THE READING IN LINCOLNS-INN, FEB. 28. 1641. Upon the STAT. of 25. E. 3. cap. 2. Being the Statute of TREASONS. By ROBERT HOLBORN, Esq. Indici conjurationis praemia constituta. Sallust. in Conjur. Caril. OXFORD: Printed by Leonard Lichfield, Printer to the University. Anno Dom. 1642. The Reading of ROBERT HOLBORN in Lincolns-inn, Esq. Feb. the 28. 1641. Upon 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. Petty treason. And secondly, Directive High treason. but it did rest in the breast of the Judges that were in those days: for the preventing of which mischief, 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 day's work. Secondly, petty treason, which is in the latter part of the Statute, as will appear 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, Seals and Coins: 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 pass only; but a going about as you shall find it in Britain and the Mirror 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 do follow; as a compass to kill the King though he be not killed 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 Deer, his arrow glanced against a tree, Hollinshead. and struck King William Rusus upon the breast that he died; and this was not treason, because the●e was no compassing: And so it is in the case of a Physician as if the King takes paysick and dies of the physic working, yet if it be not notoriously gross, and it doth not appear that he did any way compass the death of the King, this is not treason within this Law; for in the case of a common person, if a Physician give one physic whereof he dies, this is not Felony in him, although the Phyhtian had no licence to practise Physic; for it is his fault that he will take physic of him; and volenti nosit injuria. If the Prince in person assaults a man, and drives him so hard against the wall that if he doth not defend himself he will kill him and he cannot do it without danger to the Prince; in that case he ought not to defend himself, but ought rather to die then hazard the person of the Prince, because he is caput & salus Repub. and yet nature doth teach a man to defend himself against all danger. And thus much for acts without compassing: and yet some of these acts that are without compassing are left to the Jury 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 slain, this is Murder by the Law, and yet in this case there do not appear any malice forethought, and so in this case the Law makes an evidence for the Jury, 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 war against the King; & what shall be said of levying war, See Saint John's argument in Shirley of Sheffields' case. that may be divers ways: as if the Inhabitants of a Town will gather themselves together to pull down 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, than it is no treason, but if they shall do it by force of Arms in a warlike manner, qu: but in the first case it is a levying 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 Earl of Essex case in his coming to the City 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 appears 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 shall find it also in Bro. title treason 14. And if any levy war without the King, this is a levying of war within the Law. 8. H. 8. If two conspire to levy war and one alone doth it, this is treason in both. The fourth part is to adhere to the King's 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 expressed in the Irish statutes, and this statute cannot be taken according to equity, for it is a penal Law, and of the greatest pepenalty that is, and therefore the aiding of Rebels cannot be meant any way the aiding of the King's 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 war (in respect of his obedience) but a rebel 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 war against this Kingdom or any other of his majesties Kingdoms, he is then an enemy within this Law and no Rebel. 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 rebel; but if he be borne within the dominum utile, and levy war, he is a rebel and not an enemy. Aiding, is by sending of them aid, as of victuals, or of weapons, and the like, by giving of them counsel, or by any other way, whereby they may receive strength or comfort from him. Now for the persons by whom this levying of war 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 Laws of the Land, and they ought at their peril to take notice of the Law, so soon as they come into the Land, for they ought to have notice given them and cannot allege ignorance if it be not given them; especially in such Laws as this that are so beneficial both to the King and Kingdom. 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 foreign Ambassador is also within this Law, but if a foreign King should come into this Land by licence and here compass the death of the King, the question will be how he shall be tried, for, he is a King here, and therefore aught 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 concerns more immediately the person of the King, for if any of them afore mentioned in this division, shall compass his death, it is treason within the first clause, but not in the clause of levying war, as I shall show 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 the jure, is a King within this Law, as it is in 4. E. 4.1. and 9 E. 4.12. A King conjugal or marital, that takes to wife the Queen of England is within this Law, a Queen that is married, although the marriage be void, yet that Queen is within this Law, so is a Queen married by proxy, a Queen, a Queen 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, do violate her, and imagine the death of the husband, and declares this to I. D. and after kills the husband of the Queen, and conspire to levy war against the Queen, and delivers to I. D. money to buy arms and after becomes mad, and aids the enemies of the Queen within the Realm, and then kill the Queen. The conclusion is, first I. S. is a traitor within this Law, for killing the husband of the Queen and for conspiring to levy war, and for killing of the Queen, and in every one of these. The second conclusion, that I. S. is not a traitor 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 traitor within this Law for killing the husband of the Queen, but not within these words, that