Digitized by Microsoft® GOO (JnrnpU Slaui ^rl^onl ICibtaty Digitized by Microsoft® Cornell University Library KD 600.H81 1903 The mirrour of ustices :written orlglna 3 1924 021 678 010 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Xegal Classic Sertes MIRROUR OF JUSTICES Digitized by Microsoft® Xegal Classic Series QLANVILLE iQti-oductioQ by Joseph Henry Beale, Jr., A.M., LL.D. BRITTON Introduction by Hon. Simeon L. Baldwin, LL.D. LITTLETON'S TENURES Introduction by Eugene Wambaugh, LL.D. MIRROUR OF JUSTICES Introduction by Hon. William C. Robinson, LL.D. Digitized by Microsoft® THE MIRROUR OF JUSTICES WRITTEN ORIGINALLY IN THE OLD FRENCH, LONG BEFORE THE CONQUEST ; AND MANY THINGS ADDED BY AEDEEW HORNE TO WHICH IS ADDED THE DIVERSITY OF COURTS AND THEIR JURISDICTION TRANSLATED INTO ENGLISH BY W. H., of Grai/s Inn, Esq., Jura publica certissima sunt vitce humance solatia, infirmorum auxilia, impioruni /rcenn. —Cassiodor. WITH AN INTRODUCTION BY WILLIAM C. ROBINSON, LL.D. WHITEFORD PROFESSOR OP LAW IN THE CATHOLIC UNIVERSITY OF AMERICA WASHINGTON, D. C. JOHN BYRNE & CO. LAW PUBLISHERS AND BOOKSELLERS 1903 Digitized by Microsoft® Copyright, 1903, / BY JOHN BYRNE & CO. Digitized by Microsoft® CONTENTS. PAGE Introduction ix Translator to the reader 1 The Preamble 13 Chap. I. Sect. 1. Of the offences against the peace 17 Of the original of the law 17 Sect. 3. Of the coming of the English into this realm. 18 Sect. 3. Of the first constitutions made by the an- cient kings 31 Sect. 4. Of^offences, and the division of them 30 Sect. 5. Of majesty 33 Sect. 6. Of falsifying 37 Sect. 7. Of treason 39 Sect. 8. Ofburners 40 Sect. 9. Of manslaughter 41 Sect. 10. Of larcenies 45 Sect. 11. Of hamsockne or burglary • 50 Sect. 13. Of rape 51 Sect. 13. Of the office of coroners 53 Sect. 14. Of the Exchequer 62 Sect. 15. Of inferior courts 63 Sect. 16. Of sheriffs turns 65 Sect. 17. Of views of frank pledges 66 Chap. II. Sect. 1. Of actions 73 Sect. 3. Ofjudges 74 Sect. 3. Of plaintiffs 75 Sect. 4. Of rewards and fees 78 Sect. 5. Of pleaders 79 Sect. 6. Of attachments 81 Sect. 7. Ofappeals 83 Sect. 8. Of process of exigent 85 V Digitized by Microsoft® vi CONTENTS. PACK Chap. II. Sect. 9. Of gaol and gaolers 86 Sect. 10. Of people bailable in appeals 88 Sect. 11. Of api^eal of majesty 88 Sect. 12. Appeal of falsifying 90 Sect. 13. Of appeals of treason. 91 Sect. 14, Of appeal of burning 93 Sect. 15. Of tlie appeal of murder 93 Sect. 16. Appeals of robbery and larceny 95 Sect. 17. Of the appeal of burglary 96 Sect. 18. Of the appeal of imprisonment 96 Sect. 19. Of appeals of maj'hem 97 Sect. 20. Of appeal of wounding 97 Sect. 21. Of appeal of rape 98 Sect. 22. Of offences real, at the king's suit 98 Sect. 23. Of offences personal at the king's suit 101 Sect. 24. Of venial trespasses and personal suits 103 Sect. 25. Of assize and novel disseisin, etc 106 Sect. 26. Of distresses 118 Sect. 27. Of contracts 118 Sect. 28. Of villenage and-niefty 122 Sect. 29. Of summons 138 Sect. 30. Of essoins 130 Sect. 31. Ofattornies 137 Chap. III. Sect.l. Of exceptions 139 Sect. 2. What exception Is 140 ■ Sect. 3. Exceptions of dilatories 141 Sect. 4. Exception of clergj' 142 Sect. 5. Replication of bigamy 143 Sect. 6. Exception to the power of the judge 144 Sect. 7. Exception to the person of the judge 146 Sect. 8. Exception to the time 146 Sect. 9. Exception to the place 147 Sect. 10. Exception to the person 148 Sect. 11. Exception of the person, and of his custody. 148 Sect. 12. Exception of summons 149 Sect. 13. Exception of vicious counts 149 Sect. 14. Exception to approvers 152 Sect. 15. Exception of indictments 152 Sect. 16. An answer to treason 154 Digitized by Microsoft® CONTENTS. Yii PAGE Chap. III. Sect. 17. Burning 105 Sect. 18. Of murder 155 Sect. 19. Of robber}' or larceny 156 Sect. 30. Of burglary 157 Sect. 31. Of rape 157 Sect. 23. Of imprisonment 158 Sect. 33. Of mayhem and wounding 158 Sect. 34. Juramentum duelli 169 Sect. 25. Ordering the combatants 170 Sect. 36. Personal trespass 171 Sect. 27. Of purprestures 173 Sect. 28. Of treasure found 173 Sect. 29. Of wrecks 173 Sect. 30, Of usury 17-1 Sect. 31. Ofhunting 174 Sect. 33. Of obligation 175 Sect. 33. Of attaint 175 Sect. 34. The ordinance of attaint 176 Sect. 35. Of oaths ■ 178 Sect. 36. Of homage 178 Sect. 37. Fealty annexed to homage 179 Sect. 38. Of common oaths 179 Sect. 39. Of final accords 180 Chap. IV. Sect. 1. Of judgment 183 Sect. 3. The ordinances of judgment 188 Sect. 3. Jurisdiction to declai'e the law 186 Sect. 4. Defaults punishable 189 Sect. 5. Defaults 190 Sect. 6. Of personal actions 191 Sect. 7. Defaults in real actions 192 Sect. 8. Of actions mixt 193 Sect. 9. Of pledge and mainperner 193 Sect. 10. Defaults after summons 194 Sect. 11. Of champion 196 Sect. 12. Of punishments 199 Sect. 13. Of infamous persons 301 Sect. 14. Of majesty 203 Sect. 15. Of burning 203 Sect. 16. Of murder 304 Digitized by Microsoft® Viii CONTENTS. PAGE Chap. IV. Sect. 17. Of punishments 213 Sect. 18. Of false judges 314 Sect. 19. Of perjury 216 Sect. 20. Of justices in Eyre 217 Sect. 21. Of articles in Eyre 218 Sect. 22. Of franchises 221 Sect. 23. Of satisfaction of debt 222 Sect. 24. Cases of disseisin 222 Sects. 25, 26. Of amercements taxable 225 Sect. 27. Office of justices in Eyre 228 Chap. V. Sect. 1. Abusions of the law 280 Sect. 3. Defects of the great charter 257 Articles stat. Merton 265 Sect. 3. Stat. Marlbridge '. 267 Sect. 4. Stat. Westra. 1 269 Sect, 5. Stat. Westm. 3 375 Sect, 6. Reprehensions of circumspecte agatis 13 Edw. 1 286 Sect. 7. New statute of debt 287 Diversity of Courts. Their jurisdiction '. 391 Of the court of Marshalsea 393 Of the King's Bench 293 Of the Common Pleas 396 The Chancery 398 The Exchequer 301 The Cinque Ports 303 Of Court Baron 305 Appeals of murder 309 Appeal of robbery 313 Appeal of rape 318 Appeal of mayhem 319 Indictments 333 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® INTRODUCTION. By WiT.LiAii C. RoBiNsox^ LL.D., 10. Exception to the person of the 'plaintiff. Othek exceptions dilatories arise from the persons of some plaintiffs, as it is of those persons who are re- bukeable of accusations. Other exceptions dilatories rise from the persons of the pleaders, or of the attornies, or of the essoiners, for none can do that by his attorney which himself cannot do, nor can any be an essoiner, attorney, or pleader who may not be a plaintiff. Sect. 11. Exception of person, and of his custody. Oe he may take exception against his own person, and say that he is not within the king's power, or if he be imprisoned for a greater offence, or appealed or in- dicted of crime, or of a higher crime; or he may say, that he is not bound to answer thereunto, for as much as he is not brought to judgment by a right course, which willeth that no map may be attached by his body, when he is distrainable by his lands or other goods, if not for a personal offence. Or he may say, that he is not tied to answer to any Digitized by Microsoft® <;h. III., Sc. 12.] EXCEPTION OF SUMMONS, ETC. 149 action which toucheth loss of life or member, or right of property, until he he of the full age of one and twenty years or more ; and there are other dilatories of the per- sons of the answerers, which appear before. Sect. 12. Exception of summons. Iw pleas of summons he may say, he ought not to answer, because the plaintiff holdeth no suit of dis- tress, nor hath any other manner of proof present; or because the plaintiff hath not found sureties to pursue his plaint, or because he was not summoned, or not reasonably summoned, or that he received the summons by no freeman, or but by one freeman ; or because he was summoned too late, or because he was never sum- moned, what thing to answer to, or because he was not summoned against the plaintiff. Sect. 13. Exceptions of vicious counts. As writs which are vicious are abateable, so also are vicious appeals ; as if the appeals be not brought within the year after the felony done, or not before the coroner, Digitized by Microsoft® 150 EXCEPTION OF VICIOUS COUNTS. [Ch. III., Sc. 13. or not in the county where the offence was done, or not in a right place, or for variance, or for omission, or in- terruption, or because the plaintiff is barred against others in the same appeal. Sometimes it happeneth that the thing which is robbed or stolen is found in the possession of a true man, against whom the owner of the property, or of the possession frameth his appeal, as he who is a rob- ber of another, in which case there is a difference; for if it be found that such a thing was given, sold, or de- livered to him without collusion, in such case the pos- sessor is acquitted, or at least bailable until the next coming of the justices ; and when the justices come, the first possessor thereof is to be arrained, and he may shew how it came to him ; nevertheless if he would vouch one to warrant it he cannot, nor deny the title of his possession, but in the name of voucher he may say, that it came to him by lawful title, as that he bought it in such a market, or in such a place, without mentioning of whom ; and the sheriff is thereupon to cause a jury to be impanelled, and if the answer be found true, then he is acquitted, and if not, then to be condemned as be- fore, as if the plaintiff had proved the felony. And if any one appear, and justify the thing to be his, he is not to be received as a party, but the cause is first to be tried betwixt the two firsts, and afterwards he may make the estranger a party if. he will; and if the case be that the buying was within a place within Digitized by Microsoft® Ch. III.., Sc. 13.] EXCEPTION OF VICIOUS COUNTS. 151 a franchise, and tlie sheriff return, that he cannot exe- cute the writ by reason of the franchise of such a man, or of such a place; in such case the sheriff is to be commanded that he forbear not by reason of the fran- chise, but that he enter and execute the writ. And if the possessor saith, that he came to the thing from a man certain, and he be present, and will main- tain the same without collusion, he is to be admitted thereunto, and the other is to be discharged; and if he deny the contract, this affirmative, and this negative are triable by battle or jury; nevertheless at the king's suit the possessor ought to make title to the possession, or clear himself thereof; for two things are necessary, conscience for us, and fame against others. And that which is said of making of title to the possession of things, in case where a false writ, or false money, or larceny, or thing lost, or estray, or other hurt is found at the king's suit, although that the last pos- sessor acquit himself of the felony; if the plaintiff nevertheless prove the thing to be his, as of his posses- sion, or stolen from another, or otherwise lost, the law is, that he recover the thing without any payment for it. Or he may have exception dilatory to a vicious deed, for variance betwixt the words of the writ and the na- ture of the action, and the count, as if he have omitted to charge me, or if he charge that in the count which was not to be in that action, as felony in a venial action. And as the defendant hath a dilatory exception to Digitized by Microsoft® 152 EXCEPTION TO APPROVERS. [Ch. III., So. 14, abate a vicious count, in like manner hath the plaintiff a replication against the defendant upon a faulty an- swer; but because none is to be judged for not answer- ing in appeals of felony, it is sufficient for every one to deny the felony generally, though he answer not par- ticularly to every word mentioned in the appeal. And in cases venials, where the defendants say noth- ing in excuse of that which is offered against them in judgment, they are to be adjudged and condemned as not answering at all ; in the same manner it is where one answereth not duly, or insufficiently. Sect. 14. Exception to approvers. To an approver one may thus answer; Sir, I am a true man, sworn to the king, and within a frank-pledge ; and this approver is a felon attainted by his own con- fession, and out of the king's protection, and by con- sequence out of the king's peace, whereby he hath lost his free voice, and lost every right, and every action, so , as he is not to be admitted in any action, no more than a man who is outlawed by judgment. Or he may plead, that he ought not to answer him, because he did not appeal him in his first appeal, or not before the coroners, and if the approver cannot help Digitized by Microsoft® Ch. III. Sc. 15.] EXCEPTIONS TO INDICTMENTS. 15$ himself by this replication, as to say, that he is not any way out of the king's protection ; the defendant is bound to answer him, but he is not to be delivered to the free- pledges where he is in the decennary ; or to other main- prisors until he be appealed or indicted. Sect. 15. Exceptions of indictments. These exceptions hold to indictments ; Sir, I demand sight of the indictment, whereby I may take exceptions against the persons of the indictors, or to the form of the indictment, for no villain can indict any man. Or if the indictment be not made by the whole dozein of freemen, or by others who cannot indict any man. Or if the indictment be not sealed with the seals of the twelve jurors, or that it is not the record of judges authorized thereunto; or if the indictment hath not been within the year, or by people of credit, and of good fame, no man is bound to answer to such an in- dictment. !N'or if the indictment hath not been made within the neighbourhood of the same county, also if the in- dictment be general, for a general slander defameth no man, nor is he compelled to answer thereunto ; as if the indictment be, such a one is a murderer or a thief, or Digitized by Microsoft® 154 AN ANSWER TO TREASON. [Ch. III., Sc. 16. wicked, without alledging any particular offence there- in, for to the common fame of the people an indictment ought to give no credit or belief. Or he may say, that the justices went the Eyre after the felony done, where nothing was moved of this felony. Sect. 16. An answer to treason. Darling here denies all treasons and felonies, and whatsoever is against the king's peace. And as to the consideration he may say thus ; Sir, not- withstanding the joint alliance betwixt us by homage sometimes before this time, nevertheless when he counted that I should commit this treason, I had yielded up to him all the lands which I held of him, or I lost them by judgment, or by disseisin, which the plaintiff did to me, or he appointed them to come to others; in which case the felony is barred, and the plaintiff is eondemnable. And as to the consideration of present fealty he may say, that this alliance the plaintiff forfeited against him in such a point, or such a point ; such fealty issued out of such lands whereof the defendant was not then tenant, neither in demesne nor in service. Digitized by Microsoft® Ch. III., Sc. 17-18.] BURNING.