THE BOOKE Called The Mirrour of Justices Made By ANDREVV HORNE With the Book called The Diversity of Courts AND Their Jurisdictions Both translated out of the old French into the English Tongue By W.H. of Grays Inne Esquire Cassiodor Iura publica certissima sunt virae humanae solatia infirmorum anxilia impiorum frana Imprinted at London for Matthew Walbancke at Graies Inne gate 1646. The Translator to the READER Courteous Reader IT hath ever been an Objection grounded upon ignorance which hath been made by the meaner sort of the people to traduce the Common Lawes of England and to bring the Professors thereof into contempt to give out Speeches and cast it in the teeth as it were of them That the said Lawes are built but upon a sandy foundation viz. the conceits of a few men and that they are not grounded upon the Lawes of God from which all Lawes of men ought to flow as from a cleare and pure Fountaine This vulgar conceit and objection hath been principally nourished amongst them because the Common Lawes have been kept from their view and understandings being for the most part published in the French Tongue I must ingeniously confesse That since it is a received Maxime amongst us That ignorance of the Law doth excuse no man that it were good that the fundamentall Lawes were published in our Mother Tongue that so no person might be miscounsant thereof And I have observed that it hath been the course and care of most of the late Publishers of our Lawes to put them forth in such Language as the common people might the better know them and practice the due observation of them But that I may with the more ease and plainnesse answer that frivolous Objection remove that fond conceit of the ignorant vindicate our Commnn Lawes from so foule an aspersion and let the Objectors see from whence our Lawes deduce their Originall though the learned Authour in the ensuing Treatise hath in part done it yet for the cleare manifestation thereof I shall entreat the courteous Reader to be pleased favourably to accept of this short Breviary of the Grounds and originals of the Common Law which I shall apply only as an introduction to the Work which followeth All Lawes are comprehended under a Three-fold division 1. The Law of Nature 2. The Law of God of Faith or of the Gospell 3. The Law of man made upon the Dictates of Reason upon all which Lawes the Common Lawes of England are built as upon firme and sure foundations The First is that which is called the Law of Nature which is ordained of God and may be called Gods Law united unto mans nature Gen. 1. ver 26,27 for what was that Image of God in man consisting of righteousnesse holinesse and truth but Lex primordialis a primordiall Law exactly requiring and absolutely enabling the performance of duties of Piety unto God and of equity to men both in habit and Art St. Ambrose Amiquam scripte fuit lex in hominum mentibut vigebat God in the beginning wrote his Lawes in mens hearts and therefore according unto the opinion of most learned Divines and Legists Lex nature nibil aliud est quam participatio legis eterne in rationali creatura And according to others Lex naturae est lamen ac dictamen illud rationis quo inter bonum malum discernimus The most principall Precepts of the Law of Nature which are also Maximes and Grounds of the Lawes of England are 1. Deum venerari 2. Honestè vivere 3. Patrie magistratibus parentibus obedire 4. Alteri ne facias quod tibi non vis fieri 5. Suum cuique tribuere 6. Tollere nocentes è medio propter servandam publicam salutem 7. Rerum dominia proprietates possessiones usum distinguere To honour God to live honestly to obey Magistrates c. to doe as we would be done unto to render every one his due to punish the guilty for the preservation of the Publique to distinguish and settle the Dominion propriety possession and use of temporall things These fundamentalls of the Law of Natvre are not principally acquired or obtained by Art or Doctrine but naturally ingrafted Learning and instruction serve only to bring forth and encrease those naturall Seedes but neither Learning nor instruction doe principally and originally give them they are faith Socrates but as skilfull Midwives Socrates whose office it is only to further the birth of the Childe not to beget the Childe The Second is the Law of God the Law of Faith or of the Gospell which may well be called Lex amoris the Law of love Is not this Nation Christian Hath it not professed the common Faith for 1200. yeares Doe not our Lawes all tend to the maintaining of peace concord and love fruits of the Gospell Are not all Statutes Acts of Parliament Constitutions Customes made and used for the government of this people founded upon such principalls Let the Objectors cite me any Law in use now amongst us which is not warranted by some expresse Gospel Text either in the Letter or not by necessary consequence drawne from it sure I am that every Law Custome Usage Priviledge Prescription Act of Parliament or Prerogative which doth exalt it selfe above or beyond the Law of God the Law of Christ or the Law of Nature hath ever by the worthy Sages of our Lawes been declared to be void It were to no purpose to instance upon particulars it is sufficient to say That as it appertaineth to all godly and Christian men to observe and keepe this Law so to let all men know that we are instructed by the worthy Professors of the Gospell of Christ in the fundamentall Rules and grounds of this Law to live after it and to direct all our words and actions according to it and by it and therefore I shall not say more of it The third the Lawes