haue no externe seruice wherewith to occupie their buisie heads handes accustomed to fight and quarell must néedes séeke quarels and contentions amongest themselues and become so readie to oppresse right among their neighbours as they were woont before with praise of manhoode to be in resisting iniurie offered by their enemies So that our nation vsed hereunto vpon that more insolent at home and not easie to be gouerned by Lawe and politike order men of power beginning many fraies and the stronger by factions and parties offering too much iuiurie to the weaker were occasions of making good Lawes First of reteiners that no man should haue aboue a number in his Liuerie or retinue then of the enquirie of routs and riots at euerie Sessions and of the lawe whereby it is prouided that if any by force or by riot enter vpon any possessions the Iustices of the peace shal assemble themselues remooue the force within certain time enquire thereof And further because such things are not commonlie done by meane men but by such as be of power force be not to be dealt withal of euerie man nor of meane Gentlemen if the riot be found certified to the Kings Counsell or if otherwise it be complained of the partie is sent for and he must appeare in this starre chamber where séeing except the presence of the Prince onely as it were the maiestie of the whole Realme before him being neuer so stoute he will be abashed and being called to aunswere as he must come of what degrée soeuer he be he shall be so charged with such grauitie with such reason remonstrance and of those chiefe personages of Englande one after an other handeling him on that sort that what courage soever he hath his heart will fall to the grounde and so much the more when if he make not his aunswere the better as seldome he can in so open violence he shalbe commaunded to the Fléete where he shall be kept in prison in such sort as these Iudges shall appoint him lie there till he be wearie aswell of the restraint of his libertie as of the great expences which he must there sustaine and for a time be forgotten whiles after long suite of his friendes he will be glad to be ordered by reason Sometime as his deserts be he payeth a great fine to the Prince besides great costs and dammages to the partie and yet the matter wherefore he attempteth this riot and violence is remitted to the common lawe For that is the effect of this Court to bridle such stoute noble men or Gentlemen which would offer wrong by force to any manner men and cannot be content to demaund or defend the right by order of lawe This court began long before but tooke great augmentation and authoritie at that time that Cardinall Wolsey Archebishop of Yorke was Chauncellor of Englande who of some was thought to haue first deuised y ◠Court because that he after some intermission by negligence of time augmented the authoritie of it which was at that time maruellous necessary to doe to represse the insolencie of the noble men and gentlemen of the North partes of Englande who being farre from the King and the seate of iustice made almost as it were an ordinarie warre among themselues and made their force their Lawe banding themselues with their tenaunts and seruauts to doe or reuenge iniurie one against an other as they listed This thing séemed not supportable to the noble prince King Henrie the eight and sending for them one after an other to his Court to aunswere before the persons before named after they had had remonstrance shewed them of their euill demeanor and béene well disciplined as well by words as by fléeting a while and thereby their purse and courage somwhat asswaged they began to range themselues in order and to vnderstand that they had a Prince who would rule his subiects by his lawes and obedience Sith that time this court hath béene in more estimation and is continued to this day in manner as I haue saide before Of the Courts of Wards and Liueries CHAP. 5. HE whom we call a ward in Englande is called in Latine pupillus and in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The gardian is called in Latine tutor in Gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A warde or infant is taken for a childe in base age whose father is dead The Romanes made two distinctions pupillum minorem the one to xiiii yere old the other was accounted from thence to xxv And as pupillus had tutorem so minor had curatorem til he came to the age of xxv These tutors or curators were accountable for the reuenues of the pupils minors lands great prouision and many lawes and orders is made for them in the bookes of the ciuil Lawe for rendering iust true accounts So that to be a gardian or tutor was accounted among them to be a charge or trouble a thing subiect to much encumbraunce and small profite so that diuerse meanes were sought for to excuse men from it With vs this is cleane contrarie for it is reckoned a profite to haue a warde For the Lorde of whom the warde doeth hold the land so soone as by the death of the father the childe falleth warde vnto him he seaseth vpon the body of the ward and his landes of which so that he doeth nourish the ward he taketh the profite without accounts and beside that offering to his ward couenable mariage without dispergement before the age of xxl. yeres if it be a man or xiiii if it be a woman If the ward refuse to take that mariage he or she must pay the value of the mariage which is commonly rated according to the profite of his landes All this while I speake of that which is called in French garde noble that is of such as holde lands of other by knight seruice for that is an other kinde of seruice which we call in Frenche gard returier we call it gard in socage that is of such as doe not holde by knight seruice but by tenure of the plough This wardship falleth to him who is next of the kinne and cannot inherite the land of the warde as the vncle by the mothers side if the land doe discend by the father and of the fathers side if the lande discend by the mother This gardian is accountable for the reuenues and profites of the land as the tutor by the ciuill Lawe to the warde or pupill so soone as he is of full age The man is not out of wardshippe by our lawe till xxj yere olde from thence he is reckoned of full age aswell as in the Romane lawes at xxv The woman at xiiij is out of warde for shée may haue an husband able to doe knightes seruice say our bookes And because our wiues be in the power as I shall tell you hereafter of their husbands it is no reason she should be in
