Action personall from a longer time then the last Eyre 123 It is abuse of the Writ of Accompt for which every one may imprison another wrongfully 124 It is abuse that one is bound to render an accompt of issues of Land whereof he is Guardian by title of Law 125 It is abuse that the Writ of Ne cui juste vexces is so out of use 126 It is abuse that Battailes be not in personall Actions as well as in Felonies 127 It is abuse that proofes and purgations be not by the Miracle of God where other proofe faileth 128 It is abuse to joyne Battaile betwixt persons who are not admitted to wage battailé 129 It is abuse that a Knight is otherwise armed then another man in a Combate 130 It is abuse that Judges have Cognizance by originall Writ or warrant by Vouchers or in others to which his jurisdiction extendeth not 131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo warranto 132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries and that the Lands doe not escheat to the Lords of the Fees 133 It is abuse that vicious Obligations drive the Authors to personall Damages in as much as they are voidables 134 It is abuse to compell Iuronts Witnesses to say that which they know not by distresse of Fine and imprisonment after their Verdict when they could not say any thing 135 It is abuse to use the words to their knowledge in their Oath to make the Iurours speake upon thoughts since the chiefe words of their Oathes be that they speake the truth 136 It is abuse that one examine not the Jurours though they finde at least two to agree 137 It is abuse to put more words in the doing of Homage but thus I become your man for the Land which I claime to hold of you 138 It is abuse to Answer or appeare by Atturney 139 It is abuse to make Justices such parties without the Writ in the Kings presence if not with the assent of the parties 140 It is abuse that the Writs of Audita quareta and Conspiracy and others containe not the substance of the plaints 141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines Grand Assizes translation of pleas out of lower Courts and of Darrein presentment and of the rights of the King Queene and their Allies 142 It is abuse to use a Pone when their Causes are discussed if the parties challenge the same for a lying purchasor ought not to have benefit of his leasings 143 It is abuse to sue forth Grand Distresses in Pleas of Attachments whereof the defaults are to the profit of the King and not of the Plaintiffes 144 It is abuse that Trespassours who have nothing are not banished from Townes Counties Manours and Hundreds as they used to be 145 It is abuse to hold that a Petit Cape maketh other title but to save every right in reall Action not in others 146 It is abuse that the issues of Grand Distresses in mixt Actions come not to the profit of the Lords of the Fees and others who have Courts as they doe to the King of Pleas moved in his Court upon the same Actions 147 It is abuse to thinke the same punishment is to be to Maine-prisots as to Principals who make default whereas they are amerceable onely in Courts 148 It is abuse to amerce a man in plesive of Fee or of service going out of the Land by default in a personall Action or reall for Outlawty or losse of Land is sufficient punishment 149 It is abuse that Sheriffes doe not execution of Writs Vice Conntiels in as much as the Plaintiffes have found Pledges De proseqnend where there is no mention to take Sureties 150 It is abuse to distreine for Arâ—erages of services issuing out of Lands moveable goods whereas no distresse ought to be but in the Land onely 151 It is abuse that the Tenant may without punishment enfeoffe a third person of the Land of his Lord in prejudice of him or doe other thing or say any thing against the points of his Oath of fealty 152 It is abuse to suffer a man who is a Champion to be a witnesse 153 It is abuse that none have recovery of wrong done by the King or the Queen but at the Kings pleasure 154 It is abuse to judge a man to divers punishments for one Trespasse as to a corporall punishment and to a ransome since ransome is but a Redemption from corporall punishment by payment of a fine of money 155 It is abuse that people defamed of offence are not barred from making oathes and of their dignities and of their other Honors And divers other abuses appeare by those who well understand the Writ before written CHAP. V. SECT 2. The defects of the great Charter SEeing how the Law of this Realm sounded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governours of the Law and by Statutes afterwards made contrary to some of the points to shew the defects or defaults of the points aforesaid and the errours of some Statutes I have put in memory this Chapter of the defect and reprehensions of Statutes and first of the defects of the points of the Great Charter To the point That the Church of England shall have all her Rights and Liberties inviolable for first