the Earles to meet and Ordained for a perpetuall usage That twice in the yeere or ostner if need were in time of Peace they should assemble together at London to speake their mindes for the guiding of the people of God how they should keepe themselves from offences should live in quiet and should have right done them by certaine usages and sound judgements By this Estate many Ordinances were made by many Kings King Ed. 1. untill the time of the King that now is the which Ordinance were abused or not used by many nor very currant because they were not put into writing and certainly published One of the Ordinances was That every one should love his Creator with all his soule and according to the points of the Christian Faith And wrong force and every offence was forbidden And it was assented unto that these things following should belong to Kings and to the Right of Crown Soveraigne Jurisdiction The Soveraigne Jurisdiction throughout the whole Land unto the middest of the Sea encompasaing the whole Realme as franchises treasure found in the Land Waife Estray goods of Felons and Fugitives which should remaine out of any ones rights Counties Honours Hundreds Wards Goales Forrests chiefe Cities the chiefe Ports of the Sea great Mannours these Rights the first Kings held and of the residue of the Land they did infeoffe the Earles Barons Knights Serjeants and others to hold of the Kings by the services provided and ordained for the defence of the Realme according to the Articles of the ancient Kings Also Coronors were ordained in every Country and Sheriffes to defend the Country when the Counties were dismissed of their Guards and Bailiffes in the places of Centyners And the Sheriffes and Bayliffes caused the Free-Tenants of their Bayliwicks to meet at the Counties and Hundreds at which Justice was so done that every one so judged his Neighbour by such judgement as a man could not elsewhere receive in the like cases untill such times as the customes of the Realme were put in writing and certainly established And although a Free-man commonly was not to serve without his assent neverthelesse it was assented unto that Free-Tenants should meet together in the Counties Hundreds and the Lord Courts if they were not especially exempted to doesuch Suits and there judged their Neighbours And that Right should be done from 15. daies to 15. daies before the King and his Judges and from month to month in the Counties if the largenesse of the Counties required not a longer time and that every three weekes Right should be administred in other Courts And that every Free-Tenant was bound to doe such suite And every Free-Tenant had ordinary jurisdiction And that from day to day the Right should be hastened of Strangers as in Courts of Pipowders according to the Law-Merchant The Turnes of Sheriffes and views of Free-pledges were Ordained and it was Ordained That none of the age of 14. yeeres or above was to remaine in the Realme above forty daies if they were not first sworne to the King by an Oath of Fealty and received into a Decenery It was Ordained That every Plaintiffe have a remediall Writ to his Sheriffes or to the Lord of the Fee in this forme Questus est nobis C. quod O. c. Et ideo tibi vices nostras in boc parte committentes precipimus quod causam illam audias legitimo fine decidas It was Ordained That every one have a remediall Writ from the Kings Chancery according to his plaint without difficulty and that every one have the Processe from the day of his plaint without the seale of the Judge or of ths Partie It was Ordained That Coroners should receive Appeales of Felony and should give the Judgements of Out-lawries and should make the visnes in the Causes aforesaid And that all the next Townes should present to the Coroners in the Countie the mischances of the bodies of the people and the names of the finders And that every Country should present Felonies Mischances and other Articles presentable in the Eyres for offences that the Kings might send to summon them to appear against the comming of the Kings or of the Justices assigned to hold all Pleas. And for the great dammages which the Commons suffer by Amercements issuing out for Concealements and for fault of these presentments in Eyres it was agreed unto That these presentments in Eyres should be by the Coroners chosen by all the Commons of the County and so the Coroners are as it were the Commons Bayliffes as to these Charges neverthelesse they are the Kings ministers because they take an Oath to him For personall trespasses neverthelesse the Coroners are only punishable without any damage to those who chose them unlesse they have not sufficient wherewith to satisfie for their trespasses The Exchequer was Ordained in manner as followeth and the pecuniary penalties of Earldomes and Baronies certaine and also of all Earldomes and Baronies entire or dismembred and that those Amercements were afferred by the Barons of the Exchequer and that the Estreats of the Amercements be sent into the Exchequer though they were amerced in the Kings Court. It was Ordained That after a plaint of wrong be sued that no other have jurisdiction in the same place before the first plaint be determined and from the 〈◊〉 came this clause in the Writ of Right Et nist foreris vicecones saciat It was Ordained That every one of the age of fourteene yeares and above should be ready to kill mortall offenders in their notorious sinnes or to follow them from Towne to Towne with Hue and Cry and if they could not kill them the offenders to be put in exigent and Out-lawed or banished And that none should be Out-lawed but for a mortall offence and in no other County but where he committed the offence It was Ordained That the Kings Courts should be open to all Plaints by which they had originall Writs without delay as well against the King or the Queene as against any other of the people for every injury but in case of life where the plaint held without Writ It was Ordained That no King of this Realme should change his money nor impaire it nor inhannse it nor make any other money but of Silver without the sssent of the Lords and all the Commons It was Ordained That Felonies should be tryed by Appeales and that Appeales might sometimes be ended by Battaile and that Exigents of the Offenders should continue by three County Courts before the Out-lawrie It was Ordained That all Free-Tenants should be obedient and appeare at the Summons of the Lords of the Fee and if one caused a man to be summoned elsewhere then in the Fees of the Avowants or oftner then from Court to Court that they were not bound to obey such smmmons if not at the charges of the Avowants of the Summons It was Ordained That Knights Fees should come to the eldest Sonne by mecession of Inheritance and
fundamentall Lawes so much of late called upon are to be found though I doe not warrant all in this Booke to be Law at this day many of the Lawes being absolete and altered by Acts of Parliaments and common usages It hath been some difficulty for me to finish it And although that the Manuscript Copy be in the Originall very imperfect the French impression by mil joyning of words in many places without sence and false Printed the Termes of Law therein for the most part obsolete and worne out yet have I endeavoured as all Translators of Bookes especially of Bookes of the Law ought to keep my selfe close to the words and meaning of the Authour and of the Law then in use and practise well knowing that Lawes many times have their interpretation according to the strict Letter and not according to such flourishes of Rhetorique and Oratory as may be put upon them I entreat thee Courteous Reader to accept of it as it is if thou finde any Errours in the Translation as I suppose thou maist doe many to passe them over or amend them If thou finde any thing in the Worke it it selfe which may advance the Common Lawes or the Liberties of the Subject or set forth the true Prerogative of Kings to weigh them in the Balance of Justice If thou finde any thing therein not fit to be published in these daies of distraction betwixt the King and prople Consider that this Worke was written in in the time of King Edward the first Consider againe it is not mine but the Authors who for his Antiquity and Learning in the Lawes of the Realme then in use hath found the favour and honour to be cited by many of the grave Sages of our Publique Laws so I commend it to thy favourable acceptance and bid thee farewell Thy friend who in his desires strives that the Common Laws of the Land may now and for ever flourish W. H. The PREAMBLE VVHen I perceived divers of those who should Governe the Law by Rules of Justice to have a respect to their owne earthly profit and chiefly to please Lords and their friends and to have a respect thereunto and not to give their consents that the right Usages should be ever put in writing whereby power might be taken from them to pervert Judgement and others to banish or dis-inherite without punishment for the same covering their offences by the exceptions of Errour and Ignorance never or little regarding the Soules of Offenders condemned by their Judgments as their duties and places required having used to Judge the people according to their own heads by Abusions and by the Examples of others erring in the Law rather then by the Rules of the Holy Scripture greatly to have erred from the true understanding thereof building without any Foundation and to Judge and have Cognizance and Jurisdiction in that which they little understood both in the Law of the Land and of the Law of the Persons as it is of those who take upon them Art to pronounce false Judgements and by their Executions falsly to pervert the Priviledges of the KING and the ancient Roles of his Treasure Taking the same into my serious consideration and the Foundation and Originall of the Usages of England given by the Law together with the Rewards of good Judges and the punishments of others I thought it needfull wherein my Companions gave me their assistance to study the Old and New Testament and therein we found That the Law is nothing else but Rules delivered by our holy Predecessors in the Holy Scriptures for the saving of Soules from perpetuall Damnation notwithstanding that the same were disused by false Judges And we found that the Holy Scripture remained in the Old and New Testament The Old Testament contained 3. orders The Law The Prophets The Hagiographies In the Law there are five Volumnes Genesis Exodus Leviticus Numbers Deuteronomy In the order of the Prophets are eight Volumnes Josua Judges Samuel with the 1. and 2. of Kings The 1. and 2. of Kings Esay Jeramy Ezekiel The Bookes of the 12. small Prophets In the order of Hagiographie are Job The Psalmes Proverbs of Solomon Ecclesiastes The Song of Solomon Daniel Paralipomenon Esdras Hester And besides these there are Bookes in the old Testament although they are Not authorized Canonicall Tobie Judeth Maccabees Ecclesiasticus The New Testament contain 3 Books The Evangelists The Apostles The holy Fathers The Evangilists contain 4 Volumnes The Epistles of St. Paul The Epistles of the Canon The Revelation The Acts of the Apostles The writings of the Apostles containe foure Volumnes Of the writings of the Fathers there is no certain matter agreed upon And we finde that our Lawes were agreeing to Scriptures and that they were in a Language best known both for the help of us and the common people And for the condemning of false Judges I compiled this little Book of the Law of Persons into 5. Chapters that is to say 1 Of offences against the peace 2 Of Actions 3 Of Exceptions 4 Of Judgements 5 Of Abusions Which Booke I have called The Mirrour of Iustices according as I have found their vertues and the most excellent substance after the time of King Arthur used by holy usages according to the Rules aforesaid and I desire you that you would amend the defects therereof according to such lawfull and true warrants as you prove both to learne the truth and confound the daily abuses of the Law ERRATA FOl 4. l. 18. for Iarrickshire r. Everwickshire f. 5. l. 12. r. after f. 7. l. 5. r. estray f. 10. l. 1â— r thence f 10. l. 20. r. exigent f. 11. l. 22 r. right heirs f. 12. l. 8. r. that married before f. 13. l. 5. ad they ib. l. 6. r. Escuage f. 14. l. 20. r. good f. 14. l. 35. r. disseisins f. 16. l. 27 r. Heresie fi 19. l. 5. r. chinniage f. 25. l. 5. r. offence f. 28. l. 18. r. not f. 30. l. 11. r. duresse f. 34. l. 19. put out to f. 35. l. 6. after appoineed ad time f. 30. l. 1. r. trove f. 47. l. 10. r. unknown f. 49. l. 3. r. done f 63 l. 10. r. endictee f. 65. l. 3. r. Countors f. 66. l. 12. put our as f. 69. l. 24 r. seisin f. 70. l. 5. put out the f. 76. l 9. r. contumacers f. 77. l. 8. put out the f. 93. l. 34. r. disscisin l. 16. r. Darcein presentment l. 15. r. Mortdamicester f. 99. l. r. promy t. An. f. 102. l. 17. r. l. eplegiary facias f. 103. l 18. put out of f 1105. after 100. f. r. five pounds f. 116 l 30. r resummons f. 123. l. 29. ad in f. 126. l. 3 r. felony f. 150. l. 6. ad not f. 152. l. 28 29. r. diffesivit f. 154. l. 8. r. waging f. 155. l 14 ad not f. 156. 33. r. Record f. 163. l. 29. r. enjoyed f. 167. l. 14. r. plaintiffs f. 267. l.
26 put out not f. 168. l. 27 ad be f. 176. l. 23. r. plaint f. 178. l. 14. r. remove f. 181. l. 2â— where the blank is put demeane f. 183. l 16. 18. r. Law f. 190. l. 10. r. pecuniary f. 191 l 3. r. they f. 192. l. 9. r. judgement f. 198. l. 3. r. if f. 201. l. 30. r. contradict f. 208. l. 11. r. by breach f. 209. â— 31. r. or by f. 215. l. 18 ad say f. 217. l. 9. put out done f. 220. l. 4. r. bought f. 226. l 28 r. payment or brasie f. 228. l. 8. r. forcjudged f. 229. l. 8. r. in f. 230 l. 32. r. mortall f. 239. l. 1. r. rarely f. 240. l. 19. r. assist f. 243. l. 17 â—had f. 256. l. 33. r. grantiog f. 274. l. 17. r. servants f. 288. l. 28. r. tent f. 287. l. 27. r. delivered f. 304. l. 17. r. consideraverit f. 308. l. 3. r. villeâ—â—b l. 7. r. scientes f. 312. l. 4. r. consuram f. 324. l. 28. r. quaerens ibid. l. 28. r. netvi f l 318. l. 2. r. confessed f. 320. l. 1. in the blank put the word marke f. 322. l. 23. r. possessor ibib l. 28. to et per. i. of r. quaerens recaperit f. 325. l. 12. r. bosâ—â— ibid. l. 17. r. 〈◊〉 it ibib l. 13. r. villa l. 25. r. prefato f. 324. l. 11. r. conduction 〈◊〉 l. 13. r. impedit ibid. r. plona ly f. 325. l. 16. r. peâ—lapidem 〈◊〉 l. 17 18. r. jurâ— l. 2â— ad per. The Contents of the first Chapter OF the Originall of the Law Of the comming of the English into this Land Of the first Constitutions Of Offences and their division Of the Crime of Majesty Of falsifying Of Treason Of Burning Of Murder Of Larcine Of Burglary Of Rape Of the Office of the Coroner Of the Exchequer Of inferiour Courts Of the Turnes of Sheriffes Of Viewes of Franckpledges CHAP. I. SECT 1. Of the Offences against the Peace Of the Originall of the Law ALmighty God shewed more love to Man then to any other creature when he made him after his own image and gave him understanding considering that he stood continually ready to fall into sinne by three manner of Adversaries and therefore he gave the Law to force and drive sinners to salvation by earthly punishments That for the pure love of God men would abstain from sinne and thereof made Moses their Teacher which place the Pope now holdeth That Law by Ordinance of our holy Predecessors is divided into two Volumes into the Cannon Law which consisteth in the amendment of Spirituall offences First by Admonitions Prayers Reproofs Excommunication Secondly into the written Law which consisteth in the punishing of temporall Offences by Summons Attachments and punishments or penalties Of the Spirituall Law the Prelates judged and say Princes of the other Law The Law whereof this summe is made is the written Law of the ancient usages warranted by the holy Scripture And because it is given to all in generall it is called the Common Law And because there was no other Law but that were generall Councels and Parliaments in use and that diversly in severall places according to the qualities of the people of divers Countries and Boroughs they were according to ancient priviledges changed for the ease of the people of those places All our Usages and Laws are also layed for the keeping and exaltation of the peace of God and therefore it is to be known That the people are not to be adjudged by similitudes and examples not canonized but by the love of Peace of Chastity of Temperance of Charity of Mercy and of good Works CHAP. 1. SECT 2. Of the coming of the English into this Realme AFter that God brought down low the Nobility of the Brittons who used more force then right he delivered the Realm to the most humble and simple of all the countries adjoyning that is to say to the Saxons who from the parts of Almaine became Conquerours thereof of which Nation there were forty Soveraigns who were Companions These Princes called this Land England which before was called Great Brittainie or Britania Major These Princes after great warrs tribulations and troubles suffered for a long time chose themselves one King to Raign over them to governe God people and to maintaine and defend their Persons and their goods in peace by Rules of Law And at the beginning they made the King to sweare That he should maintaine the Christian Faith with all his power and governe his people by Law without having regard to the Person of any one and that he should be obedient to suffer Right as well as his other people should be And afterward this Realme was divided in Inheritances according to the number of those Companions who then remained in the Realme into parts by Shieres and every one had a Shiere delivered unto him to keepe and defend against the enemies according to every ones estate That is to say Barkeshire Bedfordshire Buckinghamshire Cornwall Chestershire Cumberland Dorset Devonshire Darbyshire Essex Barrickshire Yorkshire Norfolk Notâ—inghamshire Northumberland Northamptonshire Oxfordshire Rutlandshire Suffolk Gloucestershire Cambridgeshire Hertfordshire Herefordshire Huntingtonshire Kent London Leicestershire Lancashire Lincolnshire Middlesex Surrey Southampton Somersetshire Shropshire Staffordshire Wiltshire Westmerland Worcestershire And although that the King ought not to have any Peere in the Land neverthelesse because that the King of his owne wrong if he offend against any of his people not none of his Commissaries can be Judge and Party It was behovefull by the Law that he should have Companions to heare and determine of all Writs and Plaints of all wrongs as well of the King as of the Queene and her Children and of those especiall where one could not have otherwise Common Right These Companions are now called Countees Earles according to the Latine Comites and so at this day are those Shires called Counties in Latine Comitatus and that which is without these Counties belongeth to the English by conquest Afer that time these Companions after the division of the Realme into Shires divided their people which they found scattering about into Centuties and to every Century they appointed a Centeyner and according to the number of the Centuries spake every Shire and to every Centeyner they assigned his part by Metes and Bounds to keep and defend the same with his Century so that they were ready to run to their Armes at all times when the enemies came or other needfull occasion was And these divisions in some places are called Hundreds according to the number of the first people and in some places Tythings or Wapentakes according to the English which is in French taking of Armes These divisions they made whereby the Peace which consisted in charity and true love was kept and maintained CHAP. 1. SECT 3. Of the first Constitutions made by the ancient Kings Of King Alfred FOr the Estate of the Realme King Alfred caused
