mony of kissing the king was dispensed with by reason of the danger of contagion in time of plague.

And touching this homage these things are observable:

1. It differs from the oath of alligeance, in that this is only by a profession; but alligeance is by an oath, though the oath of alligeance also accompany it.

2. It differs in this, that, whereas all men above the age of twelve years are to take the oath of alligeance, whether they hold land, or not; yet lige homage is not to be performed but by three sorts of persons: 1. Such as hold of the king by homage, which though it be performed in respect of tenure, yet it is homagium ligeum, because performed to the sovereign, and without any exception of the homage due to inferior lords. 2. Such as are dukes, earls, or viscounts, or barons, though they hold nothing of the king, yet at the coronation they perform a lige homage; the tenor whereof runs thus: "I become your liege man of life and limb, and of earthly worship, and faith and truth I shall bear unto you to live and die against all manner of folk: so God me help!" and then he toucheth the crown, and then toucheth the ground; nota, it refers not to any lands. 3. By prelates or bishops; and this is not only at the coronation of the king, but after their election, and before the restitution of their temporalities. Vide Statute 25 H. 8 cap. 20.

Anciently the clergyman quarrelled at the performance of homage to the prince; but by the constitutions of Clarendon set down by Matthew Paris, p. 101. they were bound to perform it, and it hath been hitherto practiced; only to gratify them in something antiently it was indulged in this manner, viz: "Faciet electus homagium & fidelitatem regi, sicut ligeo domino suo, de vita, & mem[72] bris, & de honore terreno, salvo ordine suo, priusquam consecretur;" and though I do not find this salvo ordine inserted in after-times, yet there hath been a temperament added to that homage performed by clergymen, which it seems satisfied their scruple, their homage running thus: "I do you homage and faith, and truth bear unto you, our sovereign lord, and to your heirs kings of England, and I shall do, and truly acknowledge the service of the lands, which I claim to hold of you in the right of the church, as God me help."

And this is fealty, as well as homage, for it is accompanied with an oath, though it hath the solemnity of genuflexion, and kissing the king's cheek.

3. The agreements and differences between that homage, that is simply feudal, or by reason of tenure only, and this homage, that is homagium ligeum, are these: 1. Because though homage is not to be done by any, but those that hold by that service, or by the nobility, or clergy, as before: yet when done to the king, it becomes homagium ligeum in respect of the person to whom it is performed. 2. If it be homage done to the king, it is homagium ligeum, and hath no exception of homage due to others. 3. But principally the difference is in the effect of it, which is excellently described by

Terrien in his Comment upon the Custumer of Normandy, Lib. III. cap. 1. Feudal homage, that is simply such, binds only ratione feodi; therefore if the homager alien, or deliver to his lord his fief, or fee, he is discharged of the obligation; but lige homage, tho' it may be performed by reason of the fee in its kind or species, yet it principally binds the person; and though the fief itself be aliened, or transferred to another, yet the obligation of lige homage continues.

3. There are certain homages, that are mixt, and partly lige, and partly not; and they are of two kinds: 1. When the homage is performed to a prince, that is sovereign in relation to his subjects, yet owes a subjection to some other prince,; this was the case of the prince of Wales, and the king of Scots before mentioned, the homage, that they performed to the king of England, was simply lige homage, as we may read before, and particularly in Walsingham's Ypodigma Newstriæ sub anno 1291,(b) where the tenor of the homage of John de Baliol king of Scots is en- [73] tered in hæc verba: "Domine Edvarde rex Angliæ, superior domine regni Scotia, ego Johannes Baliol rex Scotia recognosco me hominem vestrum ligeum de toto regno Scotia,& omnibus pertinentiis, & hiis, quæ ad hoc spectant; quod regnum meum teneo & de jure debeo & clamito tenere hæreditarie, de vobis & hæredibus vestris regibus Angliæ, de vita & de membris, & de terreno honore contra omnes homines, qui possunt vivere & mori."

I mention this homage of the king of Scots not to revive the ancient controversy touching the subordination of that kingdom to this, for that difference hath been long settled and at peace; but only to apply my instances of the various sorts of homages performed by sovereign princes.

But the homage, that was performed by their subjects to them, was partly lige homage, and partly not; it was lige homage as to between the king of Scots and them, and as to all persons in the world, except the king of England; for the king of Scots and prince of Wales had the rights of sovereignty jura imperii as in relation to their subjects and all others, but the king of England.

But in relation to the king of England, the homage performed to the prince of Wales or king of Scots was not lige homage; for there was an exception either expressed or implied at least salva fide domini regis Angliæ, as appears plainly above.

