PREPARATION TOWARD THE UNION OF LAWS. YOUR Majesty's desire of proceeding towards the union of this whole island of Great Britain under one law, is (as far as I am capable to make any opinion of so great a cause) very agreeable to policy and justice. To policy, because it is one of the best assurances (as human events can be assured) that there will be never any relapse in any future ages to a separation. To justice, because dulcis tractus pari jugo: it is reasonable that communication of privilege draw on communication of discipline and rule. This work being of greatness and lifficulty, needeth not to embrace any greater compass of Zesignment, than is necessary to your Majesty's main end and intention. I consider therefore, that it is a true and received division of law into jus publicum and privatum, the one being the sinews of property, and the other of government. For that which concerneth private interest of meum and tuum, in my simple opinion, it is not at this time to be meddled with: men love to hold their own as they have held, and the difference of this law carrieth no mark of separation. For we see in any one kingdom, which is most at unity in itself, there is diversity of customs for the guiding of property and private rights: in veste varietas sit, scissura non sit. All the labour is to be spent in the other part; though perhaps not in all the other part: for it may be your Majesty, in your high wisdom, will discern that even in that part there will not be requisite a conformity in all points. And although such conformity were to be wished, yet perchance it will be scarcely possible in many points to pass them for the present by assent of Parliament. But be cause we, that serve your Majesty in the service of our skill and profession, cannot judge what your Majesty, upon reason of state, will leave and take; therefore 'tis fit for us to give, as near as we can, a general information. Wherein I, for my part, think good to hold myself to one of the parallels, I mean that of the English laws. For although I have read, and read with delight, the Scottish statutes, and some other collection of their laws; with delight I say, partly to see their brevity and propriety of speech, and partly to see them come so near to our laws; yet I am unwilling to put my sickle in another's harvest, but to leave it to the lawyers of the Scottish nation; the rather, because I imagine with myself that if a Scottish lawyer should undertake, reading of the English statutes, or other our books of law, to set down positively in articles what the law of England were, he might oftentimes err: and the like errors, I make account, I might incur in theirs. And therefore, as I take it, the right way is, that the lawyers of either nation do set down in brief articles what the law is of their nation, and then after, a book of two columns, either having the two laws placed respectively, to be offered to your Majesty, that your Majesty may by a ready view see the diversities, and so judge of the reduction, or leaving it as it is. Jus publicum I will divide, as I hold it fittest for the present purpose, into four parts. The first, concerning criminal causes, which with us are truly accounted publici juris, because both the prejudice and the prosecution principally pertain to the Crown and public estate. The second, concerning the causes of the Church. The third, concerning magistrates, officers, and Courts; wherein falleth the consideration of your Majesty's regal prerogative, whereof the rest are but streams. And the fourth, concerning certain special politic laws, usages, and constitutions, that do import the public peace, strength, and wealth of the kingdom. In which part I do comprehend not only constant ordinances of law, but likewise forms of administration of law, such as are the commissions of the peace, the visitations of the provinces by the judges of the circuits, and the like. For these in my opinion, for the purpose now in hand, deserve a special observation, because they being matters of that temporary nature as they may be altered, as I suppose, in either kingdom, without Parliament, as to your Majesty's wisdom may seem best, it may be the most profitable and ready part of this labour will consist in the introducing of some uniformity in them. To begin therefore with capital crimes, and first that of TREASON. Cases of treason. Where a man doth compass or imagine the death of the king, if it appear by any overt act, it is treason. Where a man doth compass or imagine the death of the king's wife, if it appear by over act, it is treason. Where a man doth compass or imagine the death of the king's eldest son and heir, if it appear by any overt act, it is treason. Where a man doth violate the king's wife, it is treason. Where a man doth violate the king's eldest daughter unmarried, it is treason. Where a man doth violate the wife of the king's eldest son and heir, it is treason. Where a man doth levy war against the king, in his realm, it is treason. Where a man is adherent to the king's enemies, giving them aid and comfort, it is treason. Where a man counterfeiteth the king's great seal, it is treason. Where a man counterfeiteth the king's privy seal, it is treason. Where a man counterfeiteth the king's privy signet, it is treason. Where a man doth counterfeit the king's sign manual, it is treason. Where a man counterfeits the king's money, it is treason. Where a man bringeth into the realm false money, counterfeited to the likeness of the coin of England, with intent to merchandise or make payment therewith, and knowing it to be false, it is treason. Where a man counterfeiteth any foreign coin current in payment within this realm, it is treason. Where a man doth bring in foreign money, being current within the realm, the same being false and counterfeit, with intent to utter it, and knowing the same to be false, it is treason. Where a man doth clip, wash, round, or file any of the king's money, or any foreign coin current by proclamation, for gain's sake, it is treason. Where a man doth any ways impair, diminish, falsify, scale, or lighten the king's moneys, or any foreign moneys current by proclamation, it is treason. Where a man killeth the chancellor, being in his place and doing his office, it is treason. Where a man killeth the treasurer, being in his place and doing his office, it is treason. Where a man killeth the king's justice in eyre, being in his place and doing his office, it is treason. Where a man killeth the king's justice of assize, being in his place and doing his office, it is treason. Where a man killeth the king's justice of Oyer and Terminer, being in his place and doing his office, it is treason. Where a man doth persuade or withdraw any of the king's subjects from his obedience, or from the religion by his majesty established, with intent to withdraw him from the king's obedience, it is treason. Where a man is absolved, reconciled, or withdrawn from his obedience to the king, or promiseth his obedience to any foreign power, it is treason. Where any Jesuit, or any other priest, ordained since the first year of the reign of queen Elizabeth, shall come into, or remain in any part of this realm, it is treason. Where any person being brought up in a college of Jesuits, or seminary, shall not return within six months after proclamation made, and within two days after his return submit himself to take the oath of supremacy, if otherwise he do return, or be within the realm, it is treason. Where a man doth affirm or maintain any foreign authority of jurisdiction spiritual, or doth put in ure or execute any thing for the advancement or setting forth thereof, such offence, the third time committed, is treason. Where a man refuseth to take the oath of supremacy, being tendered by the bishop of the diocese if he be an ecclesiastical person; or by commission out of the chancery if he be a temporal person; such offence the second time is treason. Where a man committed for treason doth voluntarily break prison, it is treason. Where a jailor doth voluntarily permit a man committed for treason to escape, it is treason. |