the which the Witch caused Samuel to rise who warned Saul of his death Another kind is Piromancy which is done by fire Another is Areomancy which used to be done by signes in the Ayre Another is Hydromancy which is done by signes in the water Another is Geomancy which is done by signes in the land Another is Negromancy which is done by death by making the dead to speake Another is South-saying which was done by signes in the entrailes and bowels of Birds On the other part some Diviners used to put trust in Lots some in Songs some in Verses of Psalmes some in carrying Gospel and Charmes about their necks some in Enchantments and Spels some in signes in the entrailes of beasts and in the palmes of the hands Some were called Mathematitions and Magij and Divined by the Startes Others were called Arioles who tooke their answers from the Divell by evill men Others South-sayers who numbred nights and daies and houres whereby they ordered their businesse There were many other kinds all which manner of Divinersate to be by the Word of God himself and authority of the Church to be excommunicated and sobidden as much as Mahometry and things against the true Faith And this S. Augustine proves by many Reasons hence it is that they who travell to Witches or Diviners to know things to give that to the creatures which belongeth to God alone Wherefore these wicked doers are to be removed from the society of Gods holy people so that no good Christian be taken with their Art nor partner in their sins CHAP. 1. SECT 5. THe Crime of Majesty or offence against the King is neighbour to many other offences For all those who commit Perjury whereby every one lyeth against the King falleth into this offence As the Kings Ministers who are sworn to doe Justice and forswear themselves in any thing so those who disseise the King of any of his Franchises or of any manner of Right which belongeth to the Crowne by Occupations or Purpestures or in any other manner although it be no mortall offence Into Perjury fall all those Subjects of the King who appropriate to themselves Jurisdictions over the King and of themselves make Judges Sheriffes Coronours and other Officers to have Counsance of Law Into Perjury against the King fall all the Kings Subjects who appropriate to themselves Jurisdictions of Counties Honours Socknes Retorna brevium or any thing which may fall to his Inheritance as Wards Escheates Reliefs Suits Services or Marriages Faires Markers Enfang thef Out Fangthef Waife Estray Treasure found in the ground Warren in their owne lands or in the lands of others Tole Pavage Pontage Chinueage Murage Carriage or other the like Customes Into Perjury against the King fall those the Kings Subjects who take Abjurations of Felons and Fugitives and are no Coroner nor warranted by the King so to doe and those who put out any Indicted or Appealed of any Crime out of the Roll of the Coronour and those Coronours who oftner then once receive Appeale of Aprovers or procure that a man who is innocent be appealed by an Approver And those who have detained Appeales of Approvers of forraign Acts or whereby any forraigner is Appealed And those Coronours who wittingly suffer the goods and chattels of Fugitives to be lesse valued then they ought to be of right Or conceale them in part or in all or detaine them to their owne uses to the damage of the King or deliver them elsewhere then to the Townes or for lucre have taken more then they should in damage of the Townes Or suffered their Servants to have the garments or other things which are to be seized for the Kings use or the garments of the dead or delay to doe their office through covetousnesse Into Perjury against the King fall those Officers who pardon Fines and Amercements which belong to the King or any manner of penalty either corporall or pecuniary without speciall warrant And those Officers who by Summons and Ad. journments make the people to travaile in vaine as to Goale deliveries Assizes Enquests or otherwise and all those Subjects who beare Armes against the King or run away from his lawfull Army or Battaile And those Ministers who unlawfully stop or counsell the people that they goe not into War with the King or that they are not bound to goe where they have reasonable summons and that the people be not made Knights but according to the Statutes of the Realme Into Perjury against the King fall all those the Kings Subjects who hold Plea of Withernam and have not returne of Writs or hold Pleas of Distresses or of any other thing which belongeth to the Kings Jurisdiction only without the Kings speciall Commission or hold Plea in case of life of imprisonment of blood-shed of false Judgements or of any thing disavowable of right without the Kings Writ or Commission And all those the Kings Ministers who maintaine false Actions false Appeales or false defences Into Perjury against the King fall those Ministers who deny to Plaintiffes originall Writs possessory Attaints or of Formedon or otherwise doe delay their Rights and those who wrongfully doe delay or disturbe right Judgements and those who wrongfully favour wrongfull Judgements and all those who use their Priviledges or Liberties wrongfully or too largely contrary to their knowledge Into Perjury against the King fall those Ministers who receive Fines to other uses then to the Kings use for Treasure trove for Wrerk Waife Estray Alliens for blood-shed or impriâ—onment Withernam Reddissesin or Dissesin or forsweare themselves to resist that a lawfull Judgement have not execution for Usury perpresture upon the King or for any other thing whereof the Counsance doth belong to the King And those Receivers who pay not the Kings debts as they ought to doe and are enjoyned or render to him part for satisfaction of the whole and doe not pay the King the rest Into Perjury against the King fall those who Charge the King wrongfully And those who spend the Kings Quarries Timber or other things otherwise then in the Kings Service without sufficient warrant Into Perjury against the King fall Escheators who make wast of the Kings Wards or in his Fees or unlawfully take Venison Fish or other goods and by their authority seise the goods of the dead and for gaine release them or endow Widowes to the Kings losse or make hurtfull extents for the King acompting for lesse then the very value to the King Ot willingly suffer possessions to remaine in Mortmaine which ought to be seized into the Kings hands and whereof the King ought to have the profit or which receive more of their Bailiwickes then they answer to the King ot who wittingly suffer Feoffements of Lands or of Advowsons of Churches prejudiciall to the King or who suffer them to alien Wards or Marriages to the Kings prejudice or suffer the ages of infants to be proved in damage or to the
of wrong then lawfull exception seing nullum tempus occurrit Regi in his Franchises but therein the King is like to an Enfant who can loose nothing Although that for the personall trespas for the using of them it behoveth every one to Excuse the wrong done to the King or to any other And that may be done two wayes because his Ancester whose heire he is died seised theref And so that he hath enjoyned the same by title of succession as a thing annexed to his Land Or because hee of whom he purchased the Land to which the Franchise belongeth was seised as if hee were the possessor thereof But this exception is counter-pleadable by this Replication Sir This Anowant cannot recover 〈◊〉 excuse himselfe For although that such a one his Ancestours was seised thereof yet neverthelesse he could not grant away this Franchise for the Kings never granted them so that the Grantees could assigne them over or make assignes of them CHAP. III. SECX 27. Of Purprestures TO Purprestures if the Defendant may excuse his wrong he need not to answer thereunto without a Writ no more then to the Action of Franchises Not of his own wrong of Land or Fees or of the appurtenances against any other then against the King nor for the King but in his presence And if the wrong bee not originally the Plaintiffes he may vouch to warranty CHAP. III. SECT 28. Of Treasure TO the Alienation of Treasure found he may justifie it if hee bee priviledged or authorized so to doe Or he may say that he himselfe put it there or such other who he remembreth whereby no action accrued to the King CHAP. III. SECT 29. Of Wrecks TO the Action of Wrecks he may Plead That the King hath no Action for the same because the yeere is not yet past and in the same manner is it of Estrayes and of all other things found Or because that he knoweth to whom the goods belong who is alive Or because the goods were taken farre in the sea and were not cast upon the land by the waves of the sea CHAP. III. SECT 30. Of Vsery TO Usery hee may Plead and sweare that hee lent his Corne in Winter to receive the same in September according to the price as Corne should bee sould which was dearer at that time Or hee may sweare he lent his monyes to receive better money for the same for a yeare and that the same is no Usery CHAP. III. SECT 31. Of Hunting TO an Action of Hunting Chasing or Fishing he may Plead That he hath done no wrong for it is his right to Hunt there for to Chase or it is his common Piseary belonging to his Mannour of such a place c. CHAP. III. SECT 32. Of Obligation AS to Obligations or Covenants he may Plead That notwithstanding that Obligation be his Deed neverthelesse it ought not to binde him because it is vicious or by false supposition or because the Defendant never saw any money or other thing to the value or it is by mixture of offence or ill faith as it is said of vicious Contracts Or he may Pleada Release or quit-claime or that it was contracted that he might do waste or that he hath done nothing to be adjudged waste or because he hath taken nothing but reasonable estâ—vers for house-boote or â—â—yboote or he may claime Fee in the Tenement by any lawfull Title CHAP. III. SECT 33. Of Attaint IF any of the Parties say That the Jurours have made a false oath or any Jurry an Action of Attaint lyeth which is to be tried by 24 Jurours so that every false witnesse be Attainted by two Juries In which case it behoveth the Plaintiffe to have the first Verdict present under the Kings Seale or of the party or of the Judge and the parties to the Plea and that he declare in what point they have made a false oath Or the Tenant may plead That the Plaintiffe ought not to be answered to this attaint because the first Judgement had not its full effect or because that the principall in all or in part or in right of satisfaction of the damages remaineth yet to be barred Other Exceptions there are as to the challenge of the persons of the Jurours as appeareth in the Chapter following CHAP. III. SECT 34. The Ordinance of Attaint BEcause it belongeth to the Plaint to prove his action to the affirmour to prove his affirmation and not to the denyer his negation that two credible witnesses according to the Word of God are sufficient for witnesse The usage is That the affirmative party in aide of the Court cause the neerest credible neighbours to appeare in witnes so that there bee 12 men at the least of the Jury of ancient time ordained to be of the Assize of which if two men are by false verdict of them and of the other Jurours or if by good examination if al the Jurours be not of one assent found convenable it sufficeth And if not or if all the Jurours say generally that they know nothing or doubt of the matter Or if they say not expresly against the Defendant or if they speake for the Defendant in such cases it is to be adjudged against the Plaintiffe that hee proveth not sufficiently his saying And although the Defendant would make other defence he shall not bee suffered so to doe Against Jurours hold challenges as against witnesses in this manner Sir this man is not a convenable Jurour because he is one of those who Endicted me of a mortall crime so as hee did as much as in him lay to destroy me and so he is my mortall enemy Or for other cause of enmity Or because that he is Excommunicate or Endicted or Appealled of a mortall Felony or because he is not of the Kings Allegiance or because hee was at another time Attainted of afalse oath or suffered such corporall punishment for his offences or otherwise is infamous Or because he is friend cosen or allie or of kindred to the other party or because he is a villaine or otherwise in custody or because he is the servant or Proctour or Tenant of the adverse party Or because shee is a woman or because he was Out-lawed or because he was forjured the Realme or because he procured himselfe to one of the Jury or because he is within age or because he is a lunatique or a mad-man and many other exceptions of challengers there are of which if any be denied the challenge is to be tryed by the Jurours and according to the tryall the Jurour shall be admitted or refused And if no Jury once appeare for want of Jurours he may have another CHAP. III. SECT 35. Of Oathes OAthes differ many wayes The chiese Oath is that of Fealty which is incident to every Homage issuing out of Land And sometimes there is the oath of Fealty of resients and dwellers in other Mannours and sometimes remaining in others service The oath of Allegiance
after default untill due satisfaction was made so as the defaults were more hurtfull to persons in contempt then profitable Some Actions are personalls and not mixt in the introduction as of Neistie of Acccompt of leading away distresses and some actions there are that although they savour of the personalty and realty yet they hold not the rules of those actions As of Recognitions of Assizes in which if the Tenants make defaults for that there is no distresse nor seisure of the Land or other thing in the Kings hands but the Recognitions are to be taken ex officio and the Judgements are to be pronounced according to the Verdict of the Jurours in respect of such defaults CHAP. IIII. SECT 6. Of Personall Action IN personall Actions venialls where the Defendants are not Freeholders the defendants used to be punished after this manner First Processe was to bee awarded to arrest their bodies and those who were not found were put in exigent in what Court so ever the Plea was and were at three Courts solemnly demanded and proclaimed and if they appeared not at the fourth Court then were they banished the Lords jurisdiction or the Bayliffes of the Court for a time or for ever according to the quantity of the Trelpasses CHAP. IIII. SECT 7. Defaults in reall Actions THe defaults in reall Actions are punishable in this manner At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court and the Tenants are sommonable to heare their Iudgments of defaults Or after appearance the seisure is to be adjudged to the Plaintifes to hould in the name of a distresse untill by lawfull judgment hee be ousted thereof And if any one appeare in Court first he is to plenise the thing in demand and presently to answer the default In which case hee may deny the Summons because hee was never Summoned or not reasonably Summoned and thereof he may wage his Lawyer against the Testimoney of the Summoners although they be present and if he wage his Lawyer he is presently to plead to the Action or to the plaintife CHAP. IIII. SECT 8. Of Actions Miâ—t THe defaults of mixt actions are punishable in this manner The defendants are distrainable by all their moveable Goods and Lands saving that they are not put out of that possession from Court to Court till they apeare and Answere and the issues come to the profits of the Lords of the Courts CHAP. IIII. SECT 9. Of Pledge and Mainpernor PLedges and Mainpernors are of one signification notwithstanding that they differ in names But Pledges are these who baile other things then the Body of Men as in Reall Actions and Mixt Mainpernors are in personall Actions only those wâ—â— bayle the Body of a Man safe Pledges are those who are sufficient to answere the demand or the value and are true men and Freeholders to whom the Plaintife is and in whose Court the Plea is brought and if any one bring the Body or his Fees by default he is sufficient punished though hee bee not amerced but then the Offendor is first amerceable when he is brought to judgement and cannot excuse his wrong or save his default And as none who commeth before Summons is amecreable so no Plaintife is amerceable or his pledges de prosequendo for Nonsuit where the Tenant appeareth according to the warrant of the Summons or other wise maketh satisfaction for the same As in Case where the King Commands the Sheriffe that hee command such a one to appeare or to doe and if he do not and the Plaintifes put in sureties to prosecute his suit then that he summon or attach the defendant c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant if he take surety of the Plaintife to prosecute hee doth him wrong But the Plaintifes and their pledges are to bee amerced when the defendants offer themselves in judgment against them and they make defaults by Nonsuit And also those Sheriffs do wrong who forbeare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties CHAP. IIII. SECT 10. Defaults after summons AS there is a default of persons in the like manner there are of things As of services issuing out of Lands where the Lands are in service and wherenot If Rent Suit or other service bee behinde to the Lord of the Fee The Tenant is not distraineable for the same by his moveable goods but it behoveth to sommon the Tenants to save their defaults or to make satisfaction or to answere wherefore those services due out of their possessions are behinde to the Lords and if they appeare not at the Sommon by the a ward of the suitors their Lands are to be seised into the Lords hands til they justify themselves by pledges And if they be againe summoned to heare the Iudgments for their defaults Although they come not at the second Summon they are not to bee amerced in as much as they came they may render the Land or alledge a priviledge or say something why they ought not to obey the Summons And if the Lord have not a proper Court nor suitors or hath not power to do Iustice to his Tenants in manner as aforesaid Then the same may bee done in the County or Hundred or elce in the Kings Courts Or at first by a Writ of Customes and Services and other Remediall Writts And if any one hath not any thing to acquit himself the Lord is not to loose his Right although hee be delayed thereof but the Lord may seize his Land as before is said and the Tenant is to recover his damages where he can and it shall be accounted his follie to enter or remaine in another Fee without the consent of the Lord. And if any one oust him of his Land and of his Tenement enforceth another person to hould of him and maketh himselfe mesne betwixt the Lord and the Tenant in prejudice of the Lord in such a case the law is used to hould the course after said CAP. IIII. SECT 11. Of champion IF any one do or say to his Lord of whom he houldeth any thing which turneth to the hurt of his body or to his dissinherison or to his great dishonour First by the Award of his Court or of some other such a one is sommonable if he be his Tenant and afterwards if he make default he is destrainable by his Land by the Lord till he appeare and if hee appeare and cannot discharge himselfe by his wager of Law by 12. men more or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment of the Suitors and so it behoveth that the Tenants leave their Lands and
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
Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
