of treason by certain lords appellors, wherein many were convict of high treason under general words of accroaching royal power, subverting the realm, &c. and among the rest those very judges, that had thus liberally and arbitrarily expounded treason in answer to the king's questions, were for that very cause adjudged guilty of high treason, and had judgment to be hanged, drawn, and quartered, though the execution was spared ;(9) and they having led the way by an arbitrary construction of treason not within the statute, they fell under the same fate by the like arbitrary construction of the crime of treason.

Neither did it rest here, for the tide turned, and in Rot. [85] Parl. 21 R. 2. n. 12, 13. the commission before-mentioned, and the whole parliament of 11 R. 2. is repealed, and a new appeal of treason against the duke of Gloucester, earl of Arundel, and the commissioners in the former commission, and the procurers thereof under that common style of accroaching royal power, whereupon divers of them were condemned as traitors: and n. 18. there were four points of treason farther declared, viz. "Chescun qe compasse, et purpose la morte le roy, ou de lui deposer, ou de susrendre son homage liege, ou celuy, qe levy le people, et chivache encountre le roy a faire guerre deins son realme, et de ceo soit dument attaint, et adjugge en parlement, soit adjuggez come traytor de haut treason encountre la corone, et forfeit de lui, et de ses heyres, quecunques touts ses terres, tenements, et possessions, et libertys, et touts autres inheritements, queux il ad, ou ascun autre a son oeps, ou avoit le jour de treason perpetres, si bien en fee tayl, come de fee simple, au roy."

These four points of treason seem to be included within the statute of 25 E. 3. as to the matter of them, as shall be hereafter shewed; but with these differences, viz. 1. The forfeiture is extended farther than it was formerly, namely to the forfeiture of estates-tail and uses. 2. Whereas the ancient way of proceeding against commoners was by indictment, and trial thereupon by the country, the trial and judg ment is here appointed to be in parliament.[4] 3. But that, wherein the principal inconvenience of this act lay, was this, that whereas the statute of 25 E. 3. required an overt-act to be laid in the indictment, and proved in evidence, this act hath no such provision, which left a great latitude, and uncertainty in point of treason, and without any open evidence, that could fall under human cognizance, subjected men to the great punishment of treason for their very thoughts,

(4) They were all banished to Ireland except Tresilian, who was executed according to the judgment. See State Trials, Vol. I. p. 13, 14.

[4] In 1681, the House of Commons passed a resolution to impeach one Fitzharris of high treason, at the bar of the House of Peers. The Lords refused to entertain the cause; and voted that he should be proceeded against by indictment in the lower courts. It seems to be the better opinion, that the House of Lords have no jurisdiction in such a case. 4 Bl. Com. 259, though Mr. Hallam thinks differently. 2 vol. Cons. His., p. 603.

which without an overt-act to manifest them are not triable but by God alone.

These were the unhappy effects of the breaking of this great boundary of treason, and letting in of constructive treasons, which by various vicissitudes and revolutions mischieved all parties first or last, and left a great unquietness, and unsettledness [86] in the minds of people, and was one of the occasions of the unhappiness of that king.

Henry IV. usurping the crown, and the people being sufficiently sensible of the great mischiefs they were brought in by these constructive treasons, and the great insecurity thereby, Rot. Parl. 1 H. 4. n. 70. the parliament of 21 R. 2. is entirely repealed, that of 11 R. 2. entirely revived; and it was enacted,(r) that a parliamentary authority be not for the future lodged in a committee of particular persons, as it was done 21 R. 2. "Et auxint mesme nostre seigneur le roy de son propre motif reherceant, qe come in le dit parlement tenuz l'an 21. y fueront ordeynes per estatute pluseurs pains de treason, si qe y ne avoit ascun home, qe sauoit, come il se deust savoir, de faire, parler, ou dire pur doubt des tielx paines, dist, qe sa volunte est tout outrement, qe en nul temps avener ascun trayson soit adjugges autrement qil ne feust ordeignez par statute en temps de son noble aiel le roy E. le 3. qe dieu assoyl; dont les dits seigneurs et comens fuerent tres grandment rejoyces, et mult humblement ent remercierent nostre dit seigneur le roy."(s)