facto ius oritur héere the Sergeantes or counsellers before the Iudges doe in passing forewarde with their pleading determine and agrée vpon the lawe and for the most part and in manner all actions as well criminiall as ciuill come to the issue state of some fact which is denied of the one partie and auerred of the other which fact being tried by the xij men as they find so the action is wonne or lost And if a man haue many peremptorie exceptions peremptorie exceptions I call onely those which can make the state and issue because the xij men be commonly rude and ignorant the partie shalbe compelled to choose one exception whereupon to founde his issue which chosen if he faile in that by the verdite of xij men he looseth his action and cause and the rest can serue him for nothing Having séene both in France and other places many deuices edictes and ordinaunces howe to abridge proces and to finde howe that long suites in law might be made shorter I haue not perceiued nor reade as yet so wise so iust and so well deuised a meane found out as this by any man among vs in Europe Trueth it is that where this fashion hath not béene vsed and to them to whom it is newe it will not be so easily vnderstood and therfore they may peraduenture be of contrarie iudgement but the more they doe weigh and consider it the more reasonable they shall finde it Howe the issue question or status iuris is decided I haue tolde now I will shewe howe it is tryed when it doth come to the question state or issue of the déede or fact And first I must speake more largely of the manner of procéeding in the processe and of such persons as be necessary for the execution thereof Of the sherife of the shire and of the court of exchequer CHAP. 14. THe Romans had to execute the commaundementes of the magistrates Lictores viatores accensos The ciuill lawe sith that time hath other names termes and officers The execution of the commaundementes of the magistrates in England is ordinarily doone by the sherifes The sherife which is as much to say as the Réeue or Bayly of the shire is properly word for word Questor prouinciae it is he which gathereth vppe and accompteth for the profittes of the shire that come to the exchequer The exchequer which is fiscus principis or aerarium publicum and I cannot tell in what language it is called Scaccarium some thinks that it was first called statarium because that there was the stable place to account for the reuenues of the crowne aswell that which came of the patrimony which we cal the demeasnes as that which commeth of other incident acquisitions be they rentes customes tenthes quinziesmes taxes subsidies wheresoeuer the Prince or his court be according to the time and occasion was a place stable continual and appointed for to recken and account The hearers of the account who in latin may be called tribuni aerarij haue auditors vnder them which the Latines doe call Rationales but they are the chiefe for the accounts of the Prince and may be called Iuridicirationales in English we cal them Barons of the exchequer whereof is one who is called the chiefe Baron as Tribunus or Iuridicus rationalis primus or princeps The chiefe of all is called high treasurer of Englande as you would say in latin Supremus aerarij anglici quaestor or Tribunus aerarius maximus In this court be heard Quadruplatores which we call promoters which be those that in popular and penall action be delatores hauing thereby part of the profit by the lawe assigned In this court if anie question be it is determined after the order of the common lawe of Englande by the xij men as I haue saide and all customers which were in latin called publicarij in gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do account in this office The Sherife of the shire is called in our common latin vicecomes as one would say vicarius comitis or procomes doing that seruice to attende vpon the execution of the commaundementes of the Tribunalles or Iudges which the Earle or countie should doe which Earle or Countey for the most part was attending vppon the Prince in the warres or otherwise about the Prince as the worde beareth Comes principis whereby it may appeare that the chiefe office of the Countie or Earle was to sée the kinges Justice to haue course and to bee well executed in the shire or Countie and the Princes reuenues well answered and brought in aerarium principis which is called of vs the treasurie If any fines or amerciaments which in latin be called mulctae beleuied in any of the saide courtes vpon any man or any arrerages of accountes by the latins called reliqua of such thinges as is of customes taxes subsidies or any other such occasions the same y e sherife of the shire doth gather and is respondent therefore in the exchequer As for other ordinarie rentes of patrimoniall landes and most commonly for the taxes customes and subsidies there be particular receiuers and collectors which doe answere it into the exchequer The sherife hath vnder him an vnder sherife at his charge and appointment learned somewhat