who are not forbidden by the Law Infected Persons Iâ—iots Infants within age cannot accuse or be Plaintiffes without their Guardians nor Criminall Persons nor an Out-lawed exiled or banished Person nor a woman wayve nor a villaine without his Lord nor a Feme Covert without her Husband nor religious Persons without their Soveraignes nor Persons Excommunicate nor deafe nor dumbe Persons without their Guardians nor the Iudges of the Cases whereof they are Iudges nor any one who is nor of the Kings Allegiance so as he hath been more then forty daies within the Realme except Approvers who are suffered to accuse criminally people of his own condition in favour of the peace How lawfull men ought to complaine They ought in friendly manner to shew their offenders that is to say their Trespassours that they reconcile or amend themselves towards them and if they will not doe so and the Cause be Criminall then yee are to distinguish for if any one seeke revenge then it behoveth him to bring his Action by Appeale of Felony and if he seeketh only repaâ—ation of damages then he behoveth to bring his Action by Writ which is to containe the name of the King and of the Parties and the name of the Judge and of the County and the Plaint in the demand if the damages or the demand exceed forty shillings and if not then a Plaint sufficeth without a Writ And because all Suites of the Plaintiffes could not be determined upon the first preferring of the Suits nor the Suiters or Plaintiffes presently releeved in their Suits Therefore Kings used to goe from County to County every seaven yeeres to enquire of Offences and Trespasses and of wrongs done to themselves and to the Crowne and to the Common people and of all wrongs errours and negligences of their Officers and of all false Judgements of paines pardoned or wrongfully Iudged or outragâ—ously of Out-lawes returned and of their Receivers of the valewes of Counties out of Hundreds Towneâ— Manners and of moveable goods which belong to the King and to the Crowne of the Lands of Idiets of alienators of Fees of offences against the Kings Inhibition of Priviledges and Franchises prejudiciall to the Kings of Bridges and High-waâ—eâ— and of all other needfull Articles and they used to doe right to all Persons by themselves or by their Chiefe Justices and now Kings doe the same by the Iustices Commisfaries in Eyre assigned to hold all Pleas. Infante of such Eyres are Sheriff Turnes needfull and viewes of Franck-pledges and when the people by such Enquests were indicted of any mortall offence the King used to Condemnethem without Answers which usage still remaineth in Almaine but of pitty and mercy and because that man by reason of his frailty cannot keepe himselfe from sinne if he abstaine not from it by the Grace of God it was accorded that no Appelee or Indicter should be condemned without answer And Kings had no Jurisdiction but of mortall offences and of the rights of the Crowne and of their owne rights and of the wrongs of their Ministers and of wrongs done against Common Law and Common Ordinances and the Articles of Eyres CHAP. 2. SECT 4. Of Rewards and Fees KIngs used to give Rewards to the cheife of the Stock and to all those who faithfully served them and from the Rewards of Kings others tooke example to reward their servants and because no Free-man was bouden to serve against his will by reason whereof none were bound to serve the King or any other but by the service of his Fee or by reason of his Residence or dwelling in another Fee some are bound to serve the King for a certainty by the yeare And it is not lawfull for those Officers who take wages certaine of the King to take any wages of the people But the Iudges who serve the King it is lawfull for them to take twelve pence of the Plaintiffe after the hearing of the Cause and no more although there be two Iudges or two Plaintiffes in one Action and the Pleader six pence and a Knight sworne a witnesse foure pence and every Iurour foure pence and the two Sumners foure pence Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto That Iurours sworne upon Enquests of Office as in Assizes Recognisances of Assizes Redissessins â—ertisicates of Assize and Attaints and other the like should not take Fees because they did the same Ex officio and to answer these monies and the damages are the Defendants chargeable if Iudgement be given against them And to those who followed any Suit for the Kings profit and were not any of his Ministers â—ing Henry the â— gave to them the twentieth part of the profit with their reasonable â—oâ—â— In like manner the Iudge was not to heare the Plaintiffes Cause if he put not in security to answer his Adversaries damages if he complaine of him wrongfully CHAP. II. SECT 5. Of Countorr or Plaaders THere are many who know not how to defend their Causes in Iudgement and there are many who doe and therefore Pleaders are necessary so that that which the Plaintiffes or Actors cannot or know not how to do by themselves they may doe by their Serjeants Atturnies or friends Countors are Serjeants skilfull in the Lawes of the Realme who serve the common people to declare and defend Actions in Iudgement for those who have need of them for their fees Every Pleader of others Causes ought to have a regard to foure things 1. That there be a person receiveable in Iudgement that he be no Heretique Excommunicate Person nor Criminall nor a man of Religion nor a woman nor within the Orders of a Subdeacon nor a Benificed Clerke who hath cure of Soules nor under the age of 21. yeares nor Iudge in the same Cause nor attainted of falsity in his place 2 Another thing is That every Countor is chargeable by Oath that he shall doe no wrong not falsity contrary to his knowledge but shall plead for his Cliant the best he can according to his understanding 3 The third thing is that he put no false Dilatories into Court not false Witnesses not move or offer any false corruptions deceits leasings or false lyes not consent to any such but truly maintaine his Clyents cause so that it faile not by any negligence or default in him not by any threatning hurt or villany disturbe the Judge Plaintiffe Serjeant or any other in Court whereby he hinder the right or the hearing of the Cause 4 The fourth thing is as his Sallery concerning which four things are to be regarded 1. The greatnesse of the Cause 2. The paines of the Serjeant 3. His worth as his Learning eloquence and gists 4 The usage of the Court. A Pleader is suspendable when he is attainted to have received sees of two Adversaries in one Cause and if he say oâ— doe any thing in dispite or contempt of the Court and if he fall under any of the
him who is in ward Of goods which are in common no severall Action lyeth and therefore of goods which belongs to men of Religion the Action belongeth to the Soveraigne of the house in his name for him and his Covent or in his owne name and the name of him who is in his custody if the Action be an Action personall veniall And there is a difference betwixt Actions which are to cause death and pardonable Actions for as much as to mortall Actions the Suit is to be brought first against the Principalls and afterwards against the Accessories and in Veniall Actions of personall Trespasses all ought to be comprehended in the Plaint in common the Principalls the Commanders the Conspirators and the Accessories for as much as a man shall not recover severall damages by severall plaints thereof neverthelesse none of the Accessories is to plead to the Action before the Principall hath pleaded or be condemned for his Contempt Personall Trespasses used to be heard and determined in inferiour Courts of Lords of Fees and then the offenders were Attachable by their bodies and they used to keepe them and bring them to Judgement if they were not bayled without offending the Law The remediall Writ of Trespasse requireth bayâ—e to them which whosoever could not finde was to remaine in Custody without his Keeper because they were bound to acquit their Pledgers And if any neverthelesse become Pledges of their owne will in such cases they are to be taken but if they are thereby endamaged by Non-suit of the party they had no recovery against the principall Surety a pursuing may be in divers manners sometimes by Pledges as it is of those who can finde them sometimes by trusting them as it is in case of Forraigners and poore who have not ability to finde Pledges and sometimes by the bodies of the Plaintiffes as it is of Appealees who have no other Suâ—eâ—ies but the foure walls of the Prison And for the durenesse which is used to be done to the bodies of offenders in personall offences or veniall King Henry the 1. Ordained That they should arrest them first by their bodies untill they justifie themselves by Bayle and if they be not found and if they doe not discharge their Bayle they are then to be distreyned by their Land to the value of the demand and if they then make default their Lands are to be delivered over to the Plaintiffes untill they have made satisfaction by a reasonable Extent if before they have not acquitted themselves by Law Of Pledges note that those are Pledges for pursuing who the Plaints affirme and those are Pledges who reprieve any other thing besides the body of a man for they are not properly Pledges but Maine-prisors because they suppose that those plevifables are delivered to them by Bayle for the body The ordinary Declaration of Veniall Plaints begins in this forme I shew unto you who am here that E. who is there wrongfully delayed his Action by a false essoigne which he cast such a day in such a place c. to the great damage of the Plaintiffe And of Trespasses done against the Kings Peace it is easie to shew and of Trespasses done against Lords or Bayliffes and in hatted of false Plaints King Henry the Ordained that audience were forbidden to Plaintiffes in veniall Actions and that none was bounden to answer such Actions if they had not present proofe of a lawfull Suit And there is such a difference between a Criminall Action in pleading and a Veniall that if a Serjeant put these words scil feloniously as a Felon c. in Declaration of Veniall Actions the Declaration are vicious and abateable because that no Judge hath power by a Veniall Plaint to determine felony and in the same manner is the Count vicious and abateable where the Count is upon the right of property and upon the plea of Possession Et è contra and there are some Actions wherein no Declaration or Count as in Disseisin Redisseisin Certifications of Assize false Judgements and Attaints CHAP. II. SECT 25. Of Assize of Novell Disseisin and Reddisseisin AMongst other personall Trespasses it is not to be forgotten to make mention of Dissesin of which it is needfull first to see to the Title why it is called Assize of Novell Dissesin An Assize in one Case is nothing else but a Cession of the Justice in another case it is an Ordinance of Certainty where nothing could be more or lesse then right for the great evills which is used to be procured in witnessing and the great delaies which were in the Examinations Exceptions and Attestations Randolphus De Glanvile Ordained this certaine Assize that Recognitions should be sworne by 12. Jurours of the next Neighbours and so this establishment was called Assize In the third case Assize is taken properly for an Action in foure manner of Pleas Possessories Scil. Novel Dissesins Moâ—ldamcester Darreis Presentment Juris utrum But such Assize are called Petit Assizes to make a difference from Grand Assizes for the Law concerning Fees is grounded upon two right of Possession and property And as the Grand Assize serveth to the right of property so the Petit Assize serveth to the right of Possession and because such Petzi Assizes are to be taken of the Counties where the Fees are by the Statute of King Edward called such Actions Assizes either for the generall Cession of the Justices and of others or from the propernames of such Actions It is called Novell to put a difference from those which are ancient for anciently Kings used to goe over the Shires to enquire heare and determine offences and to redresse the wrongs there and that which was not brought in such Eyres of personall Trespasses before remained to the Judgement of God alone and afterwards by reason of the multitude of offences and that Kings could not doe all by themselves therefore they sent their Commissaries who now are called Justices in Eyre who have not power to decree and determine a personall offence but for a thing brought and not determined in the last Eyre Then for as much as the Disseisin or the personall Action was brought before the Eyre the Action or Disseisin was ancient but if the Disseisin be done since the last Eyre then it is a Novell Disseisin Disseisin is a personall Trespasse of a wrongfull putting one out of possession it is said wrongfull to put a difference from rightfull which is no offence as if I take from my Wife or my Villain or from another who is my Ward that which is my owne or if you take from me that which is mine I take it from you againe I doe not offend for I am warranted so to doe by the Law of Nature seeing this usage is common to Men Beasts Fishes Fowles and other earthly Creature but I cannot doe so afterward for if I take from you forcibly any thing whereof you have had the peaceable possession I doe disseise you and I doe
wrong to the King when I disseise him of his right or use force where I ought to use Judgement On the other side that which is taken from me by the rightfull Judgement of any Judge Ordinary or Arbitraty is not taken wrongfully from me Wrong is here taken as well for deforcement or disturbance as for ejection Deforcement as if another entereth into anothers Tenement when the rightfull owner is at the Market or else where and at his returne cannot enter therein but is kept out and hindred so to doe Disturbance is as if one disturbe me wrongfully to use my seisin which I have peaceably had and the same may be done three waies 1 As when one driveth away a distresse so that I cannot distreyne in the Tenement lyable to my distresse whereof I have had seisin before 2 Another is where one doth Repleive his distresse by the Sheriffe or the Hundred wrongfully 3 As if one distreyne me so outragiously that I cannot manure Plow or the my Land duely in which Case it maketh one an outragious distreyner to disseise or for to eject the Tenant as if any one eject me out of my Tenement whereof I have had peaceable possession by discent of Inheritance or other lawfull title to the possession Note that all right is in two kinds either in right of possession or in right of property and therefore the right of property is not so determinable by this Assize as is the knowne possession or as that which altogether favoureth of a possessory right The remedy of Disseisins hold not of moveable goods nor of any thing which falleth not into Inheritance as Land Tenement Rent Advowson of a Church and a house of Religion Franchises and the Appurtenances and such other rights whether they are holden perpetually in Fee or for terme of life or yeares according to the Contract as well as the Land morgaged to such a one and his Heires untill so much be paid to such a Tenant or his Heires Eiection of a terme of yeares falleth into the Assize which sometimes commeth by Lease or Baylement or Loane and sometimes by right of Wardship by the Nonage of some Heire and to the recoverer it belongeth to hold them according to the Contracts Villinage in some Case falleth into this Assize as to Free-tenants who are ejected or disturbed to continue their seisin of lawfull Presentments and whereof a Bargaine is made betwixt any Doner and any Purchaser although that the Purchaser cannot present living the Clerke of the Doner instituted into the Church the Title neverthelesse of Contracts barreth not altogether the Donee so that afterwards he cannot present against the forme of the Contract and if he doe the Doner falleth into this Assize and the Bishop who gave the Institution to him who is not presented by him to whom the right of presentation doth belong in his owne name Into this Assize also fall Donors and Purchasers who make vicious Contracts of Lands and Possessions as also it is of Guardians and of Farmers who Lease their Lands for a longer time then their terme endureth in prejudice of the Lord of the Fee or of him to whom the Reversion belongeth as it is of those Lessors who have Fee rayle On the other side fall into offence those the Kings Officers and others who disseise a man or a Corporation of their Franchises whereof they have the Inheritance by lawfull Title if not through the default abuse or negligence of those or of their Bayliffes to whom the Franchises belong Into this offence also fall all Atturnies who yeeld up the Inheritance or Freehold of their Clyents in Judgement and the Justices also who yeeld to them and the Tenants also for it behoveth not Atturnies to lose their Clyents rights but it behoveth them to defend them till a rightfull Judgement be given Into this offence fall all those who commit any wast exile or destruction in Lands as that which is not justifiable by Law as those who assigne over Lands to others where in the Feoffments to themselves or their Ancestors there is mentioned but of Heires only and that may be two waies viz. to Heires generall or to speciall Heires named as in Fee tayle or not named as in Franck-marriages This Action all Persons may bring Men Women Clerkes and Laymen Infants and others of what condition soever they be who are not forbidden by the Law It is forbidden to Villaines to bring this Action without their Lord for as much as they are in the Custody of their Lords In the same manner to Feme Coverts and to others who are in Ward and to those who were never Tenants in their owne names but in the name of the Lord The Law also denyeth the Suit to those who have withdrawne themselves from the same action in Judgement or have released or quit-claimed their right And note that Retrahere sub-trahere is not all one Retrahere doth acquit a man from those things which are in his Writ or in his Action but neither the one not the other can utterly barre him if he doe not openly declare the same but subtrahere withdraw his Action every Plaintiffe may doe either by himselfe or his Atturney whether he be present in Court or absent and although it be that one will not pursue his Action yet he doth not so barre himselfe nor withdraw himselfe but that he may have a new Writ and a new Plaint if he doe not openly in Judgement say that he withdraweth his Action these remedies hold against a Disseisor and where there are many against all those who appeare in the force or in the aide CHAP. II. SECT 26. Of Distresses ANy Action rightfully grounded upon a Personall Trespasse accrueth to people wrongfully distreyned which is called a Distresse and because that none can cover his Robbery or his Latcine by Distresse it is 1 to be knowne what is the division of Distresses 2 Who may distreyne 3 When and of what things a Repleive lyeth A Repleive is nothing else but a reasonable distresse A reasonable distresse is to the value of the thing in demand without any other fault for no outragious distresse is termed lawfull There are two manner of Distresses a dead distresse as of Corne Wine and other such Chattels and a live distresse as of a Man a Beast and of such like things No man can distreyne who is not warranted so to doe by Law or by some other speciall deed 1 By the Law as for Damage feasance and for Debts and Contracts of Forraigners for Forraigners are distreynable by their moveable goods and summonable because they are not free Tenants in the places where they are destreyned and for as well a Debt recovered as any other and so for Amercements of damages and Arrerages of Accompt or other thing 2 By Deed as if you grant me any Annuity and doe grant me to distreyne in the Lands for the Arrerages of the same or other service and binde