whosoever shall conspire or compass the death of the King; for as to that clause he is not King, for the Queen 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 Queen, as the Queen is to the King, and so within the same reason of Law; for the husband of the Queen in such a case is in a better condition and plight then a Queen 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 find 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, parity, 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 kills the wife of his Master, knowing her to be his Master's wife, this is adjudged petty treason by the judgement of all the Judges of both Benches 19 H. 6.47. Com. 87.6. Fitz. Cor. 7.118. Bro. Tit. treason 8. For as well the Mistress as the Master hath assiance in him, and he ought to give reverence to his Mistress, as well as his Master, and yet the Master is only named in this statute; but in our case, the express words are, that if any man shall compass the death of the King's Companion it shall be treason, and so there is an express proviso for him, being the Companion, for he is a Companion to the Queen: a second difference between our case, and the case of the Mistress is, that she is his Mistress but gratia, and under the power of her husband; but in our case the King marital hath a superiority over his wife, as he is her husband, and so our case is a fare stronger case. If a child kills his Father or Mother, this is petty treason, 21. E. 3.17. Bro. tit. Sanctuarii●. 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 parity of reason for the one case as there is for the other, there is always the same Law. But you will object, there is a Statute 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 shallbe treason, and therefore he was not provided for before this statute, and therefore this stature was made; if it were treason before this statute, than this statute was made in vain and to no purpose. Answ. That that statute, doth provide as well for the preservation of the Queen, as for the King and makes it treason for any to compass the death of the Queen, and therefore it cannot be concluded from thence, that it was not treason to compass her death before that statute: the second reason is, because that statute doth provide for other matters, as it doth there appear. The next point 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 mind and intentions to others, by such words as imply an act to follow, as by bidding a man to do 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 only primus motus and although he afterwards tells another that he had such a thought, this is no overt act, but if he doth cherish this thought than it becomes his own, and then he tells 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 do such an act, or if A. conspire with B. to kill the King this is an overt act; but to imagine with himself, is not, because it cannot come to be known; words of encouragement to others, is an obvert act also. For conspiring to levy war 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 war, 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 confess the intention, is not so bad an actual levying of war, and yet it is as bad in him that doth intent it; and this levying of war, doth immediately look 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 find it in Doctor Stories case, 1. Ed. 6.12. Dyer, Stories' Case. 13. Elizab. Dyer 298. 13. Eliz. Dier 298. B. who did conspire with a foreign Prince to invade this Land, and shown him a means how to conquer this Kingdom, and yet there was no act done by that Prince against the Queen, yet this is adjudged treason, and the reason there yielded, was, because this invasion could not possible be without great hazard and peril to the person of the Queen, which is a very full case in proving of this point; 19 II. 6.47. but a conspiring to coin money, is not treason within this Law, because it is not against the person of the King, but yet if two shall conspire to coin money, and one doth it alone without the other, yet this is treason in both. The third point. The third point is that I. S. after he became mad, kills the Queen, this is treason within this Law, first, because a man may counterfeit himself to be mad, and he may do it so cunningly as it cannot be discerned whether he be mad or no. The second reason, is in respect of the great esteem that the Law gives to the person of the King, for he is the fountain of justice, and for the proof 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 means, we shall find out the Law and the reason thereof; it is true that the Law without special words, will not bind 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 only a declarative law, and in that case general words will bind an infant or a mad man, without any special words; that it was treason at the Common law is apparent in Britame, and the Mirror of Justice, and this statute doth not declare who shall be traitors, but what shall be treason, and therefore this act is treason in a mad man, See Beverleys' cas● come. 124. Daltons' Just. 206. or whomsoever shall commit it, for a mad man, is not excepted out of this law; and to make this appear 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 says; that if he shall offer only 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 traitor 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 compass the death of the eldest son, that this is treason; but in the French language, in which this Law was first written, it is le regne fils et heir, and yet if the eldest son dies, the second son is within the Law, because he is then the eldest son, and so it is of the third son, for than he is also Heir apparent, and he is within the intention and meaning of this Law; Prince's case 8. separ. and so to this purpose is the Prince's case in 8. Separt. where it is that the second son shall be Duke of Cornwall after the death of the eldest, and yet it is only limited to the eldest son; a collatrall Heir is also within this statute, because as he conceiveth this statute intends to provide that the next Heir to the Crown shall be secured from danger; and the case that may be likened to this, is that, where a writ of Aid may be brought by the next heir, for the writ saith, Cujus haeres apse est. F. N. B. 221. F. N. B. 