— MURDER. 155 And to the alliance of curtesy he may say, that such benefit was not to continue but until a time past before the time named in the appeal, for afterwards he paid him nothing of such pension, or other curtesy but by judgment had against him, and in despite of him; or thus, before the time named in the appeal he yielded up to him his deed of the pension, or released the same unto him, or quit-claimed the same whereby the alliance was destroyed. Sect. 17. Bwning. To burning he may say, that the mischief came by mischance, and not of a premeditated felon. Sect. 18. Murder. To an appeal of murder he may plead, that the ac- tion belongeth not to such women as the wife of the plaintiff, because he was not killed in her arms, or in her seisin. Or thus, Sir, the plaintiff is to have no action, for as much as there is one nearer of blood who hath brought his appeal, and is a person of ability so to Digitized by Microsoft® 156 ROBBERY OR LARCENY. [Ch. III., Sc. 18. do; or he may say, that he is not bounden to answer in England unto an act done out of the realm, if the thing concern not the king's right, as his person, or his inheritance ; nor in a privileged place where the king's writ runneth not of an act done in a foreign place, nor e contra in a franchise, of an act done in guildable; or he may say, that he did it not feloniously, but by mis- chance, or by a lawful judgment; or thus, not against the peace as a fugitive, or as a known felon, or as one who was not within allegiance to the king at the time of the killing. Sect. 19. Roibery or larceny. To an appeal of robbery or of larceny he may plead, that he wrongfully bringeth this appeal, for as much, as the plaintiff brought an action of trespass against the same persons of the same before such judges; and if any one would cover his larceny by colour of avowry for an estray, or a waif, in such case it behoveth that he shew forth a title allowable for such a franchise; but this exception is counter-pleadable by his peremptory replication; Sir, such avowry ought not to be of any force, because he presently carried away the estray, or waif so found, or changed it, or sold it, or killed it, or Digitized by Microsoft® Chap. III., Sc. 20 ] OF BURGLARY. I57 put it out of the view, or from the knowledge of the neighbourhood; whereas he ought to have publickly cried it in three markets and monasteries next adjoin- ing, and keep it in a common place for a whole year. To the exception of distress holds this replication; Sir, such avowry ought not avail him, because he was not a known bailiff in such a hundred ; or because he did not any thing in the manner of a distress, as not in a due time, nor had any warrant, but took it in the night time, or in. such other manner feloniously robbed him, and stole, etc., and in the like manner may a replication hold against a robbery made by colour of disseisin. Sect. 20. Of hurglary. To burglary he may say that he entered into the tenements without doing any felony, and not against the peace, as into his own demesne and freehold. Sect. 21. Of rape. Isr appeal of rape he may deny the felony, and say that he ravished not her against her will, but that she Digitized by Microsoft® 156 OF INPRISDNMENT. [Ch. III., Sc. 23. assented, and that appeareth because she conceived by him at the same time, and there is no presumption that she was ravished against her will by fouling of her gar- ments, nor shedding of blood, nor hue and cry made, or other manner of violence offered. Sect. 22. Of imprisonment. To the appeal of imprisonment he may say, that he did it by force of a rightful judgment of such a judge; but to that plea is this replication good, that after there came a warrant to him to deliver him, he kept him in prison for the time named in the appeal. Sect.. 23. Of mayhem and wounding. In mayhem he may demand the view thereof, for he cannot lawfully complain when there is no mayhem to be judged of; and of appeal of wounding in the same manner. By the death of the king all pleas are sus- pended, all gaols opened, no judge, bailiff, or other of- ficer ought to intermeddle therewith for want of war- Digitized by Microsoft® Ch. III., Sc. 23.] OF MAYHEM AND-WOUNDING. 159 rant, and all outlaws, and all waives, and those who have forjured the realm, and all banished persons used then to return, except those who were exiled and ban- ished for ever; and if any recovered before for that he could not have debt, if he were not justiiied to the peace; and if he be brought to judgment, and if he be accused of outlawry, he- may say that he is discharged of the outlawry by the king's grant; or he may say that the outlawry ought not to prejudice him because he was under the age of 21 years at the time of the out- lawry, and therefore that he was not outlawed for the felony. Or because the felony was not done in such a county, or because he was not outlawed in England, or not within ihe Icing's dominion where the writ runneth; for an outlawry pronounced against a man in the bish- oprick of Durham, or elsewhere in the land where the king's writ doth not run, shall prejudice as one in the land where the king's writ runneth, nee e contra. Or because the felony was not done in the time of this king, or not since the last Eyre in that county; or because the process of the outlawry was false, by a false warrant, or without any warrant, or because he lay sick, and was essoined de malo lecti, or because he is alive for whose death he was outlawed ; or because he was imprisoned the day of the outlawry, or because he was in the king's service in the Holy Land,, or within the realm for the profit of the pommonwealth. Digitized by Microsoft® 160 OF MAYHEM AND WOUNDING. [Ch. III., Sc. 23. Or because he had the king's protection, or because lie was a madman, or an ideot, or deaf, or dumb, or professed in religion ; in which cases if he pray to be Teceived to answer, he is to be received. And the plaintiff was to be demanded, and it was to be proclaimed, that if any one could shew why he should not be enlarged, that he appeared at a certain day. All parties in judgment are necessary to be present, and they are to have Oyer of the writs, of the original, the plaintiff's commission, the quantity or the quality of- his plaint. And the disseisor or their bailiffs, every one of them for himself may say in this manner, he may answer and say for himself, that he hath not done any wrong or disseisin, nor hath any thing in the tenements put in the plaints; and he may so answer, and so of ■others till it come to the tenant in whose name the dis- seisin was ; and he may answer and say, that he is not in by disseisin, but is in by D. who enfeoffed him who is not named in the writ ; and it may be that D. entred l)y E. and so there may be many, according to divers feoffments betwixt the first disseisor and the tenant, in which cases no voucher to warranty holdeth place for a personal trespass, and therefore every one is well to look not to make a contract of a vicious thing, and that he take caution, and such surety in the contract that he may have a recourse to recover if he lose the thing ; and therefore the lords used to keep their manors that none could enter by intrusion, disseisin, or by Digitized by Microsoft® €h. III., So. 33.] OF MAYHEM AND WOUNDING. 161 other vicious bargains, nor otherwise unless the bar- ^■ains were entered in their full courts, whereby the lords could not have received their enemies into their manors, nor have taken their homage against their wills, nor any used to enter before they have found sureties to restore to the purchaser or his heirs the value of the thing, if by rightful judgment it belonged to him after his thing lost for the offence of alienation, or for his power of this warranty. To the principal disseisor it belongeth to have a re- gard, if the plaintiff put more into his plaint, that he answer not but to that which he may avow ; he may say, that there is variance betwixt the original and the com- mission; or that the writ is vicious, as it is in mis- prision of names, or sur-names. Of names, as Benand for Harrand, Margery for Margaret J and such like ; or he may say the writ is faulty for want of sur-names, or if the names of dignity be omitted ; as if a bishop, abbot, prior or other, be dis- seised of any thing in the right of his dignity, and he makes his plaint simply of a trespass done only to his person, and not to his church or dignity in this manner ; A. complains to you, Avhereas he ought thiis to make his plaint. A. bishop of London, and so it is of dis- seisors ; or he may say, that the writ is vicious, because the plaintiff who is solely in the plaint hath no cause of action, but with another who is not named in the writ. Digitized by Microsoft® 162 OF MAYHEM AND WOUNDING. [Ch. III., Sc. 23. Or it may be faulty if it be not contained in the writ, disseisivlt eum, where it ought to be desseisivit earn, or eos, where it should be eum or earn, et e contra. It is contained in the writ, (wrongfully and without judgment) etc., and to that one may plead not wrong- fully, but rightfully, denying any other force. And note, that one may be disseised wrongfully and without judgment, and wrongfully and by judgment ; as it is of those who are disseised of their freeholds by the judges who have no jurisdiction, and nevertheless adjudge men to be put out of their possessions ; and one may be rightfully and without judgment, as in the cases aforesaid ; and further rightfully and by judgment, and thereof rise exceptions, and so not without judgment and yet by judgment, and that may be either by the judgment of judges commissaries, or judges ordinaries as were the suitors. Again, writs may be vicious by misprision of the names of the towns, as if a hamlet be named for a town ; or if the town be not right named, or if the town be not distinguished, where there are two towns of like name in the same county. And from these words (after the term) may arise exceptions ; as if not the term yet he might have dis- trained for, or the arrearages of his pension, or special obligation, except that he had any wrong. Or because another writ for the same action is yet depending betwixt the same parties; or he may say Digitized by Microsoft® Ch. III., Sc. 23.] OF MAYHEM AND WOUNDING. 16a that he wrongfully complains, whereas at his own plaint he lost the same tenement by a lawful judgment against him ; or that he hath released or quit-claimed all his right, or to the same purpose, or otherwise ratified his estate, or because at another time he withdrew his action before such judges. For the helping of the peoples memories are escripts, charters and muniments very necessary, to testify the conditions and the points of contracts ; for by the statute of Lenfredj who ordained that one might deny con- tracts by waging of his law, and that plaintiffs prove their writings, otherwise their charters which are not denied, and not to be shewed by jurors in England for foreign contracts, of places enfranchised, or elsewhere, where the king's writs run not, by copies, or collation of the seals of others, or by jurors, or by battle, according to the plaintiffs action. To give matter and way to exceptions in the aid of those who are to answer, one is to know the end and limitation of actions, and of pleas, so that the pleas may have an end, and therefore prescriptions were or- dained, whereof Thurmond ordained, that criminal actions for revenge should cease at the year's end, if they were not brought before, and the same time ho appointed in all actions for wrecks, estraies, waif, and of things lost; in personal actions venial he appointed the term after the last Eyre in those parts; in real actions and mixt he appointed forty years, nevertheless Digitized by Microsoft® 16i OF MAYHEM AND WOUNDING. [Ch. III., Sc. 23. as to the king in the right of his crown, and to the frank estate nullum tempus occurrit. To an action of account he may say, that he never Tvas his receiver, nor administrator of his goods, nor of his monies, whereby he was bound to render him any account, and that he received them of him under the title of buying, whereof he gave him a writing to sur- render at a certain time; or thus, notwithstanding he Tvas his receiver or administrator in a franchise, or else- where out of the realm, or in a privileged place, where- by he is not bounden to give him an account within the realm, nor where the king's writ runneth, or is guild- able, or e contra. Or he may say that the writ is vicious by false sup- position, and falsely supposeth the defendant to be a fugitive, and besides not a freeholder within his baili- wic to whom the writ is sent. Or he is not bound to yield him any account for that he was never receiver of his own hand, or of his •daily receipt he gave him' a daily account; or that he disbursed nothing, nor brought any thing but in the plaintiff's sight, or of some of his; or for that the plain- tiff by tallies and other rolls hath discharged him of so much in value as the defendant was to give an account for. Or because he hath made him an acquittance thereof, or because he was never guardian of his inheritance as his guardian, bvit was guardian during the time of Digitized by Microsoft® Ch. III., Sc. 23.] OF MAYHEM AND WOUNDING. 165 the thing for his own proper use, or it belongeth to him that is guardian of the lands in the right of his fee, whether it be socage or other. To the action of villanage he may say, that he is a freeman, and that he hath proved the same at another time by a writ of libertate "probanda, that he is quit from any challenge by the plaintiff for ever, if he have no reasonable counter-plea against it. As to the seisin of villain services he may say, that he did those services wrongfully, by extortion, and duress of him and his bailiffs, or for the service of vil- lanage and villain land which he held of him, and not by service of blood; and there are two other things, the one that if the defendant can shew a free stock of his ancestors, either in the conception or in the birth, the defendant hath always been accounted for a free- man, although his father, mother, brother and cousins, and all his parentage acknowledge themselves to be the plaintiff's villains, and do testify the defendant to be a villain. The other thing to be noted is, that no more than the long tenure of copyhold land maketh a freeman a villain, the long tenures of freehold maketh a villain a freeman ; for freedom is never lost by prescription of time. There are many manner of proofs by the same pleas, sometimes by records, sometimes by battle, sometimes Digitized by Microsoft® 166 OF MAYHEM AND WOUNDING. [Ch. III., Sc. 23. by witnesses, sometimes by the confessions of the ad- verse parties. 