Cicero was bold to derive the pedigree of his Roman Law from the great God Jupiter so I hope without offence I may be emboldened in the person of our Common Law to say That when the Lawes of God and Reason came first into England then came I in The Temporall Lawes of this Kingdome may be divided into three parts 1. The generall or Common Law Bracton lib. Serm. 2. The customary Law 3. Statute or Parliament Lawes the end of all which are Vt sopianter jurgia vitia propulsenter ut in regno conservetur pax justitia The Common Law is nothing else but pure and tryed Reason Responsa prudentum allowed and knowne containing the Principalls and Maximes of Law consonant unto the Lawes of God with a certaine method for the orderly proceeding therein Egerton Postant the rest consisting in the minds of the Sages of the Law ready by Argument to approve what is truth and under-propt with Authorities to condemne what is false The customary Laws are certaine ancient Customes grounded upon Reason which abridge the course of the Common Law The diversity of Customes have growne by reason of the severall Nations who have had government over this Kingdom as 1. The Britaines 2. The Romans 3. The Britaines againe 4. The Saxons 5. The Danes and lastly the Normans all which sorts of people have left behind them within this Realme part of their Language and part of their Country usages The Customes within the Realme are called by severall names as As Customes As Prescriptions As Vsages As By Lawes Customs extend properly to Conntries Cities Boroughs Towns Corporate and large Signiories 2. Prescriptions run with persons who have capacities to have Interests and properties 3. Usages referre to Places or Townes not incotporate as to Inhabitants and the like 4. By-Lawes are properly made in Courts by the Tenants of the Mannor or Precinct or out of Courts with a common consent for good order and Neighbourly usage The efficient causes of good and lawfull Customes are Reason and Time the one begetting the other bringing forth and continuing the same in one place Master Lit saith This is a good Custome because it stands with some reason Litt. pl. 209.212 in another This is a void Custom because it is against reason 3 The last is Statute or Parliament Lawes Parliaments have been ancient they were in the time of the Saxons long before the Norman Conquest for as the Proverb is In the time of the Danes the Lawes lay then in water the people were governed rather by Princes wills then publike Lawes for then as one saith Sepultum fuit jus in regno leges consuitudines simul sopitae temporibus illorum prava voluntas vis violentia magis regnabunt quam judicium in terra And although in the Saxons time I finde the usuall words of the Acts then to have been Edictum Constitutio little mention being made of the Commons yet I further finde that Tum demum leges vim vigonem habuerunt cum fuerunt non modo justituta sed firmatae approbatione Communitatis Our Author and others tell us 20. H. 7.7 c. 12. part 86. That the administration of Justice was onely originally in the Crown Bracton lib. 2. cap. 24. and Kings in their own Persons rode Circuit every seven yeares through the Realme to heare the Complaints of their People and to redresse Publique grievances But after the division of the Realme into Shires publique Courts were erected as the County Court Sheriffes Turnes Hundred Court Court Leets Viewes of Frankpledges and Court Barons for the conservation of the Kings Peace and the hearing and determining of all differences Debts Contracts c. which might arise betwixt Party and Party and all persons were forted into Companies or Societies wherein ten of the principall men called Capitales plegii or Franchi plegii because they were Freemen stood as Sureties for the residue that they should stand to Justice and not fly from it when they had committed any offence The Law of Saint Edward is most excellent to that purpose in these words Legis Sancti Edwardi in Lambert Est quedam summa maxima sccuritas qua omnes Statu firmissimo sustinentur viz. Vt unusquisque stabiliat se sub fidejussionis sccuritate quod Angli vocant Friburber Haec securitas hoc modo fiebat quod de omnibus villis totius Regni sub fidejussione decemali debeant esse universi And to that purpose also is the Ordinance of King Alured Decrevit Aluredus ut liberae conditionis quisque in Centuriam aseriberetur aliquam atque in docemvirale coniiceretur Collegium the difference only consisting in this That King Alureds Law extended but to Freemen Saint Edwards to all men This Decemalis fidenissio or Decemvirale Collegium by our Author is called the Decenery who were charged to bring forth the Person of every offender to answer unto the Law Bracton lib. 3. cap. 10. whereof Mr. Bracton speaketh in these words De eo autem qui fugam fecerit he speaketh of one after a Felony committed Diligentur erit inquirenum si fuerit in Franciplegio decenna tunc erit decenna in misercordia coram Justiciariis quia non habent ipsum malefactorem ad rectum 13. H. 4.13.6 And according to that Law if a Felon after his flying or conviction were possessed of Goods the Towne or Decenary was answerable for the same And if the same were imbesselled or holden from them the Decenery might seaze those goods in whose possession soever they were found as appeareth by 3. E. 3. Itin North Fitz Corone 366. quod vicecomes Decennarii sesire possunt cattella felonum in manus Domini Regis Et vic cattella illa deliberabit villae ad respondend Regi in itinere quod si vic nec Decinnarii sesicrint villa respondebit dom regi in itenere but this Law hath been since altered by the Statute of 3. E. 3. I have Courteous Reader stood the longer upon these things as well to vindicate the Common Lawes from those weak cavills of the ruder sort as to demonstrate the care our ancient Kings and Counsells have had for the peaceable Government of the people of the Land according to the right rules of Justice deduced from the Law of Nature of God and of right Reason and I wish that Princes in this age would consider and put in practice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demoth that golden Rule of Demosthenes Benè gubernare rectè judicare justè facere so should their Kingdomes flourish and they themselves be in high estimation in the eyes of all their people In these distracted times wherein the fundamentall Lawes and Liberties of the Subject have been by a Malignant Party so much opposed I have offered this Treatise intituled The Mirrour of Justices I have translated the same out of the French Tongue into English In this Booke many of those