221. so that it appears that it lies only for the heir lineal or collateral, male or female. The eldest daughter is also within our Law, heirs Fous is also a grand heir within this Law, but this imagining or compassing the death of the Grandchild, or of any other heir is not treason, unless there be a sufficient declaration of it to another, for no man can judge of the thoughts; for the imagination only, 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 traitor within this Law; for he told him only that he had such an imagination, which is but primus motus, for he doth not say that he will do it in the Future tense, for that may be treason, for that it doth imply an act to be done afterward; but the other is only also against that is past; then for violating the wife after that she is divorced, 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 divorced a mensa et thoro shall have her divorce, because that divorce doth not dissolve the marriage, but she remains his wife still; but yet if she hath any children during that divorce they are all bastards, because she is not to keep her husband company; a Queen 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 King's companion. The second lecture, The second Lecture. according to my first division is concerning the government; and that is first in the seal, which is clavis regnt; the second in his money and coin, the third in his offices: for the first which are the seals and they are first, the Great-Seale secondly the Privy-seal and thirdly the Seal of the Exchequer, and of all these Seals, the Common-law takes special notice, as that the King may grant to one power, to make Attorney under the Privy-seal; 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 Seals, but our Law takes notice of the Seal only, as for point of treason, for the words are exclusive to all other Seals, for that being the greatest excludes all other inferior Seals that are the least: now what shall be said at counterfeiting of this great Seal and that must be, by making of another Seal like to this, and for to seal patents with it for to make a seal like the great Seal, to put this to a piece of wax only is no counterfiting of the great Seal, 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 seal a patent, Nota. without special authority from the King, yet this is no counterfeiting within this Law, or if any one do find this great Seal or otherways obtain it, and seals patents therewith, this is not counterfeiting neither within this Law, for if the Seal be cruelly and in due manner put to a patent, and afterwards the pattentee doth rate or add to the patent 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 King's coin, and this aught to be intended only of the Kings own money, for that only is meant by this Law and not any foreign money, but foreign money is provided for by another Law,; the coining of copper if it be made currant is also within this Law, for it is only in the power of the King to embase coin, as it is apparent in the case of money in Davies sererts for the King is Master of the coin, Case of money in Davies seperts. but in the mirror of Justice, it is said, the King cannot alter his coin, for things are not in this Law because they are not currant within this Realm; foreign money is not within this Law, because at the time when this Law was made, all foreign money that was brought into this Realm, was but bullon, because it was a great deal worse than that of this Nation: and foreigners afterwards did make their coin 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 coin, and he coin pieces that are least in weight than they ought to have been, 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 foreign 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 sergeant the coune of this Kingdom beyond the Sea, and brings it over and Marchandizes with it, and thereby deceive our Merchants, this is account fitting as in the book aforesaid; and if one counterfeits the coin of this Kingdom, 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. bless. 3. D. What shall we say the bringing in of money, what not? the bringing in of foreign money, aught to be intended of money that is counterfeited in another Realm, and like unto ours, for the words are so, money and not of foreigners money; if two conspire to coin 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 Barons of the Exchequer are within this Law, and it is agreed in Tanfields' case (who was one of the Barons 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 Ecclesiastical 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 Seal and closeth it to a Commission, and coins money in the form of shillings invertendo the arms, The second case. kills the Lord Keeper of the great Seal in Chancery, and brings in false money like English, to Merchandise, knowing it to be false, but doth not offer it, and I. S. knowing this doth secure him. The conclusion is, that I. S. is a traitor 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 Seal at all; it cannot be said that this half is the broad Seal, or that the other halfe is the broad Seal, fer they both together make but one broad Seal, and when he hath closed them together again, and joined 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 mischief that doth come by this translating of an old Seal to a new Commission, for both the King and his Subjects are as much abused, as if it had been counterfeited; and the reason of Laws and not authority, 40. Ass. 33. & Broait. treas. 