in the law especially if he be not learned himselfe diuers bailifes which he called errantes whom he maketh at his pleasure who can knowe ech lande and person in the shire and their abilitie to goe vppon enquestes either to distreine or to summon him to appeare whom the sherife shal appoint and for this cause to the sherifes as to the minister most proper of the lawe the writtes be directed When any thing commeth to an issue of the déede or fact there is a writ or writing directed to the sherife of the shire where the lande is whereupon the controuersie is or where the man dwelleth of whom the money is demaunded which writ is called venire facias Then after the same effect an alias pluries or distringas according to the nature of the action to the returne of the sherife And if for any disobedience of not comming and appearing there be a fine which the latins doe call Mulcta set vpon any iurors head the sherife is charged with it and taketh the distresses which in latin be called Pignora and answereth therefore to the exchequer The sherife also is readie by himselfe or by his vndersherife to serue aswell the Iustices of peace in their quarter sessions as y e Iustices called Itinerantes in their great assises when they come into the shire which is twise in the yeare to dispatch and voide actions criminall and ciuil depending at the common law and which be come nowe to the issue He hath also the charge of all the prisoners cōmitted to y e prison which we call the gaole and when any is condemned to die it is his charge to sée the sentence executed To be short he is as it were the generall minister
so The people being accustomed to liue in such an equalitie of Iustice that in such sort that y e rich hath no more aduantage therein than the poore the proces and procéedinges to the iudgement being so short and iudgementes also being peremptorie and without appellation Yet to helpe for small matters where no great summe is in question there are other courtes In euerie shire from thrée wéekes to thrée wéekes the sherife for small thinges not passing xl s. and in certaine hundreds and liberties the baylie likewise from thrée wéekes to thrée wéekes holdeth plea. And whosoever is possessioner and owner of a mannor may holde from thrée wéekes to thrée wéekes or at his pleasure of his tennantes and amongest his tennantes a court called a court Baron And there his tennantes being sworne make a Iurie which is not called the enquest but the homage These principallie doe enquire of the copie holders and other frée holders that be dead sith the last court and bring in their heires and next successours and likewise of incrochment or intrusion of anie of the tennantes against the Lorde or among themselues They make orders and lawes amongest themselues the paine of them if they be after broken commeth to the Lorde And if anie small matter be in controuersie it is put to them and commonly they doe ende it But these courtes doe serue rather for men that can be content to be ordered by their neighbours and which loue their quiet and profit in their husbandrie more than to be busie in the lawe For whether partie soeuer will may procure a writte out of the higher court to remooue the plea to Westminster In cities and other great townes there be diuerse liberties to holde plea for a bigger summe which doe determine aswell as the common lawe and after the same manner and yet for them that will it may be remooued to Westminster hall King Henry the eight ordained first a president Counsellers and Iudges one for the marches of Wales at Ludlowe or else where an other for the north parts of Englande at Yorke where be manie causes determined These two are as be Parliaments in Fraunce But yet if there be anie matter of great consequence the partie may mooue it at the first or remooue it afterwardes to Westminster hall and to the ordinarie Iudges of the Realme or to the Chanceller as the matter is These two courtes doe heare matters before them part after the common lawe of Englande and part after the fashion of the chauncerie Of the Leete or lawe day CHAP. 18. LEete or law day is not incident to euerie mannor but to those onely which by special graunt or long prescription haue such libertie This was as it may appeare first a special trust and confidence and commission giuen to a fewe put in trust by the Prince as is nowe to the Iustices of peace to sée men sworne to the Prince to take pledges and suerties in that maner of one for an other to answere for obedience and truth to enquire of priuie conspiracies fraies murders and bloudsheddes and to this was added the ouersight of bread and ale and other measures Many times they that be out of the homage and court Baron of that mannor and Lordship be neuerthelesse astreined and answerable to come to the Léete This Léete is ordinarily kept but twise in the yeare and that at termes and times prescribed The Léete or Lawe day is all one and betokeneth worde for worde legittimum or iuridicum diem Lawe the olde Saxons called lant or lag and so by corruption and chaunging of language from Lant to Leete vnderstanding day They which kéepe our full english terme call it yet lawe day Of the proceedinges of causes criminall and first of the Iustices of the Peace CHAP. 19. BEfore the maner of procéeding in causes criminall can be well vnderstood it will be necessarie to speake of thrée persons the Iustices of peace the Coroners and the Constables The Iustices of peace be men elected out of the nobilitie higher and lower that is the Dukes Marquisses Barons Knightes Esquiers and Gentlemen and of such as be learned in the lawes such and in such number as the Prince shall thinke méete and in whome for wisedome and discretion he putteth his trust inhabitantes within the countie sauing that some