L. The first statute that declareth what is high-treason, is the statute of the 25 Edw. III, in these words: “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 declaration in the manner as hereafter follows: that is to say, when a man doth compass or imagine the death of our Lord the King, of our Lady the Queen, or of their eldest son and heir; or if a man doth 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 attainted by open deed by 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, and make payment in deceit of our said Lord the King, and of his people: and if a man slay the Chancellor, Treasurer, or the King’s Justices of one Bench or the other, Justices in Eyre, or Justices of Assizes, and all other justices assigned to hear and determine, being in their places and doing their offices. And is to be understood in the cases above rehearsed, that that ought to be adjudged treason, which extends to our royal Lord the King, and his royal Majesty; and of such treason the forfeiture of the escheats pertains to our Lord the King, as well the lands and tenements holden of others, as 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 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 case supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without giving any judgment of the treason, till the cause be showed and declared before the King and his Parliament, whether it ought to be adjudged treason or other felony.”
P. I desired to understand what treason is, wherein no enumeration of facts can give me satisfaction. Treason is a crime of itself, malum in se, and therefore a crime at the common-law; and high-treason the highest crime at the common-law that can be. And therefore not the statute only, but reason without a statute makes it a crime. And this appears by the preamble, where it is intimated, that all men, though of divers opinions, did condemn it by the name of treason, though they knew not what treason meant, but were forced to request the King to determine it. That which I desire to know is, how treason might have been defined without the statute, by a man that has no other faculty to make the definition of it, than by mere natural reason.
L. When none of the lawyers have done it, you are not to expect that I should undertake it on such a sudden.
P. You know that salus populi is suprema lex, that is to say, the safety of the people is the highest law; and that the safety of the people of a kingdom consisteth in the safety of the King, and of the strength necessary to defend his people, both against foreign enemies and rebellious subjects. And from this I infer, that to compass, that is, to design, the death of the then present King, was high treason before the making of this statute, as being a designing of a civil war and the destruction of the people. 2. That the design to kill the King’s wife, or to violate her chastity, as also to violate the chastity of the King’s heir-apparent, or of his eldest daughter unmarried, as tending to the destruction of the certainty of the King’s issue, and by consequence to the raising of contentions about the Crown, and destruction of the people in succeeding time by civil war, was therefore high-treason before this statute. 3. That to levy war against the King within the realm, and aiding the King’s enemies, either within or without the realm, are tending to the King’s destruction or disherison, and was high-treason, before this statute, by the common-law. 4. That counterfeiting the principal seals of the kingdom, by which the King governeth his people, tendeth to the confusion of government, and consequently to the destruction of the people, and was therefore treason before the statute. 5. If a soldier design the killing of his general or other officer in time of battle, or a captain hover doubtfully with his troops, with intention to gain the favour of him that shall chance to get the victory, it tendeth to the destruction both of King and people, whether the King be present or absent, and was high-treason before the statute. 6. If any man had imprisoned the King’s person, he had made him incapable of defending his people, and it was therefore high-treason before the statute. 7. If any man had, with design to raise rebellion against the King, by words written or advisedly uttered, denied the King regnant to be their lawful King, he that wrote, preached, or spoke such words, living then under the protection of the King’s laws, it had been high-treason before the statute, for the reasons aforesaid. And perhaps there may be some other cases upon this statute, which I cannot presently think upon. But the killing of a justice or other officer, as is determined by the statute, is not otherwise high-treason, but by the statute. And to distinguish that which is treason by the common-law from all other inferior crimes, we are to consider, that if such high-treason should take effect, it would destroy all laws at once; and being done by a subject, it is a return to hostility by treachery; and consequently, such as are traitors may, by the law of reason, be dealt withal as ignoble and treacherous enemies: but the greatest of other crimes, for the most part, are breaches of one only, or at least of very few laws.
L. Whether this you say be true or false, the law is now unquestionable, by a statute made in the 1st and 2nd years of Queen Mary, whereby there is nothing to be esteemed treason, besides those few offences specially mentioned in the act of 25 Edward III.
