Contrary to the Duty of his Allegiance. Precedents.—But then it was chiefly insisted on, That the Reversal was to be maintained for the Error in the Indictment; that contra ligeantiæ suæ debitum was the general Form; that all the great Men in all Ages, who had been of Counsel for the Crown, had inserted it: That all the Indictments, the first Assises, after Monmouth's Rebellion, which were drawn or perused by Sir H. Poll' had this Conclusion: That Ashton's, Cross's, Gaunt's, Cornishe's, Earl of Stafford's, Bateman's, Ayliff's, Goodenough's, Hone's, Blague's, Rowse's, Armstrong's, Sir Robert Peyton's, Langhorne's, Lord Bellasis's, Venner's, Harrison's, Fawkes's, Sir Everard Digby's, Patricius Dolphie's, Pasch. 41 El. John Tipping's 34 El. are all thus; and the Prints are so likewise, 3 Inst. 214. Fitzh. Justice, p. 218. Plowd. 387. [189] Coke's Entries 361. Cro. Car. 120, 122, 123. and a great Number of Particulars more, which might be cited.
Requisite in Reason, that those Words should be in the Indictment.—Then 'twas urged that Reason doth require this, for that Treason is punishable as a Breach of Allegiance; that that is the very Essence of Treason; that if the Fact be not alledged to be against his Allegiance, 'tis not Treason; that 'tis by Reason of his Allegiance that he can commit Treason; and therefore 'tis that an Alien Enemy, who was never protected, can't commit Treason, because he owed no Allegiance: And there may be many Acts done, which look like a Levying of War, without any Breach of Allegiance; and for that was quoted King John's Charter made at Rumney Mead 18 die Junii Anno Regni 17. Rot. Pat. 17. m. 13. a Transcript whereof is in Mathew Paris 245.[1] Anno 1215. which Charter was ratified four Times within nine Years after. The first Confirmation was granted 1 H. 3. and probably at his Coronation; for there was a Charter dated at Gloucester 6 Febr. Rot. Pat. 1 H. 3. m. 13. that they should enjoy Libertatibus Regno nostro Angliæ a Patre nostro & nobis concessis. In the second Year of his Reign, he sends a Mandate to the several Sheriffs to proclaim this Charter amongst others: Rex &c. Salutem. Mittimus tibi Chartas de Libertatibus, &c. Mandantes quatenus eas legi facias in pleno comitatu tuo. Dat' 22 Febr. Rot. Claus. 2 H. 3. Then was cited Fox's Acts and Monuments, ad Ann. 1218. That after Michaelmas this King held a Parliament at Westminster, wherein he confirmed and ratified, by his Charter, all the Franchises and Liberties which were made and given by King John his Father. In the seventh Year of his Reign viz. the sixteenth Year of his Age, he took the Government into his own Hands; and then the Archbishop of Canterbury, in open Parliament, doth mind him of the Oath sworn in his name by the Earl of Pembroke (Rectore Regis & Regni) and others, at the Pacification between him and the Dauphin, that he would restore and confirm those Liberties to his Subjects, for which the War broke out between his Father and the Barons. Then was quoted what Henry Third promised, when he invited Henry de Lucy to come in to him, 1 H. 3. m. 16. which is in very strange Language, if his Allegiance had been broken. Then was cited Sadler 262. and Spelman verbo Ligeantia; and Calvin's Case, 7 Rep. expounding of that Word: And the old Custumer of Normandy, cap. 43. And the said, and other Authorities, were inforced and amplified in such Manner, as is not fit to be remembred.
Then 'twas urged, That as the Subject Matter of this Indictment did require these Words, so the Reason of the Law in other Cases did warrant them to be necessary here: That vi & armis was necessary, till the Statute of H. 8. made it needless: And it would be strange, that an Indictment for a Trespass, setting forth an Assault and Battery with Force of Arms should be ill for want of contra Pacem, and this should be good without contra ligean-[190]-tiæ suæ debitum: Contra formam statut' is necessary, tho' the Fact be alledged, sufficiently appearing to be within a Statute Law. Indictments are not to be made good by Intendment or Implication, Stamford 96. Trin. 18 E. 4. 10. Furatus est without felonice, not good; Felonice abduxit without cepit, not good. So for a Rape, quod ipsam contra voluntatem suam carnaliter cognovit, without rapuit, is ill, 9 E. 4. 26. and so is Dyer 304. Murdravit is necessary: No Words or Terms of Art are to be supplied by any other Phrases equivalent or tantamount in Sense, for the sake of Certainty; because if such loose Descriptions should be allowed, 'twould subject Mens Actions too much to the Power of Construction. 2 Cro. 20, 142, 187, 527. And in all Indictments for Offences committed between Decemb. 15. and Febr. 13. 1688. the
- ↑ Alias 215 in Edit. Lond. Impr. 1684.
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