of the high nobilitie and chiefe magistrates for honors sake are put in all or in the most of the commissions of all the shires of England These haue no time of their rule limited but by commission from the Prince alterable at pleasure At the first they were but iiij after viij nowe they come commonly to xxx or xl in euerie shire either by increase of riches learning or actiuitie in policie and gouernement So many more beeing founde which haue either will or power or both are not too manie to handle the affaires of the common wealth in this behalfe Of these in the same commission be certaine named which be called of the Quorum in whome is especiall trust reposed that where the commission is giuen to xl or xxx and so at the last it commeth to iiij or thrée it is necessarie for the performance of many affaires to haue likewise diuerse of the Quorum The wordes of the commission be such Quorum vos A B. C D. E F. vnum esse volumus The Iustices of the peace be those in whom at this time for the repressing of robbers théeues and vagabunds of priuie complots and conspiracies of riotes and violences and all other misdemeanors in the cōmon wealth the Prince putteth his special trust Each of them hath authoritie vpon complaint to him made of any theft robberie manslaughter murder violence complotes riottes vnlawefull games or any such disturbance of the peace and quiet of the Realme to cōmit the persons whom he supposeth offendors to the prison and to charge the Constable or sherife to bring them thither the gaoler to receaue them and kéepe them till he and his fellowes doe méete A fewe lines signed with his hande is ynough for that purpose these doe méete foure times in the yéere that is in each quarter once to enquire of all the misdemeanors aforesaide at which daies the sherife or his vndersherife with his baylifes be there to attende vppon him who must prepare against that time fower enquestes of xxiiij yeomen a péece of diuerse hundredes in the shire and besides one which is called the great enquest out of the bodie of the shire mingled with all These fiue enquests are sworne before them to enquire of all heretiques traitors theftes murders manslaughters rapes false moniers extortioners riottes routes forcible entries vnlawefull games and all such thinges as be contrarie to the peace and good order of the Realme to bring in their verdict If they among themselues vpon their owne knowledge doe finde any culpable they cause one of the clerkes to make the bill And if any be there to complaine vppon any
man for these faults he putteth in his bil which bil is presented first to the Iustices sitting vpon the bench to sée if it be conceived in forme of lawe which doone the complainant doth deliuer it to one of these enquests after the complainant is sworne he declareth to thē what he can for y e profe of it And if they finde it true they do nothing but write on the backeside of it billa vera as ye would say scriptum verum or accusatio iusta or reus est qui accusatur Then he who is there named is called indicted If they do not finde it true they write on the backside ignoramus so deliuer it to the Iustices of whome it is rent into péeces immediatly he that is indicted is accounted a lawefull prisoner and after that time looked more streitly vnto For this inditement is no conuiction and if he be indicted and be not alreadie in prison the sherife if he can finde him bringeth him into prison if he cannot finde him proces is made out against him to render himselfe prisoner or else hee shalbe outlawed So he is called thrée times in diuerse countie daies to render himselfe to the lawe The fourth is called the exigent by which he is outlawed not rendring himselfe as ye would say exactus or actus in exilium The outlawe looseth all his goods to the King for his disobedience But if after he wil render himselfe to answere to the lawe and shewe some reasonable cause of his absence manie times of grace his outlawerie is pardoned These méetinges of the Iustices of peace foure times in the yeare be called quarter sessions or sessions of enquirie because that nothing is there determined touching the malefactors but onely the custodie of them and this kinde of procéeding which is by inquisition of the xij men within themselues and their owne consciences or by denunciation of him that putteth in his bill to the xii is called at the kings suite and the king is reckoned the one partie and the prisoner the other The Iustices of the peace doe méete also at other times by commandement of the Prince vpon suspition of warre to take order for the safetie of the shire sometimes to take musters of harnes and able men and sometime to take orders for the excessiue wages of seruaunts and labourers for excesse of apparell for vnlawefull games for conuenticles and euill orders in alehouses and tauernes for punishment of idle and vagabund persons and generally as I haue saide for the good gouernement of the shire the Prince putteth his confidence in them And commonly euery yeare or each seconde yeare in the beginning of summer or afterwardes for in the warme time the people for the most part be more vnrulie euen in the calme time of peace the Prince with his counsell chooseth out certaine articles out of penall lawes alreadie made for to represse the pride and euill rule of the popular and sendeth them downe to the Iustices willing thē to looke vpon those pointes and after they haue mette together and consulted among themselues howe to order that matter most wisely and circumspectly whereby the people might be kept in good order and obedience after the lawe they diuide themselues by thrée or foure and so each in his quarter taketh order for the execution of the saide articles And then within certaine space they méete againe and