2. Another instance of a mixt homage is, when a sovereign prince hath a vassalage, or possession in another absolute prince's dominion; this was the case of the king of England, in relation to the lordships and seignory he had in France, as Aquitaine, Anjou, and Picardy, &c. which were all held of the crown of France; these descended to king Edward III. the king of France required lige homage from the king of England for these territories; the king of Englund, as king of England, had no dependence on France, and therefore for the more caution performed to the king of France for

(b) & 1292. p. 477.479. 480.

en

the dutchy of Aquitaine and other his possessions in France a general homage by these words, "Nous entromys in l'hom[74]age de roy de France per ainsi, come nous et nous predecessors ducs de Guyen estoient jades enterent l'homage des royes de France pur temps esteant;" and although afterwards a settled form of homage was prescribed in this case,(c) yet most evident it is, that it was not homagium ligeum, but only a feudal homage relative to those territories of the crown of France, but not at all with any relation to the person or crown of the king of England.

For the king of England had a double capacity, one as an absolute prince, that owed no subjection to the crown of France; nor to any other king, or state in the world; in this capacity he neither did nor could do homage to the king of France; he had another capacity, as duke of Aquitaine, and in that capacity he owed a feudal, but not personal subjection to the crown of France; and in this latter capacity only, and as a different person from himself, as king of England, he did the homage, which was in truth no lige homage, but a bare feudal homage, which I rather mention to rectify the mistakes of those that call it a lige homage.

But by the way I must observe, this feudal homage, as duke of Aquitaine, lasted not long; for in 14 E. 3 the king of England assumed the title of king of France together with the arms of France by hereditary descent, which style his successors have ever since used.

And indeed the name of lige homage from him that was king of England, to the king of France, though purely in the capacity of duke of Aquitaine, sounded so ill, that when a peace was in treaty between the king of France and Richard II. viz. rot. parl. 17 R. 2 n. 16. the entry is made, "Fait a remember qe le roy, seigneurs, chivalers, et justices assenterent en cest parliament a la pees, purensi qe nostre dit seigneur le roy ne face homage lige, et sauant touts dits le liberty de la person nostre seigneur le roy, et de son royalme de Angleterre et de ses liges du dit royalme," and with power to resort to the title of the crown of France, in case of breach of league by the king of France; this is farther amplified by the speech made openly by the speaker of the house of commons. Ibid. n. [75] 17. The homage here meant was with relation to the duchy of Aquitaine, which upon this treaty was to be delivered to the king of England.

And thus much touching these two securities of the subject's alligeance to the king of England, wherein I have been the larger, because many things occur in this business, that give some light to antiquity, and do not so commonly occur, and because the great brand of high treason is, that it is a violation or breach of that sacred bond from the subject to his king commonly called alligeance, for the security whereof this oath of alligeance and lige homage were

(c) Vide Pat. 5 E. 3. part 1. m. 17.

instituted, and effectually expounds the obligation, and duty of that alligeance, that is due from the subject to the king.

I shall now only mention those two eminent oaths of supremacy, and obedience, though there were besides them other temporary oaths relating to the crown, as that of 25 H. 8. cap. 22. 26 H. 8. cap. 2. 28 H. 8 cap. 7. 35 H. 8. cap. 1.

The supremacy of the crown of England in matters ecclesiastical is a most unquestionable right of the crown of England, as might be shewn by records of unquestionable truth and authority, but this is not the business of this place; yet nevertheless the pope made great usurpations and encroachments upon the right of the crown. herein.

King Henry VIII. in the twenty-fifth year of his reign having pared off those incroachments in a good measure by the statute of 25 H. 8. capp. 19, 20, 21. in the twenty-sixth year of his reign the supremacy in matters ecclesiastical is rejoined and restored to the crown by the statue of 26 H. 8. cap. 1.

The papal encroachments upon the king's sovereignty in causes and over persons ecclesiastical, yea even in matters civil under that loose pretense of in ordine ad spiritualia, had obtained a great strength, and long continuance, notwithstanding the security the crown had by the oaths of fealty and alligeance; so that there was a necessity to unrivet those usurpations by substituting by authority of parliament a recognition by oath of the king's supremacy as well in causes ecclesiastical as civil.