fundamentall Lawes so much of late called upon are to be found though I doe not warrant all in this Booke to be Law at this day many of the Lawes being absolete and altered by Acts of Parliaments and common usages It hath been some difficulty for me to finish it And although that the Manuscript Copy be in the Originall very imperfect the French impression by mil joyning of words in many places without sence and false Printed the Termes of Law therein for the most part obsolete and worne out yet have I endeavoured as all Translators of Bookes especially of Bookes of the Law ought to keep my selfe close to the words and meaning of the Authour and of the Law then in use and practise well knowing that Lawes many times have their interpretation according to the strict Letter and not according to such flourishes of Rhetorique and Oratory as may be put upon them I entreat thee Courteous Reader to accept of it as it is if thou finde any Errours in the Translation as I suppose thou maist doe many to passe them over or amend them If thou finde any thing in the Worke it it selfe which may advance the Common Lawes or the Liberties of the Subject or set forth the true Prerogative of Kings to weigh them in the Balance of Justice If thou finde any thing therein not fit to be published in these daies of distraction betwixt the King and prople Consider that this Worke was written in in the time of King Edward the first Consider againe it is not mine but the Authors who for his Antiquity and Learning in the Lawes of the Realme then in use hath found the favour and honour to be cited by many of the grave Sages of our Publique Laws so I commend it to thy favourable acceptance and bid thee farewell Thy friend who in his desires strives that the Common Laws of the Land may now and for ever flourish W. H. The PREAMBLE VVHen I perceived divers of those who should Governe the Law by Rules of Justice to have a respect to their owne earthly profit and chiefly to please Lords and their friends and to have a respect thereunto and not to give their consents that the right Usages should be ever put in writing whereby power might be taken from them to pervert Judgement and others to banish or dis-inherite without punishment for the same covering their offences by the exceptions of Errour and Ignorance never or little regarding the Soules of Offenders condemned by their Judgments as their duties and places required having used to Judge the people according to their own heads by Abusions and by the Examples of others erring in the Law rather then by the Rules of the Holy Scripture greatly to have erred from the true understanding thereof building without any Foundation and to Judge and have Cognizance and Jurisdiction in that which they little understood both in the Law of the Land and of the Law of the Persons as it is of those who take upon them Art to pronounce false Judgements and by their Executions falsly to pervert the Priviledges of the KING and the ancient Roles of his Treasure Taking the same into my serious consideration and the Foundation and Originall of the Usages of England given by the Law together with the Rewards of good Judges and the punishments of others I thought it needfull wherein my Companions gave me their assistance to study the Old and New Testament and therein we found That the Law is nothing else but Rules delivered by our holy Predecessors in the Holy Scriptures for the saving of Soules from perpetuall Damnation notwithstanding that the same were disused by false Judges And we found that the Holy Scripture remained in the Old and New Testament The Old Testament contained 3. orders The Law The Prophets The Hagiographies In the Law there are five Volumnes Genesis Exodus Leviticus Numbers Deuteronomy In the order of the Prophets are eight Volumnes Josua Judges Samuel with the 1. and 2. of Kings The 1. and 2. of Kings Esay Jeramy Ezekiel The Bookes of the 12. small Prophets In the order of Hagiographie are Job The Psalmes Proverbs of Solomon Ecclesiastes The Song of Solomon Daniel Paralipomenon Esdras Hester And besides these there are Bookes in the old Testament although they are Not authorized Canonicall Tobie Judeth Maccabees Ecclesiasticus The New Testament contain 3 Books The Evangelists The Apostles The holy Fathers The Evangilists contain 4 Volumnes The Epistles of St. Paul The Epistles of the Canon The Revelation The Acts of the Apostles The writings of the Apostles containe foure Volumnes Of the writings of the Fathers there is no certain matter agreed upon And we finde that our Lawes were agreeing to Scriptures and that they were in a Language best known both for the help of us and the common people And for the condemning of false Judges I compiled this little Book of the Law of Persons into 5. Chapters that is to say 1 Of offences against the peace 2 Of Actions 3 Of Exceptions 4 Of Judgements 5 Of Abusions Which Booke I have called The Mirrour of Iustices according as I have found their vertues and the most excellent substance after the time of King Arthur used by holy usages according to the Rules aforesaid and I desire you that you would amend the defects therereof according to such lawfull and true warrants as you prove both to learne the truth and confound the daily abuses of the Law ERRATA FOl 4. l. 18. for Iarrickshire r. Everwickshire f. 5. l. 12. r. after f. 7. l. 5. r. estray f. 10. l. 1â— r thence f 10. l. 20. r. exigent f. 11. l. 22 r. right heirs f. 12. l. 8. r. that married before f. 13. l. 5. ad they ib. l. 6. r. Escuage f. 14. l. 20. r. good f. 14. l. 35. r. disseisins f. 16. l. 27 r. Heresie fi 19. l. 5. r. chinniage f. 25. l. 5. r. offence f. 28. l. 18. r. not f. 30. l. 11. r. duresse f. 34. l. 19. put out to f. 35. l. 6. after appoineed ad time f. 30. l. 1. r. trove f. 47. l. 10. r. unknown f. 49. l. 3. r. done f 63 l. 10. r. endictee f. 65. l. 3. r. Countors f. 66. l. 12. put our as f. 69. l. 24 r. seisin f. 70. l. 5. put out the f. 76. l 9. r. contumacers f. 77. l. 8. put out the f. 93. l. 34. r. disscisin l. 16. r. Darcein presentment l. 15. r. Mortdamicester f. 99. l. r. promy t. An. f. 102. l. 17. r. l. eplegiary facias f. 103. l 18. put out of f 1105. after 100. f. r. five pounds f. 116 l 30. r resummons f. 123. l. 29. ad in f. 126. l. 3 r. felony f. 150. l. 6. ad not f. 152. l. 28 29. r. diffesivit f. 154. l. 8. r. waging f. 155. l 14 ad not f. 156. 33. r. Record f. 163. l. 29. r. enjoyed f. 167. l. 14. r. plaintiffs f. 267. l.