of men and the municipall Lawes of this Realm which although they may seeme to some to have their progeny from men for as Solon to the Athenians Lycurgus to the Lacedemonians Numa Pompelius and Actius Claudius to the Romans were accounted the Principall Authors and givers of Law to those severall Nations so Alured on Alfred Athelstone Edmundus Edgar Canutus Edward the Confessor William the first and Henry the first called Beauclark noble and famous Princes of this Nation part of all whose Lawes are yet in force were the chiefe promulgers of many necessary and good Lawes yet in use with us in this Realme yet if we looke into their Laws we shall finde that most of them have their rise from a higher power from the Law of God and the Law of Faith It is true Dan. Hist in tit Wil. Conq. Cicero l. 1. De legibus that some Historiographers have written that the originall of the Common Lawes now in use flowed first out of Normandy I shall decline that as to the generality but as
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
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
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
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
next Townes that at a short day certainly named they be before him at such a place all which done the Carcase is to be viewed and if he finde it there buried that it be taken up and to the Coroner it belongeth to Record the names of them who buried him and if it hath been decreased or endamaged by ill keeping or laine so long that it cannot be judged how it came by its death that the same also be Recorded that this negligence be punished at the comming of the King or his Justices in Eyre into those parts and if the Coroner with the advice of the people present be able to judge of the death then they are to present the manner of his killing whether he dyed of anothers Felony or of his owne or by mischance and if of blowes whether of a staffe or a stone or a weapon and the the Coroner is to Record in his Booke the names of those who were summoned and appeared not that the same offences of disobedience remaine not nnpunished whereby the Coroner could not at that time doe his office for want of Jurours In those Enquests lye no Exceptions or Challenges to the Persons of the Jurours but he ought to make his Pannells of the discreetest and of the ablest and best of them and to see that the Carcase be buried The Pannells are to be of Decenies for Coroners at these Enquests Sheriffes at their Turnes Bailiffes at the viewes of Franck-pledges Escheators and the Kings Officers of his Forrests have power by authority of their Office to send for the people which none other have without the Kings Writ and that is for the keeping of the peace and for the right of the King and for the common people The Articles are these YOu shall by your Oathes declare of the death of this man whether be dyed of Felony or by mischance and if of Felony whether of his owne oâ— of anothers and if by mischance whether by the Act of God or of man and if of Famine whether of Poverty or of common Pestilence and from whence he came and who be was and if he dyed of anothers Felony who were Principalls and who Accessours and if Hue and Cry were duely made or not and whether the men fled according to Law or not and who threatned hun of his life or members and who were Sureties for the Peace or whether he dyed of long Imprisorment or of paine and by whom he was farther from Life and neaver to his death and so of all prevading circumstances that can come by presumptions And in case where he dyed by hurt or fall or other chance by the Act of God so that he had not power to speake before his death then you shall tell the names of the finders and of his next Neighbours and who were his Parents and if he were killed there or elsewhere and if elsewhere by whom and how he was thence brought and the value kind of the Deodand and to whose hands it came for in case a man dyeth by a fall in such case according to Randulfe de Glanvill it is Ordained whatsoever is cause of his death is Deodand as it is for whatsoever moveth in the thing whereof be fell as Horse Cart Mill-stone also Vessels are sometimes Deodands but not in the sea the summes upon the Horses the goods lying in Ships Mills Carts and Houses are not acconnted for Deodands And in case of anothers Felony then the Jurours declare who were the Felons in what Pledge Dosien Ward or Maineprize they were and from whence they came and where they returned And if he was killed by false Judgement then that the Jewry declare who were the Judges who the Officers to forme the Judgement and who Accessories and if of false Witnesses who were they and the Jurours And if he dyed of his owne Felony then that they tell the manner and the value of his goods and the names of his Parents and the Finders and of the Neighbours and the value of the wast There are nine manner of Accessories 1 Those who command 2 Those who conceale 3 Those who allow and consent 4 Those who see it 5 Those who helpe 6 Those who be partners in the gaine 7 Those who knew thereof and did not interupt or hinder it by forbidding 8 Those who knowingly receive 9 Those who are in the force Of misadventures in Turnaments in Courts and Lists King Henry the 2. Ordained that because at such Duells happen many mischances That each of them take an Oath that he beareth no deadly hatred against the other but onely that he endeavoureth with him in love to try his strength in those common places of Lists and Duells that he might the better know how to defend himselfe against his enemies