1 By record, as in case where the parties do agree together upon some inrolment, or to the judgment of some judge ordinary or assigned. 2 By battle, for upon warrant of the combat which the judges took betwixt David for the people of Israel of the one party, and Goliah for the Philistines on the other party, is the usage of battle allowable by the law in England, so that the proof of felony and other cases is done by combat of two according to the diversities of the actions ; for as there is a personal action and a real, so there is a personal combit and a real ; personal in per- sonal actions, real in reals ; and these combats are differ- ing in this, that in a personal combat for felony none can combat for another, nevertheless in actions, personals, venials, it is lawful for the plaintiffs to make their bat- tles by their bodies, or by loyal witnesses, as in the right of real combats, because that none can be witness for himself ; and no man is bound to discover his real right, and although they make these combats for the plaintiffs by witnesses, the defendants nevertheless may defend their own right by their own bodies, or by the bodies of their freemen ; and further they differ, for as much as in appeals none can combat for another, but it is otherwise in real actions ; for if that one of the parties be hurt so as he cannot combat, his eldest son may wage the battle for him. Digitized by Microsoft® Ca. IIL.Sj. 23.] OF MAYHEM AND WOUNDING. 167 The battle of two men sufficeth to declare the truth, so that the victory is holden for truth. Combats are made in many other cases than in felo- nies, for if a man hath done any falsity to me in deed, or in word, whereof he is appealed or impeached in judgment, if he deny it, it is lawful for me to prove the action either by jury or by my body, or by the body of one witness ; and if it be of the • false judgment of many, then the proof belongeth only against the pro- nouncer of the judgment for the whole court. And so it is in case where you deny your gift, bail- ment, pledges, deed, seal, or other manner of contract, or the words which you spake, or the deed which you did. iN'evertheless you are to distinguish of the qualities of the causes, for in appeals of felony none can com- bat for another, as is said, but in venial causes, al-. though one be killed in the battle he committeth no murder, but only those vanquished, or their clients for them shall tender to the combatants vanquishing, forty shillings in name of cowardice, besides the judgment upon the principal. And in case where battle could not be joined, nor there was no witness, the people in personal actions iised to help themselves by a miracle of God in this manner ; if the defendant were a woman, or of such a condition that she could not join battle, and the plaintiff had no witness to prove his action, then the defendant might Digitized by Microsoft® 168 OF MAYHEM AND WOUNDING. [Ch. III., Sc. 25 clear her credit by the miracle of God, or leave the proof to the plaintiff ; and in the contrary case the proof only belonged to the plaintiff. At the day of the proof, or of the purgation, after the benediction, and the malediction of the priest^ cloathed with the holy garments of the mass, and after the parties oaths, one used to keep the party; and he was to carry in his hand a piece of burning iron if he were a freeman, or put his hand or his foot in boiling water, if he were not free; or to do some such thing^ which were impossible to do without a miracle from God; and if he was not hurt or blemished the adverse party remained as attainted; but Christianity suffered not that they be by such wicked arts cleared, if one may otherwise avoid it. Battle is not to be joined betwixt all people, for it is not to be joined but betwixt equals, nor yet betwixt all equals, for not betwixt the father and the son, nor betwixt women, or infants, or clerks, or parents, or as- signs. Equals are not a man and a woman, nor a holy man, and an excommunicate person, nor a Christian and an infidel, nor a whole man and a sick, nor a man of good memory and a madman, nor a wiseman and a fool, nor a soimd man, nor a man mayhemed, nor a man and a child, nor a clerk and a lay person, nor a man professed in religion and a secular man, nor a true man and a Digitized by Microsoft® Ch. III. So. 34.] JURAMENTUM DUELLI. 169' felon, nor a man within the king's allegiance and out of his allegiance, nor the lord and tenant. The smallness also of the thing in demand doth hinder the battle, and many other causes, as it appear- eth in the law of fees ; nevertheless if those who are not receivable to join in battle will combat, if the battle be joined betwixt them, it is no wrong to them who de- sire it. And if any one ofPereth himself to combat with one armed, who before was not brought by the parties, and the adverse party demand judgment for the default of his adversary ; as if he tendereth a witness who offereth himself to decide the difference, and now he offereth to furnish the battle by another who was not seen, nor heard in court, and who cannot and ought not to try the battle; in such case it belongeth to try the exception as peremptory to the action, if the parties will not agree unto it. Sect. 24. Juramentum duelli. After the battle joined, adjourned and presented, and the parties duly armed, first the defendant is to swear in this manner, Hear this you man who I hold by the hand, whom you call N. by name, that I did never Digitized by Microsoft® 170 THE ORDRING OF COMBATANTS. [Ch. III. Sc. 25. kill such a one your father, or said any such thing such a day, etc. So God me help, and the holy evangelist. Afterwards the plaintiff ought to swear in this man- ner. Hear you this man who I hold by the hand, that you who are called by your right name N. are perjured, because that you such a day, etc., feloniously killed, etc., or said such words, or did such a thing, etc. Sect. 25. The ordring of the combatants. Afteb their oaths be taken, it behoveth to look that the parties be armed according to the ancient usage, of what condition soever they be, knight or others. The ancient usage to be armed in all cases of combat is this, the bodies are armed without seme cotu et heliea, and the heads and the necks, and the hands uncovered, the backs, thies, legs and feet armed with iron, and each to have a shield of iron, and a staff horned of one assise. The plaintiff cometh into the list from the East, and the defendant from the West, and on the place they swear in this manner. That they have not about them any charm, nor deceit, nor have eat nor drank any thing whereby the truth might be disturbed, lessened, and the law of the devil enhansed ; so God them help and the holy evangelists. Then proclamation is made that none Digitized by Microsoft® Ch. III. Sc. 26.] THE ORDRING OF COMBATANTS. 171 disturb the battle, and oyes is made, that there be no noise upon a corporal punishment ; and then they meet together, and if the defendant defend himself till after the sun setting, and demand judgment of the default of the plaintiff, in that case judgment shall be given for the defendant. And if any fraud be found with one of the parties, as to be privily armed, or there found, or other thing unallovi^able, and the fraud be adjudge.d, that they be presently severed, and judgment is presently to be given, and the vanquished is to acknowledge his offence in the hearing of the people, or speak the horrible word of cravent in the name of cowardice, or his left foot to be disarmed and uncovered in sign of the cowardice, and that judgment be presently given against the prin- cipal. Sect 26. Of personal trespass. As to personal trespass, in the case, this exception lieth. Sir, he wrongfully impleadeth me of this trespass, for the same man impleaded such or such before such judges, in such a place of the same trespass, and made me no party to the suit ; and forasmuch as that he then recovered by judgment his full damages against them named in his plaint, and this suit is not brought against me, but to recover damages, and the law is, that a man Digitized by Microsoft® 172 OF PERSONAL TRESPASS. [Ch. III. Sc. 26. shall not recover double damages, I demand judgment of his action. As to ,the alienations and occupations of f ranchises^ reals, appendants to the crown, a man shall not vouch therein to warranty, nor demand the view, nor prescribe in them; for of such dignities none can help himself, by a plea of long prescription, 'but such avowries of long continuance are accounted rather prescriptions of wrong, than lawful exception, seeing nullum tempus oc- currit regi, in his franchises, but therein the king is like to an infant who can lose nothing although that for the personal trespass for the using of them, it behoveth every one to excuse the wrong done to the king, or to any other ; and that may be done two ways, because his an- cestor whose heir he is, died seised thereof, and so that he hath enjoyed the same by title of succession, as a thing annexed to his land. Or because he, of whom he purchased the land to which the franchise belongeth, was seised, as if he were the possessor thereof. But this exception is counter-pleadable by this replication, Sir, this avowant cannot recover nor excuse himself. For although that such a one his ancestors were seised thereof, yet nevertheless he could not grant away this franchise, for the kings never granted them so, that the grantees could assign them over, or make assigns of them. Digitized by Microsoft® Ch. m., Sc. 37. J OF PURPRESTURES, ETC. 173 Sect. 27. Of purprestures. To purprestures, if the defendant may excuse his ■wrong, he need not to answer thereunto without a writ, no more than to the action of franchises ; not of his own wrong of land or fees, or of the appurtenances against any other than against the king; nor for the king but in his presence. And if the wrong be not originally the plaintiff's, he may vouch to warranty. Sect. 28. Of treasure. To the alienation of treasure found, he may justify it, if he be privileged or authorized so to do. Or he may say, that he himself put it there, or such other whom he remembreth; whereby no action accrued to the king. Sect. 29. Of wrecks. To the action of wrecks he may plead, that the king hath no action for the same, because the year is not yet Digitized by Microsoft® 174 OF USURY. [Ch. III., Sc. 30. past; and in the same manner is it of estrays, and of all other things found. Or because that he knoweth to whom the goods belong who is alive. Or because the goods were taken far in the sea, and were not cast upon the land by the waves of the sea. Sect. 30. Of usury. To usury he may plead, and swear that he lent his corn in winter, to receive the same in September, ac- cording to the price as corn should be sold, which was dearer at that time ; or he may swear, he lent his monies to receive better money for the same for a year ; and that the same is no usury. Sect. 81. Of hunting. To an action of hunting, chasing, or fishing, he may plead, that he hath done no wrong, for it is his right to hunt there, or to chase, or it is his common piscary belonging to his manor of such a place, etc. Digitized by Microsoft® Ch. III.. Sc. 33.] OF OBLIGATION. 175 Sect. 32. Of obligation. As to obligations (or covenants) he may plead, that notwithstanding that obligation be his deed, neverthe- less it ought not to bind him, because it is vicious, or by false supposition ; or because the defendant never saw any money or other thing to the value ; or it is by mix- ture of offence or ill faith, as it is said of vicious con- tracts ; or he may plead a release or quit-claim ; or that it was contracted that he might do waste, or that he hath done nothing to be adjudged waste ; or because he hath taken nothing but reasonable estovers for house- boot or hay-boot; or he may claim fee in the tenement by any lawful title. Sect. 33. Of attaint. If any of the parties say, that the jurors have made a false oath^ or any jury ; an action of the attaint lieth, which is to be tried by 24 jurors, so that every false witness be attainted by two juries. In which case it behoveth the plaintiff to have the first verdict present Digitized by Microsoft® 176 THE ORDINANCE OF ATTAINT. [Ch. III., Sc. 34. Tinder the king's seal, or of the party, or of the judge, and the parties to the plea, and that he declare in what point they have made a false oath. Or the tenant may plead, that the plaintiff ought not to be answered to this attaint, because the first judg- ment had not its full effect; or because that the prin- cipal in all, or in part, or in right of satisfaction of the damages remaineth yet to be barred. Other exceptions there are, as to the challenge of the persons of the jurors, as appeareth in the chapter fol- lowing. Sect. 34. The ordinance of attaint. Because it belongeth to the plaintiff to prove his ■action, and to the affirmer to prove his affirmation, and not to the denier his negation ; and that two credible witnesses according to the word of God ai-e sufficient for witness. The usage is, that the affirmative party, in aid of the court, cause the nearest credible neighboui's to appear in witness, so that there be 12 men at the least of the jury, of ancient time ordained to be of the assize, of which if two men are by false verdict of them, -and of the other jurors; or if by good examination, if all the jurors be of one assent found convenable, it suf- Digitized by Microsoft® Ch. III., Sc. 34.] THE ORDINANCE OF ATTEINT. 