English liberties, or, The free-born subject's inheritance containing, I. Magna Charta, the petition of right, the Habeas Corpus Act ... II. The proceedings in appeals of murther, the work and power of Parliament, the qualifications necessary for such ... III. All the laws against conventicles and Protestant dissenters with notes, and directions both to constables and others ..., and an abstract of all the laws against papists.

The Comment.

TReason is derived from Trabir, which signifies Treacherously to betray; when it concerns the Government and the Publick, 'tis called High Treason, but against particular Persons, as a Wife killing her Husband, a Servant his Master, &c. it is Petty Treason,

High Treason in the Civil Law is called Crimen Laesae Majestatis, a Crime wronging Majesty, but in our Common-Law-Latine, Alta proditio, and in an Indictment for this offence the word Proditorie must be in.

Before the making this Act, so many things were charged as High Treason, That no Man knew how to behave himself: Now by this Statute, the particu∣lars of that Grand Crime are reckoned up, and all others excluded, till declared by Parliament. And the settling of this Affair was esteemed of such Im∣portance to the Publick-Weal, That the Parliament wherein this Act passed, was called long after Be∣nedictum Parliamentum, the Blessed Parliament.

The substance of this Statute is branched out by my Lord Cook 3d. part of Instit. Fol. 3. into six Heads. viz.

The first concerning Death, by compassing or imagining the death of the King, Queen, or Prince, and declaring the same by some Overt Deed. By killing and murdering of the Chancellor, Treasurer, Justices of either Bench, Justices in Eyre, Justices of Assize, Justices of Oier and Terminer, In their Places doing their Offices.

The second is to Violate, that is, to Carnally know the Queen, the Kings Eldest Daughter unmarried, the Princes Wife.

The third is, Levying War against the King.

The fourth is, Adhering to the Kings Enemies, within the Realm or without, and declaring the same by some overt Act.

The fifth is, Counterfeiting of the Great, the Pri∣vy Seal, or the Kings Coin.

The sixth and last, by bringing into this Realm Counterfeit Mony to the likeness of the Kings Coin.

Now as to the particular Exposition of the several parts of this Statute:

1. When a man doth compass, &c. in the Origi∣nal it is Quant Home, which extends to both Sexes, but one that is Non compos mentis, or an Infant within the Age of discretion, is not included; but all Allens within the Realm of England, being thereby under the Kings Protection, and owing a Local Al∣legiance, if they commit Treason may be punisht by this Act, but otherwise it is of an Enemy.

2. To compass and Imagine, Is to contrive, design or intend the death of the King; but this must be declared by some Overt Act. But declaring by an open Act a design to Depose or Imprison the King, is an Over Act to manifest the compassing his death. For they that will depose their King, will not stick to Murder him, rather than fail of their end, and (as King Charles the First excellently observed, and lamenta∣bly experienced) There are commonly but few steps be∣tween the Prisons and the Graves of Princes.

3. By the word King, is intended, 1. A King be∣fore his Coronation, as soon as ever the Crown de∣scends upon him, for the Coronation is but a Cere∣mony. 2. A King de Facto, and not de Jure, is a King within this Act, and a Treason against him is punishable, thô the Right Heir get the Crown. 3. A Titular King, as the Husband of the Queen, is not a King within this Act, but the Queen is, for the word King here includes both Sexes.

4. What is to be understood by the Kings Eldest Son and Heir within this Act? I answer, 1. A second

Son after the death of the first Born, is within the Act, for he is then Eldest. Secondly, The Eldest Son of a Queen Regnant is as well within the Statute, as of a King. Thirdly, The Collateral Heir Appa∣rent or Presumptive is not within this Statute. Roger Mortimer Earl of March was in Anno Dom. 1487. (11 Rich. 2.) Proclaimed Heir Apparent. Anno 39. Hen. 6. Richard Duke of York was likewise Pro∣claimed Heir Apparent, and so was John de la Poolen, Earl of Lincoln, by Rich. 3. And Henry Marquess of Exeter, by King Henry the 8. But none of these or the like are within the Purview of this Statute, saith my Lord Coke, 3 Instit. fol. 9.