and therefore such mischances are not supposed Felony nor the Coroners have not to doe with such mischances which happen in such common meetings where there is no intent to commit any felony Coroners also ought to make their views of Sodomies and of monstruous births of Children who have nothing of humanity or who have more of other Creatures then of man and Coroners were to burie them But the holy Faith doth more and more now daily confirme men that they abstaine to commit these horrible sins which they used to do Also they used to enquire of butnings and who put to the fire and how and whether it were by felony or mischance and if of felony of whose felony and who were the Principall and who the Accesories and who were the threatners thereof It belongeth to them at their viewes to enquire after Treasure privately hidden and found in the ground and how the Treasure was found and by whom and how much there was and if it be all seised upon or all carried away and who carried it away and how much and who were the finders of it and the next Neighbours At their viewes of Wrecks they ought to enquire whether the Wreck came to Land what be the things and how much and the value of them distinctly by parcels and if a Man Beast Cat or other living thing came with it or not and that by Divident it be delivered to the next Towne that they may answer the Lord if he come to claime it receive it within the yeere At his view of wounds it behooveth him that he view the Wound and make a Record of the length breadth and depth of it in aide of the wounded if he complain in case the wound be healed the Coroner of the County may helpe him by the Record Also it belongeth to them to view Burglaries to enquir of the names of the Felons and what they have to live of and from whence they came or whether they returned and of the Menasors and of other Circumstances The Jurours are severed into doziens so that one dozien speak not with another but that every Jury answer by it self and review the Presennnents and 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
points aforesaid besides the exceptions which are to the person of the Pleader for no man can be a Pleader who cannot be a Plaintiffe or Actor CHAP. II. SECT 6. Of Attachments PErsonall Actions have their Introductions by Attachments of the body reall by Summons and mixt Actions first by Summons and afterwards by Attachments The Law requireth that offenders in case of death have not such mittigation or favour that they be brought or summoned or distreined to appeare in Judgement by taking of their Cattell if the offenders be knowne and notorious and the Plaintiffe pursue them to soone as he may And if any one fly for such offence then according to the Statute of Winchester he was to be followed with Hue and Cry with Horne and Voyce so that all those of one Towne who can are to follow the Felon to the next Towne and if any such Felon be attaint and convict of the felony let him be killed if he cannot be otherwise apprehended But it is otherwise in felonies not knowne for it is not lawfull to kill the offender without his Answer if he may be taken alive And if any one would complaine to have revenge or to drive the offender to the salvation of his Soule let him goe to the Coroner of the place where the offence was done and set forth his complaint there as he will prove it and the Coroner is to cause the same to be distinctly enrolled and if he cause him to record it as murder being corrupted to destroy his Neighbour by his plaint so that he have Judgement the like is to be done to him if he prove not his plaint At the next Court after the Appeale is enrolled it belongeth to such Plaintiffes to recite their Appeales and to finde Sureties to pursue them or to remaine in Prison till they have found Baile and to the Maine-prisors such Plaints are to be delivered by Coroners body for body that they shall pursue their Appelees and to cause them to appeare in Court to receive Justice when they shall be demanded if they doe not prove their Appeales The Personall offences are these Imprisonment Mayhem Wounding Battery Perjury Usury Rescusses Forestallings Breaking of Parkes Resistance of framing lawfull Judgements Executions of false Judgements and all wrongfull offences Carrying away of Treasure trove of Wrecks Waife Estrayes The Attachments of mortall offenders are by their bodies without Sureties and the Attachments of veniall Personall offenders are also by their bodies but yet they are baileable Reall offences are those upon which are grounded Writs of right of Cosinage of Dower of right of Advowson of Entre of Escheate Writs of Quo jure of Formedon and of all Writs feodalls Mixt offerices are those upon which these Writs are framed viz. of Customes and Services of Villinage of Covenant of Homage of rendring Distresses of Mesne and other Acquittances of Escheates and the like and by reason of the mixture of their Introductions they are called Mixt. CHAP. II. SECT 7. Appeales and to whom Appeale is given THe Action of Appeale is not given to all alike but every one is allowed to have his Action of Trespasse to whom any Trespasse is done except such as cannot have any Action at all Every one may have an appeale of Burning to whom the damage is done and the property of the thing burnt doth belong Parents Kinred and Allies used to be admitted to bring Appeales of Murder but the Appeale of the Wife of the killing of her Husband is to be received before all other and yet not of all his Wives but of her onely who lyeth betwixt his Armes which is as much as to say in whose seisage he was