26 put out not f. 168. l. 27 ad be f. 176. l. 23. r. plaint f. 178. l. 14. r. remove f. 181. l. 2â— where the blank is put demeane f. 183. l 16. 18. r. Law f. 190. l. 10. r. pecuniary f. 191 l 3. r. they f. 192. l. 9. r. judgement f. 198. l. 3. r. if f. 201. l. 30. r. contradict f. 208. l. 11. r. by breach f. 209. â— 31. r. or by f. 215. l. 18 ad say f. 217. l. 9. put out done f. 220. l. 4. r. bought f. 226. l 28 r. payment or brasie f. 228. l. 8. r. forcjudged f. 229. l. 8. r. in f. 230 l. 32. r. mortall f. 239. l. 1. r. rarely f. 240. l. 19. r. assist f. 243. l. 17 â—had f. 256. l. 33. r. grantiog f. 274. l. 17. r. servants f. 288. l. 28. r. tent f. 287. l. 27. r. delivered f. 304. l. 17. r. consideraverit f. 308. l. 3. r. villeâ—â—b l. 7. r. scientes f. 312. l. 4. r. consuram f. 324. l. 28. r. quaerens ibid. l. 28. r. netvi f l 318. l. 2. r. confessed f. 320. l. 1. in the blank put the word marke f. 322. l. 23. r. possessor ibib l. 28. to et per. i. of r. quaerens recaperit f. 325. l. 12. r. bosâ—â— ibid. l. 17. r. 〈◊〉 it ibib l. 13. r. villa l. 25. r. prefato f. 324. l. 11. r. conduction 〈◊〉 l. 13. r. impedit ibid. r. plona ly f. 325. l. 16. r. peâ—lapidem 〈◊〉 l. 17 18. r. jurâ— l. 2â— ad per. The Contents of the first Chapter OF the Originall of the Law Of the comming of the English into this Land Of the first Constitutions Of Offences and their division Of the Crime of Majesty Of falsifying Of Treason Of Burning Of Murder Of Larcine Of Burglary Of Rape Of the Office of the Coroner Of the Exchequer Of inferiour Courts Of the Turnes of Sheriffes Of Viewes of Franckpledges CHAP. I. SECT 1. Of the Offences against the Peace Of the Originall of the Law ALmighty God shewed more love to Man then to any other creature when he made him after his own image and gave him understanding considering that he stood continually ready to fall into sinne by three manner of Adversaries and therefore he gave the Law to force and drive sinners to salvation by earthly punishments That for the pure love of God men would abstain from sinne and thereof made Moses their Teacher which place the Pope now holdeth That Law by Ordinance of our holy Predecessors is divided into two Volumes into the Cannon Law which consisteth in the amendment of Spirituall offences First by Admonitions Prayers Reproofs Excommunication Secondly into the written Law which consisteth in the punishing of temporall Offences by Summons Attachments and punishments or penalties Of the Spirituall Law the Prelates judged and say Princes of the other Law The Law whereof this summe is made is the written Law of the ancient usages warranted by the holy Scripture And because it is given to all in generall it is called the Common Law And because there was no other Law but that were generall Councels and Parliaments in use and that diversly in severall places according to the qualities of the people of divers Countries and Boroughs they were according to ancient priviledges changed for the ease of the people of those places All our Usages and Laws are also layed for the keeping and exaltation of the peace of God and therefore it is to be known That the people are not to be adjudged by similitudes and examples not canonized but by the love of Peace of Chastity of Temperance of Charity of Mercy and of good Works CHAP. 1. SECT 2. Of the coming of the English into this Realme AFter that God brought down low the Nobility of the Brittons who used more force then right he delivered the Realm to the most humble and simple of all the countries adjoyning that is to say to the Saxons who from the parts of Almaine became Conquerours thereof of which Nation there were forty Soveraigns who were Companions These Princes called this Land England which before was called Great Brittainie or Britania Major These Princes after great warrs tribulations and troubles suffered for a long time chose themselves one King to Raign over them to governe God people and to maintaine and defend their Persons and their goods in peace by Rules of Law And at the beginning they made the King to sweare That he should maintaine the Christian Faith with all his power and governe his people by Law without having regard to the Person of any one and that he should be obedient to suffer Right as well as his other people should be And afterward this Realme was divided in Inheritances according to the number of those Companions who then remained in the Realme into parts by Shieres and every one had a Shiere delivered unto him to keepe and defend against the enemies according to every ones estate That is to say Barkeshire Bedfordshire Buckinghamshire Cornwall Chestershire Cumberland Dorset Devonshire Darbyshire Essex Barrickshire Yorkshire Norfolk Notâ—inghamshire Northumberland Northamptonshire Oxfordshire Rutlandshire Suffolk Gloucestershire Cambridgeshire Hertfordshire Herefordshire Huntingtonshire Kent London Leicestershire Lancashire Lincolnshire Middlesex Surrey Southampton Somersetshire Shropshire Staffordshire Wiltshire Westmerland Worcestershire And although that the King ought not to have any Peere in the Land neverthelesse because that the King of his owne wrong if he offend against any of his people not none of his Commissaries can be Judge and Party It was behovefull by the Law that he should have Companions to heare and determine of all Writs and Plaints of all wrongs as well of the King as of the Queene and her Children and of those especiall where one could not have otherwise Common Right These Companions are now called Countees Earles according to the Latine Comites and so at this day are those Shires called Counties in Latine Comitatus and that which is without these Counties belongeth to the English by conquest Afer that time these Companions after the division of the Realme into Shires divided their people which they found scattering about into Centuties and to every Century they appointed a Centeyner and according to the number of the Centuries spake every Shire and to every Centeyner they assigned his part by Metes and Bounds to keep and defend the same with his Century so that they were ready to run to their Armes at all times when the enemies came or other needfull occasion was And these divisions in some places are called Hundreds according to the number of the first people and in some places Tythings or Wapentakes according to the English which is in French taking of Armes These divisions they made whereby the Peace which consisted in charity and true love was kept and maintained CHAP. 1. SECT 3. Of the first Constitutions made by the ancient Kings Of King Alfred FOr the Estate of the Realme King Alfred caused
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