certifie the Prince or his priuie counsell how they do finde the shire in rule order touching those pointes and all other disorders There was neuer in any commonwealth diuised a more wise a more dulce and gentle nor a more certaine way to rule the people whereby they are kept alwaies as it were in a bridle of good order sooner looked vnto that they should not offend than punished when they haue offended For séeing the chiefe amongst them their rulers to haue this speciall charge and doe call vpon it and if occasion so doe present one or two presently either punished or sent to prison for disobedience to those olde orders lawes they take a feare within themselues they amende and doe promise more amendment So that it is as a newe forbushing of the good lawes of the realme and a continuall repressing of disorders which doe naturally rest among men But as the inuention of this and the vse and execution thereof is the most benefitte that can be deuised for the common wealth of Englande So when it shalbe misused dissembled with or be contemned be doone pro forma tantum and as they terme it in Fraunce par mainere d' acquit onely it will be the present ruine though not at the first apperceiued of the common wealth Of which the fault may be as well in the commaunders for not making good choice what and howe they commaunde as in the commanded for not executing that which is commaunded Of hue and crie and recognisaunce taking vppon them that may giue euidence CHAP. 20. BY the olde lawe of Englande if any theft or robberie be doone if he that is robbed or he that séeth or perceiueth that any man is robbed doe leuie hue crie that is to say doe call and crie for aide and say that a theft or robberie is doone contrarie to the Princes peace and assurance The Constable of the village to whom he doth come and so make that crie ought to raise the parish to aide him and séeke the théefe and if the théefe be not founde in that parish to go to the next and raise that Constable and so still by the Constables and them of the parish one after an other This hue and crie from parish to parish is caried till the théefe or robber be founde That parish which doeth not his dutie but letteth by their negligence the théefe to depart doth not onely paie a fine to the king but must repaie to the partie robbed his dammages So that euerie English man is a sergiant to take the théefe and who sheweth himselfe negligent therein doth not only incurre euill opinion therefore but hardly shall escape punishment what is doone with the théefe or robber when he is taken I shall shewe you heereafter The same manner is followed if anie man bee slaine for streight the murtherer is pursued of euerie man till he be taken So soone as any is brought to the Iustices of peace by this hue or crie by the Constable or anie other who doth pursue the malefactor he doeth examine the malefactor and writeth the examinations and his confession then he doth binde the partie that is robbed or him that sueth and the Constable and so manie as can giue euidence against the malefactor to be at the next sessions of gaole deliuerie to giue their euidence for the Quéene He bindeth them in recognisance of xl xxl. xxxl xll. or C. l. according to his discretion and the qualitie of the crime which certified vnder his hande is leuied vpon the recognizance if
they faile of being there Of the Coroner CHAP. 21. BVt if anie man woman or child be violently slaine the murtherer not knowen no man ought or dare burie the bodie before the Coroner hath séene it The Coroner is one chosen by the Prince of the meaner sort of gentlemen and for the most part a man séene in the lawes of the Realme to execute that office And if the person slaine slaine I cal here whosoeuer he be man woman or childe that violently commeth to his death whether it be by knife poyson cord drowning burning suffocation or otherwise be it by his owne fault or default or by any other if I say the person slaine be buried before the Coroner doe come which for the most part men dare not doe he doeth cause the bodie to be taken vp againe and to be searched and vppon the sight of the bodie so violently come to his death he doth empanell an enquest of xij men or mo of those which come next by be they strangers or inhabitantes which vpon their othes and by the sight or viewe of the bodie and by such informations as they can take must search howe the person slaine came to his death and by whome as the doer or causer thereof These are not inclosed into a streit place as I tolde before of other enquestes but are suffered to goe at large and take a day sometime after xx or xxx daies more or lesse as the fact is more euident or more kept close to giue their euidence at which day they must appeare there againe before the saide Coroner to giue their verdict So sometime the person slaine himselfe sometime the brother the husbande the wife the sister some of acquaintance or stranger such as God wil haue reueiled be taken For whosoeuer they doe finde as guiltie of the murder he is streight committed to prison and this is against him in the nature of an inditement which is not a full condemnation as ye shall sée héereafter The empanelling of this enquest and the viewe of the bodie and the giuing of the verdict is commonly in the stréete in an open place and in Corona populi but I take rather that this name commeth because that the death of euerie subiect by violence is accounted to touch the crowne of the Prince and to be a detriment vnto it the Prince accounting that his strength power and crowne doth stande and consist in the force of his people and the maintenaunce of them in securitie and peace Of the Constables CHAP. 22. THese men are called in the elder bookes of our lawes of the Realme custodes pacis and were at the