P. Amongst these great crimes the greatest is that which is committed by one that has been trusted and loved by him whose death he so designeth: for a man cannot well take heed of those whom he thinks he hath obliged, whereas an open enemy gives a man warning before he acteth. And this it is for which the statute hath declared, that it is another kind of treason, when a servant killeth his master or mistress, or a wife killeth her husband, or a clerk killeth his prelate. And I should think it petty treason also, though it be not within the words of the statute, when a tenant in fee, that holdeth by homage and fealty, shall kill the lord of his fee; for fealty is an oath of allegiance to the lord of the fee; saving he may not keep his oath in any thing sworn to, if it be against the King. For homage, as it is expressed in a statute of 17 Edw. II, is the greatest submission that is possible to be made to one man by another. For the tenant shall hold his hands together between the hands of his landlord, and shall say thus; I become your man from this day forth for life, for member, and for worldly honour, and shall owe that my faith for the lands that I shall hold of you, saving the faith that I owe unto our Sovereign Lord the King, and to many other lords. Which homage, if made to the King, is equivalent to a promise of simple obedience, and if made to another lord, there is nothing excepted but the allegiance to the King; and that which is called fealty, is but the same confirmed by an oath.
L. But Sir Edward Coke, (4 Inst. p. 11), denies that a traitor is in legal understanding the King’s enemy. For enemies, saith he, be those that be out of the allegiance of the King. And his reason is, because, if a subject join with a foreign enemy, and come into England with him, and be taken prisoner here, he shall not be ransomed, or proceeded with as an enemy shall, but he shall be taken as a traitor to the King. Whereas an enemy coming in open hostility, and taken, shall either be executed by martial law, or ransomed; for he cannot be indicted of treason, for that he never was in the protection and ligeance of the King; and the indictment of the treason saith, contra ligeantiam suam debitam.
P. This is not an argument worthy of the meanest lawyer. Did Sir Edward Coke think it impossible for a King lawfully to kill a man, by what death soever, without an indictment, when it is manifestly proved he was his open enemy? Indictment is a form of accusation peculiar to England, by the command of some King of England, and retained still, and therefore a law to this country of England. But if it were not lawful to put a man to death otherwise than by an indictment, no enemy could be put to death at all in other nations, because they proceed not, as we do, by indictment. Again, when an open enemy is taken and put to death by judgment of martial-law; it is not the law of the general or council of war, that an enemy shall be thus proceeded with, but the law of the King contained in their commissions; such as from time to time the Kings have thought fit, in whose will it always resteth, whether an open enemy, when he is taken, shall be put to death, or no, and by what death; and whether he shall be ransomed, or no, and at what price. Then for the nature of treason by rebellion; is it not a return to hostility? What else does rebellion signify? William the Conqueror subdued this kingdom; some he killed; some upon promise of future obedience he took to mercy, and they became his subjects, and swore allegiance to him. If therefore they renew the war against him, are they not again open enemies? Or if any of them lurking under his laws, seek occasion thereby to kill him secretly, and come to be known, may he not be proceeded against as an enemy, who, though he had not committed what he designed, yet had certainly a hostile design? Did not the Long Parliament declare all those for enemies to the state, that opposed their proceedings against the late King? But Sir Edward Coke does seldom well distinguish, when there are two divers names for one and the same thing: though one contain the other, he makes them always different; as if it could not be that one and the same man should be both an enemy and a traitor. But now let us come to his comment upon this statute. The statute says (as it is printed in English) when a man doth compass, or imagine, the death of our Lord the King, &c. What is the meaning of the word compassing, or imagining?
L. On this place Sir Edward Coke says, that before the making of this act, voluntas reputabatur pro facto, the will was taken for the deed. And so saith Bracton; spectatur voluntas, et non exitus; et nihil interest utrum quis occidat, aut causam præbeat, that is to say, the cause of the killing. Now Sir Edward Coke says, this was the law before the statute; and that to be a cause of the killing, is to declare the same by some open deed tending to the execution of his intent, or which might be cause of death.
P. Is there any Englishman can understand, that to cause the death of a man, and to declare the same, is all one thing? And if this were so, and that such was the common-law before the statute, by what words in the statute is it taken away?
L. It is not taken away, but the manner how it must be proved is thus determined, that it must be proved by some open deed, as providing of weapons, powder, poison, assaying of armour, sending of letters, &c.