in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
only Corporall punishment holdeth place which passeth the punishment which should be adjudged to others not the Kings Offices according to the Kings pleasure CHAP. IV. SECT 15. Of the Offices of Justices in Eyre THe Presentments of offences are Ex officio by Coroners by Sheriffes and Bayliffes in Turnes and viewes of Franck-pledge by Enquests and speciall Iustices and by Kings Ex officio or by their Chiefe Iustices or of their Iustices generalls and because that the one have not power to determine the presentments of such offences nor to punish the Trespasses and the other who can will not or doe not that duty which of right they may doe or punish the innocent and spare the guilty It was anciently Ordained that the Kings by themselves or by their Chiefe iustices or by generall Iustices to heare and determine all Pleas should goe Circuit every seven yeares through all Shires to receive the Roles of all Iustices assigned of Coroners of Inquirers of Eschetors of Sheriffes of Hundredours and of Bayliffes and of all Stewards of all their Iudgements Enquests Presentments and all their Offices and to examine those Roles whether any had erred therein either in the Law or to the damage of the King or to the grievance of the people and those things which they found not determined that they should determine them and in the Eyre they should redresse the Officers and punish the negligence of them according to the Rules of Law and that they should enquire of all offences which belonged to the Kings Suit and to his Iurisdiction And note that notwithstanding the King had the Suits of all mortall offences and of wrongs done to the Law and to the right of his Crowne it is not thereby to be understood that he should have the Suit of all offences but if any one be Plaintiffe and doth not proceed in his Suit after the same is affirmed yee are to distinguish if it be of a personall offence 〈◊〉 it susâ—â—eth for the Defendants for the Non-suit of the Plaintiffe doth suppose 〈◊〉 of the damage and if it be of a mortall offence yet the King hath nor the 〈…〉 warrant of Appeale or Indictment wherein it behooveth to the Appealees and Enditees that they make haste to acquit themselves for none is bound to Answer to any manner of Action brought by them because they are barred by an Exception of mortall infamy by being Appealed or Indicted CHAP. IV. SECT 21. Of the Articles in Eyre EVety Shire usedto be warned by forty daies at the least by generall Summons of the Kings comming where after the Effoignes adjourned and the Assize of Victuals set and the Ordinances proclaimed and those of Franchises adjourned and the Jurours called Sworne and Charged with their Articles and the claimers of Franchises and the Rolls of the Justices of Coroners and of all Sheriffes and of all other manner of Pleas and Presentments after the last Eyre taken and received the first thing was to enquire heare and determine the Articles presented and brought in the last Eyre which were not ended and afterwards to determine Writs and Plaints to deliver Visnes to examine the Rolls to redresse the errouts and all other wrongs by right Judgements without respect unto any person All the Judges Ordinaries and Assigned Sheriffes Bayliffes and Stewards of Lords of Mannours and all other who claimed Iurisdiction which any one could attaint of any wrong done against the right rules of Law were condemned for the wrongfull Iudgements with regard to the distinction of the Parties grieved Coroners Eschetors Sheriffes Bayliffes and other Ministers doing wrong to the King or to the people used to be punished according to the example of the other and further according to the Kings pleasure The offenders which were found using false Scales and false Measure and gaining by breaking of any Assize either of Bread Wine Ale Cloth or other Merchandizes used to be set in the Pillory and Women in the Tumbrell and afterward were not suffered to Merchandize at any time not could they depart from the place or Towne to any Liberty because the usage was contrary to Law Cut-purses taken De facto in their notorious sins used to be hanged and for the cutting of Purses and stealing of other goods under the value of twelve pence and lesse then sixe pence one of their eares used to be cut off without carrying them to Prison or before any Iudge Assigned and to banish them from the Towne or from the Mannot for the second offence And for their â—arcine under the value of 〈◊〉 pence they used to set them in the pillory for the first offence and to banish them for the second In the Iudgements of Personall Trespasses venialls as to the taxing of the damages put in plaints Martin De Pateshall used this course the Judge used to enquire ex officio of the Iurours by whom any principall Trespasse was adjudged before him the names of all these who were guilty in the first degree and of the Accessories and therein he proceeded to Iudge the damages according to the number of the Endictors so that no Plaintiffe should recover no more entire damages by plurality of Plaints for one sole trespasse against the Trespassours severally CHAP. IV. SECT 22. Of Franchises OF Franchises note that because the King doth not hold his Rights and Dignities of his Crowne but as an Infant nor a grant from him of any franchises is so established that Kings cannot repeale them againe so as he give satisfaction to the value as by warranty and it is lawfull for every one who findeth himselfe grieved to Sue for the King to seize every Franchise forfeited for contumacy as if the Bayliffe of a Franchise doe not execution of the returne of the Sheriffe according to the Command of the King by any abuse as by using his frâ—nchife too largely or not duely by a Writ ensuing it is commanded that the Sheriffe enter into the Franchise and the King doth recover the seisin thereof and so the same becomes guildable which was before a Franchise And all those used to forfeit the Franchise of keeping of a Goale in Fee who by title of Franchise of Infangthiese or of return of Writ hurted not without delay the Persons taken in the places within the Franchise for Felony done in Guildables and send them into the Goale in Guildable so that the King doe not lose the Goods and Chattels of the Felons nor his other rights for the King giveth no Franchise to his owne prejudice nor to the prejudice of others especially of returne of Writs nor to have the custody of a Goale An example may be as betwixt two Neighbours in a Franchise the one cannot keepe a Prison to the prejudice of the King and if he doe he forfeiteth the Franchise And it also appeareth that Iurours came out of Franchises before the King and his Commissioners to Guildable and elsewhere at his command as well upon criminall Actions as upon
