Subject is of two sorts ratione originis and a Subject ratione loci Subjects 2. sorts 1. Ratione Origenis 2. Ra. Loci A Subject rationi originis cannot be an enemy although he doth levy warre inrespect of his obedience but a rebell he shall be A Subject rationi loci during his residence here
he can be no enemy neither but if he goeth over Sea and then levy warre against this Kingdom or any other of his majesties Kingdoms he is then an enemy within this Law and no Rebell There is also Dominum rectum et Dominum utile Dominum duplex for if a man be born within the dominum rectum as that of Scotland in ancient time and there he levy war he is an enemy and no rebell but if he be borne within the dominum utile and levy warre he is a rebell and not an enemy Aiding is by sending of them aide as of victuals or of weapons and the like by giving of them counsell or by any other way whereby they may receive strength or comfort from him Now for the persons by whom this levying of warre may be and as to that all levies are within this Law aswell women as men for women are comprehended under this word man Secondly persons of all nations that are within this Land are within this Law for as they shall have protection by the Lawes of the Land and they ought at their perill to take notice of the Law so soone as they come into the Land for they ought to have notice given them and cannot alleage ignorance if it be not given them especially in such Lawes as this that are so beneficiall both to the King and Kingdome Thirdly persons of all degrees as a Queen that is married to the King attempting the death of the King is within this Law A forraigne Embassadour is also within this Law but if a forraign King should come into this Land by licence and here compasse the death of the King the question will be how he shall be tried for he is a King here and therefore ought to be tried per Pares which he cannot be for other honours are not allowed here Fourthly all ages are within this Law as in faults which have knowledge or men of non sanae memoriae and a mad man is also within this Law as to that part of the statute which concernes more immediately the person of the King for if any of them afore mentioned in this division shal compasse his death it is treason within the first clause but not in the clause of levying warre as I shall shew you afterwards but a man that is surdus caecus et mutus is not within this Law for it is impossible for him to have understanding Northumberlands case Now for the persons against whom a King before his Coronation is within this law as it is in the Duke of Northumberlands case for he is presently a King as soon as the other King deceaseth and there is no interregnum for the King Quatenus a King never dyeth but he is said to demise when he departs this life and the King is crowned because he is a King and not a King because he is Crowned a King See 4. E. 4.1.9 F. 4.12 de facto and not de jure is a King within this Law as it is in 4. E. 4.1 and 9. E. 4.12 A King conjugall or maritall that takes to wife the Queene of England is within this Law a Queene that is maried although the mariage be voyd yet that Queene is within this Law so is a Queene maried by proxie a Queene a Queene within age is also within this Law The first Case I. S. First Case after the divorce of the wife of the Grandchild and Heire-apparent to the Queen doe violate her and imagine the death of the husband and declares this to I. D. and after kils the husband of the Queen and conspire to levy warre against the Queene and delivers to I. D. mony to buy armes and after becomes mad and aids the enemies of the Queene within the Realme and then kill the Queene The conclusion is first I. S. is a traytor within this Law for killing the husband of the Queen and for conspiring to levy warre and for killing of the Queen and in every one of these The second conclusion that I. S. is not a traytor within this Law for imagining the death of the Grandchild and yet he is within the case of the Law not for violating of his wife nor for aiding of the enemies I. S. is a traytor within this Law for killing the husband of the Queene but not within these words that whosoever shall conspire or compasse the death of the King for as to that clause he is not King for the Queene is regent and not he and so not within that clause nor the meaning of it but he is within this word Companion for he is as good a companion to the Queene as the Queene is to the King and so within the same reason of Law for the husband of the Queene in such a case is in a better condition and plight then a Queene to a King and so upon a stronger reason but this you must take as a rule that I have said before viz. that this Statute is not to be taken by equity and this you shall finde as another rule as well for the expounding this Statute as any other Bro. tre sol 12.12 ass pl. 30.19 H. 6.47 Com. 87.6 Fitz. Cor. 7.118 Brooks tuareas 8. that those cases that stands upon the same reason shall be within the same Law although not taken by equity for where there is the same identity paritie or majority of reason in any cases there ought to be the same Law as it is in the statute of Glooester concerning waste and in this our statute the misterics are not named yet there is within this Law for if the servant kils the wife of his Master knowing her to be his Masters wife this is adjudged petty treason by the judgment of al the Judges of both Benches 19. H. 6.47 Com. 87.6 Fitz. Cor. 7.118 Bro. Tit. treason 8. For as well the Mistris as the Master hath assiance in him and he ought to give reverence to his Mistris as well as his Master and yet the Master is onely named in this statute but in our case the expresse words are that if any man shall compasse the death of the Kings Companion it shall be treason and so there is an expresse proviso for him being the Companion for he is a Companion to the Queene a second difference betweene our case and the case of the Mistris is that shee is his Mistris but gratia and under the power of her husband but in our case the King maritall hath a superiority over his wife as he is her husband and so our case is a farre stronger case If a child kils his Father or Mother this is petty treason 21. E. 3.17 Bro. tit Sanctuariiâ— Bro. tit treas 6. and so it was also at the Common-law before the making of this statute 21. E. 3.17 Bro. tit Santuarii the 2. and Bro. tit treason the 6. because there is a majority of reason then that of a servant the reason of the