it were necessary to ordaine a Corporall punishment and namely to the Lay Judges the Kings Ministers and others who Judge Clerkes for mortall Crimes to Corporall punishments infamatories doe detain their goods after their purgation and to those Secular Judges who take upon them Cognizance in causes of Matrimony and Testaments or other speciall things The other point is That every Free-man of the Realme inherite the Liberties of the Charter and whereof every one is disseised as of his Free-hold which is not adjudged according to the points following there lyeth no recovery of damages by the Assize of Novel Disseisin A third point seemeth to be defective for as the releife of an Earldome entire was to decrease in him who held lesse so it seemeth that that certainety was to encrease as much if an Earle held more so as he who held two Earldoms and who held an Earldome and a Barony shall pay as an Eardome and as a Barony and so of other Fees if they be not expressed in the Charter that the Fyne of one hundred pound be not an Eirldome for no point oncreased and so of other certainties The fourth point is defective for although it be that such a point be grounded upon Law to binde the Lord of Fees to warranties by taking of such Homages whether they tooke them of the right Heires or not because it is not expressed whoshould be Guardian of the Fees in time of vacancy and have the issues in the mean
THE BOOKE Called The Mirrour of Justices Made By ANDREVV HORNE With the Book called The Diversity of Courts AND Their Jurisdictions Both translated out of the old French into the English Tongue By W.H. of Grays Inne Esquire Cassiodor Iura publica certissima sunt virae humanae solatia infirmorum anxilia impiorum frana Imprinted at London for Matthew Walbancke at Graies Inne gate 1646. The Translator to the READER Courteous Reader IT hath ever been an Objection grounded upon ignorance which hath been made by the meaner sort of the people to traduce the Common Lawes of England and to bring the Professors thereof into contempt to give out Speeches and cast it in the teeth as it were of them That the said Lawes are built but upon a sandy foundation viz. the conceits of a few men and that they are not grounded upon the Lawes of God from which all Lawes of men ought to flow as from a cleare and pure Fountaine This vulgar conceit and objection hath been principally nourished amongst them because the Common Lawes have been kept from their view and understandings being for the most part published in the French Tongue I must ingeniously confesse That since it is a received Maxime amongst us That ignorance of the Law doth excuse no man that it were good that the fundamentall Lawes were published in our Mother Tongue that so no person might be miscounsant thereof And I have observed that it hath been the course and care of most of the late Publishers of our Lawes to put them forth in such Language as the common people might the better know them and practice the due observation of them But that I may with the more ease and plainnesse answer that frivolous Objection remove that fond conceit of the ignorant vindicate our Commnn Lawes from so foule an aspersion and let the Objectors see from whence our Lawes deduce their Originall though the learned Authour in the ensuing Treatise hath in part done it yet for the cleare manifestation thereof I shall entreat the courteous Reader to be pleased favourably to accept of this short Breviary of the Grounds and originals of the Common Law which I shall apply only as an introduction to the Work which followeth All Lawes are comprehended under a Three-fold division 1. The Law of Nature 2. The Law of God of Faith or of the Gospell 3. The Law of man made upon the Dictates of Reason upon all which Lawes the Common Lawes of England are built as upon firme and sure foundations The First is that which is called the Law of Nature which is ordained of God and may be called Gods Law united unto mans nature Gen. 1. ver 26,27 for what was that Image of God in man consisting of righteousnesse holinesse and truth but Lex primordialis a primordiall Law exactly requiring and absolutely enabling the performance of duties of Piety unto God and of equity to men both in habit and Art St. Ambrose Amiquam scripte fuit lex in hominum mentibut vigebat God in the beginning wrote his Lawes in mens hearts and therefore according unto the opinion of most learned Divines and Legists Lex nature nibil aliud est quam participatio legis eterne in rationali creatura And according to others Lex naturae est lamen ac dictamen illud rationis quo inter bonum malum discernimus The most principall Precepts of the Law of Nature which are also Maximes and Grounds of the Lawes of England are 1. Deum venerari 2. Honestè vivere 3. Patrie magistratibus parentibus obedire 4. Alteri ne facias quod tibi non vis fieri 5. Suum cuique tribuere 6. Tollere nocentes è medio propter servandam