177 iicetli ; and if not, or if all the jurors say generally, that they know nothing, or doubt of the matter, or if they say not expressly against the defendant, or if they speak for the defendant, in such cases, it is to be adjudged against the plaintiff, that he proveth not sufficiently his saying. And although the defendant would make other defence, he shall not be suffered so to do. Agaiiist jurors hold challenges, as against witnesses, in this manner. Sir, this man is not a covenable juror, because he is one of those who indicted me of a mortal crime, so as he did as much as in him lay to destroy Tne, and so he is my mortal enemy, or for other cause of •enmity. Or because that he is excommunicate, or indicted, or appealed of a mortal felony ; or because he is not of the Tving's allegiance, or because he was at another time at- tainted of a false oath, or suffered such corporal pun- ishment for his offences or otherwise is infamous. Or because he is friend, cousin or ally, or of kindred to the other party ; or because he is a villain, or other- wise in custody; or because he is the servant, the proc- tor, or tenant of the adverse party, or because she is a woman, or because he was outlawed, or because he was forjured the realm, or because he procured him- self to be one of the jury, or because he is within age, or because he is a lunatick, or a madman ; and many other exceptions of challengers there are, of which if any be denied, the challenge is to be tried by the 12 Digitized by Microsoft® 178 OF OATHS. [Ch. III., Sc.35. jurors, and according to the trial, the juror shall be ad- mitted or refused, and if no jury once appear for want of jurors, he may have another. Sect. 35. Of oaths. Oaths differ many ways; the chief oath is that of fealty, which is incident to every homage issuing out of land, and sometimes there is the oath of fealty, of resiants and dwellers in other manors, and sometimes remaining in others service. The oath of allegiance was in these words. I will bear faith to such a king of life and member, and ter- rene honour, against all those that from this day for- ward shall, etc. Go God me help, and his holy evan- gelist. Sect. 36. Homage. Homage is done in these words. I become your man for such land; so that the whole quantity be shewed, and certainty specified; whereby the lord well know- Digitized by Microsoft® Ch. III., Sc. 37.] FEALTY ANNEXED TO HOMAGE. 179 eth both how he may warrant his tenant, and for how much he bindeth his land to warranty; and that the tenant know for how much he is his tenant. Sect. 37. Fealty annexed to homage. The oath of fealty annexed to homage is in these words. I shall bear fealty to him by name of life and member, etc., for so much as I shall be his tenant, against all, etc., saving the oath of fealty which I have made to such a king, etc. And if I swear fealty to another than to the king, then thus, saving the faith which I swore to the king, and to my other lords. And if the homage be done to the king, or to another to whom the tenant hath before sworn fealty, in these cases, he needeth not swear fealty again, if the al- legiance in no case hath been broken. Sect. 38. Common oaths. OoMMOKT oaths are in these words, I will speak truth Digitized by Microsoft® 180 OF FINAL ACCORDS. [Ch. III., So. 39. in what you ask of me in such a case ; So God me help, ftc. The oaths in assises are in these words. I will speak the truth of the land of which I have Tiad the view by authority of this assise, or of the land ■of which this action of redisseisin is arraigned, or of .the pasture, or fee, or of the nuisance, or of the wall, or 'of the ditch, or of the pool, or of the water, or of the -church, or of the rent, or of the service, and nothing- shall hinder me that I shall not speak the truth, etc. Of life and member and terrene honour, he will do so much, that he will never assent that the king or his other lord have damage of his life, or any of his mem- bers, nor will assent that his honour shall be overthrown in power nor fame. Sect. 39. Of final accords. ISfo law forbiddeth pleas, nor accords, whereof it is lawful for every one to agree with his adversary, and to release and quit-claim his right, and his action. ISTevertheless after one hath once affirmed and brought his personal action whereby scandal ariseth, none can agree it without the leave of the judge, so as he may withdraw it. For every plaintiff in actions Digitized by Microsoft® Ch. III., Sc. 39.] OF FINAL ACCORDS. 181 of scandal, who attainteth not his adversary according to that as he hath brought, his plaint is adjudged scan- dalous, as his adversary should be if he were attainted. jSFevertheless, in favour to save a man from death, who is not attainted of mortal offences, it is suffered that the adverse parties do agree; after battle waged one of the parties nevertheless remaineth infamous. jSTone can accord or agree, who is not of the age of 21 years, nor any who is in custody, nor any by at- torney. In custody are villains, married women, men pro- fessed in religion, infants within the age of 14 years, heirs ideots, heirs deaf and dumb, heirs diseased, and those who are in prison, and under bail, and women who- are in the custody of the lor(}s, who have the marriage of them. Digitized by Microsoft® THE CONTENTS OP THE FOURTH -CHAPTBE. Section Page Of judgment i 183 Ordinance of judgment ii 183 Of jurisdiction iii 186 Of defaults punishable iv 189 Of defaults v 190 Of personal actions vi 191 Of defaults in real actions vii 183 Of actions mixt viii 193 Of pledges and mainpernors ix 193 Of defaults after summons x 194 Of champions xi 196 Of pains xii 199 Of infamies xiii 301 Of majesty xiv 302 Of burning xv 303 Of murder xvi 304 Of pains in divers manners xvii 313 Of false judges xviii 214 Of perjury xix 216 Of the oflSces of justices in Eyre xx 317 Of the articles in Eyre xxi 318 Of franchises '. . . xxii 331 Of satisfaction of debts xxiii 233 Cases of disseisin xxiv 832 Of amercements xxv 335 Of amercements taxable xxvi 336 Of the office of justices in Eyre xxvii 338 182 Digitized by Microsoft® CHAPTEK IV. Sect. I. Of Judgment. The flower, and necessity of law doth depend in righteous judgment, without which the law can have no effect, nor any due end. And therefore it is fit to speak of judgments, which are not in all points here according to the rigour in the old testament, and the usages used by Moses and the prophets, before the in- carnation of Christ ; but they are mitigated to the tem- per of mercy, of the. truth, and of the justice which Christ himself used upon the earth, and commanded to be used in the new testament, and which the apostles and their successors have used since the incarnation of Christ, and according to the judgments of the ancient usages in pleas, touching the laws of this realm. Sect. 2. The ordinance of judgment. Judgment cometh from jurisdiction, which is the 183 Digitized by Microsoft® 184: THE ORDINANCE OF JUDGMENT, [Ch. IV., Sc. 2. greatest dignity which belongeth to the king. And there are two kinds of jurisdiction, ordinary and as- signed ; every one hath ordinary jurisdiction, if offence take it not away from him; for every one may judge his own according to the right rules of law. But this jurisdiction is now restrained by the power of kings, in as much as none hath power to hold plea of trespass or of debt which passeth 40 s. but the king. Nor any hath power of conusance of fees without a writ. ISTev- ertheless, it is lawful for every one to f. oust the mortal offender, for committing of their offences, by good wit- nesses, by warrant of ordinary jurisdiction, whether the offenders be clerks or lay people, of age, or withiu age, and all other of what condition soever they be ; and in those cases are those offences called notorious of- fences. There are two kinds of notorious, notorious in fait, and notorious in right. N^otorious in fait is, where no contradiction lieth, nor no oaths need to justify them, by reason of the witness of the people. JSTotorious of right, is where the offenders are at- tainted of their offences by themselves, or by the oaths of witnesses, or otherwise in judgment. This jurisdic- tion assigned is that which the king assigns by his com- missions of his writs ; for without a writ he cannot by law grant any jurisdiction, if not in the presence, and with the assent of the parties. Digitized by Microsoft® Ch. IV., Sc. 2.] THE ORDINANCE OF JUDGMENT. 185 None can give jurisdiction but the king, and the reason is, because he is not sufficient to bear without help the charge which belongeth to him to punish the trespasses, and to assoil the offenders which he hath to govern. And so ovir ancestors appointed a seal and a chan- cellor to help the same, to give writs remedial to all plaintiffs without delay. That writs used to be of this assise, they were with- out rasure, without interlining, without blots, without usual transposition, and without every fault in the parchment and letters, and written in English with a known hand, by a clerk of the chancery, and used to contain the name of the parties, and the substance of the plaint, and the name of the judge, and of the king, or other teste of the writ, which sometimes were di- rected to the lord of the fee, sometimes to the bailiffs, sometimes to the justices in Eyre, sometimes to certain persons named, and sometimes to persons not named, as to bailiffs, justices, and sheriffs. And every plaintiff used to have a commission to his judge, by the writ patent aforesaid. And now may justices, sheriffs, and their clerks forge writs, thorough draw loose, amend or impair them, without any prosecuting or punishment, because the writs are made close through abuse of the law. By that seal only is jurisdiction grantable to all plaintiffs with- out difficulty, and the chancellor is chargeable by his Digitized by Microsoft® 186 JURISDICTION IS A POWER [Ch. IV., Sc. 3. oath of allegiance to make such writs, and that he do not delay or deny justice, nor a remedial writ to any; one. Sect. 3. Jurisdiction is a power to declare the law. That power God gave to Moses, and that power they have now, who hold his place upon earth, as the pope, and the emperor, and under them the king now hath this power in his realm. The king, by reason of his dignity, maketh his jus- tices in divers degrees, and appointeth to them juris- diction, and that in divers manners, sometimes certain, especially, as in commissions of less assises ; sometimes in certain generally, as it is of commissions of justices in Eyre, and of the chief justices of pleas before the king, and of justices of the bench, to whom jurisdiction is given to hear and determine fines not determined, the grand assizes, the transactions of pleas, and the rights of the king and of the queen, and of his fees, and the words of the king's writs, whether they be named generally or specially. Besides, the barons of the Exchequer have jurisdic- tion over receivers and the king's bailiffs, and of aliena- tions of lands and rights belonging to the king, and to the right of his crown. Sometimes jurisdiction is Digitized by Microsoft® Ch. IV., Sc. 3.J TO DECLARE THE LAW. 187 given to sheriffs for the defaults of others, is appeareth in the writ of right ; where it is said, that if he do not right, that the sheriff of the county shall do it. Sometimes to those who have the return of writs re- turnable. Sometimes jurisdiction is given to the justices of the bench by removing of the pleas out of the counties, be- fore the said justices, and sometimes to record the pleas holden in mean coiirts without writs, before the same justices of the bench : but as those records ought not avail the plaintiffs, if not after judgment given, that the pleas be returnable until after their judgments. And as the pleas moved upon the writs are to be re- manded into the lords courts, where the lords have not failed to do right. In like manner are the pleas re- moved by pone returnable in the counties, in case where the parties never appeared in court for to plead. To the oiRce of chief justices it belongeth to redress and punish the tortious judgments, and the wrongs and the errors of other justices, and by writ to cause to come before the king, the proceedings and the records, with the original writs, and before such justices are all letters pleadable returnable, and to be ended, wherein mention is made before the king himself ; and the writs not pleadable, nor returnable before the king, are re- turnable into chancery. And also it belongeth to their office, to hear and de- termine all plaints made of personal wrongs, within Digitized by Microsoft® 188 JURISDICTION IS A POWER, ETC. [Ch. IV., Sc. 3. twelve miles of the king's house, and to deliver gaols and the prisoners from thence, who are to be delivered, and to determine whatsoever is determinable by justices in Eyre more or less, according to the nature of their commission. On the other side there is a kind of jurisdiction, which is called arbitrary, which is not ordinary, nor assigned, as if such which is by the assent of the parties. Of jurisdiction cometh judgment, which hath many significations: in the one, judgment is as much as to say absolution from offence ; in another sense, as sen- tence, which sometimes soundeth well, as of discharge or acquittance from punishment, and sometimes ill, as excomengement : and in another sense, as the end of the plea, and the end of jurisdiction. Jurisdiction assigned may be for a time, or for ever. For a time, as in some exception dilatory, where the action reviveth ; for ever, as by a definitive sentence upon the action. Judgments vary according to the difference of of- fences. In like offences nevertheless there are the like judgments. For the mortal offences according to the warrant of the old testament, were assoiled by death ; for in the old testament it is found that God com- manded Moses, that he should not suffer felons to live. But before more is to be spoken of punishments, it is to see by what introduction offenders and contumacious persons are compellable to appear in court, and by what judgments. Digitized by Microsoft® Ch. IV.,Sc. 4.] DEFAULTS PUNISHABLE. 189 Sect. 4. Defaults punishable. Defaults are punishable many ways. In appeals of felony they are punishable by outlawry ; which judg- ment is such, that after that any one hath been solemnly called, and demanded to appear to the king's peace at three several counties for felony, and he cometh not, that from thence forward he is holden for a wolf, and is called wolf's-head, because the wolf is a beast hated of all people ; and from thence forward it is lawful for any one to kill him ; as it is a wolf, whereof the cus- tom was, to bring the heads to the chief place of the county, or of the franchise, and according to law, for every head of an outlaw, to have half a mark, and such fugitives, outlaws, forfeited for their contempts, the realm, country, friends, and whatsoever belonged to the peace, and all manner of rights which they ever had, or could have by any title, not only as to themselves, but to their heirs for ever. Also, all confederations of homages, of alliance, of affinity, of service, of oaths, and all manner of obligations betwixt the outlaws and others were broken, severed, and defeated by such judgment. And all manner of grants, rents and contracts, and all manner of actions which they had against any manner Digitized by Microsoft® 190 DEFAULTS. [Ch. IV., Sc. 5. of persons, were void, not only from the time of judg- ment, but from the time of the felony, for which such judgment was given; and such persons could never again resort to answer the felony, if the process of out- lawry were not faulty, if not by the great mercy and favour of the king ; women were not plevisibles, and put in dozeins as men, but were waves. Sect. 5. Defaults. In personal actions, venials, defaults used to be pun- ished after this manner. The defendants were dis- trained to the value of the demand, and afterwards they were to hear their judgments for their defaults, and for default after default, judgment was given for the plain- tiff. This usage was changed in the time of king Hen. I. that no freeman was not to be distrained by his body for an action personal, venial, so long as he had lands; in which case the judgment by default was of force, till the time of king Hen. III. that the plaintiff should re- cover his seisure of the land, to hold the same in de- mesne after default, until due satisfaction was made, so as the defaults were more hurtful to persons in con- tempt, then profitable. Some actions are personals, and not mixt in the in- Digitized by Microsoft® Ch. IV., Sc. 6.] OF PERSONAL ACTION. 