grace Some became Free by the Pope as it is of those villains who by Bishops are ordained into Orders of Deacon and above but norwithstanding the same a man shall not lose his right thereby who will sue for them On the other part villains become Freemen if their Lords grant or give unto them any free estate of Inheritance to discend to their Heires or if the Lord take their Homage for their land or if the Lord eject them out of their Fees and give them sustinance or if he put them in a common Prison if it be not for crime A woman after she is put in possession by her Lord is never againe to be challenged as a Neife notwithstanding she be sold And if the Lord suffer his Villaine to Answer in Judgement without him in a personall Action or to be a Jurour amongst Free-men as a Free-man knowingly and without the Lords claime the Villaine hath this Plea to the Villinage if he returne not of his owne accord Also a Villaine becomes free through the Lords default in a Writ of Native Habendo as by his Non-suit in the Writ Also by proofe of a free Stocke or to have been borne of free Parents Also by the Lords grant in Court and also by prescription also for default of proofe and also by the Lords negligence as by the remaining of the Villaine within a City or upon the Kings Demesnes for a whole yeare Or if wittingly he suffer his Villaine to be a Suiter in another Court or to be sworne in Assize or elsewhere amongst Free-men if a Villaine depart from his Lord claiming free estate so that he cannot seise him within the Mannour within the yeare or out of his Fee nor after his Writ of Nativo Habend brought it belongeth to the Lord that he bring againe that Action which is ViceCountiel and pleadable in the County by Summons and Distresses of his Lands for the Law requireth that he doe right and use not force The Parties being brought to Judgement in the County Court and the Action being declared in the Defendant by way of exception may plead that he is Franck and because that a free estate is of a higher nature then Villinage therefore because the Sheriffe hath not power to try so high a Plea by the Writ of Nativo Hebendo those Writs and such Pleas are suspendable till the comming of the Justices in Eyre into those parts but if the King Command not to the contrary those Pleas are not adjournable but from one County Court to another Note that all Villaines are not slaves for slaves are said Regardant as before they can purchase nothing but to the Lords use they know not in the Evening what serâ—ice they shall doe in the Morning nor any certainty of their services the Lords may fetter imprison beat or chasâ—â—se those at their pleasure saving to them their â—ives and members these may nor fly or run from their Lords so long as they finde them wherewith to live nor is it law full for others to receive them without their Lords consent those can have no manner of Action against any man without their Lords but in case of Felony and if those slaves hold Lands of their Lords it is intended that they hold them from day to day at their Lords will and not by any certaine services Villaines are Tillers of Lands Note by Villaines in this place is meant Copy-hol-ders dwelling in Upland Villages for of Vill commeth Villaine of Burough Burgesse and of City Citizen and of Villaines mention is made in the Great Charter of Liberties where it is said that a Villaine be not so grievously amerced that his Tillage be not saved to him but the Statute maketh no mention of slaves because they have nothing of their owne to lose And of Villaines are their Tillages called Villinages Copy-hold called Copy holders And note that those who are free and quit of all servitude become servile by Contracts made berwixt the Lords and the Tenants And there are many manners of Contracts of Fees as of Gift of Rent of Exchange and Lease which all may make for a time or for ever and quitment without Obligation and charge of service and with charge And these Contracts as all other are made by Writings Charters and Minuments by solemne Witnesses according to the example of Contracts of Marriages which ought to be a patterne to all other Contracts according to which Example were the first Contracts made by the first Conquerour when the Earles were enfeoffed of the Earldomes Barons of the Baronies Knights of Knights Fees Serjeants of Serjanties Villaines of Villinages Butgesses and Merchants of Boroughs whereof some received their Lands without Obligation or service or in Frankalmoigne some to hold by Homage and by Service for defence of the Realme and some by Villaine Customes as to Plough the Lords Lands to Reape cut and carry his Corne or Hay or such manner of service without giving of any wages whereof many Fines were leavied of such services which make mention of the doing of these base services as well as of other more gentile services and although it be so that the people have no Charters Deeds nor Minuments of their Lands neverthelesse if they were ejected or put out of their Possessions wrongfully by bringing an Assize of Novell Disseisin they might be restored to their estates as before because they could averre that they knew the certainty of their services and workes by the yeare as those whose Ancestours before them were Asteries for a long time in case Disseisors were not their Lords And thereupon Sr. Edward in his time Doom-day Booke Vt credo caused enquity to be made of all such who held did to him such services as ploughing his Lands c. besides their lawfull Customes And afterwards the people lesse fearing to offend then they ought many of these Villaines by wrongfull Distresses were forced to doe their Lord the service of Rechat of blood and many other voluntary Customes to bring them in servitude under their power for which their remedy was a Writ of Ne investoè vexes CHAP. II. SECT 29. Of Summons THis Chapter maketh mention of speciall Summons to make a difference from generall Summons where all Freeholders and others ought to come according to the nature of the Cry whereof and every one may Summon by a Common Cry but of this Summons this Chapter maketh not mention A speciall Summons is a friendly admonition of an amendment of an offence or wrong and because none is tyed to Answer to any Action reall or mixt before a Summons therefore it is to see 1 Who have Authority to Summon 2 Who are Summonable 3 In what place he is Summonable 4 How farre one is Summonable 5 At whose Charges 6 How often 7 Who may be Summonors 8 What is a reasonable Summons 1 All who have Jurisdiction have Authority to Summon 2 All those who are not forbidden by Law are
Summonable none is to be summoned for a personall offence not any one who is not a Free-holder 3 A man is not summonable in all places for no man is summonable nor bounden to receive Summons out of the Fee of the Party who causeth the Summons nor elsewhere but in the Mannour appendant to such a Court where he ought to Answer nor in all places of the Mannour but only at the Tenement in demand 4 How farre one is summonable not out of the Fee of the Court where one is to answer 5 At whose charges at the charges of those who are the first causers of the Summons except in Juries and Enquests taken ex officio for no Free-man is compelable to travell and appeare in Judgements at his owne charges notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable but once in one cause neverthelesse re-summoned holdeth place in some case 7 Who may and ought to be Summonors no man is compellable to be a Summonor if he will not agree to it neverthelesse all those may be Summonors who will that are not forbidden by the Law Women not Villaines nor infants nor any infamous Person not any one who is not a Free holder cannot be a Summoner 8 It is a reasonable Summons when it is testified by two loyall free Witnesses Neighbours to the Person or to the House or Tenement contained in the Writ with warning given of the day place party Judge of the Cause and a reasonable respite at least of fifteen daies to provide his Answer and to appeare in Judgement In Juries neverthelesse nor Enquests there need not be so full time or respite given CHAP. II. SECT 30. Of Essoignes ESsoigne is an excuse of a default by any hinderance in comming to the Court and lyeth as well for the Plaintiffe as for the Defendant The Law of every Essoigne is That the cause of the hinderance be enrolled with the name of the Essoigner so that if the diverse Party or his Atturney or Essoignor will traverse the Cause he is to be received so to doe that if he be found false then that the Essoigne be turned to a default All those may be Essoigned who are not forbidden by Law uo Defendant in personall Actions not any after default can be Essoigned not any present in Court nor doth Essoigne lye in a Scire facias nor in a Venire facias nor in a Recordari facias toquelam nor in Admeasurement of Pasture nor after the Parties have joyned issue in Judgement though the Jury appeare not nor in case where the Plaintiffe hath not found Surety to pursue his Action nor where one hath Atturney in Court if both be not Essoigned nor where the Summons is not testified nor after an Essoigne not warranted nor to him who was not named in the Writ or in the Plaint except in Warranties nor any one who is re-summoned in Mort-dauncester and Darrein presentment nor when the day is not come nor where the Essoigner commeth too late nor any one whose adversary is dead or any of his Parceners nor he who is adjourned from day to day nor the Kings Officer as Officer nor he to whom it is commanded that he appeare if he please No Essoigne is justifiable if it be not orderly cast nor is it allowed to Infants within age nor to any who is in custody nor to many having one right if the Cause be not divers All may be Essoigners who the Law forbiddeth not it is forbidden to Women to Infants to Villaires and to all who are in Custody to Mad-men to Idiots to Excommunicated Persons to the Judges and uo the Parties in the Cause Essoigners at other times not warranted 〈◊〉 â—â—ainted of false delayes to criminall Persons and to those who are not of the Christian Faith or in the Kings Alleagiance it is forbidden that they be Essoigners There are chiefly two kinds of Essoignes the one of the Kings service the other of hinderance The first is dividable either into the service of the King of Heaven or of the King on Earth of the King of Heaven in three manners 1 Either for the generall passage of all to the Land of c. and this Essoigne is not otherwise adjournable but that the Parties goe without day and are to appeare againe by Re-summons of the Plaintiffes at the returne of the Defendant This Essoigne is not allowable to Plaintiffes nor to the Defendant reasonably Summoned before his going from his house in a personall action nor in other but in a Plea which toucheth Inheritance nor but in a Writ of Right Patent but not of Dower nor of Burgage The other Essoigne of the service of the King of Heaven is of a common Pilgrimage beyond Sea towards the Holy Land and this lasts for a yeare this holds not buâ— according as the other The third of a Pilgrimage beyond Sea as to Rome or to Saint James De compostella and takes place for halfe a yeare and these Essoignees are to appeare the next Courts following the Termes adjourned After Re-summons holdeth place the common Essoigne De mal venier and also after the terme of Adjournment but this common Essoigne never holds place before the Essoignes before said The Essoigne of the King on Earths service is in two manners 1 The one is of those who serve as Souldiers as Messengers or as Ministers and this Essoigne is not respited but from Court to Court or the common day to the example of a common Essoigne if it be not warranted at the next Court by the Kings Writ it is to be turned to a default 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realme and he hath no day But the Plaintiffe is with out day and the Plea is to be re-continued in the same Estate when his Adversary shall be returned These latter Essoignes are allowable in Pleas summonable to Plaintiffes and Defendants except in Dower Vnde nihil habet Quare impedat Darrein presentment nor to Women nor to Infants nor to Idiots nor to Deaf nor to Dumbe nor Mad-men nor to any in custody nor to any who is not free of himself nor to any Atturney as Atturney nor where the Essoigner acknowledgeth the Cause in Judgement to be false nor after any Cape nor after distresse in the Land After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi but not è conâ—â—a The Essoigne of disturbance or hinderance is dividable either of sicknesse or of some other hinderance as of those who comming towards the Court are taken by the Kings enemies and so hindered or by Waters Bridges or enemies discovered or by Tempests or other reasonable disturbance so that they have not power to appeare at the day The Essoigne of hinderance and sicknesse is divideable either of languishing which is called De malo lecti and that holdeth place
for a yeare or of sicknesse in the Journey and that holds not but to the example of a common Essoigne in these Essoignes of hinderance are Essoignes De malo veniendi This Essoigne lyeth after every Summons and generall Râ—-summons upon Pleas except to Jurours and those who are summoned for the common-wealth But of Adjournments it is to distinguish for in the Eyre of Justices the Adjournement is for three daies or foure at the most or lesse according as the places are â—eare or containe and to this Essoigne is respited fifteen daies at the least The Essoigne of sicknesse in passage lyeth before the Essoigne De malo lecti and also after the yeare of the languishing and it lyeth before appearance and after appearance except in foure Assizes and where it lyeth in Actions it holdeth in Warranties This common Essoigne is not allowable in the cases aforesaid but once after the Parties have joyned issue not after the Parties have agreed to appeare without Essoigne nor where a Bishop is commanded that he have or cause such a Person to appeare nor there where many claime by one right or are Tenants of the same right nor to a man and his Wife not to all the paeceners but if a man dyeth without Heire after the Writ purchased and brought the Writ is thereby abateable because at the day of the date the Plaintiffe had no Action against the other parceners which are alive as to that of the Party This common Essoigne lyeth as well for Infants where they are impleaded of their Lands as for men of full age And as the same is allowed to the Tenant so is it warranted where no sicknesse is adjudged this Essoigne is allowable from day to day according to the common Adjournments in Writs of right till the sicknesse be Judged if the Tenant rise not before from his sicknesse neverthelesse none can doe it in such a case if not with the Plaintiffes leave or by the command of the King if the Plaintiffe will not give him leave This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Mannour and in a Writ of Droit close of Lands holden of the Kings in Capite and in the Writ of Customes and Services after that the deforceor hath pleaded and said that the Batraile or the Grand Assize may be joyned The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse this Essoinge lyeth not for the Plaintiffe and after the sicknesse adjudged it is adjournable by a yeare of respite to the Court of London Weakenesse lyeth not in any Writ of right after appearance but where Battaile may be joyned or the Grand Assize This Essoigne De malo Lecti was never allowable to any Atturney nor to any but those who had a Warrant before the common Essoigne cast by the Tenant nor to any after the weakenesse adjudged nor without â—â—sing nor in Justiâ—â—es nor in the Writs De quo jure nor De rationabilibus divisis nor Quo warranto nor Customes and Services before that the Court be certified that Battaile might be joyned or the grand Assize This Essoigne of De malo veniendi is called De malo villa and this lyeth in case where one appeareth the first day in Judgement and is suddenly taken with sicknesse in the Town that he cannot the next day appeare in Court This Essoigne may be cast the second day by one the third day by another and the fourth day by a third in which case the Judge ought to receive the Atturnies of those who are sicke but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth CHAP. II. SECT 31. Of Atturnies BEfore a Plea put into Court by Essoignes by Attachment or by appearance of the Parties none is to be received by Atturney no more then a Plea is removeable out of Court into a higher Court where the Plaint or the Writ is not brought nor any is to be received by Atturney in a Plea which was nor in a Plea which shall be but onely in a Plea which is Pendant in the County Court or else-where or is brought by the Kings Writ and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed for no Atturney is removeable unlesse he whose Atturney is come into the Court in proper person and remove him if not in case where one hath generall Atturnies for generall Atturnies may appoint speciall and remove them nor any can receive Atturnies after the Plea brought but the King or other warranted by a speciall Writ if not in the presence of the parties All may be Atturnies which the Law will permit Women may not be Atturnies nor Infants nor Villaines nor any who are in Custody or any other who is not free of himselfe nor any who is criminous nor any who are not sworne to the King nor any in any personall Action nor in an Accompt nor in Nativo habendo Plaintiffes notwithstanding they have Atturnies in personall Actions are not to appeare not answer in Judgement by no Atturney but he disseiseth his Clyent when he doth it The Contents of the Third Chapter OF Exceptions What is Exception and the division and order of excepting Exceptions Dillatories Of Exception of Clergy Exception of Bigamy Exception of the power of the Judge Exception of time Exception of place Exception to the person of the Plaintiffe Exception of Prison and of Ward Exception of Summons Exception of vicious Counts Exception of Approvers Excedtion to Indictments Pleas to Treason Pleas to Bâ—â—ning Pleas to Murder To Larcine To Burglary Of Rape Of imprisonment Of Mayhem and â—ounding Juramentum Duelli The order of Battaile Exception of Personall Trespasse Of Purprestures Of Treasontrove Of Wrecks Of Vsury Of Driving Of Obligation Of Attaint Of Oathes Homage Fealty annexed to Homage Common Oathes Of finall Accords CHAP. III. CHAP. III. Sect. 1. Of Exceptions IT behoveth the Defendant to Answer the Plaintiffes Declaration and because the people commonly know not all the Exceptions in Pleadings Countors are necessary who know how to advance and defend their Clyents Causes according to the rules of Law and the Costoms of the Realm and the more needfull are they to defend them in Indictments and Appeales of Felony then in personall or veniall Causes and the better to helpe our memory which every day inclineth to forgetsulnesse it is necessary to shew what is an Exception and the division of it and the order of Excepting or Pleading for some account them guilty who Plead not or Plead ill or not sufficiently for example If any one Vouch one to warranty and Judgement passe if he tell not the yeare or before what Judges the Judgement passed it is as if he had said nothing and so of other Cases and although a Plea be requisire neverthelesse every one is not received to plead for some are admitted to Plead without Tutors
