Cicero was bold to derive the pedigree of his Roman Law from the great God Jupiter so I hope without offence I may be emboldened in the person of our Common Law to say That when the Lawes of God and Reason came first into England then came I in The Temporall Lawes of this Kingdome may be divided into three parts 1. The generall or Common Law Bracton lib. Serm. 2. The customary Law 3. Statute or Parliament Lawes the end of all which are Vt sopianter jurgia vitia propulsenter ut in regno conservetur pax justitia The Common Law is nothing else but pure and tryed Reason Responsa prudentum allowed and knowne containing the Principalls and Maximes of Law consonant unto the Lawes of God with a certaine method for the orderly proceeding therein Egerton Postant the rest consisting in the minds of the Sages of the Law ready by Argument to approve what is truth and under-propt with Authorities to condemne what is false The customary Laws are certaine ancient Customes grounded upon Reason which abridge the course of the Common Law The diversity of Customes have growne by reason of the severall Nations who have had government over this Kingdom as 1. The Britaines 2. The Romans 3. The Britaines againe 4. The Saxons 5. The Danes and lastly the Normans all which sorts of people have left behind them within this Realme part of their Language and part of their Country usages The Customes within the Realme are called by severall names as As Customes As Prescriptions As Vsages As By Lawes Customs extend properly to Conntries Cities Boroughs Towns Corporate and large Signiories 2. Prescriptions run with persons who have capacities to have Interests and properties 3. Usages referre to Places or Townes not incotporate as to Inhabitants and the like 4. By-Lawes are properly made in Courts by the Tenants of the Mannor or Precinct or out of Courts with a common consent for good order and Neighbourly usage The efficient causes of good and lawfull Customes are Reason and Time the one begetting the other bringing forth and continuing the same in one place Master Lit saith This is a good Custome because it stands with some reason Litt. pl. 209.212 in another This is a void Custom because it is against reason 3 The last is Statute or Parliament Lawes Parliaments have been ancient they were in the time of the Saxons long before the Norman Conquest for as the Proverb is In the time of the Danes the Lawes lay then in water the people were governed rather by Princes wills then publike Lawes for then as one saith Sepultum fuit jus in regno leges consuitudines simul sopitae temporibus illorum prava voluntas vis violentia magis regnabunt quam judicium in terra And although in the Saxons time I finde the usuall words of the Acts then to have been Edictum Constitutio little mention being made of the Commons yet I further finde that Tum demum leges vim vigonem habuerunt cum fuerunt non modo justituta sed firmatae approbatione Communitatis Our Author and others tell us 20. H. 7.7 c. 12. part 86. That the administration of Justice was onely originally in the Crown Bracton lib. 2. cap. 24. and Kings in their own Persons rode Circuit every seven yeares through the Realme to heare the Complaints of their People and to redresse Publique grievances But after the division of the Realme into Shires publique Courts were erected as the County Court Sheriffes Turnes Hundred Court Court Leets Viewes of Frankpledges and Court Barons for the conservation of the Kings Peace and the hearing and determining of all differences Debts Contracts c. which might arise betwixt Party and Party and all persons were forted into Companies or Societies wherein ten of the principall men called Capitales plegii or Franchi plegii because they were Freemen stood as Sureties for the residue that they should stand to Justice and not fly from it when they had committed any offence The Law of Saint Edward is most excellent to that purpose in these words Legis Sancti Edwardi in Lambert Est quedam summa maxima sccuritas qua omnes Statu firmissimo sustinentur viz. Vt unusquisque stabiliat se sub fidejussionis sccuritate quod Angli vocant Friburber Haec securitas hoc modo fiebat quod de omnibus villis totius Regni sub fidejussione decemali debeant esse universi And to that purpose also is the Ordinance of King Alured Decrevit Aluredus ut liberae conditionis quisque in Centuriam aseriberetur aliquam atque in docemvirale coniiceretur Collegium the difference only consisting in this That King Alureds Law extended but to Freemen Saint Edwards to all men This Decemalis fidenissio or Decemvirale Collegium by our Author is called the Decenery who were charged to bring forth the Person of every offender to answer unto the Law Bracton lib. 3. cap. 10. whereof Mr. Bracton speaketh in these words De eo autem qui fugam fecerit he speaketh of one after a Felony committed Diligentur erit inquirenum si fuerit in Franciplegio decenna tunc erit decenna in misercordia coram Justiciariis quia non habent ipsum malefactorem ad rectum 13. H. 4.13.6 And according to that Law if a Felon after his flying or conviction were possessed of Goods the Towne or Decenary was answerable for the same And if the same were imbesselled or holden from them the Decenery might seaze those goods in whose possession soever they were found as appeareth by 3. E. 3. Itin North Fitz Corone 366. quod vicecomes Decennarii sesire possunt cattella felonum in manus Domini Regis Et vic cattella illa deliberabit villae ad respondend Regi in itinere quod si vic nec Decinnarii sesicrint villa respondebit dom regi in itenere but this Law hath been since altered by the Statute of 3. E. 3. I have Courteous Reader stood the longer upon these things as well to vindicate the Common Lawes from those weak cavills of the ruder sort as to demonstrate the care our ancient Kings and Counsells have had for the peaceable Government of the people of the Land according to the right rules of Justice deduced from the Law of Nature of God and of right Reason and I wish that Princes in this age would consider and put in practice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demoth that golden Rule of Demosthenes Benè gubernare rectè judicare justè facere so should their Kingdomes flourish and they themselves be in high estimation in the eyes of all their people In these distracted times wherein the fundamentall Lawes and Liberties of the Subject have been by a Malignant Party so much opposed I have offered this Treatise intituled The Mirrour of Justices I have translated the same out of the French Tongue into English In this Booke many of those
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
in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
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
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
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
when they may and know to whom they doe belong Into this offence fall all those who take wrongfull or outragious Tole in Markets Ciries Boroughs Townes Mills or elsewhere and those who take pavage murage chinniage carriage or other manner of Customes more then they ought to doe Into this offence fall those Bailiffes who doe enquire in Turnes and viewes of Franck-pledges of more Articles then of personall offences of wrongs done to the King and his Crown and of wrongs done to the common people those who by extortion take monies or Fines for Beaupleader or for which the Jurours are not charged and those who amerce any of their owne heads without reasonable affirment of the people sworne thereunto Into this offence fall those who unjustly distraine and those who sell distresses for the Kings debt within the 15. daies Into this offence fall all those Officers of the Exchequer and others who forbid to make Acquittances under the Exchequer Seale to every one for so much as he hath paid and who oftner then once cause a debt to be leavied who to take Rewards whereby the Townes doe not in due manner according to the Constitution of Winchester or who suffer that the people be not surnished with Armes according to Common appointment Into this offence fall all stealers of others Venison and of Fish in Ponds and of Conies Hares Pheasants Partriges being in Warrens otherfowl Doves and Swans of the Eires of all manner of birds Into this offence fall all the Sheriffs Bailiffes and other the Kings Officers who unjustifiable by extortions take money of the people as for defaults unjustifiable or for sheaves or other Custome unalowable or for Plea whereof the Judge hath no jurisdiction and those who take mony to put men out of Pannells of Juries and put others in Into this offence fall all those who take Lands Tenements Horses or other things and use them beyond the appointed for the loane of them and those who by the authority of their Bailiffes make unjustifiable Collections for monies or other provisions or Corne in Sheaves for Scottalls or other Feastivalls or doe to the people other unlawfull grievance in the like case And those sworn Officers who cause Fines or Amercements or other mâ—nner of duty to be oftentimes leavied upon one man without making restitution and those officers who take of other then of the King or of their Lords to doe their Office and those who oftner then twice