191 troduetion, as of neifty, of account, of leading away distresses; and some actions there are, that although they savour of the personalty and realty, yet they hold not the rules of those actions ; as of recognitions of as- sises, in -which if the tenants make defaults, for that there is no distress nor seisure of the land, or other thing in the king's hands, hut the recognitions are to he taken ex officio, and the judgments are to be pro- nounced according to the verdict of the jurors, in re- spect of such defaults. Sect. 6. Of personal action. Iw personal actions, venials, where the defendants are not freeholders, the defendants used to he punished after this manner. First, process was to be awarded to arrest their bodies, and those who were not found, were put in exigent in what court soever the plea was, and were at three courts solemnly demanded and pro- claimed ; and if they appeared not at the fourth court, then were they banished the lord's jurisdiction, or the bailiffs of the court for a time, or for ever, according to the quantity of the trespasses. Digitized by Microsoft® 192 DEFAULT IN REAL ACTIONS. • [Ch. IV., Sc. 7. Sect. 7. Defaults in real actions. The defaults in real actions are punishable in this manner. At the iirst default the plaintiff is there seised to the value of the demand into the hand of the lord of the court, and the tenants are summonable to hear their judgments of defaults; or after appearance, the seisure is to be adjudged to the plaintiffs, to hold' in the name of a distress, until by lawful judgment he be ousted thereof. And if any one appear in court, first he is to plenise the thing in demand, and presently to answer the default ; in which case he may deny the summons, because he was never summoned, or not rea- sonably summoned, and thereof he may wage his law against the testimony of the summoners, althovigh they be present, and if he wage his law, he is presently to plead to the action, or to the plaintiff. Sect. 8. Of actions mixt. The defaults of mixt actions are punishable in this manner, the defendants are distrainable by all their Digitized by Microsoft® Ch. IV., Sc. 9.J OF PLEDGE AND MAINPERNOR. 193 moveable goods and lands, saving that they are not put out of that possession from court to court, till they ap- pear and answer, and the issues come to the profits of the lords of the courts. Sect. 9. Of pledge and mainpernor. Pledges and mainpernors are of one signification, notwithstanding that they differ in names; but pledges are those, who bail other things than the body of men, as in real actions and mixt, mainpernors are in per- sonal actions, only those who bail the body of a man; safe pledges are those who are sufiieient to answer the demand, or the value, and are true men, and free- holders to whom the plaintiff is, and in whose court the plea is brought; and if any one bring the body or his fees by default, he is sufficient punished, though he be not amerced, but then the offender is first amerceable, Tvhen he is brought to judgment, and cannot excuse his wrong or save his default. And as none who cometh before summons is amerceable so no plaintiff is amerceable, or his ^pledges, de prosequendo for nonsuit, where the ten- ant appeareth according to the warrant of the sum- mons ; or otherwise maketh satisfaction for the same. 13 Digitized by Microsoft® 194 DEFAULTS AFTER SUMMONS. [Ch. IV., Sc. 10. As in case where the king commands the sheriff, that he command such a one to appear or to do ; and if he do not, and the plaintiff put in sureties to prosecute his suit, then that he summon or attach the defendant, etc. In which ease, if the sheriff had not warned the tenant to appear to do according to the points of the warrant, if he take surety of the plaintiff to prosecute, he doth him wrong : but the plaintiffs and their pledges are to be amerced, when the defendants offer themselves in judgment against them ; and they make defaults by nonsuit. And also those sheriffs do wrong who forbear to exe- cute the king's commands, in as much as the plaintiffs have found sureties to prosecute their plaints, when no mention is made in the writs to put in sureties. Sect. 10. Defaults after summons. As there is a default of persons, in the like manner there are of things; as of services issuing out of lands where the lands are in service; and where not: if rent, suit, or other service be behind to the lord of the fee, the tenant is not distrainable for the same by his movea- ble goods, btit it behoveth to summon the tenants to save their defaults, or to make satisfaction, or to answer Digitized by Microsoft® Ch. IV., Sc. 10.] DEFAULTS AFTER SUMMONS. 195 wherefore those services due out of their possessions are behind to the lords ; and if they appear not at the sum- mons by the award of the suitors, their lands are to be seised into the lord's hands, till they justify themselves by pledges. And if they be again summoned, to hear the judgments for their defaults; although they come not at the second summons, they are not to be amerced, in as much as they came, they may render the land, or alledge a privilege, or say something why they ought not to obey the summons. And if the lord have not a proper court, nor suitors, or hath not power to do justice to his tenants in man- ner as aforesaid ; then the same may be done in the county or hundred, or else in the king's courts; or at first by a writ of customs and services, and other reme- dial writs. And if any one hath not any thing to acquit himself, the lord is not to lose his right although he be delayed thereof, but the lord may seise his land as before is said, and the tenant is to recover his damages where he can, and it shall be accounted his folly to enter or remain in another fee, without the consent of the lord. And if any one oust him of his land, , and of his tene- ment, and enforceth another person to hold of him, and maketh himself mesne betwixt the lord and the tenant, in prejudice of the lord, in such a case the law is used to hold the course after said. Digitized by Microsoft® 196 OP CHAMPION. [Ch. IV., Sc. 11. Sect. 11. Of champion. If any one do or say to his lord of whom he holdeth any thing, which turneth to the hurt of his body, or to his disinherison or to his great dishonour; first by the award of his court, or of some other such a one is sum- monable, if he be his tenant, and afterwards if he make default he is distrainable by his land by the lord, till he appear; and if he appear, and cannot discharge himself, by his wager of law, by 12 men more or less, according to the award of the court he is to be disin- herited of the tenancy, which he holdeth of the lord, in such a manner by the judgment of the suitors, and so it behoveth that the tenants leave their lands, and that they come to the lords. And if any one denieth his service which he ought to do, it may be said by the lords, that wrongfully he denieth either part or the whole, and that to his wrong, and so further count of seisin by his own hand, and that such is his right, etc., as after shall be said. And the tenant may chuse to try his right by his own body, or by another, or join issue upon the grand assise ; and pray conusance whether he hath the better right to hold such land specified, discharged of such Digitized by Microsoft® Ch. IV.,Sc. 11.] OF CHAMPION. 197 service, as he holdeth, or the said A. to have the same land in demesne as he claimeth. And if the defendant will try his right by the body of another, then ye are to distinguish. For if the action be personal, the suit need not be present ; and if the action be real and the tenant hath his champion present; then may the plaintiff offer his champion against the champion of the defendant, or he shall lose his covenant or his writ. And if the defendant have no champion, then are the parties adjournable if they have joined battle, that they have their champions ready at the next court, as appeareth in the case of Saxeling to whom Hiistan was bound in a bond of 10 I. by a writ- ing obligatory made at Rome, which the said Hunstan denied, that it was not his deed, to which Saxeling by way of replication answered, that he wrongfully de- nied the same, and that wrongfully ; for that he sealed it with his seal, or with the seal of another which he borrowed of him, such a day, such a year, and at such a place, and that if he would deny it he was ready to prove it by the body of A. who saw it, or by 0. and C. who saw the same, and if any hurt come to them, he was ready to prove the same by another, who could prove the same. And so it appeareth, that it is not needful to have present suit in such personal actions the first day, but the parties may be adjourned as it is said. And if any one who cannot be a fit witness, or who • Digitized by Microsoft® 198 OF CHAMPION. [Ch. IV., 8c. 11. is a champion, be offered by one of the parties to com- bat, who was not named before to make the battle, and the adverse party there challenge him, and demand judgment of the default, in such case the judgment is to be given against the profferer. And if any ill happen to any of their champions whereby they cannot combat according to their proffer, none is receivable to try the battle for him, but only his eldest son lawfully begotten, as by some is said. And if the tenant's champion be vanquished, the tenant thereby loseth all homage and all alliance, and all oaths of fealty, and all homage betwixt him and the lord, and the lord is to enter therein, and to hold the same in demesne as if he had recovered by the grand assise ; and if the champion of the lord be vanquished, that then the judgment be, that the tenant hold his land for ever quit of the service in the demand. And if the king doth any wrong to any of his free- men, who hold of him in chief, the same course is to be holden, the earls of parliaments and the commons have jurisdiction to hear such causes and determine them, because the king cannot by himself, nor by his justices, determine the causes nor pronounce their judg- ment, where the king is a party. And as the lords may challenge the tenants of wrong, or injuries done to them against the articles of their fealty, in the like manner are the lords challengeable of wrongs and injuries done by them to their tenants Digitized by Microsoft® Ch. IV., Sc. 13.] OF PUNISHMENTS. 199 And if the lords do not appear to answer their tenants ; then are the tenants to be adjudged that they do no service for their lands, till the lords have answered. Sect. 12. Of punishments. Punishment is a satisfaction for a trespass or an offence ; there are two kinds of punishments. Volun- tary and violent. Voluntary is that which bindeth the doer of his own accord, as it is in his compromises, to compel the people to keep their bargains, but with such punishments the law medleth not with : of violent punishment where- with the law medleth, there are two kinds, corporal and pecuniary. Of corporal some are mortal, and some venial; of mortal, some are by beheading, some by drawing, some by hanging, some by burning alive, some by falling from dangerous places, and otherwise according to an- cient privileges and usages. The offences which require punishment of death, are the mortal offences. Of venial punishments, some are by loss of member ; as the felony of mayhem in case of wrong ; of member ; Digitized by Microsoft® 200 OF PUNISHMENTS, [Ch. IV., Sc. 13, some by the loss of hand, as it is of false notaries, and of cutters of purses with the larceny of less than 12 d. and more than 6 d. which king Rich, changed, some by cutting out of tongues, as it used to be of false wit- nesses, some by beating, some by imprisonment, some by loss of all their moveable goods, and not moveable, as of false judges, and it is of usurers attainted of usury after their decease, but not if they be attainted thereof in their life, for then they lose but only their moveables, because by penance and repentance, they may amend and have heirs. Some by exile and abju- ration of their Christianity, or of the realm, of the town, of the manor or the land and their friends, as it is of those who are attainted in personal actions venials, who are not able to make satisfaction, some by banish- ment, as it in contempts in personal actions venials, some by other corporal pains, as it appeareth after in its place. And although one offend in deed, or in word, in all judgments upon personal actions, 7 things are to be weighed in the balance of conscience, that is to say, 1 The cause. 2 The person. 3 The place. 4 The time. 5 The quality. 6 The quantity. 7 The end. 1 The cause whether it be mortal or venial, 2 The person, the plaintiff and defendant, 3 The place, whether in sanctuary, or not, 4 The time, whether in day or in the night, 5 The quality of the trespass, 6 The quantity appeareth in itself, 7 The end, whether Digitized by Microsoft® Ch. IV., Sc. 13.] OF INFAMOUS PERSONS. 