P. But what is the crime itself, which this statute maketh treason? For as I understand the words, to compass or imagine the King’s death, &c. the compassing (as it is in the English) is the only thing which is made high-treason. So that not only the killing, but the design, is made high-treason; or, as it is in the French record, fait compasser, that is to say, the causing of others to compass or design the King’s death is high-treason; and the words par overt fait, are not added as a specification of any treason, or other crime, but only of the proof that is required by the law. Seeing then the crime is the design and purpose to kill the King, or cause him to be killed, and lieth hidden in the breast of him that is accused; what other proof can there be had of it than words spoken or written? And therefore, if there be sufficient witness that he by words declared that he had such a design, there can be no question, but that he is comprehended within the statute. Sir Edward Coke doth not deny, but, that if he confess this design, either by word or writing, he is within the statute. As for that common saying, that bare words may make a heretic but not a traitor, which Sir Edward Coke on this occasion maketh use of, they are to little purpose; seeing that this statute maketh not the words high-treason, but the intention, whereof the words are but a testimony: and that common saying is false as it is generally pronounced. For there were divers statutes made afterwards, though now expired, which made bare words to be treason without any other deed; as, 1 Eliz. c. 6, and 13 Eliz. c. 1, if a man should publicly preach that the King were an usurper, or that the right of the crown belonged to any other than the King that reigned, there is no doubt but it were treason, not only within this statute of Edward III, but also within the statute of 1 Edw. VI, c. 12, which are both still in force.
L. Not only so; but if a subject should counsel any other man to kill the King, Queen, or heir-apparent to the Crown, it would at this day be adjudged high-treason; and yet it is no more than bare words. In the third year of King James, Henry Garnet, a Jesuit priest, to whom some of the gunpowder traitors had revealed their design by way of confession, gave them absolution without any caution taken for their desisting from their purpose, or other provision against the danger, and was therefore condemned and executed as a traitor, though such absolution was nothing else but bare words. Also I find in the reports of Sir John Davis, Attorney-General for Ireland, that in the time of King Henry VI, a man was condemned of treason for saying the King was a natural fool, and unfit to govern. But yet this clause in the statute of Edw. III, viz. that the compassing there mentioned ought to be proved by some overt act, was by the framers of the statute not without great wisdom and providence inserted; for as Sir Edward Coke very well observeth, when witnesses are examined concerning words only, they never, or very rarely, agree precisely about the words they swear to.
P. I deny not but that it was wisely enough done. But the question is not here of the treason, which is either fact or design, but of the proof, which when it is doubtful, is to be judged by a jury of twelve lawful men. Now whether think you is it a better proof of a man’s intention to kill, that he declare the same with his own mouth, so as it may be witnessed, or that he provide weapons, powder, poison, or assay arms? If he utter his design by words, the jury has no more to do than to consider the legality of the witnesses, the harmony of their testimonies, or whether the words were spoken advisedly. For they might have been uttered in a disputation, for exercise only; or when he that spake them, had not the use of reason, nor perhaps any design or wish at all, towards the execution of what he talked of. But how a jury, from providing or buying of armour, or buying of gunpowder, or from any other overt act, not treason in itself, can infer a design of murdering the King, unless there appear some words also signifying to what end he made such provision, I cannot easily conceive. Therefore, as the jury on the whole matter, words and deeds, shall ground their judgment concerning design or not design, so, in reason, they ought to give verdict. But to come to the treason of counterfeiting the great or privy-seal, seeing there are so many ways for a cheating fellow to make use of these seals, to the cozening of the King and his people; why are not all such abuses high-treason, as well as the making of a false seal?
L. So they are; for Sir Edward Coke produceth a record of one that was drawn and hanged for taking the great seal from an expired patent, and fastening it to a counterfeit commission to gather money. But he approveth not the judgment, because it is the judgment for petty treason: also, because the jury did not find him guilty of the offence laid in the indictment, which was, the counterfeiting of the great seal, but found the special matter, for which the offender was drawn and hanged.
P. Seeing this crime of taking the great seal from one writing, and fastening it to another, was not found high-treason by the jury, nor could be found upon special matter to be the other kind of treason mentioned in the same statute; what ground had either the jury to find it treason, or the judge to pronounce sentence upon it?
L. I cannot tell. Sir Edward Coke seems to think it a false record; for hereupon he saith, by way of admonition to the reader, that hereby it appeareth how dangerous it is to report a case by the ear.
P. True; but he does not make it apparent that this case was untruly reported; but on the contrary, confesseth that he had perused the same record; and a man may, if it may be done without proof of the falsity, make the same objection to any record whatsoever. For my part, seeing this crime produced the same mischief that ariseth from counterfeiting, I think it reason to understand it as within the statute; and for the difference between the punishments, which are both of them capital, I think it is not worthy to be stood upon; seeing death, which is ultimum supplicium, is a satisfaction to the law, as Sir Edward Coke himself hath in another place affirmed. But let us now proceed to other crimes.