first in greater reputation than they be nowe It may appeare that there was a credit giuē vnto them not altogether vnlike to that which is now giuen to the Iustices of peace To this day if any affraie chaunce to be made the Constables ought and will charge them that be at debate to kéepe the Princes peace and whosoeuer refuseth to obey the Constable therein all the people will set streight vpon him and by force make him to render himself to be ordered Likewise if any be suspected of theft or receiuing or of murther or of manslaughter the Constable may take such persons yea enter into any mans house with sufficient power to search for such men till he finde them and if hee sée cause kéepe the suspected persons in the stockes or custodie til he bring them before a Iustice of the peace to be examined But for so much as euerie litle village hath commonly two Constables and many times artificers labourers and men of small abilitie be chosen vnto that office who haue no great experience nor knowledge nor authoritie the Constables at this present although this they may do vppon their owne authoritie yet they séeme rather to be as it were the executors of the commaundement of the Iustices of peace For the Iustice of peace as soone as he vnderstandeth by complaint that any man hath stolen robbed slaine or any seruant or labourer without license hath departed out of his maisters seruice or any that liueth idle and suspectly knowing once in what parish he is he writeth to the Constable of the parish cōmanding him in the Princes name to bring that man before him the Constable dareth not disobey The man is brought and examined by the Iustice and if the Iustice doe finde cause hee committeth him to the same Constable to conuey him further to the Princes gaole where the partie must lie till the Iustices of peace doe méete either at their quarter sessions or at their gaole deliuerie and that the lawe hath either condemned or acquited him These Constable are called in some places headborowes in some places tithingmen and be like to them who are called Consuls in manie townes and villages in Fraunce The Constables are commonlie made and sworne at the Léetes of the Lordes chosen thereto by the homage and they kéepe that office sometime ij iij or iiij yeare more or lesse as the parish doth agrée What headborow doth betoken it is easily knowen our language doth declare him as the head or chiefe of the borowe or village likewise tithing man is the chiefe of y e tithing Constable séemeth to me to come of our old English worde kinnyng which is Kinnyngstable as ye would say a mā established by the king for such thinges as appertaineth to pleas of the crowne conseruation of the Kings peace as I saide at the first were in some more reputation approching to that authoritie which the Iustices of peace nowe doth holde Of the sessions of gaole deliuerie and the definitiue proceedinges in causes criminall CHAP. 23. HOwe théeues and murtherers and other malefactors against the crowne and the peace are taken brought into holde to answere to iustice partly by hue and crie partly by information and partly by the diligence of the Justices of peace and the Constables and howe that at the quarter sessions they be indicted or else by the Coroners yee haue hearde before Enditement as yee may perceive by that which is also gone before is but a former iudgement of xij men which be called enquirers and no definitiue sentence but that which in latin is called praeiudicium it doth but shewe what opinion the countrey hath of the malefactor and therefore commonly men be endicted absent not called to it nor knowing of it For though a man be endicted yet if when he come to the arainement there be no man to pursue further nor no euidence of witnesse or other triall and indices against him he is without difficultie acquited No man that is once indicted can be deliuered without arainement For as xij haue giuen a preiudice against him so xii againe must acquite or condemne him But if the prisoner be not indicted but sent to prison vpon some suspition or suspitious behauiour and none doe pursue him to the enditement first being proclaimed thus A. B.
be wordes formall and our men of Lawe be very precise in their words formall If he say legit the Iudge procéedeth no further to sentence of death if he say non the Iudge foorthwith or the next day procéedeth to sentence which is doone by word of mouth onelie Thou A. hast béene endicted of such a felonie and thereof arraigned thou hast pleaded not guiltie and put thy selfe vpon God and thy Countrie they haue found thée guiltie thou hast nothing to say for thy selfe the Lawe is thou shalt first returne to the place from whence thou camest from thence thou shalt goe to the place of execution there thou shalt hang till thou be dead Then he saith to the Sherife Sherife doe execution he that claimeth his Clergie is burned forthwith in the presence of the Iudges in the brawne of his hand with a hot yron marked with the letter T. for a théefe or M. for a mansleer in cases where Clergie is admitted and is deliuered to the Bishops officer to be kept in the Bishops prison from whence after a certaine time by an other enquest of Clarkes he is deliuered and let at large but if he be taken and condemned the second time and his marke espied he goeth to hanging He whom the enquest pronounceth not guiltie is acquitted foorthwith and discharged of prison paying the gaolers fées and if he knowe any priuate man who purchased his inditement and is able to pursue it he may haue an action of conspiracie against him and a large amendes but that case chaunceth seldome Certaine orders peculiar to England touching punishment of malefactors CHAP. 24. FOr any felonie manslaughter robberie murther rape and such capitall crimes