201 the taking were in manner of distress by a justifiable importment, or in manner of larceny, by alienation un- justifiable. Sect. 13. Of infamous persons. All those who are rightful attainted of an offence, whereupon corporal punishment foUoweth, are infa- mous. Infamous are all those who offend mortally or feloni- ously, all those who are perjured in giving false wit- ness, all false judges, all false usurers, and all those who are attainted of personal trespasses, to whom open penance is joined by judgniient of law. Those who imprison a freeman against his will, or blemish the credit of his franchise by extortion, or by any purchase; those who also bring attaints and cannot prove the perjury, whereby honest jurors are slandered. And those who indict or appeal a man who is inno- cent of crime, blemishing his credit, or wrongful slan- dering him of any personal wrong ; for those three pleas are held odious, the one because the holy scripture for- biddeth vengeance to men, but the punishment of of- fenders belongeth to God ; and God commandeth to shew mercy, and that is against the appeal of felony; the other of attainder of perjury is odious for the cor- poral punishment which followeth thereupon; the 3d Digitized by Microsoft® 202 OF MAJESTY. [Ch. IV., Sc. 14. because it is against the law of nature; which will not that any man should be in slavery to another creature. Again those who combat deadly for reward, who are vanquished in the combat by judgment betwixt two men, those who withdraw themselves from battles when they have undertaken the combat, if therein they make default ; those who keep brothel-houses of loose women, those who take again their wives after their sin of adul- tery is known to them, or keep those suspected of that sin ; those who are adulterers, those who marry other wives leaving the first, those who are elopers or ravish- ers, those who take rewards to suffer, those who cast out their children to death, those who ravish their cousin or assines, those who marry a wife within the year after the death of their former wives, those who suffer themselves to be married within the year after the deaths of their first husbands, those and they who con- tract marriages elsewhere, leaving their wives or hus- bands, and those who too soon purify themselves, and many other infamous persons are to be punished by corporal punishments in divers manners. Sect. 14. Of majesty. The punishment of the mortal sin of majesty against the king of heaven, sodomy, is by burying the offenders Digitized by Microsoft® Ch. IV., Sc. 15.] OF BURNING. 203 alive deep in the earth, so that the remembrance of them be forgotten for the great abomination of the fact, it being such a sin which calleth for vengeance from God, and v^hich is more horrible than the ravishing of the mother ; but this offence is not to be brought before any judge by way of accusation, but the very hearing of it is forbidden. The judgment of Romery is by fire, either to be burnt or hanged. The judgment of heresy is fourfold, one is excom- munication, another degradation, the third disinherit- ing, the foiirth is burning to cinders. The judgment of majesty against the earthly king is by punishment, according to the ordinance and pleas- ure of the king. The judgment of falsifying, and of treason, is by drawing of the parties, and hanging them till they be dead. Sect. 15. Of burning. The judgment of burning is to hang until the parties be dead, which used to be by burning, and in case where the damageous burning is by increase of any combusti- ble matter ; it was used to cast them into the fire when they found them fresh in the doing of it. Digitized by Microsoft® 204 OF MURDER. [Ch. IV., Sc. 16. Sect. 16. Of murder. The judgment of murder is commonly by hanging tmtil the parties be dead, in felonies not notorious, and in notorious it is by beheading the murderers, never- theless "we are to distinguish, for some kill men and of- fend not, nor deserve any punishment; some are man- slayers in signification and not by name ; and some are slayers of themselves. The first are lawful judges who by a right judgment, and good conscience kill men ; and the ministers, or of- ficers who do executions of such lawful judgments; and also as it is of those who kill without judgment, and without offence, as it is of those who are without dis- cretion and kill men, as madmen, ideots, infants within the age of seven years, and those who kill men in keep- ing of the king's peace, and of those who kill by law, as of those men-slayers, who kill men in their mortal offences, notorious in fact, and as it is of those who kill men in their own defence, who otherwise cannot save their own lives. The other sort is of those who have a desire to kill and cannot, as it is of those who east infants, sick peo- ple, old people, in such places where they intend they shall die for want of help; and as it is of those who so pain innocent men, that to avoid the same they confess. Digitized by Microsoft® Ch. IV., Sc. 16.] OF MURDER. 205 themselves to have mortally offended; those who con- demn men by corrupt judgment, although that they do not directly kill them ; and as wilful men-slayers, who appeal or indict innocent persons of mortal offence, and prove not their appeals, or their indictments; and al- though these used to be judged to death, nevertheless king Henry I. ordained this mitigation, that they be not judged to die, but that they have corporal punish- ment; and of those who wrongfully appeal, ye are to distinguish ; for if any one hath appealed another so falsly, that there was no colour of appeal by judgment, or other reasonable proof, in such case he was to be ad- judged to make satisfaction to the party, and afterwards to suffer corporal punishment. King Kanute used to judge the mainprisors accord- ing as the principals, when their principals appeared not in judgment, but king Hen. I. made this differ- ence, that the ordinance of Kanute should hold against main-prisors who were consenting to the fact, and the other should be adjudged against the plaintiffs, accord- ing to the example of the principals if they were pres- ent, and against the king they were punished with a pecuniary penalty. The third case is o-f those who burn, hang, hurt, or otherwise kill themselves. Again ye are to distinguish of other men-slayers; as of physicians, jurors, justices, witnesses, of ideots, mad- men and fugitives; for physicians and chirurgions are Digitized by Microsoft® 206 OF MURDER. [Ch. IV., Sc. 16. skilful in their faculties, and probably do lawful cures having good consciences, so as nothing faileth to the patient which to their art belongeth; if their patients die, they are not thereby roen-slayers or mayheniors; but if they take upon them a cure, and have no knowl- edge or skill therein; or if they have knowledge, if nevertheless they neglect the cure, or minister that which is cold for hot, or hot for cold, or take little care thereof, or neglect due diligence therein, and especially in burning, and cutting off of members which they are forbidden to do but at the peril of their patient; if their patients die, or lose their members, in such cases they are men-slayers or mayhemors. Judges judge men sometimes falsly to death wit- tingly, and sometimes out of ignorance; in the first case they are murderers, and are to be hanged by judg- ment, and not only those who gave the judgment, but the accessaries, abettors, and those who hindred not such judgment when they might have done it. And in the second place ye are to distinguish; for one manner of ignorance is, as if a thing known had not been known, and this kind of ignorance doth excuse; the other is of a thing not known which ought to have been known, although he was not bound to know it, and this excuseth ; also the third kind is, which cometh of not knowing that which a man is boimd to know, and this excuseth .not ; and note, that ignorance in itself is no offence, but this neglect of knowing is an offence. Digitized by Microsoft® Ch. IV., Sc. 16.] OF MURDER. 207 The judge doth not offend so much that he doth not make the law, but he offendeth in foolish undertaking upon him to judge foolishly or falsly. The fourth kind of ignorance is, that a man judgeth of a thing otherwise than rightful, and if such ignorance come of the fact it excuseth, and of the law then it excuseth not .Or thus, there is one manner of ignorance which one may overcome, and such excuseth not; and there is another kind of ignorance which one cannot vanquish, and such excuseth, whether it come by nature, or by too much passion, or sickness, or of rage. And that which is said of judges is to be intended also of jurors, and of witnesses in cases notorious, where many intermedle feloniously, and any one be killed, and there be no cause to kill him; in case also where a child is killed by too much beating, and in case where many have wounded one man, who died of one sole stroke, all of them generally are adjudged men-slayers for the apparent evidence of the fact ; for none but God can judge the intentions of those that gave the stroke that it was to kill, nor who intermedled therein to hinder that any hurt were done, with a good intent; some who command what may be for hurt, or may be for good; some which held the parties, and others who struck. Again ye are to distinguish of other men-slayers; as some kill those who enter to do a mischief, if such cases be not notorious their acquittance or condemnation is Digitized by Microsoft® 208 OF MURDER. [Ch. IV., So. 16. in the discretion of the suitors ; also in case when people kill a man in defence of themselves and their posses- sions, as it falleth in disseisin. Again, if a man draw another to fence with him, ■or to shoot with him, and he giveth him siich a wound as if he meant willingly to murder him, the same is not to be judged for murder, seeing men cannot judge but according to facts, and not according to the intents or thoughts of the parties hearts. Of fools also ye are to distinguish, for all fools are accountable men-slayers, as to have judgment ; but only ideots, and infants within age, for a crime cannot be •done, nor an offence but through a corrupted >vill, and a corrupt will cannot be but where there is discretion, a;nd innocency of conscience doth save fools outragious ; and therefore Robert Volround ordained, that ideots being heirs should be in the custody of the king, for their marriages, and for their inheritances of what manors or lords soever they held their lands. Likewise ye are to distinguish of madmen, for fran- ticks and lunaticks may offend mortally, and so they are to be accounted and judged for men-slayers, but not those who are mad continually. Of infants also ye are to distinguish, of infants mur- derers, and of infants killed ; the murderers within the age of one and twenty years are not presently to be judged to death in a fact not notorious, before they be -of full age. Digitized by Microsoft® Ch. IV., So. 16.] OF MURDER. 209 Of infants killed ye are to distinguish, whether they be killed in their mothers womb or after their births; in the first case it is not adjudged murder ; for that none •can judge whether it be a child before it be seen, and known whether it be a monster or not; and to infants killed in the first year of their age, the conusance be- longeth to the church. Of fugitives, and of those defendants is the distinc- tion which f olloweth ; he who killeth a fugitive after that he submitteth himself to the king's peace in a fact not notorious, he is to be adjudged to death as a man- slayer, otherwise not; and he who killeth a man de- fending himself, who might fly and avoid the killing is also to be adjudged to death as a man-slayer, other- wise not. Of the offences of robbery, larceny, burglary, where the damage exceedeth 12 d. where the offenders are taken in their offences, the offenders are to be killed by losing of their heads, if the people be present after the fact and testify the felony; and in cases not notorious, the judgment is to be hanged till they be dead. And if the defendant be a woman ye are to distin- guish, whether she hath a husband or not, who is yet living, and also of the action, whether it be mortal or not; for if she be, and was sole without a husband which she hath married at the door of the monastery, and the action be mortal, she shall answer as a man •doth ; and if she be a feme covert ye are to distinguish. Digitized by Microsoft® 210 OF MURDEE. [Ch. IV., Sc. 16. for if she be accused of a mortal crime as principal, ske shall answer, and if as an accessary, then ye are to distinguish; for if she be accused of consenting to the felony of her husband, or to any other, her husband not knowing it, yet ye are to distinguish of the crime; of the offences of larceny, of burglary, and of other small offences she may answer, that she was under the com- mand of her husband, and that she could not contra- dict him ; that answer is peremptory in larceny, and if without the knowledge of her husband, she shall an- swer: and if a woman without her husband be accused to have been in the company of a thief for a minute, or a Tery small time, she may say, that she was not in his company but as his concubine. Of mortal judgments, of outlawry, of abjuration of the realm, of vanquished in battles for mortal felony, and otherwise attainted of a notorious mortal offence, or not notorious, the offence is such that the blood is corrupted; and of the offenders the blood is extinct in every descent in right of blood, so that nothing can de- scend from them to any of their heirs either next or remote by descent, but all shall remain to the lords of the fee, from the time they committed the offences, whoever were tenants thereof in the mean time by what contracts sover; and all fealties, contracts, and obliga- tions are blotted out thereby; and of fugitives it is ac- cording as it is with outlaws, and their goods which re- Digitized by Microsoft® Ch. IV., Sc. 16.] OF MURDER. 211 main (besides what belong to others) remain forfeited to the king. And the like in remembrance of their felonies, and in hatred of the felons, it is lawful to destroy all their mansion-houses, to eradicate their gardens, to cut down and waste their woods, to plough up their meadows, or otherwise overturn them, which king Hen. I. did mod- erate at the request of the Commons in this manner, for the saving of the lands of mortal felons in their hands, of what manor soever they were holden, that he should hold the same, and should take the profits thereof for one year, and should do waste if there were not other agreement made with him. For the offence of rape, the judgment was to be hanged till he died, without having regard whether the woman ravished were a maiden or not, or without dis- tinguishing of what condition she was, and whether at the suit of the person, or at the king's suit; which of- fence before the time of king Edw. the second, was by burning of them over the eyes, because the lust came in by eyes, and the heat of whoredom came from the reins of the lecher. , Seven things to stay judgment of death. 1 False judgment, or foolish judgment. 2 False testimony. 3 Default of better answer. 