L. Appendant to this is another crime, called misprision of treason; which is the concealing of it by any man that knows it; and is called misprision from the French mespriser, which signifies to contemn or undervalue. For it is no small crime in any subject, so little to take to heart a known danger to the King’s person, and consequently to the whole kingdom, as not to discover not only what he knows, but also what he suspecteth of the same, that the truth therefore may be examined. But for such discovery, though the thing prove false, the discoverer shall not, as I think, be taken for a false accuser; if for what he directly affirms, he produce a reasonable proof, and some probability for his suspicion. For else the concealment will seem justifiable by the interest, which is to every man allowed, in the preservation of himself from pain and damage.
P. This I consent to.
L. All other crimes merely temporal, are comprehended under felony or trespass.
P. What is the meaning of the word felony? Does it signify anything that is in its own nature a crime, or that only which is made a crime by some statute? For I remember some statutes that make it felony to transport horses, and some other things, out of the kingdom; which transportation, before such statutes were made, and after the repealing of the same, was no greater crime than any other usual traffic of a merchant.
L. Sir Edward Coke derives the word felony from the Latin word fel, the gall of a living creature; and accordingly defines felony to be an act done animo felleo; that is to say, a bitter, a cruel act.
P. Etymologies are no definitions, and yet when they are true, they give much light towards the finding out of a definition. But this of Sir Edward Coke’s carries with it very little of probability; for there be many things made felony by the statute law, that proceed not from any bitterness of mind at all, and many that proceed from the contrary.
L. This is matter for a critic, to be picked out of the knowledge of history and foreign languages, and you may perhaps know more of it than I do.
P. All that I, or I think any other, can say in this matter, will amount to no more than a reasonable conjecture, insufficient to sustain any point of controversy in law. The word is not to be found in any of the old Saxon laws, set forth by Mr. Lambard, nor in any statute printed before that of Magna Charta; there it is found. Now Magna Charta was made in the time of Henry III, grandchild to Henry II, Duke of Anjou, a Frenchman born, and bred in the heart of France, whose language might very well retain many words of his ancestors the German Franks, as ours doth of the German Saxons; as also many words of the language of the Gauls, as the Gauls did retain many words of the Greek colony planted at Marseilles. But certain it is, the French lawyers at this day use the word felon, just as our lawyers use the same; whereas the common people of France use the word filou in the same sense. But filou signifieth, not the man that hath committed such an act as they call felony, but the man that maketh it his trade to maintain himself by the breaking and contemning of all laws generally; and comprehendeth all those unruly people called cheaters, cutpurses, picklocks, catchcloaks, coiners of false money, forgers, thieves, robbers, murderers, and whosoever make use of iniquity on land or sea as a trade or living. The Greeks upon the coast of Asia, where Homer lived, were they that planted the colony of Marseilles. They had a word that signified the same with felon, which was φιλήτης, filetes; and this filetes of Homer signifies properly the same that a felon signifies with us. And therefore Homer makes Apollo to call Mercury φιλήτην, fileteen, and ἄρχον φιλήτων. I insist not upon the truth of this etymology, but it is certainly more rational than the animus felleus of Sir Edward Coke. And for the matter itself, it is manifest enough, that which we now call murder, robbery, theft, and other practices of felons, are the same that we call felony, and crimes in their own nature without the help of statute. Nor is it the manner of punishment, that distinguisheth the nature of one crime from another; but the mind of the offender and the mischief he intendeth, considered together with the circumstances of person, time, and place.
L. Of felonies, the greatest crime is murder.
P. And what is murder?
L. Murder is the killing of a man upon malice forethought, as by a weapon, or by poison, or any way, if it be done upon antecedent meditation; or thus, murder is the killing of a man in cold blood.