publicam salutem 7. Rerum dominia proprietates possessiones usum distinguere To honour God to live honestly to obey Magistrates c. to doe as we would be done unto to render every one his due to punish the guilty for the preservation of the Publique to distinguish and settle the Dominion propriety possession and use of temporall things These fundamentalls of the Law of Natvre are not principally acquired or obtained by Art or Doctrine but naturally ingrafted Learning and instruction serve only to bring forth and encrease those naturall Seedes but neither Learning nor instruction doe principally and originally give them they are faith Socrates but as skilfull Midwives Socrates whose office it is only to further the birth of the Childe not to beget the Childe The Second is the Law of God the Law of Faith or of the Gospell which may well be called Lex amoris the Law of love Is not this Nation Christian Hath it not professed the common Faith for 1200. yeares Doe not our Lawes all tend to the maintaining of peace concord and love fruits of the Gospell Are not all Statutes Acts of Parliament Constitutions Customes made and used for the government of this people founded upon such principalls Let the Objectors cite me any Law in use now amongst us which is not warranted by some expresse Gospel Text either in the Letter or not by necessary consequence drawne from it sure I am that every Law Custome Usage Priviledge Prescription Act of Parliament or Prerogative which doth exalt it selfe above or beyond the Law of God the Law of Christ or the Law of Nature hath ever by the worthy Sages of our Lawes been declared to be void It were to no purpose to instance upon particulars it is sufficient to say That as it appertaineth to all godly and Christian men to observe and keepe this Law so to let all men know that we are instructed by the worthy Professors of the Gospell of Christ in the fundamentall Rules and grounds of this Law to live after it and to direct all our words and actions according to it and by it and therefore I shall not say more of it The third the Lawes of men and the municipall Lawes of this Realm which although they may seeme to some to have their progeny from men for as Solon to the Athenians Lycurgus to the Lacedemonians Numa Pompelius and Actius Claudius to the Romans were accounted the Principall Authors and givers of Law to those severall Nations so Alured on Alfred Athelstone Edmundus Edgar Canutus Edward the Confessor William the first and Henry the first called Beauclark noble and famous Princes of this Nation part of all whose Lawes are yet in force were the chiefe promulgers of many necessary and good Lawes yet in use with us in this Realme yet if we looke into their Laws we shall finde that most of them have their rise from a higher power from the Law of God and the Law of Faith It is true Dan. Hist in tit Wil. Conq. Cicero l. 1. De legibus that some Historiographers have written that the originall of the Common Lawes now in use flowed first out of Normandy I shall decline that as to the generality but as
two points one in the specialty of the Corporall punishment and of the Plurality punishments since the redemption by a pecuniary paine is but the buying out of the Corporall punishment The other to have jurisdiction against the Abettors without originall Writ The Statutes of Waste are founded upon Errour since waste is a personall Trespasse and requireth other manner of Processes as appeareth in the Chapter of defaults and to defend a personall Trespasse by Writ is but a vaine labour The Statute of not allowing a false cause in the Essoigne De malo lecti is defective for in no Essoigne for no Party is any false cause or any falsity to be permitted not ought to be profitable to any The Statute of Debt and Damages recovered is defective for not onely should such remedy be in the Kings Courts but it ought to comprehend in all other Lay Courts The Statute of those who are dead without Wills is defective for it ought to comprehend Felons and Fugitives as well as true men and the King and all others into whose hands their goods come as well as Ordinaties for none can forfeit the right of another The Statute for allowing one manner of Exception in the like Actions was not needfull to have been made if not for the negligence of Justices for every affirmative is encounterable with his negative at the perill of the party The Statute of detinue of service is a novelty daugerous to Lords of Fees as appeareth in the Chapter of defaults The Chapter of making new Writs had not need to have been made if the first Ordinances of Writs were observed The Statute to have remedy by Assize of Novel disseism is reproveable for as much as it comprehendeth not Lands charged with Villain Customes not Lands holden for terme of yeares The point needed not have forbidden false Exceptions if the Pleaders held themselves to the points given in charge And as to the point