murdered for if he had many Wives and all were alive at the time of his murdet neverthelesse she only is admitted to bring the Appeales of all the rest whom he last tooke to be his Wife although in right she be not his Wife and the reason thereof is because it belongeth not to the Temporall Court to try which was his Wife of right and which in Fact and the Appeales of all other are to be suspended the pendant the same Appeale brought After the Appeale of the Wife is the Appeale of the Sonne lawfully begotten of the murder of his Father to be received before all other it is said lawfully begotten because a Bastard is not to be accounted amongst Sons for the Common Law only taketh him to be a Sonne whom the Marriage proveth to be so After the Appeale of the eldest Son the Appeale of the next of blood is used to be received and so from one degree to another in the right Line of Cosinage and if the blood faile in that Line then they of the Collaterall Line are admitted to bring the Appeale or the Kinted where the blood faileth according to the degrees of Consanguinity and Affinity and especially in the Line of the Fathers side but the Appeales of Murder were restrained by King Henry the 1. to the foure next degrees of blood And if any one within the age of 21. yeares doe bring an Appeale the Defendant is not bound to answer so high an Action untill he hath passed that age and therefore such Appeales are to be suspended till both the Parties be of full age if exception in the case be taken to the Nonage Men and Women Clerkes and Lay-men Infants and others of what condition soever they be may bring Appeales except those who are not suffered to bring any Actions and although it be that many doe bring Appeales yet one neverthelesse is admitted to continue and pendant that all the others are to be suspended And in all Cases the Appeales against the Accessories are to be suspended pendant the Appeale against the Principall be it one or many CHAP. II. SECT 8. Of Processe of Exigent in Appeales AT the first County the Coroner is to doe no more but to enter the Pledges who properly are Main-prisors and to Command that such take the Appeales and seize all their Possessions and their goods into the Kings hands as before is said and if they be taken that they be kept till due deliverance be of them and if they be not to be found and the Plaintiffe come at another County and recite his Appeale or Appeales then are such Appelees demandable only by their names and by such names as they are best knowne by that they appeare to Answer the Kings Peace for if any one be Appealed as Son of the Father and is knowne by another Sir-name the Appeale is insufficient and by consequence abatable at the perill of the Plaintiffe and at the third County they are to be demanded in like manner as before at which County Court if the Appelees appeare not not are taken into Main-prise to appear at the next Court Judgement is to be given against them for their contempt by the Coroners and those who doe appeare before Judgement of the Coroner are presently to be delivered
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
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
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
he who bound himselfe to warranty would not warrant the Land not vouch over it appeareth thereby that the Ancestor was Tenant by a naughty title and that he was possessor thereof by an ill way and if the Heire had nothing whereby to discharge him the Tenements bound to warranty should be recovered And if the Heire had nothing whereby to discharge not no Land is found bound to the warranty if the Purchasor lost his purchase it was at his owne perill and accounted his owne folly the better at any other time to looke to his assurance CHAP. V. SECT 5. Articles upon the Statute of Westminster 2. THat which is said of the Statute of Westminster 2. which faileth in many cases is now to be understood for against all Trespasses is the Law made although it be dis-used or controuled by those who know not the Law And the three first Chapters are not Statutes but are the revocations of the Errours of negligent Judges for the Law permits not that a man make a better estate to another then himselfe hath but requireth that every lawfull Contract be made according to the wills of the speakers and that which is in the Statute that if a Fine be leavied in deceit of right that the same be null is reproveable but it might have been better said That for that Fine that no man be barred of his right for the Fine leavied cannot be rightly said null but it holds in force and barreth at the least the Donor of his Action The point if Distresses doth not repeale any Errour but affirme them as before appeareth in the second beoke And that which is said in the second Statute that Suitors in Counties have no Record is but abusion since every lawfull restimony is a Record and every false testimony is a lye and as lawfull may other people testifie as the Justices assignned Is not the same Writ abused to grant to Counties Records in Outlawries Pledges Maine-prises Battailes Grand Assizes and other Cases and not other points and to deny that the Sheriffes or Lord of the Fee or other to whom the King sendeth his Writ hath not as well Record of Processe before him as those whom they call Iustices is but Errour And as to the causes of Writs of paines is suffered great Errour that that which is not warranted in the Accessory that he may 〈…〉 in the principall since the Law permits that none be aided by a lye or a vicious Writ Of the other side because there is more