P. I think there is a good definition of murder set down by statute, 52 Henry III, c. 25, in these words: Murder, from henceforth, shall not be judged before our justices, where it is found misfortune only, but it shall take place in such as are slain by felony, and not otherwise. And Sir Edward Coke interpreting this statute, 2 Inst. p. 148, saith, that the mischief before this statute was, that he that killed a man by misfortune, as by doing any act that was not against law, and yet against his intent the death of a man ensued, this was adjudged murder. But I find no proof of that he allegeth, nor find I any such law among the laws of the Saxons set forth by Mr. Lambard. For the word, it is, as Sir Edward Coke noteth, old Saxon, and amongst them it signified no more than a man slain in the field or other place, the author of his death not known. And according hereunto, Bracton, who lived in the time of Magna Charta, defineth it, fol. 134, thus: Murder is the secret killing of a man, when none besides the killer and his companions saw or knew it; so that it was not known who did it, nor fresh suit could be made after the doer. Therefore, every such killing was called murder, before it could be known whether it could be by felony or not; for a man may be found dead that kills himself, or was lawfully killed by another. This name of murder came to be the more horrid, when it was secretly done, for that it made every man to consider of their own danger, and him that saw the dead body, to boggle at it, as a horse will do at a dead horse. And to prevent the same, they had laws in force, to amerce the hundred where it was done, in a sum defined by law to be the price of his life. For in those days, the lives of all sorts of men were valued by money, and the value set down in their written laws. And therefore Sir Edward Coke was mistaken, in that he thought that killing a man by misfortune before the statute of Marlebridge, was adjudged murder. And those secret murders were abominated by the people, for that they were liable to so great a pecuniary punishment for suffering the malefactor to escape. But this grievance was by Canutus, when he reigned, soon eased. For he made a law, that the county in this case should not be charged, unless he were an Englishman that was so slain; but if he were a Frenchman, (under which name were comprehended all foreigners, and especially the Normans,) though the slayer escaped, the county was not to be amerced. And this law, though it were very hard and chargeable, when an Englishman was so slain, for his friend to prove he was an Englishman, and also unreasonable to deny the justice to a stranger, yet was it not repealed till the 14th Edw. III. By this you see that murder is distinguished from homicide by the statute laws, and not by any common-law without the statute; and that it is comprehended under the general name of felony.
L. And so also is petit treason: and I think so is high-treason also. For in the abovesaid statute in the 25th Edw. III, concerning treasons, there is this clause: And because that many other like cases of treason may happen in time to come, which a man cannot think or declare at the present time; it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any of the 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 be treason or other felony. Which thereby shews that the King and Parliament thought that treason was one of the sorts of felony.
P. And so think I.
L. But Sir Edward Coke denies it to be so at this day. For (1 Inst. sec. 745) at the word felony, he saith, that in ancient time this word felony was of so large an extent, as that it included high-treason; but afterwards it was resolved, that in the King’s pardon or charter, this word felony should extend only to common felonies; and at this day, under the word felony, by law is included petite treason, murder, homicide, burning of houses, burglary, robbery, rape, &c. chance medley, se defendendo, and petite larceny.
P. He says it was resolved: but by whom?
L. By the justices of assize in the time of Henry IV, as it seems in the margin.
P. Have justices of assize any power by their commission to alter the language of the land and the received sense of words? Or in the question in what case felony shall be said, is it referred to the judges to determine; as in the question in what case treason shall be said, it is referred by the statute of Edward III to the Parliament? I think not; and yet perhaps they may be obliged to disallow a pardon of treason, when mentioning all felonies it nameth not treason, nor specifies it by any description of the fact.
L. Another kind of homicide there is, simply called so, or by the name of manslaughter, and is not murder: and that is, when a man kills another man upon sudden quarrel, during the heat of blood.
P. If two meeting in the street chance to strive who shall go nearest to the wall, and thereupon fighting, one of them kills the other, I believe verily he that first drew his sword, did it of malice forethought, though not long forethought; but whether it be felony or no, it may be doubted. It is true, that the harm done is the same as if it had been done by felony; but the wickedness of the intention was nothing near so great. And supposing it had been done by felony, then it is manifest, by the statute of Marlebridge, that it was very murder. And when a man for a word or a trifle shall draw his sword and kill another man, can any man imagine that there was not some precedent malice?
L. It is very likely there was malice, more or less: and therefore the law hath ordained for it a punishment equal to that of murder, saving that the offender shall have the benefit of his clergy.
P. The benefit of clergy comes in upon another account, and importeth not any extenuation of the crime. For it is but a relic of the old usurped papal privilege, which is now by many statutes so pared off, as to spread but to few offences, and is become a legal kind of conveying mercy, not only to the clergy, but also to the laity.
L. The work of a judge, you see, is very difficult, and requires a man that hath a faculty of well distinguishing of dissimilitudes in such cases as common judgments think to be the same. A small circumstance may make a great alteration; wherefore a man that cannot well discern, ought not to take upon him the office of a judge.