17. Britta. ca 4. fo. 10. aught to be our rule to go 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 find it expressed in Bruam ca 4. fol. 10. and in the mirror of Justice ca 1. sex. 6. and since the statute in the same King's 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 thereof, by all likelihood, did adjudge it treason, to take an old Seal from an old patent, 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 do concern the person of the King, the judgement ought to be, that he shall be hanged, drawn, and quartered; but for other treasons that do not immediately concern 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 drawn and hanged only, 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 King's money, and the inverting of the arms of the King whereby the King's 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 discerned without special notice taken of it; and this doth appear by the judgement given in the Star-Chamber for the counterfeiting of fare things, and it is treason for any man to bear the King's arms, as it appears in the Earl of Surrey's case. The third act, is the kill of the Officers of the King as of the Lord Keeper. and that is treason within this Law, for the Lord Keeper is now Chancellor, although at that time when this statute was made, the Lord Chancelours Office, and the Lord Keeper's Office, were two several 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 expressed 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 tenant that held by Knight service, notwithstanding he had made a feoffment by colusion: from which time and for 200. years and more, till the statute of the 4. of H. 7. ca 17. which gave the Ward of the heir of Costigase, the heir 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 Merchandise withal: and this is treason: for here is not only an intent, but there is also an act joined with this intent; for he brings over this money, which is the act, with an intent to Merchandise. The second conclusion is, that I. D. is a traitor within this law, and his treason doth go or extend to all the other four treasons that were committed by I. S. for this succouring of him after the fact committed, makes him a traitor 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 been a traitor: and so if one doth now secure a felon, it is felony in the succorour; and why should it not be so in our case? for the reason of law in our case is fare stronger that the succorour of a traitor, should be a traitor, than the succouring of a felon should be a felon, because the offence is greater, and therefore it is an aggravation of his punishment, to make him that no man shall receive or secure him; for we see the law inflicts a greater punishment upon a traitor then upon a felon; and that is to deter men from such acts as those are: and so it appears that there is reason why he should be a traitor, 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 than that was a concomitant to treason that the succoror should be a traitor. Object. But it is so in 3. H. 7. fol. 10. that a succoror in treason is no traitor. Answ. The reason of that case there is because the judgement was, that he knowing eam ●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 traitor; 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 express 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 been only a fellow; but our case is stronger, for this Law doth not make any one treason, but only declares what shall be adjudged treason, but if this statute had expressed that all abettors should have been traitors, that then the receivers or succourers should not have been traitors within this Law, for then the intent of the makers would plainly appear, that it was not intended that the receivers or succourers after the fact should not have been within this Law, but only 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 treasures; 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 only meat and drink are within this Law, a servant that is not compellable to serve by this Statute; yet if he doth serve he is within this Law, and so is a Bailiff of a Manor, for if he kill that Lord of the Manor, it is p●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 Queen divorced for adultery be not within this law, as ye have heard before. Ordinaties are of two sorts: Ordinarius loci, ordinarius Diocese. Ordinarius loci, Ordinarius Diocese. and the superior Ordinares they are all within this law Ordinarius loci, as that of the Dean of Westminster; Ordinarius Diocese. is the Bishop of the Diocese, and the superior Ordinary is the Archbishop; they are all within this law in respect of the obedience that is due to them. A child 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 than 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 doth it, yet it is not treason within this law, unless 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 doth it; it is treason in both within this law: and so it appears 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 kills 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 quarrel in Westminster Hall the Courts sitting, and then go out of the Hall into the Palace-yard, and then one strikes the other, this is punishable with the same punishment, as if he had struck him in the Hall, for the punishment shall be to the loss of his hand, and the forfeiture of his goods, and perpetual 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 son killing of the father, 21. E. 3.17. and of a maid-servant killing her Mistress. 21. Ass. 30. if a servant kill his Mistress, 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 appears 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 only the trial in the Counties, and not concerning witnesles, as by that statute more at large appears; 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 trial of Lords of Parliament ought to be per pares; but in some cases he shall not have his trial per pares, as in an appeal, but in an indictment he shall, and the indictment shall be received into Parliament, because an Indictment is the King's suit, and the statute of Magna Charta is nec super cun ibimus, nec super eum mittimus, and this is to be intended in the King's suit the 10. Ed. 4.6. 10. E. 4.6. But a Lord may refuse his trial per paces, if he will; as it was adjudged 1. of Phil. and Mar. Br. in the Lord Gray's 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 killed in rebellion he shall forfeit his lands and is a traitor; but there ought to be an inquisition taken of him, and that shall be a sufficient trial. As the case in Pa. 13. Jac. Br. if a man do cast himself 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 Judge's 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, aught 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, unless 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-law, notwithstanding the statute 1. Q. Marry; 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. Marry, but doth not take away the declarative power in our statute mentioned, nor the Common-law, but they do remains still as before. FINIS.