And therefore after those revolutions, that happened in the life, and on the death of Henry VIII. Edward VI. and [76] queen Mary, queen Elizabeth coming to the crown, the oath

of supremacy was enacted by the statute of 1 Eliz. cap. 1, for the better securing of the supreme authority of the crown of England as well in matters ecclesiastical as temporal; which I shall not here repeat, but reserve the same, and what is proper to be said touching it, to a particular chapter hereafter. (d)

Afterwards the dangerous practices of popish recusants gave the occasions of enacting of the oath of obedience by the statute of 3 Jac. cap. 4, which I shall likewise refer to its proper place.

And thus far touching alligeance, and the securities of the same by the oath of alligeance, and the profession of lige homage.[11]

(d) Vide postea cap. 25.

[11] The Acts of Congress relating to naturalization are, An Act to establish an uni. form rule of naturalization, 26 March, 1790. An Act to establish an uniform rule of naturalization and to repeal the acts heretofore passed on that subject, January 29, 1795. An Act to establish an uniform rule, &c., and to repeal, &c., April 14, 1802. Ch. 28. An Act in addition to an Act entitled, "An Act to establish, &c., and to repeal," &c., March 26, 1804. Ch. 47. An Act relating to evidence in cases of naturalization, March 22, 1816. Ch. 32. An Act in further addition to an "Act to establish, &c., and to repeal," &c., May 26, 1824. Ch. 186. An Act to amend the Acts concerning naturalization, May, 24, 1628. Ch. 116.

VOL. I.-10

CHAPTER XI.

CONCERNING TREASONS AT THE COMMON LAW, AND THEIR UNCER

TAINTY.

HAVING shewn in the former chapter the kinds and bonds of fidelity and alligeance from the subject to the king, I come to consider of those crimes, that in a special manner and signally violate that allige ance, namely high treason.

At Common law the crime of high treason had some kinds of limits and bounds to it.

In the time of Henry II. Glanvil, who then wrote Lib. [77] IV. cap. 1 §. 7, tells us of four kinds of criminæ læsæ majestatis, viz. de morte regis, de seditione regni, de seditione exercitus regis, and the counterfeiting of the great seal; for as to the counterfeiting of money, that came under the title of Crimen falsi, and the punishment thereof antiently was various; but of that particular hereafter.

Bracton, that wrote in the time of Henry III. Lib. III. cap. 3. "Siquis ausu temerario machinatus sit in mortem domini regis; vel aliquid egerit, vel agi procuraverit ad seditionem(a) domini regis, vel exercitûs sui; vel procurantibus auxilium & consilium præbuerit, vel consensum, licet id, quod in voluntate habuerit, non perduxerit ad effectum;" to which he adds counterfeiting of the seal and money; which, though they come under crimen falsi, yet are reckoned by him among the crimina læsæ majestatis; tho in these old authors treason is sometimes expressed by the name of sedition, yet that word is too general and comprehensive of other offenses not capital, as well as of treason; and therefore a charge of sedition against the king, or of exciting sedition, or of speaking, writing, or doing any thing seditiously, doth not amount to a charge of treason; and therefore it was, that in the case of Selden and others, Trin. 5 Car. B.R.(b) when upon an habeas corpus the parties were returned committed

(a) In the case of Mr. Selden this is supposed to be the true reading, but in most of the MSS. of Bracton the word in this place is seductionem, altho in other places of the same chapter the word seditio is used: Fleta makes frequent use of the word Seduc tio, Lib. I. cap. 20. § 1 cap. 21. § § 1, 2, 3. (the last of which places seems to be a direct transcript from Bracton) though the word seditio is once used by him dicto capite, § 8. and Bracton afterwards in this same chapter styles a traitor seductor.

Hengham, cap. 2. and Glanvil, Lib. I. cap. 2. both of them place seditionem in the rank of treasons, and so it was esteemed by the Civil law. Dig. Lib. XLVIII. tit. 4. ad leg. Jul. Majestatis, l. 1. tit. 19. De pœnis, l. 38. § 2. Seditio continued to be the technical word in legal proceedings (as will appear from several records hereafter quoted) until the terms proditio & proditoriè prevailed in its room, which last word must now be necessarily used in every indictment of treason. 3 Co. Inst. 4. 12, 15.

(b) Mich. 5. Car. I. Vide Rushworth's Historical Collections, Vol. I. p. 679. Appendix, p. 18, &c. Seldeni Opera, Vol. VI. p. 1938. The court was content, that they should be bailed, but said, that they ought to find sureties also for their good behaviour: they had their sureties ready for the bail, but they were remanded to the Tower, because they would not find sureties for the good behaviour. Selden was not bailed till May 1631, and not discharged from his bail till January 1634. Vindicia Maris Clausi. Seldeni Opera, Vol. IV. p. 1427, &c.