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
Kings prejudice take Fines for Wards or Marriages without Writ or deceive any one by colour of their Office or leavy money upon any upon his owne proper Amercement Into Perjury against the King fall Sheriffes who too high charge the People by a surcharge upon the people of Horses or of Doggs and who leavy Fines or Amercements for escapes of Prisoners or for any thing against Law before the escapes be adjudged by the Justices in Evre and who increase or diminish Fines or Amercements beyond the Wills of the Afferrors or Jurours and those Officers who conceal people deliverable to prison and doe not bring them to Judgement Into Perjury fall all those Officers who are reproveable for the sufferance negligence or consent to the alienation of the franchises or of the right of the King wrongfully or to the occupying or withholding of them And all those who elsewhere change old money which is forbidden for new then at the Kings change CHAP. 1. SECT 6. Of Falsifying FAlsifying is done in two manners by falsifying the Kings Seal his Mony His Seal may be falsifyed in many manners It is alwaies falsifyed when a Writ is sealed whereof the ingrossing and the matter or the forme is not justifiable by the King nor by the Law nor by the lawfull Customes of the Realme which is not to be intended of every Writ abatable It is falsifyed if a man scale therewith after that the Chancellour or other Keeper thereof hath lost his Warrant either by death or in any other manner It is falsifyed when a Writ or a Patent passeth against the Kings forbidding It is falsifyed by those who seale by ill Art or by Warrants not justifiable and it is falsifyed by those who seale and have not authority to seale Of falsifying the Money The Money was Ordained round and quarterable and use so to be made that the outward eircle was apparant through the whole otherwise it was not to be received and that the 1. l. was of 12. ounces of sine Silver and it was assented unto that the King should have 6d for the sealing of every Writ and for the coynage of every pound of money 12.d and no more of monies currant in the Realme The money is falsifyed by him who by evill covetousnesse maketh it not justifiable and it is falsifyed by those who make it and have not authority or warrant so to doe It is also falsifyed by those who for evill gaine put more alay in it then of right there ought to be And it is falsifyed by all those who make it without the Kings coynage And it is also falsifyed by all those who by ill Art counterfeit it and by those who clip or wash it for ill gaine CHAP. 1. SECT 7. Of Treason TReason is not done but betwixt Alies who may be by Blood Affinity and Homage Oath and Service By blood as if one of Parentage doe any thing to another of his blood which is the cause of his death or dis-inherison or to losse of homage for the quality of Treason is the taking away of life or member or decrease of earthly Honour ot the increase of villanous shame And in the same manner is this offence betwixt Affâ—â—â— as betwixt Sisters Sonnes in Law and Parents sot as cosinage is a line of divers percenets discending of the same Stock and drawne from carnall Copulation In like manner Affinity is a neernesse of Persons discending from carnall copulation where there is no blood and as this Office is done betwixt Affines and Cousens so it is also betwixt Allies Alliance is sometimes by Service Homage and Oathes Which happeneth sometimes by reason of Fealty issuing from the service of the Fee sometimes issuing from the Oath of Service of the body and as one of the Allies Parents or Affines commit this offence against the other in the same manner may they doe against them By Service as if one who I have rewarded to doe me Fealty and be seized in demeane of a Mannour or other gift or service or Courtesie falsifie my Seale or ravish my Daughter or my Wrie or the Nurse or the Ant of my Heire or doth any thing which is the cause of my death by a Feionious compassing the same or to the great dishonour or damage of my body or of my goods or discovereth my Counsell or my Confession which he is charged to conceale And by reward is meant Fee Possession Robe Church Rent or other gist and meat and drinke curing the service And as such a one may commit Treason against me who taketh from me so much that he is seized in the same manner I may offend against him by such Action or demand he shall have against me as I may have against him CHAP. 1. SECT 8. Of Burners BUrners are those who burne a City Towne House Men Beasts or other Chattels Felloniously in time of peace for hatted or revenge And if any one put a man into the fire whereby he is burnt or blemished by the fire although he be not killed with the fire neverthelesse it is an offence for which he shall dye Under this offence sometimes fall those who threaten burning CHAP. 1. SECT 9. Of Man-slaughter MAn-slaughter is the killing of a man by a man for if it be done by a beast or by mischance it is not Man-slaughter This offence is two waies either by the Tongue or by the Act. By the Tongue three waies by Counsell Commandement or Deniall By Counsell as he who counselleth another to kill and so also is it by Commandment By Deniall as he who denieth sustenance to a man By Act many waies sometimes by Striking by Poisoning by Necessity by Will By striking as it afterward appeareth in the Appeales By poison or venoming as by secret felony and fained friendship giving poison to another to eate or poisoneth or envenomed any thing whereby a man is presently or in time killed Or by Imprisonment as he who keepeth the body of a man in prison by colour of Law till he dyeth By Chance as by casting or drawing of a Vessell or other thing and some one is killed by mischance or by the falling of a Tree and other the like cases But you must distinguish where the killing is justifiable by Law for there it is no offence and when he doth not that which he ought to doe and the party useth all the diligence which he may crying out and defending himselfe for then he doth not greatly offend but he who doth not so doe he offendeth mortally By necessity where in you ought to distinguish whether the necessity be avoidable or not and if it be avoidable it is a mortall offence By Will and that may be either of himselfe or of some other person Of himselfe as in case when people hang themselves or hurt themselves oâ— otherwise kill themselves of their owner felony Of others as by beating famine or other punishment in like cases all are Man-slayers Also this