in the yeere hold Sheriffes Turnes or who oftner then once in the yeere hold views of Frank-pledges in one Court and those who by unjustifiable Articles amerce the people and those who at Mills or Markets take outragious Tole and those who amerce the people by Presentments not made by the whole Decenry or by others then of Free-men Into this offence fall they who doe any thing upon another Inheritance by evill covetousnesse or for hatred Into this offence fall Counters who take outragious Sallary or not deserved or who are attainted of ill defence or of other discontinuance and those who deny their Seales in Judgement and those who make Contracts which are forbidden Into this offence sall Usurers who lend mony or other things through covetousnesse to take the forfeiture And those who rob or steale the Marriages of others or run away with others Wives or villaines with the goods of others And all Fore-stallers by whom Victuals or Cattell are made deare They are Fore-stallers who within any Towne or Franchise buy to engrosse and unlawfnlly to sell more deare and those Butchers who sell unwholsome flesh for wholsome and those Fish-mongers who buy and sellagainst the established Law and all those of what Mysteries soever they be who doe deceitfully in their trade or Mysteries CHAP. 1. SECT 11. Of Hamsockne or Burglary BUrglary by an ancient Ordinance is a mortall offence for the Law is That every one be at peace in his owne house This offence is not done only by breaking of a house but is also done by a fellonious assault of Enemies in time of peace upon those who are in their houses with intent to repose there in peace whether the assault be to kill or to reb or to beat those who are in rest within their houses And although it be that these offenders doe not accomplish their purpose if neverthelesse they make any breaking by their assault of the doores windowes or walkes to enter felloneously they are guilty of this crime Into this offence fall all those who felloniously force their entry into anothers house and therein doe any violence against the peace although they doe not break the house and that as well in the day time as the night and those who diffeise the people in such case or cast them our of their houses and out of their peaceable possessions wrongfully CHAP. 1. SECT 12. RApe is done two waies that is to say of things and of Women This offence is here put because King E. 1. by his Statute made it mortall which is more grounded upon the will then upon diseretion for one fortis Whoredome another Fornication another Adultery another Incest and another Rape but to speake properly we are to distinguish of the offences whereof the first offence is greater then the other Whoredome is the deslouring of a married woman felloniously Fornication is to ravish women not Married Adultery is to ravish anothers wife Incest is to ravish Cousens Parents or Affines Rape is properly the taking away of a woman for the desire of Marriage Rape neverthelesse according to the meaning of the Statute is taken for one proper word given for every enforcement of a woman of what condition soever she be CHAP. 1. SECT 13. Of the Office of the Coroners TO Coroners anciently were enjoyned the keeping of the Pleas of the Crown which extend now but to Fellonies and Adventures There are 2 kinds of Coroners Generall and Speciall To the Office of generall Coroners it belongeth to receive the Appeales of all the County of Fellonies done within the yeere to award the Exigents of Contempts and to pronounce the Judgements of Out-lawries and more to enquire in what Pledge they were or Decenery or of whom Mainprized and in whose Ward Speciall Coroners are Coroners of Liberties and of priviledged places To the Office of the one and the other it doth belong to view the Carcases of the dead by Felony or by mischance or to see the burnings and the wounds and the other fellonies that is to say every one in his Bailiwick and to see Treasure totheâ— and Wreaks of the sea and to take the acknowledgements of Felony and to give the Abjuration to flyers to sanctuary and to take the Enquests of Felonies hapning within their Bailiwicks As to the view of the Carcase of the body of a man it is his office that so soone as he shall be certified thereof to send to the Hundred of the place to summon sufficient able men of the
Verdict so are they chargeable to accuse the Conspirators who procure to save any Offendant or to indict an innocent in such Enquests All the Verdicts before the Coroners as well of Accessories as of the Principall are at the Commandment of the Coroners receiveable by the Sheriffes and the Principall and Accessories are to be taken and delivered to Maine prisors and in the presence of them and of the Sheriffes their goods moveables and not moveables are to be seized into the Kings hands and by a reasonable Extent and Divident the moveables are deliverable for the finding of the Prisoners and for their needful and reasonable sustinance the King to be answered the residue saving the right both to the Principall if they be acquitted and to the Accessories by Mainprise And if any one fly or make resistance and will not answer the Law it is lawfull for every one to kill him if he cannot otherwise apprehend him And Bermund awarded That all goods of those that fled should remaine forfeit to the King saving to every one his right although that afterwards he yeeld himselfe to the Peace And Iselgram said That he is no flyer who appeareth in Judgement before he be Out-lawed If any one fly to Sanctuary and there demand protection we are to distinguish for â—â—le be a common Thiefe Robber Murderer Night-walker and be knowne for such a one and discovered by the people c of his Pledges and Deziners or if any one be convict for Debr or other offence upon his owne confession and hath sorjered the Realme or hath been exiled banished Out-lawed or Weyved or if any one have offended in Sanctuary or joyned upon this hope to be defended in Sanctuary they may take him out thence without any prejudice to the Franchue of Sanctuary But in the right of Offenders who by mischance fall into an offence mortall out of Sanctuary and for true Repentance run to Monasteries and commonly confesse themselves sorrowfull and repent such offenders being of good fame if they require tuition of the Church King Hen. 2. at Clarendon granted unto them that they should be defended by the Church for the space of forty daies and Ordained that the Townes should defend such flyers for the whole forty daies and send them to the Coroner at the Coroners view It is in the election of the offender to yeeld to the Law or to acknowledge his offence to the Coroners and to the people and to waive the Law and if he yeeld himselfe to be tryed by Law he is to be sent to the Goale and to waite for either acquittall or Condemnation And if he confesse a nortall offence and desire to depart the Realme without desiring the tuition of the Church he is to goe from the end of the Sanctuary ungirt in pure Sack-cloth and there sweare that he will keepe the straight way to such a Port or such a passage which he hath chosen and will stay in no parts two nights together untill that for this mortall offence which he hath confessed in the hearing of the people he hath avoyded the Realme never to returne during the Kings life without leave so God him help and the holy Evangelists and afterwards let him take the signe of the Crosse and carry the same and the same is as much as if he were in the protection of the Church And if any one remaine in Sanctuary above the forty daies by so doing he is barred of the grant of Abjuration if the fault be in him after which time it is not lawfull for any one to give him victuals And although such be out of the peace and the protection of the King yet none ought to dishearten them all one as if they were in the protection of the Church if they be not found out of the high way or wilfully breake their Oathes or doe other mischiese in the high way If he who is killed be unknowne in such case the Coroners ought to shew the murdered cloathes according to the Statute of King Kanute who Ordained for the safeguard of his Danes whom he lest in England That if a man unknowne were killed that the whole Hundred should be amerced to the King by the Judgement of Murder Four things excuse the Hundred from the Judgement of Murder 1 If the Felon be knowne who killed him for if the Felon be knowne then may he be attainted of the Felony 2 Another If the Felon be apprehended or if he fly to a Monastery 3 If the killing come not by Felony but by mischance 4 The fourth in case where a man is a felon of himself and because there could be no Murder of a man knowne it belongeth to the Coroners to enquire in those Fellonies of what Kindred or Lineage those that were killed were so that one may know by their Parents whether they were of the English nation or not for if no man could name their Parents it was great presumption that they were Alliens And thence it is that one calleth that Parentage Englishire where the Parentage be found of the Fathers or of the Mothers side and if no Englishire be found then that it hath the Judgement of Murder To the Office of the Coroners it also belongeth to receive the confession of Felons in