realty in the Statute then personalty as more Attachments are awarded in personall Actions then in mixt and realls The point of Measnes is reproveable as to the Proclamation and as to the non-acquittance of those who hold by lesse service then the Measnes for be it that B. hold one hundred pound Land of D. by the service of twenty pound per annum and the same B. give the moyety thereof in Frankalmoigne or Frank marriage or to hold by the service of a Rose to C. if it happen that the same B. forfeited what he hath by this Statute no remedy is ordained for C. who was purchasor from B. and therefore the old course is to be holden which is said before in Iudgements The remediall Statute of the right of the Wife lost by the default of the Husband is reproveable for the old Law was that a woman after the death of her Husband should repleeve her Inheritance or purchase so lost summoning the Tenants for a Cape is not but a distresse and ejection of seasin saving every right and it is lawfull for one of the Tenants in common to defend his right where he is damnified by the negligence or the non ability of his Partner In the same manner may a Woman according to Law in the right of her Husband neither doth the Law give to Widowes Action to demand Dower in the cases named in the Statute but in all cases the Law enables her to be received by Lawfull reversing of the Iudgement And that which is contained that Tenants may vouch to warranty is but abuse how holdeth voucher place where a Writ lyeth not yet is it understood with a saving that no jurisdiction of a Iudge assigned extend to other Persons then those who are named in the Writ and that none shall vouch more then in the same Writ are named by Writ of Replegiare and therefore are warranties attainable and determinable by Writs The Statute following which Ordaineth new Writs remedialls after defaults is prejudiciall to Lords of Fees who lose the advantages of their Courts because that Writs of Right are forbidden in such cases where they wont to be used Presentments to Churches ought not to be but in the names of those to whom the meere right of the Advowson doth belong according as is said before in Contracts and it is errour and abusion of Law to endow women of Advowsons or to Lease them to Farme or for the terme of anothers life or in Frank-marriage or in Mortgage or in Fee-tayle or otherwise then in Fee-simple And those who receive Clerkes presented to Churches in prejudice of those to whom the meere right in Fee doth appertaine are bound to make restitution of the damages and those who have recovered to Jurours by whom they were certified of the right of the personage and so it appeareth that the punishment lyeth more against the Bishops then the presentors And that which enacteth long Imprisonment for a punishment is but abuse since none is imprisonable if not for a wrongfull imprisonment The Statute of Warranties is but a revocation of Errour used against Law The Statute of Admeasurement is reproveable in many points as to the Proclamations since admeasurement and surcharge are to be by Jurours The Statute of Measnes is reproveable in many points as it appeareth in the Chapter of Distresses Contracts and defaults and the same appeareth in the end of the Statute where the Plaintiffes know not a set fine The Statute of suspension of Writs in Eyres is reproveable as repugnant to the great Charter which saith we will sell no Right nor detaine it and wherefore are Writs rebuttable from heating but for the multitude of Writs which are and for the small number of Justices the right of many perish The Statute of obligees in Accompt is reproveable in many points one as to the exception to the Persons for the Masters is ordained recovery and to Serjeants not when Auditors are assigned without the consent of the servants The other that the Auditors are not tyed to allow any thing but at their pleasure without punishment Another that the recovery is ordained by detinue of the servants and not against the Surety not the goods Another that the Lords are not to be Attested according as of the servants Another that the wickednesse of Auditors remaineth unpunished Another of Outlawry for none is to be imprisoned if not for a tortious imprisonment The Statute of Appeales is reproveable in
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
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
eum probare prout curia Dom. Regis de eo consideraverit c. And notwithstanding that the Plaintiffe declare in an appeale of Mayhem that the Defendant hath mayhemed him feloniously yet the Defendant shall not suffer the punishment of death but shall answer damages according to the greatnesse and grievousnesse of the offence c. And if the Plaintiffe declareth in an appeale of Mayhem c. and the Defendant prayeth that it may be viewed if it be a Mayhem or not Quaere if the Justices say That he is mayhemed if it be peremptory to the Defendant so that he shall not be afterwards receiveable to plead not guilty to it or any other barre And I conceive it is peremptory c. And in an appeale of Mayhem the Plaintiffe declared That the Defendant stroke him upon the head so that he had lost his hearing and because the Justices talked to him and well perceived that he could heare they said that the Plaintiffe should be fined c. And see that if the Defendant in in an appeale of Mayhem saith That the Plaintiffe at another time brought an Action of Trespasse against the same Defendant and sued forth the same Mayhem and recovered damages for the same and sued execution if the same be a good plea or not c. And