P. You say very well; for if judges were to follow one another’s judgments in precedent cases, all the justice in the world would at length depend upon the sentence of a few learned, or unlearned, ignorant men, and have nothing at all to do with the study of reason.
L. A third kind of homicide is when a man kills another, either by misfortune, or in the necessary defence of himself, or of the King, or of his laws; for such killing is neither felony nor crime, saving, as Sir Edward Coke says (3 Inst. p. 56), that if the act that a man is doing, when he kills another man, be unlawful, then it is murder. As, if A meaning to steal a deer in the park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder, for that the act was unlawful; but if the owner of the park had done the like, shooting at his own deer, it had been by misadventure, and no felony.
P. This is not so distinguished by any statute, but is the common-law only of Sir Edward Coke. I believe not a word of it. If a boy be robbing an appletree, and falleth thence upon a man that stands under it and breaks his neck, but by the same chance saveth his own life, Sir Edward Coke, it seems, will have him hanged for it, as if he had fallen of prepensed malice. All that can be called crime in this business is but a simple trespass, to the damage perhaps of sixpence or a shilling. I confess the trespass was an offence against the law, but the falling was none, nor was it by the trespass but by the falling that the man was slain; and as he ought to be quit of the killing, so he ought to make restitution for the trespass. But I believe the cause of Sir Edward Coke’s mistake was his not well understanding of Bracton, whom he cites in the margin. For, fol. 120 b. lib. iii. cap. 4, he saith thus: Sed hic erit distinguendum, utrum quis dederit operam rei licitæ, vel illicitæ; si illicitæ, ut si lapidem projiciebat quis versus locum per quem consueverunt homines transitum facere, vel dum insequitur quis equum vel bovem, et aliquis a bove vel equo percussus fuerit, et hujusmodi, hoc imputatur ei. That is: But here we are to distinguish whether a man be upon a lawful or unlawful business; if an unlawful, as he that throws a stone into a place where men use to pass; or if he chase a horse or an ox, and thereby the man be stricken by the horse or the ox; this shall be imputed to him. And it is most reasonable; for the doing of such an unlawful act as is here meant, is a sufficient argument of a felonious purpose, or at least a hope to kill somebody or other, and he cared not whom, which is worse than to design the death of a certain adversary, which nevertheless is murder. Also, on the contrary, though the business a man is doing be lawful, and it chanceth sometimes that a man be slain thereby, yet may such killing be felony. For if a carman drive his cart through Cheapside in a throng of people, and thereby he kill a man, though he bare him no malice, yet because he saw there was very great danger, it may reasonably be inferred, that he meant to adventure the killing of somebody or other, though not of him that was killed.
L. He is a felon also that killeth himself voluntarily, and is called, not only by common lawyers, but also in divers statute laws, felo de se.
P. And it is well so; for names imposed by statutes are equivalent to definitions. But I conceive not how any man can bear animum felleum, or so much malice towards himself, as to hurt himself voluntarily, much less to kill himself. For naturally and necessarily the intention of every man aimeth at somewhat which is good to himself, and tendeth to his preservation. And therefore, methinks, if he kill himself, it is to be presumed that he is not compos mentis, but by some inward torment or apprehension of somewhat worse than death, distracted.
L. Nay, unless he be compos mentis, he is not felo de se, as Sir Edward Coke saith, 3 Inst. p. 54; and therefore he cannot be judged a felo de se, unless it be first proved he was compos mentis.
P. How can that be proved of a man dead; especially if it cannot be proved by any witness, that a little before his death he spake as other men used to do? This is a hard place; and before you take it for common-law, it had need to be cleared.
L. I will think on it. There is a statute of 3 Hen. VII, c. 14, which makes it felony in any of the King’s household servants, under the degree of a Lord, to compass the death of any of the King’s Privy Council. The words are these: That from henceforth the steward, treasurer, and comptroller of the King’s house for the time being, or one of them, have full authority and power, to inquire by twelve staid men and discreet persons of the chequer-roll of the King’s honourable household, if any servant, admitted to be his servant sworn, and his name put into the chequer-roll, whatsoever he be, serving in any manner, office, or room, reputed, had, or taken under the estate of a Lord, make any confederacies, compassings, conspiracies, or imaginations with any person, to destroy or murder the King, or any Lord of this realm, or any other person sworn of the King’s council, steward, treasurer, or comptroller of the King’s house. And if such misdoers shall be found guilty by confession, or otherwise, that the said offence shall be judged felony.