the hearing of Witnesses whereby of a grand Felony done by many offenders it came to passe in the time of King John that one of the offenders petitioned the King That he would pardon him his life for that he had accused the other offenders who were his companions and that the King Out-lawed them and at the request of the King the Earles granted That in Sanctuarie only it should remaire for Law that offenders having confessed the Felony might accuse others and that it was then Ordained That the Coroners should take such Confessions and such Appeales but once and not many times Women are not admitted to bring Appeales nor Infants within the Age of 21. yeeres no Idiots nor men professors not Clerks indicted or appealed of any Crime nor men attainted of false Appeale not those who are vanquished in battaile but those who have government of themselves The Appelees are to be seised upon body and goods twice in the yeere that is to fay once after Michaelmas and another time after Easter And because Sheriffes to doe the same make their Turnes of the Hundred such visnes are called the Sheriffes Turnes where it belongeth to the Sheriffe to enquire of all personall Offences and of all the circumstance of Offences done within the Hundred and of the wrongs of the King and Queens Officers and of wrong done to the King and the Common people according to the Articles aforesaid in the division of Offences The Appeales are to be seised upon body and goods as afore is said and if any Forrainer be appealed who is out of the power of the Coroner the Kings Commisrary is to cause him to appeare or Outlaw him CHAP. 1. SECT 14. Of the
Exchequer THe Exchequer is a place which was Ordained onely for the Kings Revenew where two Knights two Clerkes and two learned men in the Law are assigned to heare and determine wrongs one to the King and Crowne in right of his Fees and the Franchises and the Accompt of Bayliffes and Receivers of the Kings Monie and of the Administrators of his Goods by the over-sight of one Chiefe who is the Treasurer so England The two Knights usually called two Barons were for to afferre the Amercements of Earls Barons and of the Tenant of Earldomes and Baronies so that none be amerced but by his Peers To this place there was a Seale assigned with a Keeper of it to make Acquittances upon every payment to those who desired them and to seale Writs and Escheates under green Wax issuing from thence for the Kings Revenue In this place there are also Chamberlaines and many other Officers who belong not very much to the Law CHAP. 1. SECT 15. Of inferiour Courts FRom the first Assemblies came Consistories which we now call Courts and that in divers places and in divers manners whereof the Sheriffes held one Monethly or every five week according to the greatnesse or largenesse of the Shires And these Courts are called County-Courts where the Judgement is by the Suiters if there be no Writ and is by warrant of Jurisdiction ordinary The other inferiour Courts are the Courts of every Lord of the Fee to the likenesse of Hundred Courts and also in Fayres and Markets where right is to be ministred without delay whether the matter concern the Plaintiffe or Defendant according to the first Ordinances in which Court they have counsans of Debts Covenant broken and of Trespasses and of such small things which passe not forty shilling value and also they have Counsans of Trespasses and forfeitures of the Fees betwixt the Lords Plaintiffes and the Tenants Defendants Et è contra There are other inferiour Courts which the Bayliffes hold in every Hundred from three weekes to three weekes by the Suters of the Free-holders of the Hundred All the Tenants within the Fees are bounden to doe their Suit there and that not for the service of their Persons but for setvice of their Fees But Women Infants within the age of 21. yeeres deafe dumb idiots those who are Indicted or Appealed of any mortall Felony before they be acquitted diseased persons and excommunicated persons are exempted from doing Suâ—t and although it be that such Free-holders may doe Suits at inferiour Courts by their Atturnies neverthelesse the Judgement is not to be given or holden for forraign and if any Plea be removed by Writ of Justities Replegiatie wast or of other nature that enable the Jurisdiction from which the Writ is originally sent and returneable CHAP. 1. SECT 16. Of the Sheriffes â—urnes THe Sheriffes by ancient Ordinances hold severall meeting twice in the yeere in every Hundred where all the Free-holders within the Hundred are â—ound to appeare for the service of their Fees that is to say once after Michaelâ—as and another time after Easter and because Sheriffes to doe this make their Turne of Hundreds such appearances are called the Sheriffes Turnes where it belongeth to Sheriffes to enquire of all personall offences and of all their Circumstance done within those Hundreds and of all wrongs done by the King and Queens Officers and of wrongs done to the King and to the common people according to the points aforesaid in the division of offences All Free-holders within the Hundred are not bounden to appeare at these Courts for King Hen. 3. excused some persons said That it was not needfull that Arch-Bishops Bishops Abbots Priors Earls Barons religious Persons nay such people not other who were exempted to doe Suit at inferiour Courts should appeare in proper person if their appearance were not necessary for some other cause then onely to make their appearance And if any one hath divers Tenements in divers Hundreds his presence is not to be excused notwithstanding the Kings grant CHAP. 1. SECT 17. Of viewes of Franck-pledges OF these first Assemblie it was also Ordained That every Hundred doe make a common meeting once in the yeere not onely of the Free-holders but of all Persons within the Hundred Strangers and Denizens of the age of 12. yeeres and upwards except of Arch-Bishops Bishops Abbots Priors teligious Persons and all Clerkes Earls Barons and Knights Feme Coverts Deafe Dumb Sick Idiots infected Persons and those who are not in any Dozien to enquire of the points aforesaid and of the Articles following and not by villanies nor by women but by the afferment of Free-men at the least for a Villaine cannot indict a Free-man nor any other who is not receiveable to doe Suite in inferiour Courts and therefore it was anciently Ordained that none should remaine in the Realme if he were not in some Decenny and pledge of Free-men it belongeth also to Hundredours once a yeare to shew the Franck-pledges and the Pledgers and therefore are the Viewes called the View of Franck-pledges The Articles are these BY the Oathes you have taken you shall declare whether all they who ought doe appeare or not If all the Free-men of the Hundred or of the Fees be present If all the Franck-pledges have their doziens entire and all those who they have in pledge If all those of the Hundred or of the Fees of the age of 12. yeeres and above have sworn fealty to the King and of the receivers of others wittingly Of all Bloud-sheds of Hue and Cry wrongfully leavied or rightfully leavied and not duely pursued and of the names of the Pursuers of all mortall offences and of their kinds and as well of the Principalls as of the Accessories Of all Exiles Out-lawes Warves and banished Persons returned and who have since received them and of those who have been judged to death or abjured the Realm Of Usarers and of all their goods Of Treasure tâ—ove Wrecks Waifes Estreyes and of every purpresture and encreachment upon the King oâ— upon his Dignity Of all wrongs done by the Kings Officers and others to the common people and of all purprestures in common places in the Land or in the Water or elsewhere Of Boundaries remsved to the common Nusance of the people Of every breach of the Assize of Breed Bear Wine Clothes Weights Measwes Beames Bushels Gallons Fills and Yards and of all false Scales and of those who have used them And of those who have bought by one kind of measure and sold by another kind in deceit of Merchants or buyers Of the disturbers of fâ—aming lawfull Judgements and of the framers of wrongfull Judgements and of the Abbettors and consenters thereunto Of every wrongfull detinue of the body of a mar or other distresse Of every false Judgement given by the View in the other Hundred oâ— in the Fee Of every Fore-stallment done in the common High-way Of wrongfull Replovies and wrongfull Recoâ—sses Of every
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