offence is done willingly as by those who paine men so much as ought not or not so much as they ought he offendeth mortally But it may be alleadged that by reason of the paine the dead doth failly confesse the Felony and sometimes by the Reward of the Coroners or Justices are destroyed and as it is of those who cast and leave Children and others who cannot goe in Deserts or in such places and returne not to them though they doe now dye in the Deserts God succouring them And also false Jurours and Wunesses are Men-slayers and those who appeale others or scandeâ—ously Indict them or in other manner falsly accuse them And also they fall under this offence who Imprison the people in such places or put them to such punishment where it may be found by Enquest that by those meanes place or punishments they came fooner to their deaths Three waies was God himselfe killed for Tongues killed him indeed with the other who Crucified him or procured him so to be By the Tongue Pilate killed him who Commanded him to be killed By Will the false witnesses and all those who consented thereunto killed him And hence it is that the Evargelifts differ of the houre of his death in setting forth his Passions This offence doth containe many branches viz. Imprisonment Mayheim Wounding Battery False Witnesses Imprisonment is the wrongfull detaining of a mans body and that may be in two manners either in a common Prison of the King or in a private Prison which is forbidden In a common Prison none ought to be put if he be not attainted of an offence which requireth death or especially appealed or indicted and by Judgement of a false and wrongfull Imprisonment A private Prison is 1. sometimes rightfull and justifiable 2. wrongfull The same is lawfull and justifiable when a man who is Baileable is taken and put in custody till he hath found Baile to doe that which he ought People are in Custody in divers manners In one manner by the warrant of Law as it is of Enfants within age Women in the Custody of their Husbands men of Religion in the Custody of the Abbots or other Soveraignes of their houses and Villaines in the Custody of their Lords In another manner people are in Custody by Common assent as it is of Idiots of people wasters of their estates of mad-men and of those who are drawne to follow infamous though pardonable offences who are to be in Custody in such Cases Into the offence of Man-slaughter fall all those by whom a man dyeth in Prison and that may be either by the Judge who delayeth to doe Justice or by durenesse of the Keepers or by other unjustifiable occasion Into this offence fall all those through whose default people dye being forsaken of those who are bound to sustaine them And those who kill a man imprisoned by a surcharge of paine in case when any is adjudged to penance And all those who unjustly adjudge a man to death and those who assent thereunto and false Witnesses who falsly restifie a mortall offence against an innocent man Into this offence fall all Jurours and false Phisitions and maintainers of killing and those who beate or wound a man so so that he is sarre from living and nearer to his death Mayhem is the want of member or the enseebling of it by breaking or cutting the bones oâ—a man whereby he is lesse able to combare And Turgis saith That the losse of the fore-teeth is Mayhem and of the turning of the mouth and of the little finger and of the right joynt and the taking away the toes of the feet is Mayhem and the more reason where more losse appeareth And Sennall said That the losse of the eyes is Mayhem if nature have not taken them away but the losse of the middle Teeth or of the Nose or the Eares is not Mayhem although the body are thereby reviled or dishonoured And Billing saith That Rasure by turning the bones of the Head or of the Scull of the Head backward is Mayhem and also of other bones A wound is cause of death made by cutting of the hand or the arme felloniously which is shewed by the length breadth or depth for the cutting of a stone or of a staffe seldome becometh a wounding but a bruising CHAP. 1. SECT 10. Of Larcines LArcine is the treacherously taking away from another moveables Corporeall against the will of him to whom they doe belong by evill getting of the Possession or the use of them It is said a taking for bailing or delivery is not in the Case It is said of moveables Corporiall because of goods not moueables or not Corporiall as of Land Rent Advowsons of Churches there can be no Larcine It is said Treacherously because that if the taker of them away conceive the goods to be his owne and that he may well take them in such Case it is no offence Nor in case where one conceives that it pleaseth the owner of the goods that he take them but thereof there ought to be apparant presumption and evidence There be two parts of Larcine One which is done openly in the day by Robbery The other which is done in the night or in the twilight Robery is done sometimes By 1. Theeves 2. Tortious Distresses of Bayliffes and other who wrongfully extort from the people 3. Extruders and Disseifors who with force openly take the goods of others as before is said 4. By others who run away with other mens Wives or Wards and theiâ—goods Into this offence fall all such who take the goods of others by Authority of the King or of other great Lords without the consent of those whose goods they are Larcine is committed sometimes by open Theeve sometimes by Treacherous as it is in divers kinds of Merchandizes and as it is oâ— Labouâ—er who steale their labours and as it is of Bâ—â—iffes Receivers and Administrators of others goods who steale them in not giving their Accompts Into this offence fall all those who steale Purses or Cloke-baggs or doe any other Larcine by encrease or covetousnesse of themselves and all their favourers Into this offence fall all those who suffer Theeves to passe when they may arrest them those also who may take or hinder them or warne them of malice and doe nor those who conceal them for love of Theef-boore or other reward or wittingly receive their Larcine or their persons Into this offence fall all those who steale by false measures and false weights or in any other manner of treachery by colour of Merchandise and those who wittingly suffer them where they may hinder them Into this offence fall those who wrongfully amerce the people with outragious Amercements or outragiously afferre Amercements or wrongfully condemne their Neighbours either in damages or penalties and those who wrongfully detaine treasure found Wreck Waife or Estray which belongeth to the King and those who otherwise finde them and doe not restore them