it was said That by an appeale of Mayhem a man shall not lose his Action of Trespasse but contrariwise he shall not have an appeale after he hath once recovered in Trespasse for the same Mayhem Quaere what the Law is And in an appeale of Mayhem against two the Plaintiffe declared against one as Principall and against the other as accessory and it was challenged because that all ought to have been principalls and the Court said It was in his election so that the Declaration one way or the other was good enough And it was said by some That it is no Mayhem to cut off ones Eare whereby he loseth his hearing c. but the bearing out of his Teeth is a Mayhem because he may by them defend himselfe in Battaile Quaere if in the first case it be not a Mayhem c. Indictments THere are also Indictments upon which a man shall be arraigned upon which if he be found guilty he shall be executed c. and first see Indictments upon the view of the body raken before the Coroner in the County Inquisuio indentenda capta apud B. in Com. N. 20. die mensis Maii annoregni nunc Regis Henrici octavi 20. coram I. W. uno Coronatorum Domâ—regis nunc Com. predict et super vâ—sum Corpotis cujusdam I. F. ibid. jacentem interfect per Sacramentum I. S. W. C. c. Qui dicunt super Sacramentum suum Quod quidam I. N. de London gent. 20. die c. Ann. c. vi et armis viz. gladiis beculis et cultellis animo felonico et ex malitia procogitata in prefatum I. F. apud B. predict insult fecit et ipsurn ver ber avit vulneravit et male tractavit ac dict I. M. cum quodam cultello vocat a wood knife precii 12. d. quem ipse in manibus suis ad tunc tenuit prefat I. F. â—d tunc et ibid. usque ad medium corporis sui felonice percussit atque invasit in profunditatem decem pollic dans ei plaguam mortalem de qua quidem plaga dict I. F. infra unam horam tunc proxime sequent ad tunc et ibidem obiit et sic predict I. N. eundem I. F. ad tunc et ibidem felonice interfecit et mardravit contra pacem Dom. Regis c. And it was said That the Coroner hath not power to take any Enquest of the death of a man if not upon the view of the body if he doe it in other manner all that he doth is void And it hath been used in times past that the Coroners might record the breaking of Prison by the Prisoners which are in them and if the Prisoners were in for felony they were put to execution without further answer but quaere if any such Law be now in use And a Coroner might take an appeale of an Approver of felony done in any County of England and in the same manter he might make abjuration if he assested the felony to be done in another County then in the County where the Coroner dwelt And the reason was because by that confession they shall be attainted But he cannot so doe in an appeale of Robbery if the felony be not done within the same County There are also divers Indictments as of Robbery Burglary and other felonies which are mentioned in sundry books and the course of them is well known becausethey are common and in daily use and experience If a man be indicted that he feloniously cut down Trees c. in such a place and carried them away the party shall not be arraigned upon such indictment because it cannot be said to be felony A man was indicted for that he traiterously c. had made 100. s. of Alchamy to the likenesse of the Kings money and it was moved that the indictment was sufficient because it was not put certaine what money he made groats or pence A man was indicted That whereas another man was indicted of felony who was put into the Stocks c. that he entred into the house without breaking of the same and set him out of the Stocks and set him at liberty and it was said That it remained in the pleasure of the King whether he should have perpetuall imprisonment or other pecuniary punishment according to the Kings Ordinance but he shall not be hanged c. And see that it was the use in times past that the party should not be restored to his goods upon an Indictment of Robbery unsesse it were found that he made fresh-suit if he were not appealed yet that Law is altered and changed and the party shall be also vestored to his goods where the felon is arraigned upon an Indictment as well as upon an Appeale if the party giveth evidence against the felon at the time of his Arraignment and he shall not be put to circuit of Action to sue his appeale and it seemeth to be good Law Note that the Writs are the principall and first thing in our Law whereby a man shall recover that which is wrongfully detained from him and they are the foundation of every Suit and therefore looke when a man beginneth his Suit that the Writ be good else all which followeth will be nothing worth which Writs are ordained by Law according as the matter is And there see first the Writ of Right and the nature of it because it is a Writ of a higher nature then any other Writ can be and the chiefe things and Articles of that Writ are the deforcement the quantity of the Tenements in what Towne the Tenements are and that the demandant hath a lawfull estate in fee by his