your Possessions which are not of my Fee in whose hands soever they come to a distresse When and what things a man may distreyne A man may distreyne Cattell or other things so soone as he findes them damage feasant and not the day after and after the time of paiment and not before and not every day And in the night a man may not distreyne but only in the day time but for damage feasant for before Sun rising or after Sun set no man may distreyne but for damage feasant where a man may distreyn in places or Lands within the Fee lyable to distresse and not elsewhere Of what goods a Distresse may be Of all goods which the Law forbideth not the Law forbids that a man shall not distreyne within the view where he may have a sufficient distresse in an open Covenable place A Covenable dead distresse is not by Armour or Vessels by Robes or Jewels by Writings if there be found another distresse sufficient in it selfe A Covenable live distresse is not to be of Sheepe which are guelt Muttons of Doggs Birds Fishes or by Savage Beasts when there is a sufficient distresse found of other Cattell A distresse is to be carried lead or driven away at the will of the distreyner and in case any distreyner finde not any distresse but within some inclosure in such case he can doe nothing but to shut up the goods inclosed and so sequester them without doing any other violence and if a man breake up such Pound or the locks of it or part of it he greatly offendeth against the Peace and doth Trespasse to the King and to the Lord of the Fee and to the Sheriffes and Hundredours in breach of the Peace and to the Party and to the delaying of Justice and therefore Hue and Cry is to be levied against them as against those who breake the Peace A dead distresse found in a Covenable place nor a live distresse is not to be led or driven out of the Mannour or out of the Hundred or out of the County not to be put in any pound or elsewhere wherehe to whom the goods are belonging cannot have sight of them but is to be put into such a place where the distresse and he who is the owner may be least endamaged There are two kinds of leading of distresses 1 One when a man leades away a live distresse against sufficient Gages Pledges 2 Another when one will not suffer himselfe to be distreyned lawfully and the one and the other are Personall Trespasses against the Peace And then if any be wrongfully distreyned ye are to distinguish whether it be by those who have power to distreyne or by others And if by others then lyeth an Appeale of Robbery whereof Haâ—lif gave a notable Judgement and if by those who may distreyue then they ought to deliver the distresse by Gages and Pledges And if the distreyner and the Plaintiffe of the distresse lead it away then the Counsans thereof doth belong to the Kings Court and so there is remedy by a Writ of Replegiary Neverthelesse for the releasing of such distresses and for the hastening of the right Randalf de Glanvile ordained That Sheriffes and Hundredours should take Sureties to pursue the Plaints and should deliver the distresses and should heare and determine the Plaints of tortious distresses saving to the King the Suit as to the leading c. Two thing fall in these Plaints Plaints of taking and of detaining whereof there are fouredegrees 1 Where the taking is justifiable for lawfull and the detaining also as for a debt due or debt recovered 2 Where both are wrongfull as such as are disavowable both in the taking and detaining 3 Where the taking is lawfull as in damage feasant and the detaining tortious as against sufficient Gages and Pledges tendered 4 Where the taking is tortious as in a pound and the detaining lawfull as for a Debt confessed and of no more have the ordinary Judges Counsans but in case where the Plea begins by Writ Counsans ought to be made of the taking of the dedaining lyeth remedy by an Assize of Novel Disseisin The taking and the detaining are sometimes by Parties knowne and sometimes by Parties unknowne but although the Persons are knowne neverthelesse the names of the detainors ought to be known and according to that the Avowant or the Plaintiffe or of his Bayliffe if he be not present ought to frame his Declaration and the Plaint joyntly against the Persons and against the detainers or severally against one of them and if against them both then thus A wrongfully tooke and caused to be taken by such a one knowne or unknowne c and drove and carried away c. and wrongfully doth detaine from him c. against Gages and Pledges and is yet seised thereof or thus wrongfully detained from such a day till such a day that he delivered the same to the Kings Bayliffe to his damage c. for these words and yet is thereof seised leaves it to them that they cannot have sight of the distresse and to those who detaine the distresse by Avowrie of property CHAP. II. SECT 27. Of Contracts AContract is a speech betwixt Parties that a thing which is not done be done of which there are many kinds whereof some are perpetuall as those of Matrimony others are temporary as of Baylements and Leases and one kind is mixt as of Exchanges which sometimes are for a time and sometimes for ever and one speciall kinde is an Obligation And because the Law doth not entermedle with every Contract we are to see who may Contract and of what things Contracts may be every one may make Contracts with all persons who is not forbidden by Law The Law forbideth that none Contract with the enemies of the King of Heaven nor with the enemies of their earthly King not with any mortall offenders not with those who are not of the Christian Faith not with Out-lawes nor Waives nor with those who are knowne Felons not Excommunicated nor with any who are in Ward if not to the profit of those who are in Ward nor with Deafe nor Idiors nor Mad-men nor Appealees nor Persons endicted of Crime Of what thing a Contract may be made Of all things not forbidden by Law The Law forbiddeth that a man doe not make a Contract of the right of another although he offend not the Law forbids Contracts of Usury Disseisin hurting of the body dis-h heriting and of other offences or vices Contracts are forbidden which are to the damage of the Party gayning by vice by forbidding mixture of offence Contracts are vicious 1 Sometimes by intermixture of offence 2 Sometimes by intermixture of ill beleese 3 Sometimes when they are made against that which is absolutely forbidden 4 And sometimes by false supposition In the first Case as if I Contract with you that if I doe not such a thing or such a thing that it shall be lawfull for you or
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
a word fillable or clause as it is of abatable Writs Or because the King dyed before the Writ was brought or because the Writ is false in in the day of the date or because the Commission requireth the association of one who is not present Or because the Writ was never sealed or because the fact was not done within his Jurisdiction or in a place not there determinable or because the Iudge hath not power or Counsance either of the quality or the quantity of the thing CHAP. III. SECT 7. Exception to the Person of the Judge ALthough the Writ be good and the Power be sufficient yet there holds Dillatory Exceptions to the Person of the Iudge as it is said of such Persons who cannot be Iudges CHAP. III. SECT 8. Exception to the time OTher Dillotories there are of time of place of houres of manners c. And note there are three manner of times exempted from Pleas in which no Patries fit in Courts and give Iudgements whereof two are by Law and the other at the Will of the King One time containeth two Moneths viz. August and September which are assigned to gather 〈◊〉 the fruits of Corne c. The other times containeth the Feasts and the Sundaies which are appointed Feastivalls for the honouring of God and the Saints which Feasts are these 1 The day of the birth of Christ of St. Stephen of St. Silvester and the Epiphany and the Purification of our Lady Easter weeke of the Rogations which containe three daies of the Assention of Pentecost of the Nativity of St. John the Baptist of the twelve Apostles of St Lawrence and of the Assumption of the Mother of God and her Nativity of St. Michael and of all Saints and of St. Martin with all such Feasts which all Bishops hold Feastivalls in their Bishopricks for that they are Canonized besides these the dales of Reliques of the Anunciation of the Mother of God and of her Conception and of the invention of the Crosse And note that whereas God Commanded to keepe holy the Sabbath day it was Ordained after the Resurrection that we keepe holy the Sabbath Daies The third time is forbidden by the Kings Proclamation of Houres may arise Dillatories for after the houre of Noone or in the Night no Plea is to be holden CHAP. III. SECT 9. Exception of the place OF the manner arise Dillatorie for in Riding nor in Walking nor in Tavernes nor else where but in knowne places for a Consistory can any Court be holden CHAP. III. SECT 10. Exception to the Person of the Plaintiffe OTher Exceptions Dillatories arise from the Persons of some Plaintiffes as it is of those Persons who are rebukeable of accusations Other Exceptions Dillatories rise from the Persons of the Pleaders or of the Atturnies or of the Essoigners for none can doe that by his Atturney which himselfe cannor doe nor can any be an Essoigner Atturney or Pleader who may not be a Plaintiffe CHAP. III. SECT 11. Exception of Person and of his Custody OR he may take Exception against his owne Person and say that he is not within the Kings Power or if he be imprisoned for a greater offence or Appealed or Indicted of Crime or of a higher Crime Or he may say that he is not bound to Answer thereunto for as much as he is not brought to Judgement by a right course which willeth that no man may be attached by his body when he is distreyneable by his Lands or other goods if not for a personall offence Or he may say that he is not tyed to Answer to any Action which toucheth losse of life or member or right of property