Verdict so are they chargeable to accuse the Conspirators who procure to save any Offendant or to indict an innocent in such Enquests All the Verdicts before the Coroners as well of Accessories as of the Principall are at the Commandment of the Coroners receiveable by the Sheriffes and the Principall and Accessories are to be taken and delivered to Maine prisors and in the presence of them and of the Sheriffes their goods moveables and not moveables are to be seized into the Kings hands and by a reasonable Extent and Divident the moveables are deliverable for the finding of the Prisoners and for their needful and reasonable sustinance the King to be answered the residue saving the right both to the Principall if they be acquitted and to the Accessories by Mainprise And if any one fly or make resistance and will not answer the Law it is lawfull for every one to kill him if he cannot otherwise apprehend him And Bermund awarded That all goods of those that fled should remaine forfeit to the King saving to every one his right although that afterwards he yeeld himselfe to the Peace And Iselgram said That he is no flyer who appeareth in Judgement before he be Out-lawed If any one fly to Sanctuary and there demand protection we are to distinguish for â—â—le be a common Thiefe Robber Murderer Night-walker and be knowne for such a one and discovered by the people c of his Pledges and Deziners or if any one be convict for Debr or other offence upon his owne confession and hath sorjered the Realme or hath been exiled banished Out-lawed or Weyved or if any one have offended in Sanctuary or joyned upon this hope to be defended in Sanctuary they may take him out thence without any prejudice to the Franchue of Sanctuary But in the right of Offenders who by mischance fall into an offence mortall out of Sanctuary and for true Repentance run to Monasteries and commonly confesse themselves sorrowfull and repent such offenders being of good fame if they require tuition of the Church King Hen. 2. at Clarendon granted unto them that they should be defended by the Church for the space of forty daies and Ordained that the Townes should defend such flyers for the whole forty daies and send them to the Coroner at the Coroners view It is in the election of the offender to yeeld to the Law or to acknowledge his offence to the Coroners and to the people and to waive the Law and if he yeeld himselfe to be tryed by Law he is to be sent to the Goale and to waite for either acquittall or Condemnation And if he confesse a nortall offence and desire to depart the Realme without desiring the tuition of the Church he is to goe from the end of the Sanctuary ungirt in pure Sack-cloth and there sweare that he will keepe the straight way to such a Port or such a passage which he hath chosen and will stay in no parts two nights together untill that for this mortall offence which he hath confessed in the hearing of the people he hath avoyded the Realme never to returne during the Kings life without leave so God him help and the holy Evangelists and afterwards let him take the signe of the Crosse and carry the same and the same is as much as if he were in the protection of the Church And if any one remaine in Sanctuary above the forty daies by so doing he is barred of the grant of Abjuration if the fault be in him after which time it is not lawfull for any one to give him victuals And although such be out of the peace and the protection of the King yet none ought to dishearten them all one as if they were in the protection of the Church if they be not found out of the high way or wilfully breake their Oathes or doe other mischiese in the high way If he who is killed be unknowne in such case the Coroners ought to shew the murdered cloathes according to the Statute of King Kanute who Ordained for the safeguard of his Danes whom he lest in England That if a man unknowne were killed that the whole Hundred should be amerced to the King by the Judgement of Murder Four things excuse the Hundred from the Judgement of Murder 1 If the Felon be knowne who killed him for if the Felon be knowne then may he be attainted of the Felony 2 Another If the Felon be apprehended or if he fly to a Monastery 3 If the killing come not by Felony but by mischance 4 The fourth in case where a man is a felon of himself and because there could be no Murder of a man knowne it belongeth to the Coroners to enquire in those Fellonies of what Kindred or Lineage those that were killed were so that one may know by their Parents whether they were of the English nation or not for if no man could name their Parents it was great presumption that they were Alliens And thence it is that one calleth that Parentage Englishire where the Parentage be found of the Fathers or of the Mothers side and if no Englishire be found then that it hath the Judgement of Murder To the Office of the Coroners it also belongeth to receive the confession of Felons in the hearing of Witnesses whereby of a grand Felony done by many offenders it came to passe in the time of King John that one of the offenders petitioned the King That he would pardon him his life for that he had accused the other offenders who were his companions and that the King Out-lawed them and at the request of the King the Earles granted That in Sanctuarie only it should remaire for Law that offenders having confessed the Felony might accuse others and that it was then Ordained That the Coroners should take such Confessions and such Appeales but once and not many times Women are not admitted to bring Appeales nor Infants within the Age of 21. yeeres no Idiots nor men professors not Clerks indicted or appealed of any Crime nor men attainted of false Appeale not those who are vanquished in battaile but those who have government of themselves The Appelees are to be seised upon body and goods twice in the yeere that is to fay once after Michaelmas and another time after Easter And because Sheriffes to doe the same make their Turnes of the Hundred such visnes are called the Sheriffes Turnes where it belongeth to the Sheriffe to enquire of all personall Offences and of all the circumstance of Offences done within the Hundred and of the wrongs of the King and Queens Officers and of wrong done to the King and the Common people according to the Articles aforesaid in the division of Offences The Appeales are to be seised upon body and goods as afore is said and if any Forrainer be appealed who is out of the power of the Coroner the Kings Commisrary is to cause him to appeare or Outlaw him CHAP. 1. SECT 14. Of the
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
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