5. Note, Whereas in the Printed Statute-Books, it is there said, probably Attainted, the same is a great error: For the words of the Record are, Et de ceo PROVABLEMENT soit Attaint: And shall be thereof PROVABLY Attaint: And I cannot but admire, that such a Gross mistake should be suffered, since my Lord Coke has so expresly observed the difference, in these words following, 3 Instit. fol. 12. In this Branch (says he) four things are to be ob∣served: 1. This word [Provablement] Provably, that is, upon direct and manifest proof, not upon Conjectural presumptions or Inferences, or strains of Wit, but upon good and sufficient proof. And herein the Adverb [Provablement] provably, hath a great force, and signifieth a direct and plain proof, which word the King, the Lords, and Commons in Parliament did use, for that the offence was hainous, and was so heavily and severely punished, as none other the like, and therefore the offender must Prova∣bly be Attainted, which words are as forcible, as up∣on direct and manifest proof. Note, the word is, not [Probably] for then Commune Argumen∣tum might have served; but the word is, [Provably] be Attainted. Secondly, This word [Attaint] necessarily implyeth that he be proceeded

with, and Attainted according to the due Course and proceedings of Law, and not by Absolute power, or by other means, as in former times had been used. And therefore if a Man doth adhere to the Enemies of the King, or be slain in open War against the King, or otherwise die before the At∣tainder of Treason, he forfeiteth nothing, because (as this Act saith) he is not Attainted: wherein this Act hath altered that, which before this Act, in Case of Treason was taken for Law; And the Statute of 34 E. 3. Cap. 12. saves nothing to the King, but that which was in Esse, and pertaining to the King at the making of that Act. And this appeareth by a Judgment in Parliament in Ann. 29. H. 6. Cap. 1. That Jack Cade being slain in open Rebellion could no way be punished, or forfeit any thing, and therefore was Attainted by that Act of High Treason. Thirdly, Of open Deed, per Aper∣tum Factum, these words strengthen the former Ex∣position of [Provablement,] an Overt Act must be alledged in every Indictment upon this Act, and proved. Compassing by bare words is not an Overt Act, as appears by many Temporary Statutes against it. But there must be some open Act, which must be manifestly proved. As if divers do Conspire the Death of the King, and the manner how, and thereupon provide Weapons, Powder, Poison, Harness, send Letters, or the like, for the Execution of the Conspiracy. If a Man be Arraigned upon an Indict∣ment of High Treason, and stand Mute [that is, refuse to Plead] he is not to be Pressed to death, but shall have the same Judgment, and incurr such forfeiture, as if he had been Convicted by Verdict, or had confessed it. For this standeth well with this word [Provablement] for fatetur facinus qui ju∣dicium fugit. But otherwise it is in case of Petit Treason, Murder, or other Felony. If a Sub∣ject Conspire with a Forreign Prince to Invade the

Realm by open Hostility, and prepare for the same by some Overt Act, this is a sufficient Overt Act for the death of the King. Fourthly, The Compositi∣on and Connexion of the words are to be observed, viz. [Thereof be Attainted by open Deed] This (as was resolved by the Justices in Easter Term 35 of Eliz.) relateth to the several and distinct Treasons before expressed (and specially to the Compassing and Imagination of the death of the King, &c. for that is a secret in the Heart) and therefore one of them cannot be an Overt Act for another, as for ex∣ample: A Conspiracy is had to Levy War, this (as hath been said and so resolved) is no Treason by this Act until it be levied, therefore it is no Overt Act, or manifest proof of the Compassing the Death of the King within this Act; for the Words are [de ceo, &c. thereof] that is, of the Compassing of the death. Divers latter Acts of Parliament have Or∣dained, That compassing by bare Words or Sayings, should be Treason, but are all either Repealed or Expired (except only that of the 12 Car. 2. herein after recited, which is only to be in force during the Life of his present Majesty, whom God preserve:) And it was wont to be said, bare Words may make an Heretick, but not a Traitor, without an Overt Act. And the Wisdom of the Makers of this Law would not make Words only to be Treason, seeing such variance commonly amongst the Witnesses is about the same, as few of them agree together. But if words be set down in Writing by the Delinquent himself, That is a sufficient Overt Act within this Statute.

In the Preamble of the Statute of 1 Mar. (concer∣ning the Repeal of certain Treasons declared after this Statute of the 25. of Edw. 3. and before that time, and bringing back all things to the measures of this Statute) It is agreed by the whole Parliament, That Laws justly made for the preservation of the

Common-wealth, without extream punishment, are more often obeyed and kept than Laws and Statutes made with great and extream punishments. And in special such Laws and Statutes so made, whereby not only the ignorant and rude unlearned People, but also learned and expert People minding honesty, are oftentimes trapped and snared, yea many times for Words only, without other Fact or Deed done or perpetrated. Therefore this Act of 25 Edw. 3. doth provide that there must be an Overt Act. But words without any Overt Act, are to be punisht in another degree, as an high Misprision.