owne Purchase or of the seisin of his Ancestor or his owne seisin the taking of the Explees and the seisin thereof in the time of what King and in the time of peace and the tender of the Demy marke a good discent and in wha manner he hath right and the averment And note that the Explees ought to be of the Demesne or of the Services and in a Precipe quod reddat of the manner of Explees in Services c. and of the Demesnes in Sheep and Corne in Pasture in feeding of Cattle of Wood in selling of the Wood Gardens in selling the Apples or Grasse of Villain is in base service to his profit and in seisin of those of his blood and for a Chaplaine or findeing of poore men the Explees are alledged in Masses and Prayers c. and of a Gorge in taking of the Fish of a Mill in taking of Tole And generally a man shall alledge Explees according to the matter in demand and the nature of it And the triall in this Writ of Right may be two waies the one by the Grand Assize and the other by Battaile but if the right be to be determined by the Battaile it shall be done by Champions and not by the parzies themselves as it is said and the reason is that if any of the parties be killed Judgement of the Land cannot be given against a dead person Quaere if that be the reason or not And it was said That a man cannot have a Writ of Right of a Rent but onely of a Rent-service for that other Rents are against common right c. And see that a Writ of Right doth differ from other Writs in pleading for in a Writ of Right the Tenant ought to conclude upon the right To conclude so that he hath more right to have the Lands c. then the demandant and not to conclude Judgement of Action as the conclusion is in other Writs yet the same holdeth not in every case for if the Tenant in a Writ of Right plead a release collaterall c. without warranty there the Tenant shall conclude Judgement if Action and not otherwise as it seemeth for the demandant hath more right to the Land then the Tenant hath but by reason of the warranty the demandant shall be barred of his Action And note that in a Writ of Right upon the Triall no attaint lyeth and yet in a Writ of right of Dower an attaint lyeth which is a Writ of Right but the reason is because the Triall thereof shall not be by the Grand Assize nor by Battaile but by a Common Jury c. And note that there are divers Writs of Right a Writ of Right which is triable by Battaile or by Grand Assize as a Writ of right of Land or a Writ of Customes and Services a Quod permittat in the debet Writ of right of Advowson c. and the like And there are other Writs of the possession mixt with the right as a Writ of Escheat Cessavit rationable part c. and the like but in those no Battaile nor Grand Assize lyeth In a Writ of Customes and Services the effect thereof is the wrongfull deforcement in not doing of the Services which ought to be done to the demandant out of the Land and the Land ought to be shewed and how he holdeth by such Services and shew seisin in him or his Ancestors of Fee and Right and alledge the taking of Explees and the Averment The Articles and things which are materiall in the Writs appeare in the Writs themselves and in the booke of Novel Tales and in other bookes and therefore they need not to be here mentioned and for that cause I omit them here c. An Indictment upon the Statute of 8. H. 6. JVrator present pro Dom. rege quod cum instatuto in Parliamento Dom. nuper Regis Henriet Angliae sexti post conquestum apâ—d Westm anno Regni sui 8. tent edit inter cetera ordinatum sit quod si aliqua persona expulsa sit seu dissesita de aliquibus terris et tenementis modo forcibili aut pacisice expulsa sit et postea manu forti et armis extra teneatur contra justic pacem vel post aliquem talem ingressum aliquod feossementum seu discontinuatio aliquo modo inde factum sit ad jus possessor defraudend aut tollend quod pars in ea parte gravata habeat assissam nove dâ—sseisine aut breve de transgressâ—one versus hujus disseisttorem et si pars gravata recuperaverit per assisam vel rationem transgr et preveredictum alio modo per debitain legis formam sit compactum quod pars defendens in terras eâ— tenem vi imgressusfuit aut ea per vim post ingressum tenuerit quaerens reciperet versus defendentem dâ—nna sua ad triplicem et ulterius finem faciet Dom. Regi et redemptionem pro ut in statuto pred plenius continetur c. Quidam tamen L. C. de E. in com pred generosus snnul cum quinque personis juratoribus pred ignotis statutum illud minime ponderans die Dom. 20. die Januarii circa horam 9. post meridiem ejusdem diei anno Regni Dom. regis nunc 12. manu forti ac vi et armis viz. Baculis et cultelltis in unum messuagium unum gardinum ducent as acras terre 40. c. prati et 30. arras basvi cum pertinetii quorundum E. K. Armigeri et L. M. armigeri c. scituat jacen et existen in perochia de L. juxta T. in com pred ingressus fuit et inde ipsas E. K. et L. M. vi et armis viz. baculis et cultellis ac manu forti dissertivit Et ejus inde statum et possessionem sic per disseissinam illam habitam et obtent cum pred personis ignotis usque in crastinum diem sequentem viz. 13. diem mensis Januarii continuavit Quo quidem 13. die Januarii H. L. de M. in comitatu pred yeoman W. B. de pred Husbandman et I. C. nuper eisdem villa et comâ—tatu laborer apud L. pred in et super tenta pred una cum prefato T. C. manu forti ac vi et armis viz. baculis cultellis gladiis scutis arcubus et sagittis se assemblaverunt et eadem tenementa vi et armis pred a pred 12. die Januarii hucusque inrurius ipsius T. C. et ipsum T. pretensa tenuerunt et prefat E. K. et L. M. c. inde hucusque extra tenent in dicti Dom. Regis nunc contemptum ac contra formam statuti pred et contra pacrm dicti Dom. Regis c. When the Parties are at issue in their Actions the common Triall thereof in our Law is by Verdict of 12. men who shall be sworne upon the Booke to speake the truth according to their conscience And sometimes the matter shall be tried by the