to averre by Oath and because he would not averre it by Record Therberne would not allow of the Acquittall which he tendred him He hanged Wolstor because he adjudged Haubert to death at the Suit of the King 31 Wolstor for a fact which Haâ—bert conâ—est and of which the King gave him his pardon but he had no Charter thereof neverthelesse he vouched the King to warrant it and further tendred to averre it by enrolement of the Chancery He hanged Oskitell because he judged Catling to death 32 Oskitell by the Record of the Coroner whereby Replication allowable the plea did not hold And the case was such Catling was taken and punished so much as he conâ—est he had mortally offended and that to be quitted of the paine and Oskitell adjudged him to death upon his Confession which he had made to the Coroner without triall of the truth of the paine or the fact And further he caused the Coroners and Officers accessories to be apprehended who hanged the people and all those who might have hindred the false Judgement and did not hinder the same in all cases For he hanged all the Judges who had falsly saved a man guilty of death or hath falsly hanged any man against Law or any reasonable Exception He hanged the Suitors of Calevot 33 Suitors of Calevoâ— because they had adjudged a man to death in a case not notorious although he were guilty thereof for no man can Iudge within the Realme but the King or his Commissaries except those Lords in whose Lordships the Kings Writ doth not run He hanged the Suitors of Dorcester 34 Suitors of Dorcester because they Iudged a man to death by Iutours in their Liberty for a felony which he did out of the liberty and whereof they had not the Counsance by reason of forrainty He hanged the Suitors of Cirencester 35 Saitors of Cirencester because they kept a man so long in Prison that he dyed in Prison who would have acquitted himselfe by Forraigners that he offended not feloniously In his time the Suitors of Doncaster lost their Iurisdiction 36 Suâ—ors of Doncaster besides other punishments because they held Pleas forbidden by the Customes of the Realme to Iudges Ordinaries and Suitors to hold In his time Colgrin lost his franchise of Enfangtheise 37 Colgrin because he would not send a Theife to the common Goale of the County who was taken within his Liberty for a felony done out of the Liberty in Guildable In his time Buttolphe lost his view of Franck-pledges 38 Buttolphe because he charged the Iurours with other Articles then those which belonged to the View and Amerced people in Personall Actions where one was not to be amerced by a pecuniary punishment And accordingly he caused mortall rewards to Criminall Iudges for wrongfull mortall Iudgements and so he did for wrongfull Iudgements venialls Imprisonment for wrongfull Imprisonments and like for like with the other punishments for he delivered Thelweld to Prison because he judged men to Prison for an offence not mortall He judged Lithing to Prison 39 Lithing because he imprisoned Herbote for the offence of his wife He judged Rutwood to Prison because he imprisoned Olde for the Kings Debt On the other side he cut off the hand of Hanlf because he saved Armocks hand who was attainted before him that he had feloniously wounded Richbold He judged Edulfe to be wounded because he judged not Arnold to be wounded who feloniously had wounded Aldens In lesser Offences he did not meddle with the Judgements but dis-inherited the Justices and removed them according to the points of those Statutes in all points where he could understand that they had passed their Jurisdiction or the bound of their Delegacy or of their Commission or had concealed Fines or Amercements or other thing which belonged to the King or had released or encreased any punishment contrary to Law or procured the exercising or pleading without Warrant either in the property by warrant of Writ or of a plaint of the Possession or è contra Or in the veniall Actions by words of felony or è contrai or had sent to no Party a transcript of his Plea at the Joâ—ney or any of the Parties wrongfull grieved or done any other wrong in dis-allowance of a reasonable Exception of the Parties or to the Judgement In his time every Plaintiffe might have a Commission and a Writ to his Sheriffe to the Lord of the Fee or to certaine Justices assigned upon every wrongwhichwas done In his time Law was hastened from day to day so that above fifteen daies there was no default nor Essoigne adjournable In his time the parties might carry away the parts of their Pleas under the Seale of the Judges or the adverse parties In his time there was no stay of Writs all remediall Writs were grantable as of Debt by vertue of an Oath In his time the Iudges used to take twelve pence of every Plaintiffe at the journey In his time Plaintiffes recovered not onely damages of the issues of the Possessions and of the Fees but recovered Costs as to the hurts and as much as one might lawfully Taxe by the occasion of such a fact 109 It is abuse that such a multitude of Clerks are suffered to be made whereby the Kings jurisdiction is overthrowne 110 It is abuse that Clerkes have Leases of that which belongs to the Temporalty and hold Lay Fees 111 It is abuse that Pleas hold upon Sundaies or other daies forbidden or before Sun rising or in the night time in dishonest places 112 It is abuse that none answer to a Felony or other personall Action of trespasse or scandall before his age of one and twenty yeares 113 It is abuse that when the Action is affirmative to take the proofe against the Answer or Plea affirmative 114 It is abuse that a man be accused of life and member ex officio without 〈◊〉 or without indictments 115 It is abuse that the Iustices shew not the Endictments to those who are endicted if they require the same 116 It is abuse that no man in England doth answer for a thing done out of the Realme Et è contra or in a priviledged place where the Kings Writ runneth not for a thing done to a Forraigner et è contra or within a place within a Franchize for a thing done in Guildable 117 It is abuse that Rape is a mortall offence 118 It is abuse that Rape extends to others then Virgins 119 It is abuse to Out-law a man if not for felony 120 It is abuse that one take in England any one Out lawed in Ireland or elsewhere out of the Realme or that one is put out of his Fee by judgement of Law of Judges Ordinaries Suiters 121 It is abuse to count of so iong time whereof none can restifie the hearing or seeing which is not to endure generally above forty yeares 122 It is abuse that a man have an
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
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