By People of their condition] That is per Pares, by their Equals.

7. As to Treason by Levying War against the King, we must note, that thô Conspiring or Com∣passing to Levy War, without a War de Facto, be no Treason, yet if many Conspire a War, and only some few Actually Levy it, all are guilty of the Trea∣son. Raising a Force to burn or throw down a par∣ticular Inclosure is only a Riot, but if it had been to have gone from Town to Town to throw down all Inclosures, or to change Religion, or the like, it were Levying of War, because the intended mis∣chief is Publick. Holding a Fort or Castle against the Kings Forces, is Levying of War.

8. As touching the Interpretative Treasons by Killing the Chancellor, Treasurer, Justice of one or the other Bench, Justice in Eyre, or of Assize, or Oier and Terminer. Note, 1. This extends but only to the Persons here named, not to the Lord Steward, Constable, or Marshal, or Lords of Par∣liament. Secondly, It extends to those only during their Office. Thirdly, It extends only to Killing, not Wounding without Death.

But by the Stat. 3 H. 7. C. 14. Compassing to Kill the King or any of his Council, is made Felony.

9. Counterfeiting the Great or Privy Seal is Trea∣son; but it must be an Actual Counterfeiting thereof, Compassing to do it is no Treason: Affixing the Great Seal by the Chancellor without Warrant, is no Trea∣son: Fixing a new Great Seal to another Patent, is a great Misprision, but no Treason, being not a Coun∣terfeiting within this Act: But Aiders and Consenters are within this Act. The Counterfeiting of the Pri∣vy Signet or Sign Manual, is no Treason within this Act, but made by the Statute, 1. Mar. c. 6.

10. Treason concerning Coin, is either Counter∣feiting the Kings Coin, and this was Treason at Common Law, and Judgment only as of Pettit Trea∣son, but Clipping, &c being made Treason by sub∣sequent Statutes, the Judgment is to be Drawn, Hang'd, and Quarter'd. Money here extends only to the Proper Money of this Realm, But now by the 1. M. c. 6. Forging or Counterfeiting Money made current by Proclamation, is High Treason, and by 14. Eliz. c. 3. Forging of Forreign Coin, not current here, is Misprision of Treason in the Forgers, their Aiders and Abettors—And not that the bare For∣ging of the Kings Coin, without Uttering, is Trea∣son.

The second Offence concerning Money, here de∣clared to be Treason, is, If any person bring into this Realm Counterfeit Money: Where note. 1. It must be Counterfeit: 2. Counterfeited to the similitude of English Money: 3. It must be brought from a For∣reign Realm, and therefore not from Ireland: 4. It must be brought knowingly: 5. Brought, and not barely uttered here. But by the Statute De Moneta, if false or clipt money be found in a persons hands, and he be suspitious, he may be Arrested till he can clear himself: 6. He must merchandize therewith, that is make payment thereof.

11. As this Statute leaves all other doubtful matters to be declared Treason in Parliame••t, but not to be

punish'd as such till so declared. So in succeeding Kings Reigns abundance of other matters were de∣clared Treason, which being found very grievous and dangerous, by the Statute of 1 Mar. Cap. 1. it is Enacted, That thenceforth no Act, Deed, or Offence being by Act of Parliament, or Statute, made Treason, Petty Treason, or Misprision of Trea∣son, by Words, Writing, Ciphering, Deeds, or other∣wise however, shall be taken, had, Deemed or Ad∣judged to be High-Treason, Petty Treason, or Mis∣prision of Treason, but only such as be declared and expressed to be Treason, Petty Treason, or Misprision of Treason, by this Statute of the 25. Edw. 3.

12. The Offences made High Treason by Statutes since this first of Mary, are as follow.

Refusing the Oath of Supremacy upon second Tender, is Treason by 5. Eliz. Cap. 1. but no Cor∣ruption of Blood, so likewise is Extolling the Power of the Bishop of Rome, a Premunire, and the bring∣ing in of Bulls, or putting them in Execution, or Re∣conciling to the Church of Rome, is Treason by the same Statute. Bringing in Agnus Dei's is a Premu∣nire. 23. Eliz. C. 1. Also absolving Subjects from their Obedience, or Reconciling them to the Obedience of Rome is Treason, 27. Eliz. Cap. 2. So is it like∣wise for a Priest coming into England, not submit∣ing in two days. The like for English men in For∣reign Seminaries.

But Besides these Old Treasons since the happy Ret••uration of His Majesty, The zealous regards his Subjects in Parliament had, for the safety of his Sacred Person and Government, thought sit to pre∣fer and make the Statute following.