as touch not treason laesam maiestatem we haue by the Lawe of England no other punishment but to hang till they be dead when they be dead euerie man may burie them that will as cōmonly they be Heading tormenting demembring eyther arme or legge breaking vpon the whéele empaciling such cruel torments as be vsed in other nations by the order of their law we haue not yet as few murthers cōmitted as any where nor it is not in the Iudges or the Iustices power to aggrauate or mitigate the punishment of the Lawe but in the Prince onely and his priuie Counsell which is maruellous seldom done Yet notable murtherers many times by the Princes commaundement after they be hanged with corde till they be dead bee hanged with chaines while they rotte in the ayre If the wife kill her husbande shée shall be burned aliue If the seruaunt kill his master hee shalbee drawen on a hurdle to the place of execution it is called petit treason Impoisoners if the person die thereof by a new lawe made in king Henrie the eights time shalbe boyled to death but this mischiefe is rare and almost vnknowen in England Attempting to impoison a man or laying await to kill a man though he wound him daungerously yet if death followe not is no fellony by the lawe of Englande for the Prince hath lost no man and life ought to be giuen we say but for life only And againe when a man is murdered all be principals and shall die euen he that doth but hold the candel to giue light to the murderers For mitigation and moderation of paines is but corruption of Iudges as we thinke Likewise torment or question which is vsed by the order of the ciuill lawe and custome of other countreis to put a malefactor to excessiue paine to make him confesse of him selfe or of his fellowes or complices is not vsed in England it is taken for seruile For what can he serue the common wealth after as a frée man who hath his bodie so haled and tormented if he be not found guiltie and what amends can be made him And if he must die what crueltie is it so to torment him before Likewise confession by torment is estéemed for nothing for if he confesse at the iudgement the tryall of the xij goeth not vpon him If he denie the fact that which he said before hindereth him not The nature of English men is to neglect death to abide no torment And therefore he will confesse rather to haue done any thing yea to haue killed his own father than to suffer torment for death our natiō doth not so much estéem as a mean tormēt In no place shal you sée malefactors go more constantly more assuredly with lesse lamentation to their death than in England Againe the people not accustomed to sée such cruell torments will pitie the person tormented and abhorre the Prince and the Iudges who should bring in such crueltie amongst them and the xij men the rather absolue him There is an olde lawe of England that if any gaoler shall put any prisoner being in his custodie to any torment to the intent to make him an approuer that is to saie an accuser or Index of his complices the gaoler shall dye therefore as a felon And to say the trueth to what purpose is it to vse torment For whether the malefactor confesse or no and whatsoeuer he saith if the enquest of xij do find him guiltie he dyeth therefore without delaye And the malefactour séeing there is no remedie and that they be his countrie men and such as he hath himselfe agreed vnto it do finde them worthie death yéeldes for the most part vnto it and doeth not repine but doth accōmodate him selfe to aske mercie of God The nature of our nation is frée stout haulte prodigall of life and bloud but contumelie beatings seruitude and seruile torment punishment it will not abide So in this nature and fashion our auncient Princes and legislators haue nourished them as to make them stout hearted couragious and souldiers not villaines and slaues and that is the scope almost of all our policie The xij as soone as they haue giuen their verdict are dismissed to goe whither they will and haue no manner commoditie profit of their labour and verdict but onely do seruice to the Prince and commonwealth Of Treason the trial which is vsed for the higher nobilitie and Barons CHAP. 25. THe same order touching trial by enquest of xij men is taken in Treason but the paine is more cruell First to be hanged taken downe aliue his bowels taken out and burned before his face then to be beheaded and quartered and those set vp in diuerse places If anie Duke Marques or any other of the degrée of a Baron or aboue Lord of the Parliament be appeached of treason or anie other capitall crime he is iudged by his péeres and equals that is the yeomanrie doth not go vpon him but an enquest of the Lordes of the Parliament and they giue their voice not one for all but eche seuerally as they do in Parliament beginning at the youngest lord And for Iudge one lord sitteth who is Constable of England for that day The iudgement once giuen he breaketh his