4 The hast of the king. 5 A woman with child. Digitized by Microsoft® 212 OF MURDER. [Ch. IV., Sc. 16. The first three cases have respite by forty days, the fourth by thirty days, the fifth by forty weeks, or more ■if the child be not born. 6 Want of discretion, as it is of ideots, madmen, and of infants. Y In poverty, in V7hich case ye are to distinguish of the poverty of the offender, or of thing; for if poor people to avoid famine take victuals to sustain their lives, or cloaths that they die not of cold, so that they perish if they keep not themselves from death, they are not to be adjudged to death, if it were not in their power to have bought their victuals or clothes, for as much as they are warranted so to do by the law of nature ; and although the law hath no respect but to the souls of offenders, nevertheless king Edward lim- ited the quantity of robbery and larceny in thAs man- ner; that is to say, that none should be adjudged to death, if the larceny, or the stealing, or the robbery did not exceed twelve pence sterling; and note that king Hen. the first by Randulph de Glanvile ordained, that in all mortail actions, that where the action was encountered with an affimative exception, that the af- firmation was first to be received in proof in favour of life ; and thence it was that if one man accused another of felony, and he plead that he is not the man, the proof was awarded to the defendant to convince the other of lying, either by his body or otherwise. And so it is if the defendant say that he could not be at the Digitized by Microsoft® Ch. IV., Sc. 17.] OF PUNISHMENT, ETC. 213 doing of such an act, at the day, place, or year named in the plaint, because he was then in another place, where by presumption he could not do it, or that he could not be there present ; or if he saith that the thing came to him by good title, in favour of life the proof belongeth to the defendant peremptorily at his peril, to the overthrowing of the action, and the exception ; but if the defendant soly deny the action, in such cases the proof belongeth to the plaintiff. Of outlaws returned from exile, banished men, and those who have forjured the realm and returned, being taken and kept for a justifiable offence, the judgment is, that they be hanged till they be dead. Sect. 17. Of punishments in divers Mnds. The corporal punishments of death being past, we are to come to corporal punishments venials, which are by open infamous penances; and first of punish- ments, tallions, or (like for like) which are in three cases, that is to say, in mayhem, wounding, and im- prisonment, in which if the pleas be brought in by ap- peals of felony for revenge only, then belongeth the judgment tallion, or like judgment, as mayhem for mayhem, wound for wound, imprisonment for im- prisonment. Digitized by Microsoft® 214 OF FALSE JUDGES. [Ch. IV., Sc. 18. And if pardonable in form of a trespass, then these judgments hold place, that the offenders make reason- able satisfaction to the plaintiffs, and afterwards that they be adjudged to do open penance according to the quantity of the offence. Open penances are these ; amendments of highways, causways, bridges, setting them up in pillories or stocks; imprisonment, and abjuration of the realm, exile, banishment, either from off the land, or from the town ; from entring into such a place, or from going out of such a place, by ransom of such a penalty, by pecun- iary junishment, or by other fine, and such other kinds of judgments penals. And if the offenders be infants, or otherwise in custody, that in such cases the guardians be adjudged to make satisfaction of the damages, and the guardians to betake themselves to the goods of the trespassers; but the open penance is to be suspended so long as they are in ward, so that according to the dif- ference of the offences and the offenders the punish- ments were in manner as foUoweth ; and first of false judges, who the more greatly offend for as much as they are in a higher degree than other people. Sect. 18. Of false judges. Of false judges assigned, king Alfred ordained such Digitized by Microsoft® Oh IV., Sc. 18.] OF FALSE JUDGES. 215 judgment, that the wrong they do to God whose vice- gerents they are, and to the king who is put in so noble a place as is the seat of God, and hath given them so great dignity as to represent the person of God, and the conusance as to judge offenders, that first they be ad- judged to make satisfaction to those they have hurt, and that the remainder of the goods should be to the king, saving all other rights, and all their possessions, with all their purchased lands should be forfeited in whose hands soever they be come, and that they be delivered over to false Lucifer, so low that they never return to them again, and their bodies that they be pun • ished and banished at the king's pleasure, and for a mor- tal false judgment that they be hanged as other mur- derers; and for mayhem, wounding and imprisonment, that they have like for like, and the same law, and in the same condition. The judgment of false judges ordinaries is not in venial judgments so penal, as it is of judges delegates before; but they are to make satisfaction to the parties plaintiffs, and to the king they are punishable by a pecuniary penalty, and disabled from all manner of jurisdiction whatsoever; and in cases mortal, and tal- lions, according as it hath beea said before of other judges. Digitized by Microsoft® 216 OF PERJURY. [Ch. IV., Sc. 19. Sect. 19. Of perjury. Pebjuet is a great offence, of which ye are to dis- tinguish either of perjury of false testimony, or by breach of faith, or by each of the oath of fealty ; of the first perjury ye are to distinguish, either of perjury mortal, or venial ; if of mortal, then the judgment was mortal, to the example of apparent murderers. And note that in all personal actions there belongeth such an award, that due satisfaction be made to the plaintiffs, and that the offenders be punished with cor- poral pains, which pains are to be brought out by ran- som of money ; and if of venial perjury, then that they be banished for a time, or for ever; and that their woods, meadows, houses and gardens be eradicated ac- cording to the example of murderers, saving that their heirs do not remain disinherited. Of the other perjury ye are to distinguish, as breach of faith to the king, or to another person, and if to the king ye are to distinguish, whether as his tenant or not ; and if the oath of fealty be in respect of land, and the fealty be broken in any of the points, then lieth the process and defaults aforesaid; and if of an oath not in respect of land^ ye are to distinguish, whether of the common oath of fealty sworn to the king, for the re- Digitized by Microsoft® Ch. IV., Sc. 20.] OF THE OFFICES OF JUSTICES. 217 maining in his fee, and then only corporal punishment holdeth place, which passeth the punishment which should be adjudged to others not the king's offices, ac- cording to the king's pleasure. Sect. 20. Of the offices of justices in Eyre. The presentments of offences are ex officio by cor- oners, by sheriffs and bailiffs in turns and views of frank-pledge; by enquests and special justices, and by kings ex officio, or by their chief justices, or of their justices generals; 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 do not that duty which of right they may do; or punish the innocent and spare the guilty; It was anciently ordained, that the kings by themselves, or by their chief justices, or by general justices to hear and determine all pleas, should go circuit every seven years,' through all shires, to receive the rolls of all justices as- signed, of coroners, of enquirers, of escheaters, of sheriffs, of hundredors, and of bailiffs, and of all stew- ards, of all their judgments, enquests, presentments, and all their offices, and to examine those rolls, whether any had erred therein, either in the law, or to the dam- Digitized by Microsoft® 218 OF THE ARTICLES IN EYEE. [Ch. IV., Sc. 31. age 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 redress the officers, and punish the negligence of them according to the rules of law, and that they should en- quire of all offences, which belonged to the king's suit, and to his jurisdiction. And note, that notwithstand- ing the king had the suits of all mortal offences, and of wrongs done to the law, and to the right of his crown, it is not thereby to be understood that he should have the suit of all offences; but if any one be plaintiff and doth not proceed in his suit after the same is affirmed, ye are to distinguish, if it be of a personal offence venial it sufficeth for the defendants, for the nonsuit of the plaintiff doth suppose satisfaction of the damage; and if it be of a mortal offence, yet the king hath not the suit, if not by warrant of appeal, or indictment, wherein it behoveth to the appellees and indictees 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 mortal infamy, by being appealed or indicted. Sect. 21. Of the articles in Eyre. EvEET shire used to be warned by forty days at the least, by general summons of the king's coming, where Digitized by Microsoft® Ch, IV., Sc. 31.] OF THE ARTICLES IN EYRE. 219 after the essoins adjourned, and the assize of victuals set, and the ordinances proclaimed, and those of fran- chises adjourned, and the jurors called, sworn, and charged with their articles; and the claimers of fran- chises, and the rolls of the justices, of coroners, and of all sheriffs, and of all other manner of pleas and pre- sentments after the last Eyre taken and received; the first thing was to inquire, hear, 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 redress the errors, and all other wrongs- by right judgments, without respect unto any person. All the judges ordinaries, and assigned, sheriffs, bailiffs, and stewards of lords of manors, and all other who claimed jurisdiction, which any one could attaint of any wrong done against the right rules of law, were condemned for the wrongful judgments, with regard to the distinction of the parties grieved. Coroners, escheators, sheriffs, bailiffs, and other min- isters 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 king's pleasure. The offenders which were found using false scales and false measures, and gaining by breaking of any assize, either of bread, wine, ale, cloth, or other mer- chandizes, used to be set in the pillory, and women in the tumbrel, and afterwards were not suffered to mer- Digitized by Microsoft® 220 OF THE ARTICLES IN EYRE. [Ch. IV., Sc. 21. chandize at any time, nor could they depart from the place or town 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 less than six-pence, one of their ears used to be cut off with- out carrying them to prison, or before any judge as- signed, and to banish them from the town, or from the manor, for the second offence. And for their larceny under the value of six-pence they used to set them in the pillory for the first offence, and to banish them for the second. In the judgments of personal trespasses, venials, as to the taxing of the damages put in plaints, Martin de Patteshall used this course; the judge used to enquire ex officio of the jurors, by whom any principal trespass was adjudged before him, the names of all those who- were guilty in the first degree, and of the accessaries,, and therein he proceeded to judge the damages accord- ing to the number of the indictors, so that no plaintiff should recover no more entire damages by plurality of plaints for one sole trespass against the trespassers sev- erally. Digitized by Microsoft® Ch. IV., So. 22.] OF FRANCHISES. 221 Sect. 22. Of franchises. Of franchises note, that because the king doth not hold his rights and dignities of his crown but as an in- fant, nor a grant from him of any franchises is so es- tablished that kings cannot repeal them again, so as he give satisfaction to the value as by warranty ; and it is lawful for every one who findeth himself grieved to sue for the king, to seise every franchise forfeited for contumacy; as if the bailiff of a franchise do not ex- ecution of the return of the sheriff according to the com- mand of the king, by any abuse, as by using his fran- chise too largely, or not duly; by a writ ensuing, it is commanded that the sheriff 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 keep- ing of a gaol in fee, who by title of franchise of in- fangthief, or of return of writs hurted not without de- lay, the persons taken in the places within the fran- chise for felony done in guildables, and send them into the gaol in guildable, go that the king do not lose the goods and chattels of the felons, nor his other rights; for the king giveth no franchise to his own prejudice, nor to the prejudice of others, especially of return of Digitized by Microsoft® 222 OF SATISFACTION OF DEBTS. [Ch. IV., Sc. 33. writs, nor to have the custody of a gaol. An example may be as betwixt two neighbours in a franchise, the one cannot keep a prison to the prejudice of the king, and if he do he forfeiteth the franchise. And it also appeareth, that jurors came out of fran- chises before the king and his commissioners to guild- able and elsewhere at his command, as well upon crim- inal actions as upon reals. And if any one receive a felon wittingly into his franchise, the same is now challengeable. Sect. 23. Of satisfaction of dehts. If a plaintiff recover against many by judgment, he shall have but once damages, as in this case; if many persons owe one debt, and every one be bound in the whole, if one of them make agreement for the same, although he do not make a special agreement for all the debtors, all of them nevertheless are discharged, be- cause satisfaction hath respect to the debt, and not to the persons. Sect. 24. Cases of disseisin. If the jurors in petit assizes are agreed that one shall give their common verdict for all, and if they Digitized by Microsoft® Ch. IV., Sc. 24.] CASES OF DISSEISIN. 223 say that they know nothing, nor that the plaintiff shall receive nothing because he proved not his action; and if they be of divers opinions they are not there- for to be threatned, nor imprisoned; but they are to be severed and diligently examined. And if tv70 jurors be found to agree amongst all the rest, it sufficeth for him for whom they speak, and they are not to be ex- amined upon the title of the possession, but it is suf- ficient for the judge to know if the plaintiff were dis- seised of his land, whether it were rightful or wrong- ful according to the plaint; for though it were right, nevertheless it was tortious, because the tenant used force where he should have used judgment, and for that he made himself a judge therein, judgment is to be given for the plaintiff, so as he shall recover seisin, such as it is, saving every right by another writ; for an assise lieth not upon assise of the same tenement, betwixt the same parties, nor an attaint upon an at- taint; and if the jurors for him, whether they were sworn upon the action, or upon the exceptions, judgment goes for him, and they behove to enquire of the others named in the writ, and if the disseisors came in with force and arms, although they hurt no person's body, all of them nevertheless are to be adjudged to corporal punishment, according to the quantity of the offence; and if they east him out of his dwelling house, or out of his demesne, the felony of this burglary is punish- able at the king's suit, or at the suit of the party; for Digitized by Microsoft® 22i CASES OF DISSEISIN. [Ch. IV., Sc. 24. none is to be cast out of his house where he dwelleth, and which he hath used as his own for a year, without judgment, although he hath no title thereunto but by disseisin, or intrusion, and it sufficeth for force and arms, only the shewing of arras for to hurt the adver- saries ; and under the name of arms are contained bows, arrows, saws, lances, spears, staves, swords, and targets of iron. The jury ought to enquire of the damages, that is to say, of the profits of the tenements since the dis- seisin, and to whose hands such profits after came, and of the charges, costs, and reasonable expences which the plaintifF hath sustained in his whole recovery, and in all things, and how much he is endamaged in distress of his goods, and in his honour ; and the damages being assessed, it is to be awarded that the plaintiff recover his seisin, such as it is, according to the view of the recognitors, and the damages; and the disseisors are punishable according to the points of the offences. For the goods found in the tenements whereof none can know the value, as charter, writings, royal treas- nre, and such things locked up, the plaintiff hath an action by appeal of robbery, or by a writ of trespass. In judgment of larceny veniable satisfaction is to be made to the plaintiffs, to the double of the value of the things which are stolen; and in case of robbery, to the value (4 double) or four times value. Digitized by Microsoft® Ch. IV., Sc. 25.] OF AMERCEMENTS. 