holds this Replication Sir such Avowry ought not availe him because he was not a knowne Bayliff in such a Hundred or because he did not any thing in the manner of a distresse as not in a due time nor had any warrant but tooke it in the night time or in such other manner feloniously robbed him and stole c. and in the like manner may a Replication hold against a robbery made by colour of disseisin CHAP. III. SECT 20. Of Burglary TO Burglary he may say That he entred into the Tenements without doing any Felony and not against the Peace as in to his owne demeane and free-hold CHAP. III. SECT 21. Of Rape IN Appeale of Rape he may deny the Felony and say that he ravished not her against her wil but that she assented and that appeareth because she conceived by him at the same time and there is no presumption that she was ravished against her will by fouling of her Garments nor shedding of blood nor Hue and Cry made or other manner of violence offered CHAP. III. SECT 22. Of Imprisonment TO the Appeale of Imprisonment he may say that he did it by force of a rightfull Judgement of such a Iudge but to that Plea is this Replication good that after there came a Warrant to him to deliver him he kept him in prison for the time named in the Appeale CHAP. III. SECT 23. Of Mayhem and Wounding IN Mayhem he may demand the View thereof for he cannot lawfully complaine when there is no Mayhem to be Iudged of and of Appeale of Wounding in the same manner By the death of the King all Pleas are suspended all Goales opened no Iudge Bayliffe or other Officer ought to entermeddle therewith for want or warrant and all Out-lawes and all Waives and those who have forjured the Realme and all banished Persons used then to returne except those who were exiled and banished for ever and if any recovered before for that he could not have Dett if he were not justâ—fied to the Peace and if he be brought to Iudgement and if he be accused of Outlawry he may say that he is discharged of the Outlawry by the Kings grant Or he may say that the Outlawry ought not to prejudice him because he was under the age of 2. yeares at the time of the Outlawry and therefore that he was not Outlawed for the felony Or because the felony was not done in such a County or because he was not Out-lawed in England or not within the Kings Dominion where the Writ runneth for an Outlawry prouounced against a man in the Bishoprick of Durham or elsewhere in the Land where the Kings Writ doth not run shall prejudice as one in the Land where the Kings Writ runneth Nec è contra Or because the felony was not done in the time of this King or not since the last Eyre in that County Or because the Processe of the Outlawry was false by a false Warrant or without any Warrant or because he lay sicke and was Essoigned De malo lectâ— or because he is alive for whose death he was Out-lawed or because he was Imprisoned the day of the Outlawry or because he was in the Kings service in the Holy Land or within the Realm for the profit of the Common-wealth Or because he had the Kings Protection or because he was a Mad-man or an Idiot or Deafe or Dumbe or professed in Reliligion in which cases if he pray to be received to Answer he is to be received And the Plaintiffe was to be demanded and it was to be proclaimed that if any one could shew why he should not be enlarged that he appeared at a certaine day All Parties in Iudgement are necessary to be present and they are to have Oyer of the Writs of the Originall the Plaintiffes Commission the quantity or the quality of his plaint And the Disseisor or their Bayliffes every one of them for himselfe may say in this manner he may Answer and say for himselfe that he hath not done any wrong or disseisin nor hath any thing in the Tenements put in the Plaint and he may so Answer and so of others till it come to the Tenant in whose name the disseisin was and he may Answer and say that he is not in by disseisin but is in by D. who infeoffed him who is not named in the Writ and it may be that D. entred by E. and so there may be many according to divers Feoffments betwixt the first Disseisor and the Tenant in which cases no Voucher to warranty holdeth place for a Personall Trespasse and therefore every one is well to looke not to make a Contract of a vicious thing and that he take Caution and such Surety in the Contract that he may have a recourse to recover if he lose the thing and therefore the Lords used so keepe their Mannours that none could enter by Intrusion Disseisin or by other vicious bargaines not otherwise unlesse the bargaines were entred in their full Courts whereby the Lords could not have received their enemies into their Mannours nor have taken their Homage against their wills nor any used to enter before they had found Sureties to restore to the Purchasor or his Heires the value of the thing if by rightfull Iudgement it belonged to him after his thing lost for the offence of Allienation or for his power of this warranty To the principall Disseisor it belongeth to have a regard if the Plaintiffe put more into his Plaint that he Answer not but to that which he may avowe he may say that there is varience betwixt the Originall and the Commission or that the Writ is vicious as it is in misprision of names or fit-names Of names as Renand for Harrand Margery for Margaret and such like or he may say the Writ is faulty for want of Sirnames or if the names of Dignity be omitted as if a Bishop Abbot Prior or other be disseised of any thing in the right of his Dignity and he makes his plaint simply of a Trespasse done onely to his Person and not to his Church or Dignity in this manner A. complaines to you wherea he ought thus to make his Plaint A Bishop of London and so it is of Disseisors Or he may say that the Writ is vicious because the Plaintiffe who is solely in the Plaint hath no cause of Action but with another who is not named in the Writ Or it may be faulty if it be not contained in the Writ Dissersivie eum where it ought to be Dissersivie eam or eos where it should be ewn or eam etè contra It is contained in the Writ wrongfully and without Judgement c. and to that one may plead not wrongfully but rightfully denying any other force And note that one may be disseised wrongfully and without Judgement and wrongfully and by Judgement as it is of those who are disseised of their Free-holds by the Judges who have no Iurisdiction and neverthelesse
to the Bayliffes sometimes to the Justices in Eyre sometimes to certaine persons named and sometimes to persons not named as to Bayliffes Justices and Sheriffes And every Plaintiffe used to have a Commission to his Judge by the Writ Patent aforesaid And now may Justices Sheriffs and their Clerks forge Writs thorough draw loose amend or empaire them without any prosecuting or punishment because the Writ are made close through abuse of the Law By that Seale only is jurisdiction grantable to all Plaintiffes without difficulty and the Chancellour is chargeable by his oath of allegiance to make such Writs and that hee do not delay or deny justice nor a remediall Writ to any one CHAP. IIII. SECT 4. Jurisdiction is a power to declare the Law THat power God gave to Moses and that power they have now who hold his place upon earth as the Pope and the Emperour and under them the King now hath this power in his Realme The King by reason of his dignity maketh his Justices in divers degrees and appoinâ—eth to them jurisdiction and that in divers manners sometimes certaine especially as in Commissions of lesse Assizes sometimes in certaine generally as it is of Commissions of Justices in Eyre and of the Chiese Justices of Pleas before the king and of Justices of the Bench to whom jurisdiction is given to heare and determine Fines not determined the grand Assizes the transations of Pleas and the rights of the King and of the Queen and of his Fees and the words of the Kings Writs whether they be named generally or specially Besides the Barons of the Exchequer have Jurisdiction over receivers and the Kings Bayliffes and of Alienations of Lands and rights belonging to the King and to the right of his Crowne Sometimes jurisdiction is given to Sheriffes for the defaults of others as appeareth in the Writ of Right where it is sayd That if he do not right that the Sheriffe of the County shall do it Sometimes to those who have the Returne of Writs Returnables Sometimes jurisdiction is given to the Justices of the Beach by removing of the Pleas out of the Counties before the sayd Justices and sometimes to Record the Pleas holden in meane Courts without Writs before the same Justices of the Bench But as those Records ought not to availe the Plaintiffes if not after judgement given that the Pleers be Returnable untill after their judgements And as the Pleas moved upon the Writs are to be remanded into the Lords Courts where the Lords have not failed to do right In like manner are the Pleas removed by Pone returnable in the Counties in case where the parties never appeared in Court for to Plead To the office of chiefe Justices it belongeth to redresle and punish the tortious judgements and the wrongs and the errours of other Justices and by Writ to cause to come before the King the proceedings and the Records with the originall Writs and before such Justices are all Letters Pleadable returnable and to be ended wherein mention is made before the King himselfe and the Writs not Pleadable nor Returnable before the King are returnable into the Chancery And also it belongeth to their office to heare and determine all plaints made of personall wrongs within twelve myles of the Kings house and to deliver Goals and the prisoners from thence who are to be delivered and to determine whatsoever is determinable by Justices in Eyre more oâ— lesse according to the nature of their commission On the other side there is a kinde of jurisdiction which is called Arbitrary which is not ordinary nor assigned as is such which is by the assent of the parties Of Jurisdiction commeth Judgement which hath many significations In the one judgement is as much to say as absolutions from offence In another sence as sentence which sometimes soundeth well as of discharge or acquittance from punishment and sometimes ill as Excomengment and in another sence as the end of the Plea and the end of jurisdiction Jurisdiction assigned may be for a time or for ever For a time as in some exception dilatory where the Action reviveth for ever as by a definitive sentence upon the Action Judgements vary according to the difference of offences In like offences neverthelesse there are the like Judgements For the mortall offences according to the warrant of the old Testament were assoiled by death For in the old Testament it is found That God commanded Moses that he should not suffer Felons to live But before more is to be spoken of punishments it is to see by what introduction offenders and contumacious persons are compellable to appeare in Court and by what judgments CHAP. IIII. SECT 4. Defaults punishable DEfaults are punishable many wayes In appeals of Felony they are punishable by Outlawry which judgement is such that after that any one hath been solemnly called and demanded to appeare to the Kings peace at three severall Counties for felony and he commeth not that from thence forward hee is holden for a Woolfe and is called Wolfshead because the Woolfe is a beast hated of all people and from thence forward it is lawfull for any one to kill him as it is a Woolfe whereof the custome was to bring the heads to the chiefe place of the County or of the Franchise and according to Law for every head of an Outlaw to have halfe a marke and such Fugitives Outlawes forfeited for their contempts the Realm Countrey friends and whatsoever belonged to the peace and all manner of rights which they ever had or could have by any Title not only as to themselves but to their heires for ever Also all confederations of Homages of alliance of affinity of service of oathes and all maner of obligations betwixt the Outlawes and others were broken severed and defeated by such judgement And all manner of Grants Rents and Contracts and all manner of Actions which they had against any manner of persons were void not only from the time of judgement but from the time of the Felony for which such judgement was given and such persons could never againe resort to answer the Felony if the Processe of Outlawry were not faulty if not by the great mercy and favour of the King Weomen were not plevisibles and put in dozens as men but were waves CHAP. IIII. SECT 5. Defaults IN personall Actions venialls defaules used to be punished after this manner The Defendants were distrained to the value of the demand afterwards they were to heare their judgements for their defaults and for default after default judgement was given for the Plaintiffe This usage was changed in the time of King Hen. the first That no Freeman was not to be destrained by his body for an action personall veniall so long as he had Lands In which case the judgement by default was of force till the time of King Hen. the third That the Plaintiffe should recover his seifure of the Land to hold the fame in demeasure
that they come to the Lords And if any one denieth his service which he ought to do it may be said by the Lords that wrongfully he denieth either part or the whole and that to his wrong and so further count of seisin by his owne hand and that such is his right c. as after shall be said And the Tenant may choose to try his Right by his owne body or by another or joyne issue upon the Grand Assise And pray Conusans whether hee hath the better right to hould such land specified discharged of such service as he houldeth or the said A. to have the same Land indemesure as he claimeth And if the Defendant will try his Right by the body of another Then yee are to distinguish For if the Action be personall the Suit need not be present and if the Action bee Reall and the Tenant hath his Champion present Then may the Plainâ—ife offer his Champion against the Champion of the defendant or he shalloose his Covenant or his Writ And if the Defendant have nochampion then are the parties adjournable if they have joyned Battle that they have their Champions ready at the next Court as appeareth in the case of Saxeling to whom Hustan was bounded in a Bond of 10. li. by a writing Obligatory made at Rome which the said Hunstan denyed That it was not his deed To which Saxeling by way of Replication Answered That hee wrongfully denyed the same and that wrongfully for that he sealed it with his Seale or with the Seale of another which he borrowed of him such a day such a yeare and at such a place and that if he would deny it he was ready to prove it by the body of A. who saw it or by O. and C. who saw the same and if any hurt come to them he was ready to prove the same by another who could prove the same And so it appeareth that it is not needfull to have present Suit in such personall Actions the first day but the Parties may bee adâ—â—urned as it is said And if any one who cannot bee a fit witnesse or who is a Champion bee offered by one of the parties to combate who was not named before to make the Battle and the adverse partie there challenge him and demand Iudgement of the default in such such case the Iudgement is to be given against the profferer And if any ill happen to any of their Champions where by they cannot combate according to their proffer none is resceiveable to try the battle for him but only his eldeft sonne Lawfully begotten as by some is said And if the Tenants champion be vaâ—â—uished The Tenant thereby looseth all Homage and all Alliance and all Oathes of Fealty and all Homage betwixt him and the Lord and the Lord is to enter therein and to hold the same in demesue as if he had recovered by the Grand Assise And if the champion of the Lord be vanquished that them the Iudgement be that the Tenant hold his Land for ever quit of the service in the demand And if the King doth any wrong to any of his free men who hould of him in chiefe the same course is to be holden The Earles of Parliaments and the Commons have Iurisdiction to heare such causes and determine them because the King cannot by himselfe nor by his Iustices determine the Causes nor pronounce their Iudgment where the King is a partie And as the Lords may challenge their Tenants of wrong Or Injuries done to them against the Articles of their Fealtie In the like manner are the Lords challengeable of wrongs and Injuries done by them to their Tenants And if the Lords do not appeare to answer their Tenants Then are the Tenants to be adjudged thatâ—they doe no service for their Lands till the Lords have Answered CHAP. IIII. SECT 12. Of punishments PVnishment is a satisfaction for a Trespasse or an Offence There are two kinds of punishments Voluntarie and Violent Volantatie is that which bindeth the doer of his owne accord as it is in his Compromises to compell the people to keepe their Bargaines But with such punishments the Law medleth not with Of violent punishment wherewith the Law medleth there are two kindes Corporall and Pecaniarie Of Corporall some are Mortall and some Veniall Of Mortall some are by beheading some by drawing some by hanging some by burning alive some by falling from dangerous places and otherwise according to Auncient priviledges and Vsuages The Offences which require punishment of death are the mortall Offences Of Veniall punishments some are by losse of Member As the Fellony of Mayhem in case of wrong Of Member some by the losse of hand as it is of false Notories and of cutters of Purses with the Larcine of lesse then 12. d. and more then 6. d. which King Rich. changed some by cutting out of Tongues as it used to be of false witnesses some by beating some by Imprisonment some by losse of all their moveable goods and not moveable as of false Iudges and it is of userers attainted of usury after their decease but not if they bee attainted thereof in their life for then thy loose but only their moveables because by pennance and Repentance they may amend and have Heires Some by exile and abjuration of their Christianity or of the Realme of the Towne of the Mannor or the Land and their friends as it is of those who are attainted in personall Actions Venialls who are not able to make satisfaction Some by Banishment as it is in contempts in personall Actions Venialls some by other Corporall paines as it appeareth after its place And although one offend indeed or in word in all judgements upon personall Actions 7. things are to bee weighed in the ballance of Conscience that is to say 1. The cause 2. The petson 3. The place 4. The time 5. The Quality 6. The Quantity 7. The end 1. The cause whether it be mortall or veniall 2. The person the plaintiffe and defendant 3. The place whether in Sanctuary or not 4. The time whether in day or in the night 5. The Quality of the Trespaffe 6. The Quantity appeareth in it selfe 7. The end whether the taking were in manner of distresse by a justisiable importment Or in manner of Larine By Allienation unjustifiable CHAP. IIII. SECT 13. Of Insamous Persons ALL those who are rightfull attained of an Offence whereupon corporall punishment followeth are infamous Infamous ar all those who offend mortally or Fellouously all those who are perjured in giving false witnesse All false Iudges All false Vsurours and all those who are attainted of personall trespasses to whom open pennance is joyned by enjudgment of Law Those who Imprison a Free-man against his will or blemith the credit of his Franchise by extortion or by any purchase Those who also bring attaints and cannot prove the perjury whereby honest Iurours are slandered And those who indite or Appeale a man who is innocent of
by burning of them over the eyes because the lust came in by eyes and the heate of whoredome came from the reynes of the eacher Seaven things doe stay Judgement of Death 1 False Iudgement or foolish Iudgement 2 False Testimony 3 Default of better Answer 4 The hast of the King 5 A woman with Childe The first three Cases have respite by forty daies the fourth by thirty daies the fifth by forty weekes or more if the Childe be not borne 6 Want of discretion as it is of Idiots Mad-men and of Infants 7 In Poverty in which case yee are to distinguish of the poverty of the offender or of the thing for if poore people to avoyd famine take victuals to sustaine their lives or clothes that they dye not of cold so that they perish if they keepe not themselves from death they are not to be adjudged to death if it were not in their power to have bought their victuals or clothes for as much as they are warranted so to doe by the Law of Nature and although the Law hath no respect but to the Soules of offenders neverthelesse King Edward limited the quantity of Robbery and Larcine in this manner that is to say that none should be adjudged to death if the Larcine or the stealing or the Robbery did not exceed twelve pence Sterling and note that King Hen. the 1. by Randulph de Glanvile Ordained That in all mortall Actions that where the Action was encountered with an affirmative exception that the affirmation was first to be received in proofe in favour of life and thance it was that if one man accused another of Felony and he plead that he is not the man the proofe was awarded to the Defendant to convince the other of lying either by his body or otherwise And so it is if the Defendant say that he could not be at the doing of such an Act at the day place or yeare named in the Plaint because he was then in another place where by presumption he could not doe it or that he could not be there present Or if he saith that the thing came to him by good title in favour of life the proofe belongeth to the Defendant peremptotily at his perill to the overthrowing of the Action and the exception but if the Defendant solye deny the Action in such cases the proofe belongeth to the Plaintiffe Of Out lawes returned from exile banished men and those who have forjured the Realme and returned being taken and kept for a justifiable offence the Iudgement is that they be hanged till they be dead CHAP. IV. SECT 17. Of Punishments in divers kindes THe Corporall punishments of Death being past we are to come to Corporall punishments venialls which are by open infamous Penances and first of punishments Tallions or like for like which are in three Cases that is to say in May hem Wounding and Imprisonment in which if the Pleas be brought in by Appeales of Felony for reverge onely then belongeth the Iudgement Tallion or like Iudgement as Mayhem for Mayhem Wound for Wound Imprisonment for Imprisonment And if pardonable in forme of a Trespaffe then these Iudgements hold place that the offender make reasonable satisfaction to the Plaintiffes and afterwards that they be adjudged to doe open Pennance according to the quantity of the offence Open Pennances are these amendments of High-waies Cawsies Bridges setting them up in Pillories or Stocks Imprisonment and abjuration of the Realme Exile Banishment either from off the Land or from the Towne from entring into such a place or from going out of such a place by Ransome of such a penalty by pecuniary punishment or by other Fine and such other kindes of Iudgements penals And if the offender be Infants or otherwise in custody that in such cases the Guardians be adjudged to make satisfaction of the damages and the Guardians to betake themselves to the goods of the Trespassours but the open Pennance is to be suspended so long as they are in Ward so that according to the difference of the offences and the offenders the punishments were in manner as followeth and first of false Iudges who the more greatly offend for as much as they are in a higher degree then other people CHAP. IV. SECT 18. Of false Judges OF false Iudges Affigned King Alfied Ordained such Iudgement that the wrong they doe to God whose Vicegerents they are and to the King who is put in so noble a place as is the Seate of God and hath given them so great Dignity as to represent the Person of God and the Counsance as to Iudge offenders that first they be adjudged to make satisfaction to those they have hurt and that the remainder of the goods should be to the King saving all other rights and all their Possessions with all their purchased Lands should be forfeited in whose hands foever they be come and that they be delivered over to false Lucifer so low that they never returne to them againe and their bodies that they be punished and banished at the Kings pleasure and for a mortall false Iudgement that they be hanged as other murderers And for Mayhem Wounding and Imprisonment that they have like for like and the same Law and in the same condition The Iudgement of false Iudges Ordinaties is not in veniall Iudgements so penall as it is of Iudges Deligates before but they are to make satisfaction to the Parties Plaintiffes and to the King they are punishable by a pecuniary penalty and disabled from all manner of Iurisdiction whatsoever and in Cases mortall and Tallions according as it hath been said before of other Iudges CHAP. IV. SECT 19. Of Perjury PFâ—jury is a great offence of whith yee are to distinguish either of Perjury of false Testimony or of breach of faith or by each of the Oath of fealty of the first Perjury yee are to distinguish either of Perjury mortall or venialâ— if of mortall then the Iudgement was mortall to the example of apparant murderers And note that in all personall Actions there belongeth such an award that due satisfaction be made to the Plaintiffes and that the offenders be punished with corporah paines which paines are to be bought out by ransome of money and if of veniall perjury then that they be banished for a time or for ever and that their Woods Meadowes Houses and Gardens be erradicated according to the example of murderers saving that their Heires doe not remaine dis-inherited Of the other Perjury yee are to distinguish as breach of faith to the King or to another Person and if to the King yee are to distinguish whether as his Tenant or not and if the Oath of Fealty be in respect of Land and the fealty be broken in any of the points then lyeth the Processe and defaults aforesaid and if of an Oath not in respect of Land yee are to distinguish whether of the common Oath of Fealty sworne to the King for the remaining in his Fee then