euidence or too much fauour in the countrey and power of the aduersarie there is in our countrey as well as theirs both stopping and prolongation of Iustice. For what will not busie heades and louers of trouble neuer being satisfied inuent in any countrey to haue their desire which is to vex their neighbours and to liue alwaies in disquiet Men euen permitted of God like flies and lise and other vermine to disquiet them who would imploie themselues vpon better businesse and more necessarie for the common wealth these men are hated and feared of their neighbours loued and aided of them which gaine by proces and waxe fatte by the expence trouble of other But as these men ordinarily spende their owne thrift and make others against their wils to spende theirs so sometime being throughly knowen they do not onely liue by the losse like euill husbandes but beside rebuke shame by the equitie of the Prince and courtes soueraigne they come to be extraordinarily punished both corporally by their purse which thing in my minde is as royall and princely an act and so beneficiall to the commonwealth as in so small a matter a King or a Quéene can doe for the repose and good education of their subiectes Of that which in England is called appeale in other places accusation CHAP. 3. IF any man hath killed my father my sonne my wife my brother or next kinsman I haue choice to cause him to be endicted by giuing information to the enquest of enquirie although he chaunce to escape the Constable or Iustices handes and therefore not to be apprehended and thereupon to procure him to be outlawed or else within a yéere and a day I may enter my appeale that is mine accusation against him If I begun first to pursue him by information or denunciation to enditement I am nowe no partie but the Prince who for his duetie to God and his common wealth and subiects must sée iustice executed against all malefactors offenders against the peace which is called Gods and his doeth in such maner as I haue saide before If I leaue that and will appeale which is profer my accusation against him who hath doone to me this iniurie the defendant hath this aduauntage to put himselfe to the Iurie which is to that which before is saide to haue that issue and triall by God and his countrie whereof the fashion I haue at large declared or to demaund the triall by battle wherein both the parties must eyther themselues in person or else finde other for them who be called in our Law Champions or Campions some doeth interprete them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because they be men chosen fat lustie fit to the feate or as the Frenche doe terme them adroicts aux armes which shall fight it out by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or as now they doe call it duellum or the campe which shall haue all things equall but according as Mars giueth the victorie so the Lawe is iudged the one as peractus reus the other is calumniator to suffer the paine of death So that by the great assise there is no appellation but death or life to the defendant but this is more daungerous and equall for the one or the other must die So it is not in the grande assise for the reus or defendaunt is onely in daunger of death Short it is from day to sunne set the quarell is ended or sooner who hath the better fortune This seemeth very militarie as in maner all our policie of Englande and to haue as small to doe with Lawyers as with Phisitions quicklie to dispatche and for the rest to returne eche man to his buisinesse to serue the common wealth in his vocation The Popes of Rome and men of the Church who of long time haue had dominion in our consciences and would bring things to a more moderation haue much detected this kinde of triall and iudgement as reason is euerie man misliketh that which is not like to his education and colde reasoning by Theologie and Philosophie they I say much mislike many things doone necessarily in whot policie At the least a common wealth militarie must aduenture many things to kéepe it in quiet which cannot séeme to precisely good to them which dispute thereof in the shadowe and in their studies Howsoeuer it be this kinde of triall of long time hath not béene vsed So that at this time we may rather séeke the experience of it out of our histories of time passed than of any viewe or sight thereof of them which are nowe aliue Neverthelesse the Lawe remaineth still and is not abolished and if it shall chaunce the murtherer or mansleer the one we call him that lyeth in waite and as they terme it in Frenche de guet appendaunt killeth the man the other who by casuall falling out and sodaine debate and choller doeth the same which way soeuer it be doone if he that hath slaine the man hath his pardon of the prince as occasion or the fauour of the Prince may so present y ◠he may haue it yet the partie grieued hath these two remedies I say to require iustice by grand assise or battle vpon his appeale priuate reuenge which is not denyed him And if the defendant either by great assise or by battle be conuinced vpon that appeale he shall die notwithstanding the Princes pardon So much fauourable our Princes be and the lawe of our Realme to iustice and to the punishment of blood violently shed Of the Court of Starre Chamber CHAP. 4. THere is yet in Englande an other court of the which that I can vnderstand there is not the like in any other Countrie In the Terme time the Terme time as I haue heretofore shewed I call the time and those daies when the Lawe is exercised in Westminster hall which as I haue said is but at certaine times and termes every wéeke once at the least which is commonly on Fridaies and Wednesdaies and the next day after that the terme doeth ende the Lorde Chauncellor and the Lordes and other of the priuie Counsell so many as will and other Lordes and Barons which be not of the priuie Counsell and be in the towne and the Iudges of England specially the two chiefe Iudges from ix of the clocke till it be xj doe sit in a place which is called the starre chamber either because it is full of windowes or because at the first all the roofe thereof was decked with images of starres gilted There is plaints heard of riots Riot is called in our English terme or speache where any number is assembled with force to doe any thing and it had the beginning because that our being much accustomed either in foreine wars in Fraunce Scotland or Ireland or being ouermuch exercised with ciuill warres within the Realme which is the fault that falleth ordinarily amongest bellicous nations whereby men of warre Captaines and souldiers become plentifull which when they