of Imprisonment the Statute is reproveable for the reasons aforesaid and also as to the paine of double damages for the Law giveth a man no more then is his demand And that which appeareth in the Statute of false Appeales is more errour then right in the enacting the award of amends to Defendants whereas it is not to the Plaintiffes And as to the Writ to the use of Sheriffes in Disseisin it is no Statute but it is a thing at pleasure and a wrong And that which is used to grant Damages in part or in all to Justices or to Clerkes or to Ministers or others should be forbidden as a usage very full of damage to the people And as punishments are reproveable in Novel Disseisins so are they in the Statutes of Disseisins Corporall punishments neverthelesse hold in such personall Trespasses but in Reddisseisins more then in Disseisins The Statute which forbiddeth that Writs of Oyer and Terminer be not Ligirment granted is not founded upon any Law Easily as being repugnant to the words of the Great Charter We will not sell or delay Justice to any man but commeth rather from the remporall Iudges who cause the same for their advantages as desiring to embrace all Pleas. The Statute of Caption of Assizes thrice in the yeare is reproveable as to the adjournment of the Parties out of the Counties before the Iustices of the Bench who have no jurisdiction over those Pleas since the Commissions are given to Iustices assigned And as to take Iuries and Enquests in their Counties so the Statute is not to destroy the Authours and indamage the people The Statute which forbiddeth Iustices that they cause not Iurours say but their advice is defective as appeareth in the Chapter of Iurours The Statute of Exceptions allowables rebutted by Iustices is not founded upon Law as appeareth in the Iudgement of false Iustices but is when it is in no part fixt The Statute of Rape is reproveable for none can ordaine by Statute that a veniall punishment be turned into a mortall without the consent of the Pope or the Emperour The Statute that the King hath the Suit in Rape or in Ellopment of women Married is reproveable for none is bounden to Answer to the Kings Suit if not by Appeale or by Indictment And that which is contained in it That Women should lose their Dower for the sinne of Adultery ought also to comprehend all Adulterours who claime to hold the inheritances of their Wives by the courtesie of England so that there be no exception of persons The imprisonment of the Alloppors of Nunnes and their ransome is no Law but is an errour in a double manner as before is said in many places The imprisonment for two yeares or more ordained for a Corporall punishment to Ravishers of Marriages is but errour for no Corporall punishment ought to be ordained but for common profit as before appeareth of open Penances And that which is ordained of Proclamations in personall Actions is but abuse of Law as it is said in the Statute of Moignes The Statute which awardeth Ransome is reproveable for Ransome is nothing else then the redemption of Corporall punishment The Statute of Distresses made by Baylisses unknowne is distinguishable for in torrious Distresses without warrant the Iudgement of Robbery holdeth and by warrant is every one receiveable whether knowne or unknowne The Statute of Iurours is reproveable for the Law wills that the Plaintiffes have the aide of the Courts to cause the Witnesses to appeare whereby they may the more lawfully helpe themselves without distinction of persons And that that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints without a speciall Commission is but abuse The Statute which awardeth that Writ of Judgement be made without warrant of originall Writ is nothing else then a Licence to falsifie the Kings Seale The punishment of Sheriffes ill answering is reproveable as to the punishment for dis-inheritors of the King offend of the crime of Majesly and are by consequence punishable by death which ought not to be in such cases And as to issues the Statute is reproveable for no issues are awardable but after defaults in Actions mixt and not to the Kings use but for the profits of the Plaintiffes The defaults made of the Statutes of Clerkes Cryers and other Officers of the Court are but idle because they aâ—e not kept at all The Statute that Cognizances and Enrolements which are made in the Chancery the Exchequer and before Iustices be established is an Authority of great ill for by false enrolements might every one in Authority destroy those he pleased which should be a great inconveniency Againe by this Statute Authority should accrue to Authority to the Chancellor and others to falsifie the Kings Seale by Writs to give judgement without originall Writs And therefore note that none but the King can receive Arturnies in the Kings Court nor recognitions bitwixt Parties without warrants of originall Writs The Statute of improvements of wasts and commons of Pasture