realls And if any one receive a Felon wittingly into his Franchise the same is now challengable CHAP. IV. SECT 17. Of satisfaction of Debt IF a Plaintiffe recover against many by Iudgement he shall have but once damages as in this case If many Persons owe one Debt and every one be bound in the whole if one of them make agrement for the same although he doe not make a speciall agreement for all the Debtors all of them neverthelesse are discharged because satisfaction hath respect to the Debt and not to the persons CHAP. IV. SECT 18. Cases of Disseisin IF the Iurours in Petit Assizes are agreed that one shall give their common Verdict for all and if they say that they know nothing nor that the Plaintiffe shall receive nothing because he proved not his Action and if they be of divers opinions they are not therefore to be threatned nor imprisoned but they are to be severed and diligently examined And if two Iurours be found to agree amongst all the rest it sufficeth for him for whom they speake and they are not to be examined upon the title of the possession but it is sufficient for the Iudge to know if the Plaintiffe were disseised of his Land whether it were rightfull or wrongfull according to the Plaint for though it were right neverthelesse it was tortious because the Tenant used force where he should have used Iudgement and for that he made himselfe a Iudge therein Iudgement is to be given for the Plaintiffe so as he shall recover seisin such as it is saving every right by another Writ for an Affize lyeth not upon Assize of the same Tenement betwixt the same parties not an Attaint upon an Attaint and if the Iurours for him whether they were sworn upon the Action or upon the Exceptions Iudgement goes for him and they behoove to enquire of the others named in the Writ and if the Disseisors came in with force and Armes although they hurt no persons body all of them neverthelesse are to be adjudged to Corporall punishment according to the quantity of the offence and if they cast him our of his dwelling house or out of his Demesne the felony of this Burglary is punishable at the Kings Suit or at the Suit of the Party for none is to be cast out of his house where he dwelleth and which he hath used as his owne for a yeare without Iudgement although he hath no title thereunto but by Disseisin or intrusion and it sufficeth for fotce and Armes onely the shewing of Armes for to hurt the Adversaries and under the name of Armes are contained Bâ—wes Artowes Sawes Launces Speeres Staves Swords and Targets of Iron The Iury ought to enquire of the damages that is to say of the profits of the Tenements done since the Disseisin and to whose hands such profits after came and of the Charges Costs and reasonable expences which the Plaintiffe hath sustayned in his whole recovery and in all things and how much he is endamaged in distresse of his goods and in his honour and the damages being assessed it is to be awarded that the Plaintiffs recover his seisin such as it is according to the view of the Recognitors and the damages and the Disseisors are punishable according to the points of the offences For the goods found in the Tenements whereof none can know the value as Charter Writings Royall Treasure and such things locked up the Plaintiffe hath an Action by Appeale of Robbery or by a Writ of Trespasse In Iudgement of â—atcine veniable satisfaction is to be made to the 〈◊〉 inâ—ffes to the double of the value of 〈…〉 which are stolen and in case of 〈…〉 the value 4 double or foure 〈…〉 CHAP. IV. SECT 25. Of Amercements A Pecuniary paine we call an Amercement which follow reall offenders and mâ—â—t and sometimes are certaine and sometimes uncertaine An Amercement is certaine sometimes according to the dignity of the Persons as it is of Earles and Barons for he who holdeth an entire Earldoine is to be amerced one hundred pound when he is least amerced And a Baron for a Barony entire one hundred Markes and he who holdeth lesse lesse and more more according to the quantity of the Tenure And sometime by a certaine Assize in another case as it is of Escapes of people imprisoned in which case yee are to distinguish of the place as where one escapeth out of the Kings Prison or out of the Prison of another out of the Kings Prison yee are to distinguish of the cause whether it be mortall or veniall and if mortall then distinguish if the cause were adjudged or not and if adjudged by norory of fact or of right then the Corporall punishment is uncertaine for if the Keeper or more be assenting to the escape punishment of death followeth thereupon and if the cause was not adjudged and the Keeper was not the Kings Officer nor assented to the escape then the Assize of punishment is so many Shillings sterling or more according to the usage of the Country or of the place or of the person And if the Cause he veniall then the escape is not punishable And if the escape be from the prison of others then yee are to distinguâ—sh of the cause and of the caption whether the cause be mortall or veniall and if mortall then the pecuniary paine aforesaid holdeth place and if the cause be veniall there is no punishment for the escape CHAP. IV. SECT 26. Of Amercements taxable COmmon Amercements are Taxable by the Oathes and Aâ—â—erments of the Peeres of those who sal in misere cordia according to the constitution of the Charter of Franchises which willeth that a Free-man be assessed when he falleth into an Amercement according to the quantity of his offence a Merchant saving to hâ—â— his Merchandize and a Viâ—â—aine saving his Wainage and these Affâ—rrors are to be chosen by the assent of the Parties if they will but the Kings Officers are the more grievonsly to be Amerced for the breach of their faith c. Many cases there are where Corporall punishments are brought in by Fines of money and such are called Ransomes which is as much as to say Redemption from Corporall paines whereof some Fines are common as for Murders other for personall Trespasses of Townes and Commonalties which Fines King Edward Ordained that they should be assessed in the presence of the Justices so as the names of them be put into the Roles of the Iustices so that the Estreates may come to the Sheriffe to leavie the same by parcells and not by totall Summons And in case where one recovereth Debt or Damages King Edward enacted that it should be in the election of them to doe execution by leavying such Debt and damages of the moveable goods of the Debtors at the very value to the value of the thing in demand except the Oxen and Beasts of the Plow together with the moyety of Lands and Tenements of the Debtors if
Seale in case where it should make those Officers inobedient of right and to the King and should charge others to doe such Commandement 63 It is abuse to put these words in Writs Nisi captus sit per speciale perceptum nostrum vel Capitalis Justiciarii nostri vel pro forresta nostra c. for no speciall Commandement ought to exceed the Common Law 64 It is abuse to suffer the Judges to be Plaintiffes for the King 65 It is abuse that Aliens or others who have not sworne fealty to the King or infamous persons or Indicted or Appealed of mortall Crime or who have not an able Commission or after any wrong done or after Judgement given be suffered to have Jurisdiction or to Judge out of the points specified in their Commissions 66 It is abuse that in Appeales by Pleaders are the Pâ—aces and the Countries and the houres of the daies and that it is against the Peace since every offence is against the Peace and such other words needlesse 67 It is abuse to abate sufficient Appeales according to the Statute of Gloucester 68 It is abuse that the remediall Writs are saleable and that the King Commands the Sheriffe that he take Sureties to his use for the Writ for and by the Purchase of these Writs one may destroy his eremy wrongfully and because that such Fines and Penalties â—un in Estreates though they doe nothing but hurt to the Purchasor theref 69 It is abuse that Forraigners are not receiveable in Actions by Suâ—â—ties of Freemen who have not wherewith to finde Pledges 70 It is abuse to distreire in personall Actions where the profit of the Issues comes to the King and no profit accrueth to the Plaintiffes 71 It is abuse that any Plaint is received to be heard without Sureties present to testifie the Plaint to be true 72 It is abuse that it is said that Villinage is not a Franck Tenement and that an Assize lyeth not of an ejection for term of years as well as it doth of a Franck Tenement for terme of life or in Fee for a Villaine and a Slave are not all one either in name or signification for as much as every Free-man may hold in Villinage to him and his Heires performing the services and charges of the Fees 73 It is abuse to hold that seisin accrued not to the Purchasor when the Donor left his goods for as a Contract of Marriage is good by the consent of the wills of men and women although that one of them repent and after the Marriage would withdraw himselfe but he cannot thereby dissolve the Contract so as well it sufficeth to make the Contract by the delivery of seisin as by the celebration of the Marriage although the Purchasor have no other seisin by taking the Esplees nor any Deed. nor writing to testifie the bargaine and if it were that a Woman after the Marriage were ravished and consented thereto and the Husband repleeve her and the ravisher answering to the Contract say That the Husband had no right nor action because he was never sully seised by taking the Esplees nor had no Deed or said that he was never out of seisin of the Woman because she was clothed with his Robes and by her robe she remained in his seisin this Exception nothing availeth him to excuse his wrong no more then in this case If a man buy a Horse and agree with the seller and the seller deliver the â—â—ne to the buyer notwithstanding that the seller repent of the bargaire and forceably take backe the Horse although the buyer hath no Action for the same because he remained alwaies seised thereof at will such Exception is not good 74 It is abuse to thinke that Contracts for goods not moveables are otherwise then for moveable goods 75 It is abuse to thinke that seisin accrueth not as soone to a Purchaser of his Purchase as to an Heire of his Inheritance since the Law requires but three things in Contracts 1. The agreement of the Wills 2. Satisfaction to the Donor 3. Delivery of the possession and gift If a transâ—â—tation of seisin be given to the Purchaser by the Donor at the houre of one of the Clocke and the Purchaser dyeth at the houre of three of the Clocke he dyeth as well seised of the Tenement as he should be of a Woman or a Horse though the Donor have not departed with and removed his Chattels and it shall never be a good Plea for him to say That the Free-hold after the transmutation of seisin by a simple Livery remained in the Donor after this Livery of the Tenement but if the agreement of the Donot be not performed according to the Contract then he may 〈…〉 thereby 76 It is abuse to 〈…〉 at are cannot recover a 〈…〉 Pâ—â—â—entments to Church 〈…〉 since many Reasons 〈…〉 to Reddissesors 77 It is abuse that 〈◊〉 are not granted in Chancery without difficulty to Attaint all false Jurours as well in all other Actions Personalls realls and mixt as in Assizes brought 78. It is abuse to drive a Distresse out of the Hundred 79 It is abuse to make the view of the Distresse to Bayliffes in that a Plaint will suffice and a Court and that he is yet seised thereof 80 It is abuse that we doe not sue for a Tortious Distresse by way of Felony and that one attaint not these Robbers at the Kings Suit 81 It is abuse that vicious Contracts are by agreements maintaied by Law as forbidden of offence Is not Usury an offence is not Imprisonment an offence how can one binde himselfe to Usury or to Imprisonment or a Disseisin if he doe not offend 82 It is abuse that Advowsons of Charters are aliened by Law for yeares in Morgage or to ferine or are partible 83 It is abuse that Leases of Fermes are not longer then forty yeares since continuance of seisin by length of time doth dis-inherit no man 84 It is abuse that no Land is let to ferme or in Fee or for yeares rendring Rent by the yeare more then the fourth part 85 It is abuse to Oat-law a man for a default in case where the principall cause is not felony 86 It is abuse that Auditors are appointed by the Lords to heare Accompts without the assent of Bayliffes 87 It is abuse that Bayliffes have no recovery of damage from Tortious Auditors 88 It is abuse that regard is had to the persons when such Law is not for Bayliffes against their Lords aâ—e contra in the right of Debts due by the one to the other 89 It is abuse that a man may challenge one for his Neise to whom he never found sustinance in as much as a Villaine is not a Villaine but so lorg as he remaireth in custody and since none cara challenge his Villain for Villinage though he be in his custody if he finde not sustenance to his Villaine or send him to some Land in his Mannour where he may gaine his living
or otherwise retaine him in his service 90 It is abuse that Villaines are Frank pledges or Pledges of Free-men 91 It is abuse that others suffer Villains to be in their Viewes of Franck-pledges 92 It is abuse that the Lords suffer their Villaines to plead or be impleaded without them for a Villaine is not Amerceable in any other Court because he can lose nothing as he who hath nothing proper of his owne 23 It is abuse to hold Villaines for Slaves and this abuse causeth great destruction of poore people great poverty and is a great offence 94 It is abuse that a man is Summoned who is no Free-holder 95 It is abuse to Summon a man elsewhere then in the Land contained in the demand if it containe Land 96 It is abuse that a man travaile at his owne Charges by any Summons personall 97 It is abuse that a Justice or other make a Summons who is not a Free-holder within the County 98 It is abuse to Summon men without giving them reasonable warning upon what to Answer 99 It is abuse that false Causes of Essoignes are admitted for as much as the Law alloweth falsity in no case 100 It is abuse that an Essoignor is admitted in a personall Action to the Defendant since one is Maine-prised to appeare in Court by Maine-prisors 101 It is an abuse to receive an Essoigne cast in by an infant within age 102 It is an abuse to receive an Atturny where no power so to doe is given by Writ out of the Chancery 103 It is abuse to receive an Atturney where the Plea is not to be judged in the presence of the Parties if not in case where one maketh an Atturney generall 104 It is abuse that none can make an Attuoney in personall Actions where Corporall pnnishment is to be awarded 105 It is abuse to receive Exceptions in Judgements if they be not sufficiently pronounced for from the Order of the Exception early ariseth cleare Judgement 106 It is abuse to allow a warrant of Voucher to a Theife or in other personall Action 107 It is abuse that Judges Assigned shew not the parties pleading their Warrants or of his power when they demand it 108 It is abuse that Justices and their Officers who kill people by false Judgement be not destroyed as other murderours which King Alfred caused to be done who caused forty foure Justices in one yeare to be hanged as murderours for their false Judgements He hanged Darling because he had Judged Sidulf to death 1 Darling for the retreat of Edulfe his Son who afterwards acquitted him of the fact He hanged Segnor 2 Segnor who judged Vlfe to death after susfficient acquittall He hanged Cadwine 3 Cadwine because that he judged Hachwy to death without the consent of all the Jurours and whereas he stood upon the Jury of twelve men and because that three would have saved him against the nine Codwine removed the three and put others upon the Jury upon whom Hachwy put not himselfe He hanged Cole 4 Cole because he judged Jve to death when he was a Mad-man He hanged Malme 5 Malme because he judged Prat to death upon a false suggestion that he committed the felony He hanged Athulf because be caused Copping to be hanged before the age of one and twenty yeares 6 Athulf He hanged Markes because he judged During to death by twelve men who were nor sworne 7 Markes He hanged Ostline because he judged Seaman to death by a-false Warrant 8 Ostline grounded upon false suggestion which supposed Seaman to be a person in the Warrant which he was not He hanged Billing 9 Billing because he judged Leston to death by fraud in this manner he said to the people Sit all yee here but he who assisted to kill the man and because that Leston did not fit with the other he him commanded to be hanged and said that he did-assist where he knew he did not assisted to kill him He hanged Seafoule because he judged Olding to death 10 Seafoule for not answeriâ—g He hanged Thurston because he judged Thurguer to death by a verdict of Enquest 11 Thurston taken Ex officio without issue joyned He hanged Athelston 12 Athelston because he judged Herbert to death for an offence not mortall He hanged Rombold because he judged Lisilâ—ld 13 Rombold in a case not notorious without Appeale and without Endictment He hanged Rolfe 14 Rolfe because he judged Dunston to dye for an escape out of prison He hanged Freburne because he judged Harpin to dye 15 Freburne whereas the Jury were in doubt of their Verdict for in doubtfull causes one ought rather to save then to condemne He hanged Seabright who judged Aihebbrus to death 16 Seabright because he condemned one by a false judgement mortall He hanged Hale because he saved Tristram the Sheriffe from death 17 Hale who took to the Kings use from another goods against his will for as much as any such taking from another against his will and Robbery hath no difference He hanged Arnold because he saved Boyliffe 18 Arnold who robbed the people by colour of Distresses whereof some were by selling Distresses some by extortion of Fines as if betwixt extortion of Fines releasing of tortious Distresses and Robbery there were difference He hanged Erkinwald because he hanged Frankling 12 Erkiu wald for nought else but because he taught to him who vanquished by Battaile mortall to say the word of Cravant He hanged Bermond because he caused Gâ—â—bolt to be beheaded by his Judgement in England 20 Bermond for that for which he was Outlawed in Ireland He hanged Alkman because he saved cateman by colour of Disseisin 21 Alkman who was attainted of Burglary He hanged Saxmond because he hanged Barrold in England 22 Saxmond where the Kings Writ runneth for a fact which he did in the same Land where the Kings Writ did not run He hanged Alflet because he judged a Clerke to death 23 Alflet over whom he had not cognisance He hanged Piron because he judged Hanting to Death 24 Piron because he gave judgement in Appeale before the forty daies pendant the Appeale by a Writ of false judgement before the King He hanged Diling because he caused Eldon to be hanged 25 Dilling who killed a man by misfortune He hanged Oswin because he judged Fulcher to death out of Court 26 Oswin He hanged Muclin 27 Muclin because he hanged Helgrave by warrant of indictment not speciall He hanged Horne 28 Horne because he hanged Simin at daies forbidden He hanged Wolmer because he judged Graunt to death by colour of a Larcine of a thing 29 Wolmer which he had received by title of baylement He hanged Therberne because he judged Osgot to death for a Fact 30 Therbern whereof he was acquitted before against the same Plainetiffe which Acquittance he tendred