P. It appears by this statute, that not only the compassing the death, as you say, of a privy-councillor, but also of any Lord of this realm, is felony; if it be done by any of the King’s household servants, that is not a Lord.
L. No; Sir Edward Coke upon these words, any Lord of this realm, or other person sworn of the King’s council, infers (3 Inst. p. 38), that it is to be understood of such a Lord only as is a privy-councillor.
P. For barring of the Lords of Parliament from this privilege, he strains this statute a little farther, in my opinion, than it reacheth of itself. But how are such felonies to be tried?
L. The indictment is to be found before the steward, treasurer, and comptroller of the King’s house, or one of them, by twelve of the King’s household servants. The petit jury for the trial must be twelve other of the King’s servants. And the judges are again the steward, treasurer, and comptroller of the King’s house, or two of them; and yet I see that these men are not usually great students of the law.
P. You may hereby be assured, that either the King and Parliament were very much overseen in choosing such officers perpetually for the time being to be judges in a trial at the common-law, or else that Sir Edward Coke presumes too much to appropriate all the judicature, both in law and equity, to the common lawyers; as if neither lay persons, men of honour, nor any of the Lords spiritual who are the most versed in the examination of equity and cases of conscience, when they hear the statutes read and pleaded, were fit to judge of the intention and meaning of the same. I know that neither such great persons, nor bishops, have ordinarily so much spare time from their ordinary employment, as to be so skilful as to plead causes at the bar; but certainly they are, especially the bishops, the best able to judge of matters of reason, that is to say (by Sir Edward Coke’s confession) of matters, except of blood, at the common-law.
L. Another sort of felony, though without manslaughter, is robbery; and by Sir Edward Coke (3 Inst. p. 68), defined thus: Robbery by the common-law is a felony committed by a violent assault upon the person of another, by putting him in fear, and taking away from him his money, or other goods of any value whatsoever.
P. Robbery is not distinguished from theft by any statute. Latrocinium comprehendeth them both, and both are felony, and both punished with death. And therefore to distinguish them aright is the work of reason only. And the first difference, which is obvious to all men, is that robbery is committed by force or terror, of which neither is in theft. For theft is a secret act, and that which is taken by violence or terror, either from his person, or in his presence, is still robbery. But if it be taken secretly, whether it be by day or night, from his person, or from his fold, or from his pasture, then it is called theft. It is force and fraud only, that distinguisheth between theft and robbery; both which are, by the pravity only of the intention, felony in their nature. But there be so many evasions of the law found out by evil men, that I know not, in this predicament of felony, how to place them. For suppose I go secretly, by day or night, into another man’s field of wheat, ripe and standing, and loading my cart with it I carry it away: is it theft or robbery?
L. Neither, it is but trespass. But if you first lay down the wheat you have cut, and then throw it into your cart, and carry it away, then it is felony.
P. Why so?
L. Sir Edward Coke tells you the reason of it (3 Inst. p. 107). For he defineth theft to be, by the common-law, a felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, not from the person, nor by night in the house of the owner. From this definition, he argues thus, p. 109: Any kind of corn or grain, growing upon the ground, is a personal chattel, and the executors of the owner shall have them, though they be not severed; but yet no larceny can be committed of them, because they are annexed to the realty; so it is of grass standing on the ground, or of apples, or of any fruit upon the trees, &c.; so it is of a box or chest of charters, no larceny can be committed of them, because the charters concern the realty, and the box or chest though it be of great value, yet shall it be of the same nature the charters are of; et omne magis dignum trahit ad se minus.
P. Is this definition drawn out of any statute, or is it in Bracton or Littleton, or any other writer upon the science of the laws?
L. No, it is his own: and you may observe by the logic sentences dispersed through his works, that he was a logician sufficient enough to make a definition.