Now although the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace, and happiness of a kingdom, or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties, that the law can inflict; yet by these instances, and more of this kind, that might be given, it appears, 1. How necessary it was, that there should be some fixed and settled boundary for this great crime of treason, and of what great importance the statute of 25 E. 3. was, in order to that end. 2. How dangerous it is to depart from the letter of that statute, and to multiply and enhanse crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like; and 3. How dangerous it is by construction and analogy to make treasons, where the letter of the law has not done it: for such a method [87] admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men.(1)

(r) See 1 H. 4. cap. 3, 4, & 5.

(s) See 1 H. 4. cap. 10.

(t) This reasoning of our author is equally strong against constructive interpretations of compassing the death of the king.

VOL. I.-11

CHAPTER XII.

TOUCHING THE STATUTE OF 25 E. III. AND THE HIGH TREASONS THEREIN DECLARED.

A Parliament was held on Wednesday on the feast of St. Hill. 25 E. 3. at which parliament the statute declaring the points of treason was made. The petition of the commons, upon which it was made, is Rot. Parl. 25 E. 3. p. 2. n. 17. in these words: "Item come les justices nostre seigneur le roy assignes en diverses countees ajuggent les gents, qe sont empeches devant eux, come treitors par divers causes disconus a la comen estre treison, qe plese a nostre seigneur le roy par son counsel, & par les graunts & sages de la terre declarer les points de treson en cest present parlement.

"Ro'. Quant a la petition touchant treison nostre seigneur le roy ad fait declarer les articles de ycele en manner qe ensuit: cest assavoir, en case quant home face compaser ou ymaginer la mort nostre seigneur le roy, ou madame sa compaigne, ou de lour fitz primer & heir; ou si home violast la compaigne le roi, & la eisne fille le roy niente marié, & la compaigne a leisne fitz & heire du roi; & si home leve de guerre contre nostre seigneur le roy en son royalme; ou soit adhereant as enemies nostre seigneur le roy en le royalme, donant a eux eide, & confort en son royalme ou par aillours, & de ceo provablement soit atteint de overt fait par gents de lour condi[88]cion: Et si home contreface le grant seale le roy, ou sa monoie, & si home apporte fausse monoie en cest royalme contrefait a la monoie dengleterre, si come la monoie appelle Lusseburgh, ou autre semblable a la dite monoie dengleterre, sachant la monoie estre fausse, pur marchander ou paiement faire en deceit nostre seigneur le roy & de son people: Et si home tuast chancellor, treasurer, ou justice nostre seigneur le roi del un baunk, ou del autre, justice en eir, des assisez & de touz auters justices assignez a oyer & terminer, esteantz en lour places enfesant lour office. Et fait a entendre qe en les cases susnomees doit estre ajuggee treisonce, qe estent a nostre seigneur le roi & a sa royale majeste, & de tiels maneres de treison la forfeiture des escheets appertient a nostre seigneur le roy, sibien des terres, & tenementz tenuz des auters, come de lui mesme : ouesque ceo il y ad autre manere de treison, cest assavoir, quant un servant tue son mestre, une feme, qu tue son baron, quant home secular ou de religion tue son prelate, a qi il doit foi & obedience, & tiel manere de treison doun forfeiture des escheets a chescun seigneur de son fee propre; & pur ceo qe plusours autres cas de semblable treison purront eschaier en temps avenir, queux home ne purra penser ne declarer en present, assentu est qe qui autre cas suppose treison,' qe nest especifietz peramont, aviegne de novel deuant ascuns justices, demoerge la justice sanz aler a juggement de treison, tantque per devant nostre seigneur le roy & son parlement soit le case monstre, &