time in case where the right Heires fly from their Lords or cannot or will not doe their homage In the points of Wards it is defective for as much as no difference is expressed between the heires Males and the heires Females for a woman hath her age when she is fully of fourteen yeares and the seaven yeares besides were not ordained first but for the Males who before the age of one and twenty yeares were not sufficient to beare Armes for the defence of the Realme And note that every Guardian is chargeable to three things 1 That he mainetaine the infant sufficiently 2 That he maintaine his rights and inheritance without waste 3. That he answer and give satisfaction of the Trespasses done by the infants The defect of the point of Disparagements appeareth amorgst the Statutes of Merton And the default of Franckbenches and Widowes in the same manner in which point it is sufficiently expressed that no woman is dowable if she have not been sollemnly espoused at the doore of the Monastery and there endowed In the point which requireth that the City of London have its ancient Liberties and her free Customes it is to be interpreted in this manner That the Citizens have their Liberties whereof they are inherited by lawfull Title of the gifts and confirmations of Kings which they have not forfeised by any abuse and that they may have their Liberties and Customes which are sufferable by Law and not repugnant to the Law And where it is said of London that the interpretation be as well of the Cinque Ports and of other places The point which forbiddeth tortious Distresses for Fees is Covenable in it selfe but the same shal not grieve any man of the Realme who hath Tenements that it is no Trespasse in him or by his Ministers as appeareth in the Chapter of Nativo habendo The point which forbiddeth that Common Pleas follow not our Court is to be interpreted in this manner That the people shall not travail to Sue in the Kings Household in the Country as they used to doe But this point willeth that the Plaintiffes have Commissions to Sheriffes to Lords of Mannours and to Justices assigned so that right be done to the parties in certaine places where the Parties and Jurours may be the lesse travailed Although it be that the Chapter command that Petit Assizes be taken in their Counties being made for the ease of Jurors yet it is disused in as much as the Justices make the Jurours to come from the furthest marches of the Counties whereas it were better that the Justices Rod from Hundred to Hundred then so to travaile the people The point of Amercements is misused by Iustices Sheriffes Bayliffes Stewards Cap. 14. and others who amerce the people in certaine in this manner putting such a one to so much for a Contempt or other Trespasse withont a personall Trespasse and without the afferment of the people sworn to it and without specifying the manner and the quality of the Contempt Againe where the Afferrours ought to be chosen with the assent of those who are amerced and in a common place the Lords make the Afferrours to come to their houses to asser the Amercements according to their pleasures The point which forbiddeth that Rivers be defended is dis-used Cap. 16. for many Rivers are now appropriate and gotten and so put in defence which used to be common to Fish in in the time of King Hen. 1. Cap. 17. The Chapter which forbiddeth that Sheriffes Constables Coroners nor Bayliffes shall hold Pleas of the Crowne seemeth not needfull for appeales of felony are not here to be brought before Coroners and the exigents and Iudgements pronounced and therefore this point had need to have had more words to have expressed the meaning of it For the end of the Chapter of the moveable good of the dead it appeareth that the Action accrueth to the Widowes and to the Children to demand their reasonable parts of the goods of their Father taken away That which is forbidden to Constables to take is forbidden to all men Cap. 19 20. in as much as there is no difference betwixt taking from another against his will and liberty whether it be Horses Victuals Merchandizes Carriages or other manner of goods The Chapter for holding the Lands of Felons for a yeare and a day is out of nse for whereas the King ought not to have the wast by Law or but the yeare in the â—â—ame of Fine for safeguard of the land from spoile the Kings Oâ—â—cers take both The defence of the Precipe is not holden in that they doe it without Writs of possession of Farmes every day that the Lords lose the Cognizance of their Fees and the advantages of their Courts The point which commands that one Measure be throughout the whole Realm and one Weight is dis-used by Merchants and Burgesses using for the pound the old Weight of twenty shillings of right Assize and also of Ells and other measures The defence which is made of the Writ De odio atia that the King be not Chancellor nor take any thing for granted the VVrit ought to extend to all remedial VVrits and the same VVrit ought not extend onely to the felonies of Murder but it ought to extend to all felonies and not onely in Appeales but in Endictments The point which forbiddeth that no Bayliffe put a Free-man to his Oath without Suit is to be understood in this manner That no Justice no Minister of the King nor other Steward nor Bayliffe have power to make a Free-man make Oath without the Kings Command nor receive any plaint without Witnesses present who testifie the plaint to be true The point where the King granteth that he will not disseise nor imprison nor destroy but by lawfull Iudgement which overthrows the Statute of Merchants and other Statutes is to be interpreted thus that none be arrested if not by warrant grounded upon a personal Action for if the Action be veniall no Imprisonment is justifiable if not for default of Maine-pernors And so it appeareth that none is imprisonable for Debt And if any Statute be made repugnant to this point either for the Kings Debt or for the Debt of any other it is not to be kept That none be Outlawed is to be meant if not for mortall felony from which one is saved by the Oath of Neighbours ex officio as it is the use in Eyres and therefore that destroyeth the Statute of Outlawry of a man for arrerages of Accompt and all other the like Statutes and that which is said that none be exiled nor destroyed is to be interpreted in this manner that every one have an Action to appeale all Persons all Suitors all Assessors who destroy men against the right course and against the rules of Law On the other part where the King forbideth that none be disseised of his Freehold of his Liberties or of his free Customes is thus to be
understood that one shall recover by Assize of Novel disseisin every manner of Free-hold and all manner of Possession reall of Lands or of Franchises whereout one is cast if it be not by lawfull Iudgement and these words if it be not by lawfull Iudgement referre to all the words of this Statute The point which the King grants to the people that he will sell no Right or hurt nor delay Iustice is misused by the Chansellour who seâ—ls the remediall Writs and calls them Writs oâ— Grace by the Chansellour of the Exchequer who denyeth Acquittances of payments made to the King under Green Waxe and all those who delay right judgement or other right The point concerning leave for the staying of Merchants Alliens is so to be understood that it be not prejudiciall to the Townes not to the Merchants of England and that they be sworne to the King if they stay longer then forty daies The point which forbiddeth that none Allien his Land in prejudice of the Lord of the Fee is to be interpreted in this manner that no Tenant allien the Fee of his Lord without his consent or to hold in chiefe of the Lord without encrease of new service The point of the custody of Abbies and of religious places when they fall is thus to be understood that every Lord have the keeping of his Fee during the Vacation The point that none shall be taken or imprisoned upon the appeale of any woman for the death of any other then of her Husband is to be meant of such a woman which the Husband last held for his wife if in case there be many wives alive The points concerning Sheriffes Turnes and Viewes of Franck-pledges are disused three waies the first that Sheriffes Bayliffes and Stewards take extortion of Fines in that they make the people to fine for what they are not occasioned which they call for Beaupleader The second that they amerce the people for Presentments upon personall Actions The third is that they charge the Iurours with Articles touching Trespasse done by Neighbour to Neighbour or of Tenant or of other Lord then to the King The point which forbiddeth religious persons to purchase Lands overthroweth the Statute afterward made at Westminster of the same for as much as the Action of the chiefe Lord is limited in so short time to hasten the Kings Action in prejudice of the Lords of the Fee The last point is of such vertue and of such meaning as that the King hath the Cognisance of Trespasses done in such manner as that the Fee-Tenants have their Courts and the Cognisance of Trespasses done within their Mannours and also as well of reall Actions and Personalls as of mixt CHAP. V. SECT 2. The Articles upon the Statute of Merton SOme points are reproveable amongst the Statutes made at Merton after the Great Charter made and namely the point of Redisseisins Since the Law doth not attaint any Trespassor by enquest of Office and because Pleas may perhaps availe the Tenants and should be by Law allowable Assizes lye to the example of Novel Disseisin and where it is said that Redisseisors be arrested and kept in Prison and afterwards that they be released is but an abuse of the Law which requireth that every one who is attainted of a personall Trespasse be punished by a Corporall punishment if he cannot ransome it by money and that which is said of this Statute is to be understood of all Statutes made after the Great Charter made in the time of King Hen. the 1. for it is not Justice that he should be punished for one fault with Corporall punishment as imprisonment or other and further by a pecuniary paine or by ransome for ransome is nothing but a buying out the Corporall punishment The point of Improvements of Wasts is reproveable as being too generall for it ought to distinguish of Commons for in some places the Commonors are infeoffed in such manner that the whole Common is onely in the Tenants so that the Lords have nothing but the soile and in such case that Statute is prejudiciall to the Commoners and repugnant to the Great Charter which willeth that none be cast out of his Free-hold not the appurtenances without lawfull judgement The point of Rape of Marriages is reproveable in as much that it hath an Exception of Persons of Laymen and of Clerkes for there is no more Law that a Clerke should offend without punishment then a Lay man Other points are repugnable If the Tenant doe damage to his Lord or è contra for they are not punishable according to the Statute but they are bound by their Homage and Fealty betwixt them as it is before said amongst the judgements of defaults The points of making Atturnies in Suits at Hundreds is to be understood in this manner That although a Suitor by this Statute may make an Atturney for him to save his default yet none can give Judgement by Atturney nor is a Woman named in this Statute because that no judgement is to be given by a Woman CHAP. V. SECT 3. Of the Statutes of Marle-bridge SOme points of the Statutes of Marle-bridge are reproveable and namely the first five points because that every personall Trespasse is punishable by a Corporall punishment if the Trespasse be not bought in by ransome according to the quantity thereof The Chapter which commandeth tâ—e Great Charter to be kept in all points is defective for want of addition of punishment and it seemes crosse to make constitutions not holden The Chapters remedialls of Lords of Fees is reproveable in the mittigation of punishment For all those who doe defraud the Law are punishable by a Corporall punishment and not by a simple Amercement The point of Proclamation of Wards is reproveable as that which is founded upon Errour as it appeareth in the Chapter of defaults The Chapter of Redisseisors is reproveable for that no speciall command ought to exceed Common Right not any paine of imprisonment is judgeable but for a wrongfull imprisonment The Chapter of daies in dower is reproveable since the Law hasteneth right more in the Kings Court then clsewhere The Chapters following of Attachments and Distresses are reproveabâ—e for in pleas of Attachments no Essoigne is allowable for the Defendants nor any such order of distresses is to be holden according to Law The Chapter which forbiddeth that none make his Tenants Jurours is reproveable because that no punishment is therein ordained and because it hath no Exception for there are many Cases where the people ought to be Jurours though they come not by the Kings Command as before Justices of Forrests before Coroners and before Escheators and as in Courts of Sheriffes and Viewes of Fraukpledges and as Afferrours and at Goale deliveries The Chapter which commandeth the arresting of those who are bound to Accompt is reproveable since the Action is mixt and requireth Summons and not personall Arrests The Chapter of wasters of Farmes is reproveable for waste is
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if
one of the houshold sueth another of the houshold and the Plaintiffe be put from his service depending the Suit the other shall shew the same and abate the Writ but quere if it be so if in case the Defendant be removed out of service c. The Coroner of the Marshalsey shall fit with the Coroner of the Country upon the death of a man and if the Plea may be determined before the King remove out of the Virge it shall be otherwise it shall be at the Common Law The Kings Bench. THere is another Court of high Authority called the Kings Bench and the Iudges of that Court have Authority to enquire of heare and determine Pleas and things touching the Crowne as High Treason Murder Man-slaughter Robberies Felonies at the Common Law and by Statute Law Mayhems Trespasses Burglaries and all deceits and falsities whatsoever but they have not authority to hold Plea betwixt Party and Party by originall Writ but in speciall cases They have power to proceed in and determine Indictments and Presentments taken within any County within the Realme where the Kings Writ runneth if it be certified by Certiorare or be delivery under the hands of the Iustices of the Peace or other Iustices before whom the Indictments or Presentments be whether it be of Treason Felony forcible entre Ryot or any other thing against the Peace and they have Authority to reverse Iudgements given in the Common Pleas by a Writ of Errour or before Iustices of Assize and in Liberties and Franchises but not in London for a Writ of Errour of a Iudgement given before the Sheriffes of London shall be reversed before the Major in the Hustings And erronious Iudgements given before the Major in London shall be reversed at St. Martins before speciall Commissioners assigned to that purpose and thereupon a Writ of Errour shall be directed to the Major to have the Record and proceedings thereof and the Record shall be certified by the Recorder c. And it is said that if an erronious Iudgement be given in Ireland it shall be reversed in the Kings Bench by a Writ of Errour for that in Ireland the Lawes of England are used And if an erronious Iudgement be given in the Cinque Ports it shall be reversed in the Kings Bench and the Writ shall be directed to the Warden of the Cinque Ports and he shall returne the Writ and the Record c. The King may have a Formdon in the Kings Bench Debt Detinue and every other Action and a Quere impedit at his pleasure And a common Person may bring an Action of trespasse Quare vi ermis in the Kings Bench and Actions for forging of false Deeds maintenance Conspiracy Actions of deceit upon the case or supposing any falsity and deceit where the King shall have a Fine c. And note that there are some Actions upon the case which shall be sued in the Kings Bench and some not as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiffe for a certaine summe of Money and that he covenanted to infeoffe him by such a day and not by any Deed c. Or to build a house such a day and did not doe it e. such actions shall be brought in in the same Court but there are other Actions upon the case which shall not be brought in the Kings Bench as if a Horse be stollen out of the common Inne an Action upon the case lyeth against the Hosteler but not in the Kings Bench as it is said And so it is where a man is so bounden to keepe his fire that the same hurt not his Neighbours houses c. And note that the chiefe Iustice of the Kings Bench is made by Writ and not by Patent and it is to this effect Rex dilecto fidel fuo I Fitz-Iames Saltem Quia volumus quodvos sitis capital Iusticiar noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis but he shall be sworne by the Chancell or of England before he take upon him his office The other Iustices of the same Court are made by Patent viz. by these words Constituimus c. unwn justitiorum nostr ad placita corum no bis tenenda habend occupand officium illud quam diu nobis placuerit And if a King maketh a Iudge to hold and enjoy the said Office by himselfe or his sufficient Deputy for life the grant is void as to the Deputy and if the grant be to him and his Assignees he cannot make an Assignee c. The Common Pleas. ANd note there is another Court called the Common Pleas which Court hath jurisdiction to hold Common Pleas as well personall Pleas as reall or any other Precipe quod reddant of Lands or Tenements c of Debt Detinue Accompt and other personall Actions and they have power to hold Plea of any of those Actions which may be brought in the Kings Bench as Actions of Maintenance Conspiracy Forgery of false Deeds and Actions upon the case and trespasse against the Peace of such Actions wherein the King ought to have a Fine and also of Attaints but they have not power to hold Pleas of Appeales of Murder Rape Felony Mayhem nor to enquire of them nor of Riots And it is said That one may Sue the Peace against another before the Iustices of the Common Pleas and if the Party be in the Hall or in the Place or within their View they may send the Warden of the Fleet to bring the party before the Iustices to finde Sureties or else commit him to the Fleet and the reason why they may so doe is that good order and the Peace be kept about the Court but the Iustices have not power to award Processe to the Sheriffe to Arrest the party to appeare in the Court where the Common Plea is but it is otherwise of the Kings Bench as it is said c. And it is said That the Iustices of the Common Pleas have jurisdiction in some things which touch the Crown and to enquire and hold Plea of some felony and also of misprision and of deceit done within the Court and within the Record thereof And if one imbesell a Pannell after the Enquest passed and Iudgement given in the Common Pleas by which the Iudgement is reversable by Errour for want of that Pannell the Iustices of the Common Pleas have power to enquire of the embeselment of the Pannell by 12. of the Officers and Atturnies of the same Court and they shall be sworn before the Iustices to enquire of that default and if they endite the embesselors they shall be Arraigned thereupon and shall be compelled to answer thereunto as other Felons c. and if they be attainted they shall forfeit their goods and chattels tamen quaere c. And if one be condemned in Debt or trespasse in the Common Pleas and he be in the Hall the Iustices