submission and duty that is to the Father and Mother from the child and where there is a majority of reason or a paritie of reason for the one case as there is for the other there is alwayes the same Law But you will object there is a Satute made 1. 2. Ph. Mar. Cap. 9. 1 2. Ph. Mar. ca. 9. that if any shall imagine the death of the King that it shal be treason and therefore he was not provided for before this statute and therefore this stature was made if it were treason before this statute then this statute was made in vaine and to no purpose Answ That that statute doth provide as well for the preservation of the Queene as for the King and makes it treason for any to compasse the death of the Queene and therefore it cannot be concluded from thence that it was not treason to compasse her death before that statute the second reason is because that statute doth provide for other matters as it doth there appeare The next poynt is the declaring of this his imagination to I. D. 1. Mar. Bro. tit treas 24. The second point which is an overt act for an overt act is the declaring of his minde and intentions to others by such words as imply an act to follow as by bidding a man to doe what he hath intended or to do any act that may tend to his purpose or by writing to declare his mind but if a man have a thought of killing the King this is onely primus motus and although he afterwards tels another that he had such a thought this is no overt act but if he doth cherish this thought then it becomes his own and then he tels it to another that he hath such an intention this is an overt act for the words that he doth speak are words executory and imply that he will doe such an act or if A. conspire with B. to kill the King this is an overt act but to imagine with himselfe is not because it cannot come to be knowne words of encouragement to others is an obvert act also For conspiring to levy warre is the next and this is treason within this Law although it be not within the words of the sttatute but yet it is within the meaning and reason of the statute Nota. for how is it possible for any to levy warre but he must conspire the death of the King or his deposing at least and the conspiring to do either of these is treason within this law as aforesaid and that within this word compassing which as I said before is of a very large extent but I must confesse the intention is not so bad an actuall levying of warre and yet it is as bad in him that doth intend it and this levying of warre doth immediately looke at the person of the King though not immediately and so in that respect it is treason and so it is of deposing and so is the statute of 1. E. 6. Cap. 12. and so you shall finde it in Doctor Stories case 1. Ed. 6.12 Dyer Storys Case 13. Elizab. Dyer 298. 13. Eliz. Dier 298. B. who did conspire with a forraigne Prince to invade this Land and shewed him a meanes how to conquer this Kingdome and yet there was no act done by that Prince against the Queene yet this is adjudged treason and the reason there yelded was because this invasion could not possible be without great hazard and perrill to the person of the Queene which is a very full case in proving of this point 19. II. 6.47 but a conspiring to coyne money is not treason within this Law because it is not against the person of the King but yet if two shall conspire to coyne money and one doth it alone without the other yet this is treason in both The third poynt The third point is that I. S. after he became mad kils the Queene this is treason within this Law first because a man may counterfeit himselfe to be mad and he may doe it so cunningly as it cannot be discerned whether he be mad or no. The second reason is in respect of the great esteeme that the Law gives to the person of the King for he is the fountaine of justice and for the proofe of this point that it may be understood we ought to see what the Common Law was before the making of this statute as to this point and then we ought to inquire and see how the Law is altered since the making of the statute and by this meanes we shall finde out the Law and the reason thereof it is true that the Law without speciall words will not binde an Infant or a mad man as to the punishment of their bodies but yet it will extend to their lands and estates but this our law is no new law but onely a declarative law and in that case generall words will binde an infant or a mad man without any speciall words that it was treason at the Common law is apparent in Britame and the Mirrour of Justice and this statute doeth not declare who shall be traytors but what shall be treason and therefore this act is treason in a mad man See Beverleys casâ— com 124. Daltons Just 206. or whomsoever shall commit it for a mad man is not excepted out of this law and to make this appeare more fully you may be pleased to read the case of Beverley in Com. 124. that a man that is non compus mentis may commit high treason although he cannot commit petty treason nor felony and so it is also in Daltons Justice of Peace 206. that if a man that is non compos mentis shall kill the King this is high treason nay Beverleys case goes furthur and saies that if he shall offer onely to kill the King this is high treason Nota. because the King is caput et salus Reipub. acapite bona valetudo transit in omnes and for this case his person is so sacred that none must offer the least violence to him but he is reus criminis lesae Majestatis et pereat unus ne pereant omnes The second conclusion is that I. S. is not a traytor within this Law for imagining the death of the Grandchild yet he is within the care and protection of the Law for he is not within the words of the Law but without the intention and reason of the Law for the words are that if any man shall compasse the death of the eldest sonne that this is treason but in the French language in which this Law was first written it is le regne fils et heire and yet if the eldest sonne dyes the second sonne is within the Law because he is then the eldest sonne and so it is of the third sonne for then he is also Heire apparent and he is within the intention and meaning of this Law Princes case 8. separ and