declare, le quel ceo doit estre ajugge treson, ou aut' felonie ; & si par cas ascun home de cest royalme chivache armee descovert, ou secretment ad gentz armez contre ascun autre pur lui tuer ou desrobber, ou pur lui prendre & retener tanque il face fyn ou raunceon pur sa deliverance avoir, nest pas lentent du roy & du son counseil, qe en tiel cas soit ajugge treison, einz soit ajugee felonie, ou trespass solonc la ley de la terre auncienement usee, & solonc ceo que le cas demand; Et si en tiel cas, ou autre semblable devant ces heures ascun justice eit ajugge treison, & par ycelle cause les terres & tene- [89] mentz devenuz en la maine nostre seigneur le roi come forfaitz eient les cheifes seignours de fee lour escheets des tenementz de eux tenuz, le quel qe les tenementz soient en la maine le roi ou en main dauters par doun, ou en autre manere: savant toutes foits a nostre seigneur le roi lan, & le wast, & auters forfeitures des chatelx, qe a lui attient en les cas susnomez, & qe briefs de scire facias vers les terre-tenants soient grantez en tiel cas sanz autre original & sanz alouer la protection nostre seigneur le roi en la dite suyte; & de les terres, qe sont in la maine le roi, soient grantes briefs as viscontz des countees la, ou les terres serront, de ouster la maine sanz autre delaie."

The statute itself is drawn up upon this petition and answer, and differs nothing in substance from the answer to the petition upon the parliament-roll: the statute itself runs in these words: "Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not, the king at the request of the lords and of the commons hath made a declaration in the manner, as hereafter followeth: that is to say, when a man doth compass or imagine[1] the death of our lord the king, or our lady his queen, or of their eldest son and heir; or if a man do violate the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir; or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably(a) attainted of open deed by the people of their condition; and if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm counterfeit to the money of England, as the money called Lushburgh, or other like to the said money of England, knowing the money to be false, to merchandize or make payment in deceit of our lord the king and of his people: and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices. And it [90] is to be understood, that in the cases above rehearsed that

ought to be judged treason, which extends to our lord the king and his royal majesty, and of such treason the forfeiture of the escheats pertaineth to our lord the king, as well of the lands and tenements

(a) Sce 3 Co. Inst. P. 12.

[1] See Luders' Tracts, 137.

holden of others, as of himself: and moreover there is another manner of treason, that is to say, when a servant slayeth his master, or a wife her husband, or when a man secular, or religious, slayeth his prelate, to whom he oweth faith and obedience; and of such treason the escheats ought to pertain to every lord of his own fee: and because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any other case supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the king and his parliament, whether it ought to be judged treason, or other(b) felony: and if par case any man of this realm ride armed [2] covertly, or secretly with men of arms against any other to slay him, or rob him, or take him, or retain him, till he hath made fine or ransom for to have his deliverance, it is not the mind of the king, nor his council, that in such case it shall be judged treason, but shall be judged felony, or trespass according to the laws of the land of old time used, and according as the case requireth. And if in such case, or other like, before this time any justices have judged treason, and for this cause the lands and tenements have come into the king's hands as forfeit, the chief lords of the fee shall have the escheats of the tenements holden of them, whether that the same tenements be in the king's hands, or in others by gift, or in other manner; saving always to our lord the

king the year and the wast, and the forfeitures of chattels, [91] which pertain to him in the cases above-named; and that writs of scire facias be granted in such case against the land-tenants without other original, and without allowing any protection in the said suit; and that of the lands, which be in the king's hands, writs be granted to the sheriffs of the counties, where the lands be, to deliver them out of the king's hands without delay."[3]

The several high treasons hereby declared are these:

1. The compassing of the death of the king, queen, or prince, and declaring the same by an overt act.

2. The violation or carnal knowledge of the king's consort, the king's eldest daughter unmarried, or the prince's wife.

3. The levying of war against the king.

4. The adhering to the king's enemies within the land or without, and declaring the same by some overt-act.

5. The counterfeiting of the great seal or privy seal.

6. The counterfeiting of the king's coin, or bringing counterfeit coin into this realm.

(b) The old translation seems here to be preferable, viz. else; for aut' being abbreviated may be either autre or autrement.

[2] Luders, 141.

[3] Mr. Luders' translation of this statute is somewhat different from the one here given. Tract 1. p. 4.