untill he be of the full age of one and twenty yeares or more and there are other Dillatories of the Persons of the Answerers which â—ppearebefore CHAP. III. SECT 12. Exception of Summons IN Pleas of Summons he may say he ought not to Answer because the Plaintiffe holdeth no Suit of Distresse nor hath any other manner of proofe present Or because the Plaintiffe hath not found Sureties to pursue his Plaint or because he was not summoned or not reasonably summoned or that he received the Summons by no Free-man or but by one Freeman Or because he was summoned too late or because he was never summoned what thing to answer to or because he was not summnoned against the Plaintiffe CHAP. III. SECT 13. Exceptions of vicious Couâ—â—â— AS Writs which are vicious are abaâ—â—able so also are vicious Appeales as if the Appeales be not brought within the yeare after the Felony done or not before the Coroner or not in the County where the offence was done or not in a right place or for variance or for Omission or Interuption or because the Plaintiffe is batred against others in the same Appeale Sometimes it happeneth that the thing which is robbed or stolne is found in the possession of a true man against whom the Owner of the property or of the possession frameth his Appeale as he who is a Robber of another in which case there is a difference for if it be found that such a thing was given sold or delivered to him without Coliusion in such case the possessor is acquitted or at least Bayleable untill the next comming of the Iustices and when the Iustices come the first possessor thereof is to be Arraigned and he may shew how it came to him neverthelesse if he would vouch one to warrant it he cannot nor deny the Title of his possession but in the name of Voucher he may say that it came to him by lawfull Title as that he bought it in such a Market or in such a place without mentioning of whom and the Sheriffe is thereupon to cause a Jury to be impannelled and if the Answer be found true then he is acquitted and if not then to be condemned as before as if the Plaintiffe had proved the felony And if any one appeare and justifie the thing to be his he is not to be received as a Party but the Cause is first to be tryed betwixt the two first afterwards he may make the estranger a Party if he will and if the case be that the buying was within a place within a Franchise and the Sheriffe returne that he cannot execute the Writ by reason of the Franchise of such a man or of such a place in such case the Sheriffe is to be Commanded that he forbeare not by reason of the Franchise but that he enter and execute the Writ And if the Possessor saith That he came to the thing from a man certaine and he be present and will maintaine the same without Collusion he is to be admitted thereunto and the other is to be discharged and if he deny the Contract this affirmative and this negative are tryable by Battaile or Jury neverthelesse at the Kings Suit the possessor ought make title to the Possession or cleare himselfe thereof for two things are necessary Conscience for us and
adjudge men to be put out of their Possessions and one may be rightfully and without Iudgement as in the cases aforesaid and further rightfully and by Iudgement and thereof rise Exceptions and so not without Iudgement and yet by Iudgement and that may be either by the Iudgement of Iudges Commissaries or Iudges Ordinaries as were the Suitors Againe Writs may be vicious by misprision of the names of the Townes as if a Hamlet be named for a Towne or if the Towne be not right named or if the Towne be not distinguished where there are two Towne of like name in the same County And from these words after the Term may arise Exceptions as if not the Term yet he might have distreyned for or the Arrerages of his Penson or speciall Obligation exceptthat he had any wrong Or because another Writ for the same Action is yet depending betwixt the same Parties or he may say that he wrongfully complaines whereas at his one Plaint he lost the same Tenement by a lawfull Iudgement against him Or that he hath released or quit-claimed all his Right or to the same purpose or otherwise rattified his estate or because at another time he withdrew his Action before such Iudges Eor the helping of the peoples memories are Escripts Charters and Minuments very necessary to testifie the Conditions the points of Contracts for by the Stature of Lenfred who ordained that one might deny Contracts by waging of his Law and that Plaintiffes prove their Writings otherwise their Charters which are not denied not to be shewed by Iurours in England for Forraigne Contracts or of places Enfran chised or elsewhere where the Kings Writs run not by Coppies or Collation of the Seales of others or by Iurours or by Battaile according to the Plaintiffes Action To give matter and way to Exceptions in the aide of those who are to Answer one is to know the end and limitation of Actions and of Pleas so that the Pleas may have an end and therefore Prescriptions were ordained whereof Thurmond Ordained That Criminall Actions for revenge should cease at the yeares end if they were not brought before and the same time he appointed in all Actions for Wrecks Estraies Waife and of things lost in Personall Actions Venialls be appointed the Terme after the last Eyre in those parts in reall Actions and Mixt he appointed forty yeares neverthelesse as to the King in the right of his Crowne and to a Francke estare Nullum tempus occurrit◠To an Action of Accompt he may say that he never was his Receiver not Administrator of his goods nor of his monies whereby he was bound to render him any Accompt and that he received them of him under the title of Buying whereof he gave him a writing to surrender at a certain time Or thus notwithstanding he was his Receiver or Administrator in a Franchise or elsewhere out of the Realme or in a Priviledged place whereby he is not bounden to give him an Accompt within the Realme nor where the Kings Writ runneth or in guildable or è contra Or he may say that the Writ is vicious by false supposition and falsly supposeth the Defendant to be a Fugitive and besides not a Free-holder within his Bayllwick to whom the Writ is sent Or he is not bound to yeeld him any Accompt for that he was never Receiver of his owne hand or of his daily Receipt he gave him a daily Accompt or that he disbursed nothing nor bought any thing but in the Plaintiffes sight or of some of his Or for that the Plaintiffe by Tallie and other Roles hath discharged him of so much in value as the Defendant was to give an Accompt for Or because he hath made him an Acquittance thereof or because he was never Guardian of his Inheritance as his Guardian but was Guardian during the time of the thing for his owne proper use or it belongeth to him that is Guardian of the Lands in the right of his Fee whether it be Socage or other To the Action of Villinage he may say That he is a Free-man and that he hath proved the same at another time by a Writ of Libertate probanda that he is quit from any Challenge by the Plaintiffe for ever if he have no reasonable Counter-plea against it And as to the seisin of Villaine Services he may say That he did those Services wrongfully by Extortion and duresse of him and his Baylisses or for the service of Villinage and Villaine Land which he held of him and not by service of blood and there are two other things the one that if the Defendant can shew a free Stocke of his Ancestours either in the conception or in the birth the Defendant hath alwaies been accounted for a Freeman although his Father Mother Brother and Cousens and all his Parentage acknowledge themselves to be the Plaintiffes Villaines and doe restifie the Defendant to be a Villaine The other thing to be noted is That no more then the long Tenure of Copy-hold Land maketh a Free-man a Villaine the long Tenures of Free-hold maketh a Villaine a Free-man for freedome is never lost by prescription of time There are many manner of prooffs by the same Pleas sometimes by Rewards sometimes by Battaile sometimes by Witnesses sometimes by the Consessions of the Adverse parties 1 By Record as in case where the parties doe agree together upon some enrolement or to the Iudgement of some Iudge Ordinary or Assigned 2 By Battaile for upon warrant of the Combate which the Iudges tooke betwixt David for the people of Israel of the one party and Goliah for the Philistims on the other party is the usage of Battaile allowable by the Law in England so that the proofe of Felony and other cases is done by combate of two according to the diversities of the Actions for as there is a personall Action and a reall so there is a personall Combate and a reall personall in personall Actions reall in realls and these Combates are differing in this that in a Personall Combate for Felony none can combate for another neverthelesse in Actions Personalls Venials it is lawfull for the Plaintiffes to make their Battailes by their bodies or by loyall Witnesses as in the right of reall Combates because that none can be Witnesse for himselfe and no man is bound to discover his reall right and although they make these Combates for the Plaintiffes by Witnesses the Defendants neverthelesse may defend their owne right by their owne bodies or by the bodies of their Free-men and further they differ for as much as in Appeales none can Combate for another but it is otherwise in reall Actions for if that one of the Parties be hurt so as he cannot Combate his eldest Son may wage the Battaile for him The Battaile of two men sufficeth to declare the truth so that the Victory is holden for truth Combates are made in many other Cases then in Felonies for if a man hath done
