Conclusion was contra pacem regni. Then was cited Vaux's Case 4 Rep. 39. 2 Roll's Abridg. 82.
Then 'twas said that there were express Authorities for the Defendant; 3 Inst. 11. that the Indictment of Treason concludes thus, 1 Inst. 129. is the same, and Dyer 144. to the like Effect. And what is said in the Margin of the new Dyer, is very remarkable as to Mary Queen of Scotland: Calvin's Case 7 Rep. 6. is full and express, as to the Reason of the Thing; and it is founded upon the Difference between an Alien Enemy and a Subject. Courteen's Case, Hob. 271. Hobart is of Opinion, according to Calvin's Case, that Indictment against Alien amie, it must conclude contra debitum ligeantiæ suæ.
Besides, here are no Words which carry the same Sense, or are equivalent to it; Proditorie doth imply a Treachery or Falshood, and that he might be guilty of, and yet not act contrary to his Allegiance; for at that Rate every Breach of Trust, as to the King, would be Treason: Debitum ligeantiæ suæ minime ponderantes is not sufficient; for a Man may not weigh his Allegiance, and yet not act contrary to it: Then contra naturalem Dominum suum supremum verum & indubitat'; these Words in themselves are not necessary, and anciently were not inserted: In old Time 'twas only contra Dominum Regem; and 'twill be hard to say, that the Use of Words unnecessary should supply what is necessary, and hath anciently been used. Those Words do only import, that the late King was King of the Place where the Defendant was born and lived; and cannot make it appear, that his Fact was contrary to the Laws of the Land, and the Duty of his Allegiance, as a Subject to him.
Then supposing it not necessary in the Conclusion; for as some Precedents are in West's Symboleography, 'tis first; as contra ligeantiæ suæ debitum levavit guerram, yet it ought to be in the Indictment, in one Part or another. The formal Reason of the Fact's being Treason, is because 'tis against his Allegiance, and that ought to be expressed: All the other Expressions urged on the other Side, are at the most but Argumentative, and do not directly affirm the Thing which is necessary to make the Offence.
[191] Judgment of Reversal affirmed, by a majority of one, as Levinz reports it.—As to the Precedents which are the other Way, they are but few; those in the Reign of H. 8. and Queen Elizabeth, they are upon particular Statutes; as for denying the Supremacy; taking Orders under the Pope, and the like; they are not contra ligeantiam in the Nature of the Offence, and there contra formam statut' is enough: But no Answer can be given to the Case of Lopez in Calvin's Case, where the Judges met and considered how the Indictment should be, and agreed to be contra supremum Dominum suum in Anglia; and the Conclusion to be contra ligeantiæ suæ debitum. Whereupon, for these and other Reasons, it was prayed, that the Judgment of Reversal given in the King's Bench might be affirmed; and it was affirmed accordingly.
[192]Joseph Eastmond, Executor of Henry Eastmond, and Samuel Nayle,—Appellants; v. Edwyn Sandys Clerk,—Respondent [1696].
[16 Lds. Jo. 37. See Eagle on Tithes, i. 289, 290, 292, 294, 295.]
Tithe of Herbage for Cattle for Sale, tho' formerly used for the Plough.—Appeal from a Decree of the Court of Exchequer: The Case was no more than this: The Parish of Yeovilton consisting much in Pasture Land, and the Respondent having been Rector thereof for twenty Years last past and upwards, and being intitled to the great and small Tithes and all other Dues within the said Rectory, he did exhibit his Bill in that Court against the Appellant Joseph, in his own Right, and as Executor of Henry his Father, and against the other Appellant Samuel Nayle, for Agistment Tithes, for depasturing and fatting their Oxen and other unprofitable Cattle within the said Rectory, from the Year 1677. to the Time of exhibiting his Bill, which was in Michaelmas Term 1692.