the Coroner hath the Record yet I thinke the Law is otherwise And if one be indicted for Murder and afterwards an appeale is brought against him and after Declaration the Plaintiffe is Non-suit the Appellee shall be arraigned at the Kings Suit upon the Declaration and not upon indictment as it is holden in 4. E. 4. Note that it was said by some Justices in times past That in every case where the Defendant pleadeth a matter whereby he proveth that the action doth not lye for the Plaintiffe as Bastardy or never accoupled in loyall Matrimony c. there he need not to answer to the Felony but if he pleadeth a release in Bar then he ought to plead to the Felony because it is not denyed by him that the Action once lay for the Plaintiffe for when he pleadeth to the Felony then he confesseth that the Plaintiffe is such a person who can maintaine the action yet it was said to the contrary That he shall not plead to the Felony infauorem vite where otherwise if the plea were found against him he should be attainted and the Felony not enquired of and that seemeth to be both reason and Law c. And note that when a man is found guilty for Murder or Felony c. for which he suffereth death he may pray his Booke to save him if he be a Clerke and shall have it if he can read But if that Bigamy at another time convicted be alledged against him and proved then he shall not have his Clergy And it was said That if the Ordinary refuseth a Clerke generally or specially that the Judge may compell him to accept the felon But the old Law was That if the Ordinary had refused him specially as to say Non habet vestem Clericalem non habet consuram yet the Judge might compell him to accept of him But if the Ordinary doe refuse him generally the Judge cannot compell him to accept of him because there may be some cause wherefore the Ordinary by the Law of Holy Church ought not to receive him But that opinion as it was said was altered in the time of William Hussey and his reason was That if this Judge be his Judge where the Ordinary refuseth him specially it is as great reason that he shall be his Judge where he refuseth him generally And see that those who are so attainted of Murder or of other Felonies and for such things as they shall suffer death they shall forfeit their Lands and Tenements and their goods and chattels for ever and the King shall have the Lands for a yeare and a day and then the Lords of whom the Lands are holden shall have them But he who is attainted of Treason the King shall have all his Lands as well those which are holden of other Lords as those which are holden of himselfe c. And if a man hath Land in the right of his Wife and is attainted of Felony the Land shall be forfeited for the terme of his life and it was said That if before the Attainder he and his wife were disseised and afterwards he were attainted and restored to the Kings peace yet they could not have an Assize Tamen quaere Appeale of Rape NOte also that the Appeale of Rape beginneth thus Robertus Wood nuper de A. in Comitaâ—â— Salop Clericus dict R. W. nuper de A. in comitatu predict capellanus Rector Ecclesie patochialis de A. in comitatu predict Or thus Nuper de D. in comitatu predict gent. alias dict R. S. nuper de D. in com predicto yeoman attachâ—atus fuit per corpus saum ad respendendum Alicie G. de rapiu ipsius Alicie paâ—e Dom. regis nunc fracta unde eum appellat Et sunt plegii de prosequend A. D. de C. in comit C. gentleman E. I. de M. in comitat C. yeoman c. Et unde eadem Alicia in predict persona sua instanter appellat predict R. W. de eo quod ubi predict Alicia fuit in pace dei Domini Regis nunc apud A. in predict in comit Salop 8 die mensis Maii ann Regni Dem. Regis 17. circa horam sextam post meridiem ejusdem diei ibidem venit predict S. felonicè ut felo predict domini regis nunc insideand insultu premedita contra pacem ejusdem dom regis coronam dignitatem suas die anno hora loco in comitatu predict in prefatam Aliciam ad tunc ibid. insultum fecit ipsam ad tunc ibid. de virginitate defloruit contra voluâ—tatem suant raduit carnaliter cognovit sic predict R. S. predict Aliciam modo forma predict rapuit quam cito idem felo feloniam raptum predict fecissit fugiit dictaque Alicea ipsum recenter insecuta fuit de villa in villam usque quatuor villas propinqiores ulterius quousque c. Et si idem felo felontam et rapt um predict in forma predict imposit didicere velit predict Alacia hoc parata est verificare et versus eum probare prout curia c. And if a man Sueth an Appeale of the Rape of his Wife although she be not his Wife in right but in possession yet the Appeale doth well lye as is said otherwise it is in an Appeale of murder brought by a woman of the death of her Husband for there it is a good plea that they were never lawfully coupled in Matrimony Appeale of Mayhem SEE also that the Appeale of Mayhem is as followeth viz. I. N. in propria persons sua hic instanter appellat W. de F. de eo quod cum idem quaere tali die anno fuit in pace dei et Dom. Regis nunc c apud talem villam in tali comitatu circa horam sextam c. Ibi venit predict W. vi et armis viz. baculis ut felo domini regis nunc insidâ—and et ex insulta premeditete ad tunc ibid. indiction I. insultum fecit et adâ—tunc et ibid. own quodam baculo precii c. quem predict W. in manibus suis ad tunc et ibid. tenuit predict querentem super brachium dextrum felonicè tunc purcussit per quod vene et necui brachii sui perdict restricti fuerunt ac neci et mortisicat dâ—venerunt Or cum quodam gladio vel cultello precii c. quem defendens in manibus suis ad tunc et ibid. tenuit manum dexteram vel policem manus dextere vel aliud membrum vel auriculam vel aliquam juncturam membri querentis felonicè amputavit vel oculum suum evulsit vel dentes suos anteriores fregit et deposuit Et sic idem defendens ut felo Dom. regis predict quer ad tunc et ibid. felonicè mayheymavit contra pacem dicti Dom. Regis Coronam et dignitatem suus Et si defendans hoc velit dedicere querens hoc paratus est versus
was in these words I will beare faith to such a King of life and member and Terren honour against all those that from this day forward shall c. So God me helpe and his holy Evangelist CHAP. III. SECT 36. Homage HOmage is done in these words I become your man for such Land so that the whose quantity be shewed and certainty specified whereby the Lord well knoweth both how he may warrant his Tenant and for how much he bindeth his Land to warranti and that the Tenant know for how much he is his Tenant Cap. 3 Sect. 37. Fealty annexed to Homage THe Oath of Fealty annexed to Hem â—iage is in these words I shall beare Fealty to him by name of life and Member c. for so much as I shall be his Tenant against all c. saving the Oath of Fealty which I have made to such a King c And if I sweare Fealty to another then to the King then thus saving the Faith which I â—wore to the King and to my other Lords And if the Homage be done to the King or to another to whom the Tenant hath before sworne Fealty in these Cases Hee needeth not sweare Fealty againe if the Alliance in no case hath bin broken Chap. 3 Sect. 38. common Oathes COmmon Oathes are in these words I will speake truth in what you aske of mee in such a Case So God mee helpe c. The Oathes in Assises are in these words I will speake the truth of the Land of which I have had the view by Authority of this Assise or of the Land of which this Action of Reddisseision is arraigned or of the Pasture or Feeor of the Nusance or of the Walt or of the Ditch or of the Peel or of the Water or of the Church or of the Rent or of the service and nothing shall hinder me that I shall not speak the truth c. Of Life and Member and Terren Hanour he will doe so much that he will never assent that the King or his other Lord have damage of his life or any of his Members nor will assent that his honour shall be overthrowne in power not fame Cap. 3. Sect. 39. Of sinall Accorà s NO Law forbiddeth Pleas nor Accords wherefore it is lawfull for overy one to agree with his adversarie and to relcase and quit claime his Right and his Action Neverthelesse after one bath once affirmed and brought his person all Action whereby scandall ariseth none can agree it without the leave of the Iudge so as he may withdraw it For every Plaintife in Actions of Scandall who attainteth not his Adversarie according to that as hee bath brought his plaint is adjudged scandalous as his adversarie should be if he were attainted Neverthelesse in favour to save a man from death who is not attainted of mortall Offences it is suffered that the Adverse parties doe agree After Battaile waged one of the parties neverthelesse remaineth infamous None can accord or agree who is 〈◊〉 of the Age of 21. yeares nor any who is in custody nor any by Attorney In custody are villanies married women men professed in Religion Infants within the age of 14 years heirs Idiots heirs deafe and dumbe heirs deseased and those who are in prison and under Bayle and women who are in the custody of the Lords who have the marriage of them CHAP. IIII. The Contents OF Iudgment Odinance of Iudgment Of Iurisdiction Of Paul s punishable Of Defaults Of Personall Actions Of Defaults in reall Actions Of Actions mixt Of Pledge and Maynpernors Of Defaults after sommons Of Champions Of Paynes Of Imfamies Of Majests Of Burning Of Murdur Of Paines in divers manners Of false Justices Of Perjury Of the Offices of Iuctices in Eyre Of the Articles in Eyre Of Prauchises Of Satisfaction of Debts Cases of Disseisin Of Amercoments Of Amercements taxable Of the Office rf Iustices in Eyre CHAP. IIII SECT 1. Of Iudgment THe flower and necessity of Law doth depend in righteous judgment without which the Law can have no effect nor any due end And therefore it is fitte speake of judgments which are not in all points here according to therigour in the old Testament and the usages used by Moses and the Prophets before the Incarnation of Christ but they are mittigated to the temper of mercy of the truth and of the justice which Christ himselve used upon the earth and commanded to be used in the new Testament and which the Apostles and their successours have used since the Incarnation of Christ and according to the judgements of the ancient usages in Pleas touching the Lawes of this Realine CHAP. IIII. SECT 2. The Ordinance of Judgement IUdgement commeth from jurisdiction which is the greatest dignity which belongeth to the King And there are two kindes of junisdiction Ordinary and Assigned Every one hath ordinary jurisdiction if offence take it not away from him for every one may judge his owne according to the righte rules of Law But this jurisdiction is now restrained by the power of Kings in as much as none hath power to held Plea of Trespasse or of Debt which passeth 40 s. but the King Nor anie hath power of Counsins of Fees without a Writ Neverthelesse it is lawfull for every one to f. oust the mortall offender for committing of their offences by good witnesses by warrant of ordinary jurisdiction whether the offenders bee Clerks or Lay people of age or within age and all others of what condition so ever they be and in those coses are those offences called notorious offences There are two kindes of notorious nototious in fait and notorious in right Notorious in fait is where no contradiction lyeth nor no oathes need to justisie them by reason of the witnesse of the people Notorious of Right is where the offenders are attainted of their offences by themselves or by the oathes of witnesses or otherwise in judgement This jurisdiction assigned iâ— that which the King assignes by his Commissions of his Writs for without a Writ he cannot by Law grant any jurisdiction if not in the presence and with the assent of the parties None can give jurisdiction but the King the reason is because he is not sufficient to beare without helpe the charge which belongeth to him to punish the Trespasses and to assoile the offenders which hee hath to governe And so our Ancestours appointed a Seale and a Chancellour to helpe the same to give Writs remediall to all Plaintiffes without delay That Writs used to be of this Assize They were without raysure without enterlyning without blots without usuall transposition and without every fault in the parchment and letters and written in English with a knowne hand by a Clerke of the Chancery and used to containe the name of the parties and the substance of the Plaintiffe and the name of the Judge and of the King or other Teste of the Writ which sometimes were directed to the Lord of the Fee sometimes
the goods be held sufficient by a reasonable Extent untill the debt and damages be leavied Those who are Appealed and Endicted of Felony and are not to be found it behooveth that they be proclaimed and especially before the Kings and his Iustices Errants and if they be found guilty then they are to be commanded to put them in exigent so that the first county after the Eyre be the first day and so they be demandable at three Counly Courts untill they be Out-lawed if they â—ender not themselves to the Peace CHAP. IV. SECT 27. Of the Office of Justices in Eyre TO the Office of Iustices in Eyre it belongeth especially to enquire by Iurours and by examination of the Roles of the Coroners of all that were Out-lawed after the last Eyre and after Certificate of their names they are to enquire of the names of their Pledges that is to say whether they were in Dozien or in Franck-pledge and if their Pledges be in the same County then are the Pledges punishable by a pecuniary paine because they brought not those they tooke in Maine-prise to appeare and if they were elsewhere in Dezien then they are to enquire in whose Main-prise they were and they are punishable according to the example of the Pledges for the same cause To help the memories of the people are Escripts Charters and Minements very necessary to prove the conditions and the points of Contracts Gifts Sales Feoffments and other things By the Statute of Leuchfred it was Enacted that one might deny nude â—ontracts made by words and it was Ordained that Plaintiffes should prove their Writings which were denyed and not proveable by Neighbours in England and for forraigne Contracts by Battaile or by the setting to of other Seale or by Iurours at the election of the Plaintiffes If Iurours have obscurely or doubtfully or not sufficiently given their Verdict in any Action or Exception or any of the parties be grieved thereby there is remedy by a Commission of Câ—â—tisicate to make the Iurour come againe and the Parties who are the Plaintiff ought to have under the Kings Seale and of the Iudge and of the Parties the proceedings of the Plea before and shew the defect and the offence of the Iurours in which case if the Iudge by examination finde it doubtfull the â—aid doubt is to be reduced to certainty and the obscurity to cleernesse and the errour into truth and so the first Iudgement is to be redressed The Contents of the Fifth Chapter A Busions of the Common Law The defects of the great Charter The reprehensions of the Statute of Merton and Marle-bridge The reprehensions of the Statutes of Westmister 1. The reprehension of the Statute of Wesim 2. and of Gloucester The reprehensions of Circumspecte agatis The reprehensions of the new Statute of Merchants CHAP. V. CHAP. V. Sect. 1. Abusions of the Common Law THere are many who say That although other Realmes use a written Law yet onely England useth her Customes and her Usages for Law not written but betwixt rightfull and tortious usages there is a difference for tortious usages not warranted by Law nor suffered by Holy Scripture are not at all to be used as for example those of Theeves whose usages are to rob and steale And to shew some abuses holden for usages which are frauds to the Law and repugâ—ants to right and which are not found justifiable by Holy Scripture is this Chapter made of a Collection of part of the abusions of the Law and of persons erring from the knowledge of the right of Law and from lawfull usages Abusion is a disuse or a misuse of right usages turned to abuses sometimes by contrariety and repugnancy to Law sometimes by too large a usage thereof 1 The first and chiefe abusion is That the King is above the Law whereas he ought to be subject to it as it is contained in his Oath 2 It is an abuse that whereas Parliaments ought to be for the salvation of the Soules of Trespassors twice in the yeare at London that they are there but very seldome and at the pleasure of the King for Subsidies and Collections of Treasuree and where the Ordinances ought to bâ— made by the assent of the King and of hi Earles they are now made by the Kin and his Clerkes and by Aliens and others who dare not contradict the King but de fire to please him and to Counsell him for his profit though the Counsell be not Covenable for the common people without calling the Counties thereunto and without following the rules of Law whereby it followeth that many Ordinances are grounded more upon pleasure then upon Law 3 It is an abuse that the Lawes and the Customes of the Realme with their occasions are not put into writing whereby they may be knowne so as they might be knowne by all men 4 It is an abuse that force holds in Disseisins after the third day of peaceable seisin for as much as he is not worthy to be aided by the Law who flyeth from Iudgement and useth force 5 It is an abuse that Justice is delayed in the Kings Court more then oâ—se where 6 It is an abuse to suffer any to be in the Realme above forty daies who is of the age of fourteene yeares English or Alien if he be not sworne to the King by an Oath of Fealty and in some Pledge and Dozien 7 It is an abuse that Clerkes and Women are exempted to make the said Oath to the King seeing the King taketh their Homage and Fealty for Lands 8 It is an abuse to hold an escape out of Prison or the breach of the Goale to be a mortall offence for that usage is not warranted by any Law nor is it used in any place but within this Realme and in France for as much as one is warranted to doe it by the Law of Nature 9 It is an abuse to suffer so many formes of Writs to be pleadable and therein especially that the Writs are Close and not Patents as the Writs of Right and in that they are made with interlinings and rasure and otherwise vicious 10 It is an abuse that the money is not quarterable that it is not Silver that it is held payable if the forrein circle be not whole to allay the Money per 18. d. and make paying of Lead to every c. 11 It is an abuse that the King takes more then twelve pence for the exchange of twenty shillings in the pound 12 It is an abuse that no pound is suffesed to weigh twenty five shillings or more then twelve ounces 13 It is an abuse that Treason is not adjudged more by Appeales then it is 14 It is an abuse that a man who hath done Man-slaughter of necessity or with the Peace or not feloniously is detained and kept in Prison untill he hath purchased the Kings Charter of pardon of death as it is for mischance 15 It is an abuse to hold the moveable goods of