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
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
only Corporall punishment holdeth place which passeth the punishment which should be adjudged to others not the Kings Offices according to the Kings pleasure CHAP. IV. SECT 15. Of the Offices of Justices in Eyre THe Presentments of offences are Ex officio by Coroners by Sheriffes and Bayliffes in Turnes and viewes of Franck-pledge by Enquests and speciall Iustices and by Kings Ex officio or by their Chiefe Iustices or of their Iustices generalls and because that the one have not power to determine the presentments of such offences nor to punish the Trespasses and the other who can will not or doe not that duty which of right they may doe or punish the innocent and spare the guilty It was anciently Ordained that the Kings by themselves or by their Chiefe iustices or by generall Iustices to heare and determine all Pleas should goe Circuit every seven yeares through all Shires to receive the Roles of all Iustices assigned of Coroners of Inquirers of Eschetors of Sheriffes of Hundredours and of Bayliffes and of all Stewards of all their Iudgements Enquests Presentments and all their Offices and to examine those Roles whether any had erred therein either in the Law or to the damage of the King or to the grievance of the people and those things which they found not determined that they should determine them and in the Eyre they should redresse the Officers and punish the negligence of them according to the Rules of Law and that they should enquire of all offences which belonged to the Kings Suit and to his Iurisdiction And note that notwithstanding the King had the Suits of all mortall offences and of wrongs done to the Law and to the right of his Crowne it is not thereby to be understood that he should have the Suit of all offences but if any one be Plaintiffe and doth not proceed in his Suit after the same is affirmed yee are to distinguish if it be of a personall offence 〈◊〉 it susâ—â—eth for the Defendants for the Non-suit of the Plaintiffe doth suppose 〈◊〉 of the damage and if it be of a mortall offence yet the King hath nor the 〈…〉 warrant of Appeale or Indictment wherein it behooveth to the Appealees and Enditees that they make haste to acquit themselves for none is bound to Answer to any manner of Action brought by them because they are barred by an Exception of mortall infamy by being Appealed or Indicted CHAP. IV. SECT 21. Of the Articles in Eyre EVety Shire usedto be warned by forty daies at the least by generall Summons of the Kings comming where after the Effoignes adjourned and the Assize of Victuals set and the Ordinances proclaimed and those of Franchises adjourned and the Jurours called Sworne and Charged with their Articles and the claimers of Franchises and the Rolls of the Justices of Coroners and of all Sheriffes and of all other manner of Pleas and Presentments after the last Eyre taken and received the first thing was to enquire heare and determine the Articles presented and brought in the last Eyre which were not ended and afterwards to determine Writs and Plaints to deliver Visnes to examine the Rolls to redresse the errouts and all other wrongs by right Judgements without respect unto any person All the Judges Ordinaries and Assigned Sheriffes Bayliffes and Stewards of Lords of Mannours and all other who claimed Iurisdiction which any one could attaint of any wrong done against the right rules of Law were condemned for the wrongfull Iudgements with regard to the distinction of the Parties grieved Coroners Eschetors Sheriffes Bayliffes and other Ministers doing wrong to the King or to the people used to be punished according to the example of the other and further according to the Kings pleasure The offenders which were found using false Scales and false Measure and gaining by breaking of any Assize either of Bread Wine Ale Cloth or other Merchandizes used to be set in the Pillory and Women in the Tumbrell and afterward were not suffered to Merchandize at any time not could they depart from the place or Towne to any Liberty because the usage was contrary to Law Cut-purses taken De facto in their notorious sins used to be hanged and for the cutting of Purses and stealing of other goods under the value of twelve pence and lesse then sixe pence one of their eares used to be cut off without carrying them to Prison or before any Iudge Assigned and to banish them from the Towne or from the Mannot for the second offence And for their â—arcine under the value of 〈◊〉 pence they used to set them in the pillory for the first offence and to banish them for the second In the Iudgements of Personall Trespasses venialls as to the taxing of the damages put in plaints Martin De Pateshall used this course the Judge used to enquire ex officio of the Iurours by whom any principall Trespasse was adjudged before him the names of all these who were guilty in the first degree and of the Accessories and therein he proceeded to Iudge the damages according to the number of the Endictors so that no Plaintiffe should recover no more entire damages by plurality of Plaints for one sole trespasse against the Trespassours severally CHAP. IV. SECT 22. Of Franchises OF Franchises note that because the King doth not hold his Rights and Dignities of his Crowne but as an Infant nor a grant from him of any franchises is so established that Kings cannot repeale them againe so as he give satisfaction to the value as by warranty and it is lawfull for every one who findeth himselfe grieved to Sue for the King to seize every Franchise forfeited for contumacy as if the Bayliffe of a Franchise doe not execution of the returne of the Sheriffe according to the Command of the King by any abuse as by using his frâ—nchife too largely or not duely by a Writ ensuing it is commanded that the Sheriffe enter into the Franchise and the King doth recover the seisin thereof and so the same becomes guildable which was before a Franchise And all those used to forfeit the Franchise of keeping of a Goale in Fee who by title of Franchise of Infangthiese or of return of Writ hurted not without delay the Persons taken in the places within the Franchise for Felony done in Guildables and send them into the Goale in Guildable so that the King doe not lose the Goods and Chattels of the Felons nor his other rights for the King giveth no Franchise to his owne prejudice nor to the prejudice of others especially of returne of Writs nor to have the custody of a Goale An example may be as betwixt two Neighbours in a Franchise the one cannot keepe a Prison to the prejudice of the King and if he doe he forfeiteth the Franchise And it also appeareth that Iurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command as well upon criminall Actions as upon
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
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
to averre by Oath and because he would not averre it by Record Therberne would not allow of the Acquittall which he tendred him He hanged Wolstor because he adjudged Haubert to death at the Suit of the King 31 Wolstor for a fact which Haâ—bert conâ—est and of which the King gave him his pardon but he had no Charter thereof neverthelesse he vouched the King to warrant it and further tendred to averre it by enrolement of the Chancery He hanged Oskitell because he judged Catling to death 32 Oskitell by the Record of the Coroner whereby Replication allowable the plea did not hold And the case was such Catling was taken and punished so much as he conâ—est he had mortally offended and that to be quitted of the paine and Oskitell adjudged him to death upon his Confession which he had made to the Coroner without triall of the truth of the paine or the fact And further he caused the Coroners and Officers accessories to be apprehended who hanged the people and all those who might have hindred the false Judgement and did not hinder the same in all cases For he hanged all the Judges who had falsly saved a man guilty of death or hath falsly hanged any man against Law or any reasonable Exception He hanged the Suitors of Calevot 33 Suitors of Calevoâ— because they had adjudged a man to death in a case not notorious although he were guilty thereof for no man can Iudge within the Realme but the King or his Commissaries except those Lords in whose Lordships the Kings Writ doth not run He hanged the Suitors of Dorcester 34 Suitors of Dorcester because they Iudged a man to death by Iutours in their Liberty for a felony which he did out of the liberty and whereof they had not the Counsance by reason of forrainty He hanged the Suitors of Cirencester 35 Saitors of Cirencester because they kept a man so long in Prison that he dyed in Prison who would have acquitted himselfe by Forraigners that he offended not feloniously