Bishop and not by Verdict of 12. men as generall Bastardy alledged in any of the parties it shall be certified by the Bishop and in a Quaere impedit if the issue be joyned upon the institution it shall be tryed by the Bishop for the same is in a manner a spirituall thing But induction shall be tryed by Jury and also in a Quare impedit if issue be taken upon Plenary it shall be tryed by the Bishop but whether the Church be void or not void shall be tryed by the Jury And if the Parties be at issue in a quare impedit upon the ability of the Person whether he were sufficiently learned or not it shall be tryed by the Bishop during the life of the Clerke but if the Clerke be dead it shall be tryed by Jury And it is said That if Bastardy or other the like thing be alledged upon a thing which is not but dillatory it shall be remanded to the Bishop to be tryed c. And a man in an Action of Debt brought against him upon a Contract may wage his Law to sweare upon a Booke that he oweth not the Plaintiffe the money which he demandeth nor any penny thereof and he ought to have with him 11. more to sweare with him that they beleeve in their Conscience that he sayeth truth and so he shall be discharged but if the Action be brought upon any specialty or upon matter of Record or upon a thing touching Land c. he shall not help himselfe in that manner but shall put the same upon the tryall of the Jury but he himselfe shall not be admitted to sweare c. And note that an Oath ought to have three Companions Truth Justice and Judgement and if they be wanting it is no Oath but a Perjury for if a man be forced by constraint to sweare that for many yeares he quiely held such Lands c. it is Perjury not in him who sweareth but in him who compelleth him to sweare Reum non facit nist mens sit rea Nemo se circumveniat aut seducat Qui per lapidemfalse jur at perjurus est Quacunque arte verborum jur at aliquis Deus ita accipit sicut ille qui jur at intelligit Et minus malum est per Deum falsum jur are veraciter quam per Deum verum jur are fallaciter Quanto enim id per quod juratur est magis sanctum tanto magis est penals perjurium c. FINIS The Table A ABusions of the Common Law from 124. to 151 Accords finall 171 Accompt 155 Acquittance 155 Accessories 42 Action 58.89.182,183 Afferment nnd afferrors 49 Allienations 11.14 Amercements 90.218,219 Approvers 61.142,143 Appeales and Appealers 48.61.69.303 to 316 Articles of the Coroners Enquest 40.41 Articles in the Leet 53 Articles in Eyre 211 Assize of Novell Disseisin 94,95,96,97,98 Attaints 166,167 Attachments 66 Atturnies 97.124 B BAyle 73 Barons of the Exchequer 49 Beaupleader 34 Battaile 141.157,158,159 Bigamy 132 Burning and Burners 16.78.146.193 Burglary 36.43.79.148 C. CEnturies and Centiners 5 Circuits 62 Charters Deeds Minuments 154 Clergie 131 Clerks 131 Champion 186,187,188 Chauncery 293 Cinque-Ports 297 Combets and Combattors 157 Contract 104,105 to 108 Contempts and Contumacies 76 Coroners 7.287 Courts 10.50 Court Baron 299 Common Pleas. 290,291 Countors or Pleaders 65 Coyne 10 Counsans 131 Copy-holds and Copy-holders 113.156 D. DEfaults 180,181 Defects of Magna Charta from 251. to 260 Divination and Diviners 17 Dillatory Pleas. 130 Disseisins 93,94.153.215 Distresse and Distresses 95.99.100.101 102,103,147 Doomesday Booke 114 Dower 11 E. EArles 5 Earldome 96 England 3 Englishire 47 Escape 73 Essoignes and Essoigners 117. to 124 Exchequer 9.49.296 Exceptions 128 Order of them 129 Exceptions of time persons and place 137 138 F. FAires and Markets 14 Falsifying 23.75 False Latine 152 Festivalldaies 136 Forfeiture 44 Franchises 163.213 G. GOale and Goalers 72 Grand and Petit Assize 93 H. HEresie 16 Homage and Fealty 169.170 Hunting 165 Hue and Cry 10.67 I. INformers 64 Imprisonment 82.149 Indictments 84,85,86.143.227 317. to 323 Jurours 43 Judges and Judgement 59.64.133,134 135.207.172,173.287,288,289 Judgement of death 203 Jurisdiction 7.177,178,179 Justices in Eyre 209 Infamous persons 192 K. KIng 3 Kings Bench. 287 Knights Fees 11 L. LAw 1 Larcine 31,32,33,34,35.79.147 M. MAjesty 16.74.193 Mainprisors 71 Mainpernors 184 Marshalsey 288 Manslaughter 26.28 Mayhem 82.149 Merchants 15 Misadventures 42 Misnosmer 152 Murder 47.79.146.194 to 202. N. NAtivo habendo 112 Neifty 109. 181 Ne injuste vexes 115 O. OAths 169 170. 325 Oath of the King 3 Oath of Countors 65 Oath of Battaile 161 Obligations 166 Offences and the division of them 15.68 Oflences reall and personall at the Kings Suit 84.86 Offences veniall 86 Office of Coronors 48. to 38. 67. Office of Justices in Eyre 221 Ordination of Clerks 14 Ordinary 131 Ordering of Battaile 161 Out-lawes and Outlawry 149 P. PArliaments Perjury 18,19,20,21.22 208,209 Permancies 205,206 Poore 14 Pleas and pleadings 78.129 Pledges 90,91.184 Power of the Judge 133 Presentments in Eyre 9 Proofe 14 Prison and Prisonors 29 Principall and Accessory 44 Prerogative 154 Protection 150 Processe in Appeales 71 Purprestures 164 Punishments 190.205 R. RApe 37,38.148 Receiver and Receipt 155 Replications 139,140,141,142 Rerpards or Fees 63 Reprebensions of the state of Merton 621 262 Of Malbridge 262,263 Of Westm first 264 to 270 Of Westm 2. from 270. to 279 Of Gloucester 283,282 Of circumspectè beatis 282 Robbery 32.79.147 S. SAllery 66 Satisfaction of Debt 215 Sanctuary 44,45,46 Seales 49 Sheeres and Sheriffes 16 Summons and Summonors 11. 67 115. 116. 139. 185 Sureties 14 15 Suit and Suitors 50,51 T. TEnent by the conrtesie 15 Treasure trove 7.43.144.165 Turnes of Sheriffes 8.51.62 Treason 24.76 Trespasses 88,89,90 Triall 324 Trove 135 V. VAriance 142.152 View 149 View of Frankpledges 8.52,53 Veniall Trespasses 88 Voucher 140 Villinage 96.109 to 165 Vsury 165 W. Waive 109 Wages 64 Wager of Law 154 Wounds and wounding 43.83 Writs remediall 8 Wrecks 43.164,165 FINIS