P. But if his definitions must be the rule of law, what is there that he may not make felony or not felony, at his pleasure? But seeing it is not statute law that he says, it must be very perfect reason, or else no law at all; and to me it seems so far from reason, as I think it ridiculous. But let us examine it. There can, says he, be no larceny of corn, grass, or fruits that are growing, that is to say, they cannot be stolen. But why? Because they concern the realty; that is, because they concern the land. It is true, that the land cannot be stolen, nor the right of a man’s tenure; but corn, and trees, and fruit, though growing, may be cut down, and carried away secretly and feloniously, in contempt and despite of the law. And are they not then stolen? And is there any act which is feloniously committed, that is not more than trespass? Can any man doubt of it, that understands the English tongue? It is true, that if a man pretend a right to the land, and on that pretence take the fruits thereof by way of taking possession of his own, it is no more than a trespass, unless he conceal the taking of them. For in that one case, he but puts the man that was in possession before, to exhibit his complaint, which purpose is not felonious, but lawful; for nothing makes a distinction between felony and not felony, but the purpose. I have heard, that if a man slander another with stealing of a tree standing, there lies no action for it. And that upon this ground: to steal a standing tree is impossible; and that the cause of the impossibility is, that a man’s freehold cannot be stolen; which is a very obvious fallacy. For freehold signifieth, not only the tenement, but also the tenure; and though it be true that a tenure cannot be stolen, yet every man sees that the standing trees and corn may easily be stolen. And so far forth as trees, &c. are part of the freehold, so far forth also, they are personal goods. For whatsoever is freehold is inheritance, and descended to the heir, and nothing can descend to the executors but what is merely personal. And though a box or case of evidences are to descend to the heir, yet unless you can shew me positive law to the contrary, they shall be taken into the executors' hands to be delivered to the heir. Besides, how unconscionable a thing is it, that he that steals a shilling’s worth of wood, which the wind hath blown down, or which lieth rotting on the ground, should be hanged for it, and he that takes a tree, worth twenty or forty shillings, should answer only for the damage!
L. It is somewhat hard, but it has been so practised time out of mind. Then follows sodomy, and rape, both of them felonies.
P. I know that, and that of the former he justly says it is detestable, being in a manner an apostacy from human nature: but in neither of them is there anything of animus felleus. The statutes which make them felony, are exposed to all men’s reading. But because Sir Edward Coke’s commentaries upon them are more diligent and accurate than to be free from all uncleanness, let us leap over them both; observing only by the way, that he leaves an evasion for an impotent offender, though his design be the same, and pursued to the utmost of his power.
L. Two other great felonies are, breaking and burning of houses; neither of which are defined by any statute. The former of them is by Sir Edward Coke (3 Inst. p. 63), defined thus:—Burglary is by the common-law, the breaking and entering into the mansion-house of another, in the night, with intent to kill some reasonable creature, or to commit some other felony within the same, whether his intent be executed or not. And he defineth night to be then, when one man cannot know another’s face by daylight. And for the parts of a mansion-house, he reckoneth all houses that belong to house-keeping, as barns, stables, dairyhouses, buttery, kitchen, chambers, &c. But breaking of a house by day, though felony, and punished as burglary, is not within the statute.
P. I have nothing to say against his interpretations here; but I like not that any private man should presume to determine, whether such or such a fact done be within the words of a statute or not, where it belongs only to a jury of twelve men to declare in their verdict, whether the fact laid open before them, be burglary, robbery, theft, or other felony. For this is to give a leading judgment to the jury, who ought not to consider any private lawyer’s institutes, but the statutes themselves pleaded before them for directions.
L. Burning, as he defines it (ibid. p. 66), is a felony at the common-law, committed by any that maliciously and voluntarily, in the night or day, burneth the house of an other. And he hereupon infers, if a man set fire to the house, and it takes not, that then it is not within the statute.
P. If a man should secretly and maliciously lay a quantity of gunpowder under another man’s house, sufficient to blow it up, and set a train of powder in it, and set fire to the train, and some accident hinder the effect, is not this burning? Or what is it? What crime? It is neither treason, nor murder, nor burglary, nor robbery, nor theft, nor (no damage being made) any trespass, nor contrary to any statute. And yet, seeing the common-law is the law of reason, it is a sin, and such a sin as a man may be accused of, and convicted; and consequently a crime committed of malice prepensed. Shall he not then be punished for the attempt? I grant you that a judge has no warrant from any statute-law, common-law, or commission, to appoint the punishment; but surely the King has power to punish him, on this side of life or member, as he please; and with the assent of Parliament, if not without, to make the crime for the future capital.
L. I know not. Besides these crimes, there is conjuration, witchcraft, sorcery and enchantment; which are capital by the statute 1 James, c. 12.
P. But I desire not to discourse of that subject. For though without doubt there is some great wickedness signified by those crimes; yet I have ever found myself too dull to conceive the nature of them, or how the devil hath power to do many things which witches have been accused of. Let us now come to crimes not capital.
L. Shall we pass over the crime of heresy, which Sir Edward Coke ranketh before murder? But the consideration of it will be somewhat long.
P. Let us defer it till the afternoon.