In his time the Suitors of Doncaster lost their Iurisdiction 36 Suâ—ors of Doncaster besides other punishments because they held Pleas forbidden by the Customes of the Realme to Iudges Ordinaries and Suitors to hold In his time Colgrin lost his franchise of Enfangtheise 37 Colgrin because he would not send a Theife to the common Goale of the County who was taken within his Liberty for a felony done out of the Liberty in Guildable In his time Buttolphe lost his view of Franck-pledges 38 Buttolphe because he charged the Iurours with other Articles then those which belonged to the View and Amerced people in Personall Actions where one was not to be amerced by a pecuniary punishment And accordingly he caused mortall rewards to Criminall Iudges for wrongfull mortall Iudgements and so he did for wrongfull Iudgements venialls Imprisonment for wrongfull Imprisonments and like for like with the other punishments for he delivered Thelweld to Prison because he judged men to Prison for an offence not mortall He judged Lithing to Prison 39 Lithing because he imprisoned Herbote for the offence of his wife He judged Rutwood to Prison because he imprisoned Olde for the Kings Debt On the other side he cut off the hand of Hanlf because he saved Armocks hand who was attainted before him that he had feloniously wounded Richbold He judged Edulfe to be wounded because he judged not Arnold to be wounded who feloniously had wounded Aldens In lesser Offences he did not meddle with the Judgements but dis-inherited the Justices and removed them according to the points of those Statutes in all points where he could understand that they had passed their Jurisdiction or the bound of their Delegacy or of their Commission or had concealed Fines or Amercements or other thing which belonged to the King or had released or encreased any punishment contrary to Law or procured the exercising or pleading without Warrant either in the property by warrant of Writ or of a plaint of the Possession or è contra Or in the veniall Actions by words of felony or è contrai or had sent to no Party a transcript of his Plea at the Joâ—ney or any of the Parties wrongfull grieved or done any other wrong in dis-allowance of a reasonable Exception of the Parties or to the Judgement In his time every Plaintiffe might have a Commission and a Writ to his Sheriffe to the Lord of the Fee or to certaine Justices assigned upon every wrongwhichwas done In his time Law was hastened from day to day so that above fifteen daies there was no default nor Essoigne adjournable In his time the parties might carry away the parts of their Pleas under the Seale of the Judges or the adverse parties In his time there was no stay of Writs all remediall Writs were grantable as of Debt by vertue of an Oath In his time the Iudges used to take twelve pence of every Plaintiffe at the journey In his time Plaintiffes recovered not onely damages of the issues of the Possessions and of the Fees but recovered Costs as to the hurts and as much as one might lawfully Taxe by the occasion of such a fact 109 It is abuse that such a multitude of Clerks are suffered to be made whereby the Kings jurisdiction is overthrowne 110 It is abuse that Clerkes have Leases of that which belongs to the Temporalty and hold Lay Fees 111 It is abuse that Pleas hold upon Sundaies or other daies forbidden or before Sun rising or in the night time in dishonest places 112 It is abuse that none answer to a Felony or other personall Action of trespasse or scandall before his age of one and twenty yeares 113 It is abuse that when the Action is affirmative to take the proofe against the Answer or Plea affirmative 114 It is abuse that a man be accused of life and member ex officio without 〈◊〉 or without indictments 115 It is abuse that the Iustices shew not the Endictments to those who are endicted if they require the same 116 It is abuse that no man in England doth answer for a thing done out of the Realme Et è contra or in a priviledged place where the Kings Writ runneth not for a thing done to a Forraigner et è contra or within a place within a Franchize for a thing done in Guildable 117 It is abuse that Rape is a mortall offence 118 It is abuse that Rape extends to others then Virgins 119 It is abuse to Out-law a man if not for felony 120 It is abuse that one take in England any one Out lawed in Ireland or elsewhere out of the Realme or that one is put out of his Fee by judgement of Law of Judges Ordinaries Suiters 121 It is abuse to count of so iong time whereof none can restifie the hearing or seeing which is not to endure generally above forty yeares 122 It is abuse that a man have an
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
a personall Trespasse and requireth a personall punishment and not a simple Amercement CHAP. V. SECT 4. Articles upon the Statute of Westminster the first MAny Chapters are reproveable of the Statute of Westminster For the points touching religious Persons are matter to gaine monies and a purchase upon a foundation of covetousnesse more then for their advantage The Chapter of Clerkes found guilty of felony is reproveable for for want of addition of punishment these Clerkes are not to be delivered to Ordinaries but at the pleasure of the King and of his Justices The Chapter of Wreck is reproveable in as much as the finder is forjudged by the Statute to have part thereof whereas he ought to have part of the profit and so it is reproveable as to the awarding of the punishment Of the points of Amercements is before spoken in the Great Charter The point of takings of distresse is much reproveable Cap. 9. as before is said The Chapter concerning pursuing of Felons to maintaine the Peace is reproveable in the punishment for he is consenting to a Felon who doth not apprehend him when he may In the same manner is it of the Chapter of Coroners contained in the Articles following The point of Election of Coroners was not needfull to have been ordained Cap. â— for it behoveth more the Electors to have wise and loyall Coroners then to the King and it had better have been enacted that the Coroners doe present the points of their Office under the Seales of the Jurours then Sheriffes should make counter parts of the Rolls The point of Enquest of Odio aria is reproveable Cap. 12. for London and other places in Liberties where there are no Knights The point of putting people found guilty of felony who will not put themselves upon the Country to pennance it is out of use that one kill them without having regard to the conditions of the Persons and therein it is reproveable since one may perhaps helpe and acquit himselfe otherwaies then by his Country and in as much as none is to be put to Pennance before he be attainted of the offence for which he ought to be pained The Ordinances of punishments of long imprisonment are to be reprehended as before is said The point of the order of Outlawry of the principalls before the Accessories is no Statute but a revocation of errour The point of Replevisalls is reproveable according as it is said of Actions the punishment of long imprisonment containe Errour as is said before The punishment of Heites males Married as against the King without the consent of their Lords betwixt 14. yeares and 21. yeares is reproveable for then the King should have amends for that for which he hath not any personall Suit for the amends The point of Heires females containeth Errour as appeareth in the reprehension of the point of Marriages in the Great Charter The point of tortious Distresses ought to contain the punishment for the robbery The punishment of Ministers Disseisors by colour of their Office is reproveable for the smalnesse of it as appeareth amongst the Judgements The point which forbiddeth Sheriffes that they take no rewards is reproveable in as much as the King taketh of them and they take nothing of the King The point of Fines of Clerkes and the officers of Justices in Eyre is reproveable for the common grievance of the people without taking of profit The points of imprisonment are reproveable for the reasons aforesaid and the point of Tolls for the punishment of imprisonment and because Tolls are not established certaine The point which willeth that those who dis-use Marriages should lose them was not needfull to have been made for the Law is that he shall lose his Franchise who useth it not The point of the Receivers of the Kings monies and not rendring the same is reproveable for the smallnesse of the punishment according to that which appeareth before The Errours of taking of Carriages and other goods appeareth sufficiently by the reasons before The point which forbiddeth Judgement to be given by Strangers in Counties is reproveable for no Iudgement given by another then an ordinary Judge assigned is to hold The point which maketh mention of Robbery or Disseisins is reproveable for all those are to be seised upon who the Jurours indict of Robbery according to the example of Theeves and other Felons The point of Attaint is reproveable for it should not extend to one case but it ought to comprchend all Oathes taken by twelve men if one of the Parties complaine thereof The point of limitations of Actions is reproveable for the reasons in the Chapter given upon the same matter The point which forbiddeth falsities and abuses used in Courts before this time to false Judges who used not the Law by sufferance of falsities The point of Champions is reproveable for no Champion is to be receiveable as a witnesse The point of not allowing Essoignes in Assizes after appearance is reproveable by the Assize of Novel disseisin where no Essoigne is allowable for the Tenants no more before appearance then after not in no other personall Action The other points of Essoignes are reproveable for no false cause of Essoigne ought to advantage any man The point of delaies in Pleas of Attachment is reproveable in many points accordingas appearethin the chapter of defaults The point to plead upon the surcharge falleth in prejudice of Sheriffes and of Lords of Fees and of Liberties and although the two points of Disseisins that is to say that every one may avoid the damages in the point of personall trespasse done to his Ancesters in as much as his Action lyeth of what age soever the Parties be yet is the first reproveable for as much as the Plaintiffes have no recovery for the damages done to their Ancestors not any Action but to have restitution of the possession The other point is reproveable for the smallnesse of the punishment but according to common right this punishment should have time that he should never doe Homage betwixt them for the Lords forfeiture when he beginneth to dis-inherite his Tenant contrary to the right of Homage The Prayer of the King is reproveable because he ought to aske nothing contrary to Law but it is the prayer of the Justices who desire alwaies to have much to doe The point that if he who is vouched to warranty ought not to warrant although he be bounden by the deed of his Ancestor whose Heire he is in case he alledge that nothing descended to him from that Ancestor by whose deed he is â—ouched is reproveable for according to the old Law Lands remained liable to the Debt of those who acknowledged it to whose hands soever the Lands afterwards came In the same manner it used to be in all other Contracts where the Contracts were adjudged or granted and although nothing descended to the Heire for that he lost not the Tenements for want of Acquittance and if
two points one in the specialty of the Corporall punishment and of the Plurality punishments since the redemption by a pecuniary paine is but the buying out of the Corporall punishment The other to have jurisdiction against the Abettors without originall Writ The Statutes of Waste are founded upon Errour since waste is a personall Trespasse and requireth other manner of Processes as appeareth in the Chapter of defaults and to defend a personall Trespasse by Writ is but a vaine labour The Statute of not allowing a false cause in the Essoigne De malo lecti is defective for in no Essoigne for no Party is any false cause or any falsity to be permitted not ought to be profitable to any The Statute of Debt and Damages recovered is defective for not onely should such remedy be in the Kings Courts but it ought to comprehend in all other Lay Courts The Statute of those who are dead without Wills is defective for it ought to comprehend Felons and Fugitives as well as true men and the King and all others into whose hands their goods come as well as Ordinaties for none can forfeit the right of another The Statute for allowing one manner of Exception in the like Actions was not needfull to have been made if not for the negligence of Justices for every affirmative is encounterable with his negative at the perill of the party The Statute of detinue of service is a novelty daugerous to Lords of Fees as appeareth in the Chapter of defaults The Chapter of making new Writs had not need to have been made if the first Ordinances of Writs were observed The Statute to have remedy by Assize of Novel disseism is reproveable for as much as it comprehendeth not Lands charged with Villain Customes not Lands holden for terme of yeares The point needed not have forbidden false Exceptions if the Pleaders held themselves to the points given in charge And as to the point of Imprisonment the Statute is reproveable for the reasons aforesaid and also as to the paine of double damages for the Law giveth a man no more then is his demand And that which appeareth in the Statute of false Appeales is more errour then right in the enacting the award of amends to Defendants whereas it is not to the Plaintiffes And as to the Writ to the use of Sheriffes in Disseisin it is no Statute but it is a thing at pleasure and a wrong And that which is used to grant Damages in part or in all to Justices or to Clerkes or to Ministers or others should be forbidden as a usage very full of damage to the people And as punishments are reproveable in Novel Disseisins so are they in the Statutes of Disseisins Corporall punishments neverthelesse hold in such personall Trespasses but in Reddisseisins more then in Disseisins The Statute which forbiddeth that Writs of Oyer and Terminer be not Ligirment granted is not founded upon any Law Easily as being repugnant to the words of the Great Charter We will not sell or delay Justice to any man but commeth rather from the remporall Iudges who cause the same for their advantages as desiring to embrace all Pleas. The Statute of Caption of Assizes thrice in the yeare is reproveable as to the adjournment of the Parties out of the Counties before the Iustices of the Bench who have no jurisdiction over those Pleas since the Commissions are given to Iustices assigned And as to take Iuries and Enquests in their Counties so the Statute is not to destroy the Authours and indamage the people The Statute which forbiddeth Iustices that they cause not Iurours say but their advice is defective as appeareth in the Chapter of Iurours The Statute of Exceptions allowables rebutted by Iustices is not founded upon Law as appeareth in the Iudgement of false Iustices but is when it is in no part fixt The Statute of Rape is reproveable for none can ordaine by Statute that a veniall punishment be turned into a mortall without the consent of the Pope or the Emperour The Statute that the King hath the Suit in Rape or in Ellopment of women Married is reproveable for none is bounden to Answer to the Kings Suit if not by Appeale or by Indictment And that which is contained in it That Women should lose their Dower for the sinne of Adultery ought also to comprehend all Adulterours who claime to hold the inheritances of their Wives by the courtesie of England so that there be no exception of persons The imprisonment of the Alloppors of Nunnes and their ransome is no Law but is an errour in a double manner as before is said in many places The imprisonment for two yeares or more ordained for a Corporall punishment to Ravishers of Marriages is but errour for no Corporall punishment ought to be ordained but for common profit as before appeareth of open Penances And that which is ordained of Proclamations in personall Actions is but abuse of Law as it is said in the Statute of Moignes The Statute which awardeth Ransome is reproveable for Ransome is nothing else then the redemption of Corporall punishment The Statute of Distresses made by Baylisses unknowne is distinguishable for in torrious Distresses without warrant the Iudgement of Robbery holdeth and by warrant is every one receiveable whether knowne or unknowne The Statute of Iurours is reproveable for the Law wills that the Plaintiffes have the aide of the Courts to cause the Witnesses to appeare whereby they may the more lawfully helpe themselves without distinction of persons And that that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints without a speciall Commission is but abuse The Statute which awardeth that Writ of Judgement be made without warrant of originall Writ is nothing else then a Licence to falsifie the Kings Seale The punishment of Sheriffes ill answering is reproveable as to the punishment for dis-inheritors of the King offend of the crime of Majesly and are by consequence punishable by death which ought not to be in such cases And as to issues the Statute is reproveable for no issues are awardable but after defaults in Actions mixt and not to the Kings use but for the profits of the Plaintiffes The defaults made of the Statutes of Clerkes Cryers and other Officers of the Court are but idle because they aâ—e not kept at all The Statute that Cognizances and Enrolements which are made in the Chancery the Exchequer and before Iustices be established is an Authority of great ill for by false enrolements might every one in Authority destroy those he pleased which should be a great inconveniency Againe by this Statute Authority should accrue to Authority to the Chancellor and others to falsifie the Kings Seale by Writs to give judgement without originall Writs And therefore note that none but the King can receive Arturnies in the Kings Court nor recognitions bitwixt Parties without warrants of originall Writs The Statute of improvements of wasts and commons of Pasture
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
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
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
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
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