225 Sect. 25. Of amercements. A PECUNIARY pain we call an amercement, which fol- lows real offenders, and mixt, and sometimes are cer- tain, and sometimes uncertain. An amercement is cer- tain, sometimes according to the dignity of the persons, as it is of earls and barons ; for he who holdeth an entire earldom is to be amerced one hundred pounds when he is least amerced ; and a baron for a barony entire one hundred marks, and he who holdeth less, less ; and more, more ; according to the quantity of the tenure. And sometimes, by a certain assise in another case, as it is of escapes of people imprisoned, in which case ye are to distinguish, of the place; as where one es- ■capeth out of the king's prison, or out of the prison of another; out of the king's prison ye are to distinguish of the cause, whether it be mortal or venial, and if mor- tal, then distinguish if the cause were adjudged or not, and if adjudged by notory of fact, or of right, then the corporal punishment is uncertain ; for if the keeper, or more be assenting to the escape, punishment of death followeth thereupon ; and if the cause was not adjudged, and the keeper was not the king's officer, nor assented io the escape, then the assise of punishment is so many 15 Digitized by Microsoft® 226 OF AMERCEMENTS TAXABLE. [Ch. IV., Sc. 36. shillings sterling or more, according to the usage of the country, or of the place, or of the person. And if the cause be venial, then the escape is not punishable. And if the escape be from the prison of others, then ye are to distinguish of the cause, and of the caption, whether the cause be mortal or venial, and if mortal, then the pecuniary pain aforesaid holdeth place; and if the cause be venial, there is no punishment for the escape. Sect. 26. Of amercements taxable. Common amercements are taxable by the oaths and affeerments of the peers, of those vs^ho fall in m,iseri- cordia, according to the constitution of the charter of franchises, which willeth that a freeman be assessed when he falleth into an amercement according to the quantity of his offence, a merchant saving to him his merchandize, and a villain saving his wainage; and these affeerors are to be chosen by the assent of the parties if they will, but the king's officers are the more grievously to be amerced for the breach of their faith, etc. Many cases there are where corporal punishments are bought in by fines of money, and such are called ran- Digitized by Microsoft® Ch. IV., Sc. 26.] OF AMERCEMENTS TAXABLE. 227 soms, which is as much as to say, redemption from cor- poral pains; whereof some fines are common, as for murders, others for personal trespasses of towns and commonalties ; which fines king Edward ordained, that they should he assessed in the presence of the justices so as the names of them be put into the rolls of the justices, so that the estreats may come to the sheriff to levy the same hy parcels, and not by total summons. And in case where one recovereth debt or damages, king Edward enacted, that it should be in the election of them to do execution by levying such debt, and damages of the moveable goods of the debtors at the very value, to the value of the thing in demand, except the oxen, and beasts of the plough, together with the moiety of lands, and tenements of the debtors, if the - goods be held sufiicient by a reasonable extent until the debt and damages be levied. Those who are appealed and indicted of felony, and are not to be found, it behoveth that they be proclaimed, and especially before the king, and his justices errants, and if they be found guilty, then they are to be com- manded to put them in exigent, so that the first county after the Eyre be the first day, and so they be demand- able at three county-courts until they be outlawed, if they tender not themselves to the peace. Digitized by Microsoft® 228 OF THE OFFICE fCn. IV., Sc. 37. Sect. 27. Of the office of justices in Eyre. To the ofEce of justices in Eyre it belongeth es- pecially to enquire by jurors, and by examination of the rolls of the coroners, of all that were outlawed after the lafst 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 dozein, or in frank pledge, and if their pledges be in the same county then are the pledges punishable by a pecuniary pain, because they brought not those they took in main-prise to appear ; and if they were elsewhere in dozein, 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 catise. To help the memories of the people are eseripts, char- ters and muniments very necessary to prove the condi- tion and the points of contracts, gifts, sales, feofiments and other things. By the statute of Leuchfred it was enacted, that one might deny nude contracts made by words, and it was ordained, that plaintiffs should prove their writings, which were denied, and not proveable by neighbours in England, and for foreign contracts by battle, or by the Digitized by Microsoft® Ch. IV., Sc. 37.] OF JUSTICES IN EYRE. 229 setting to of other seals, or by jurors at the election of the plaintiffs. If jurors have obscurely or doiibtfully, or not suffi- ciently given their verdict in any action or exception; or any of the parties be grieved thereby ; there is remedy by a commission of certificate to make the jurors come again, and the parties who are the plaintiffs ought to have under the king's seal, and of the judge, and of the parties, the proceedings of the plea before, and shew the defect, and the offence of the jurors; in which case if the judge by examination find it doubtful, the said doubt is to be reduced to certainty, and the obscurity to clearness, and the error into truth; and so the first judgment is to be redressed. Digitized by Microsoft® THE CONTENTS OF THE FIFTH CHAPTER. Section, Page Abusions of the common law i 331 The defects of the great charter ii 257 The reprehensions of the statute of Merton and Marl- bridge iii, iv 265 The reprehensions of the statute of Westminster 1 . . v 26SI The reprehensions of the statute of Westm. 2, and of Gloucester vi 275 The reprehensions of Circumspecte agatis vii 286 The reprehensions of the new statute of merchants, viii 287 230 Digitized by Microsoft® CHAPTEE V. Sect. I. Abusions of the Common Law. There are many who say, that although other realms use a written law, yet only England useth her customs, and her usages for law not written ; hut betwixt rightful 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 thieves, whose usages are to rob and steal. And to shew some abuses holden for usages, which are frauds to the law, and repugnants 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 lawful usages. Abusion is a disuse, or a misuse of right usages turned to abuses, sometimes by contrariety and repug- nancy to law, sometimes by too large a usage thereof. 1 The first and chief abusion is, that the king is above the law, whereas he ought to be subject to it, as it is contained in his oath! 231 Digitized by Microsoft® 232 ABUSIONS OF [Ch. V., Sc. 1, 2 It is an abuse, that whereas parliaments ought to be, for the salvation of the souls of trespassers, twice in the year at London, that they are there but very sel- dom, and at the pleasure of the king ; for subsidies and collections of treasure, and where the ordinances ought to be made by the assent of the king, and of his earls, they are now made by the king and his clerks, and by aliens, and others who dare not contradict the king, but desire to please him, and to counsel him for his profit,, though the counsel be not covenable for the common people, without calling the coimties thereunto, and with- out following the rules of law, whereby it foUoweth that • many ordinances are grounded more upon pleasure than upon Jaw. 3 It is an abuse that the laws, and the customs of the realm, with their occasions, are not put into writing, whereby they may be known, so as they might be known 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 judg- ment, and useth force. 5 It is an abuse, that justice is delayed in the king's court, more than elsewhere. 6 It is an abuse to suffer any to be in the realm above forty days, who is of the age of fourteen years, English, or alien, if he be not sworn to the king by an oath of fealty, and in some pledge and dozein. Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 233 7 It is an abiise, that clerks and women are ex- empted 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 gaol, to be a mortal offence, for that usage is- not warranted by any law, nor is it used in any place but within this realm and in France, for as much as one is warranted to do it by the law of nature. 9 It is an abuse to suffer so many forms 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 other- wise vicious. 10 It is an abuse that the money is not quarterable, that it is not silver, that it is held payable if the foreign circle be not whole, to allay the money per 18 d. and make paying of lead to every, etc. 11 It is an abuse that the king takes more than twelve pence for the exchange of twenty shillings in the pound. 12 It is an abuse that no pound is suffered to weigh twenty-five shillings, or more than twelve ounces. 13 It is an abuse that Treason is not adjudged more by appeals than it is. 14 It is an abuse that a man who hath done man- slaughter of necessity, or with the peace, or not felo- niously, is detained and kept in prison until he hath Digitized by Microsoft® 234 ABUSIONS OF [Ch. V., Sc. 1. purchased the king's charter of pardon of death; as it is for mischance. 15 It is an abuse to hold the moveable goods of flyers forfeited before they be attainted of the felony by out- lawry, or otherwise. 16 It is an abuse to outlaw a man before it hath been enquired by the oaths of neighbours. 17 It is an abuse to suffer a man attainted of felony to be an approver, and to have a voice as a true man, and that clerks, women, infants, and others who cannot combat are suffered to be approvers. 18 It is an abuse that others receive the appeals of approvers, than coroners, and that they are suffered to appeal oftner than once, or by distress or otherwise, or in any manner f alsly. 19 It is an abuse that the Justices drive a true man to be tried by his country, where he profereth to defend himself against the approver by battle. 20 It is an abuse to force people appealed by ap- provers to acquittals, where the approver put in his appeals, if he be not thereof elsewhere indicted, or after the lying of the approver attainted, or after the death of the approver. 21 It is an abuse to suffer an approver to live, after he shall be attainted of a false appeal. 22 It is an abuse to suffer thieves, and known and notorious felons, to be defended in sanctuaries. 23 It is an abuse that those felons who are forjudged Digitized by Microsoft® Ch. V.,Sc. 1.] THE COMMON LAW. 235 the realm are not suffered to chuse their port and passage out of the realm, and to limit their journies. 24 It is an abuse that they enter into the sea, and from the sea, the church next the sea, and that entries into great places are denied them, and that they have not the privilege of pilgrims. 25 It is abuse to adjudge murder for default of Engleshire, since murder ought to be the English pun- ishment of an alien. 26 It is an abuse that acquittances of payments made to the king in the Exchequer are by tallies, and not by the seal appointed for it. 27 It is abuse that the king's officers of the Ex- chequer, have jurisdiction of other things than the king's monies, of his fees, and of his franchises, without an original writ out of the chancery under white wax. 28 It is an abuse that the king's debts lie dormantj and are delayed to be levied by estreats, since the ar- rears of sheriffs, and of other the king's receivers are to be levied without delay upon those who prefer them, if they themselves be not sufficient, and the arrearages of the debts of others are to be levied upon their sureties where the principals are not sufficient to pay the ar- rearages, the amercements are liable upon the assessors if the principals are not sufficient; and so it is of fines, and all other the king's debts ; whereby it appeareth that no debt ought to be much behind, in so much as some think that none are chargeable with an old debt Digitized by Microsoft® 236 ABUSIONS OF [Ch. V., Sc. 1. if not of malice, or by negligence of the king's officers. 29 It is an abuse that they of the Exchequer, or other, receive attornies, or hold conusance without an original writ out of the chancery, which none can do without jurisdiction. 30 It is an abuse that freemen and freeholders have ordinary jurisdiction, but in the courts of lords of manors, or of hundreds or counties. 31 It is an abuse to amerce any man by reason of a presentment in personal trespass, in as much as no man is to be amerced but for the offence in a real or mixt action. 32 It is an abuse to amerce any man by a present- ment made of less than twelve sworn freemen. 33 It is an abuse to assess an amercement certain, without the affeerment of freemen sworn to it. 34 It is an abuse to affeer amercements in the ab- sence of those who are to be amerced. 35 It is an abuse to charge the jurors with any article touching wrong done betwixt neighbour and neighbour. 36 It is abuse to believe any one hath jurisdiction,, if a commission give it not. 37. It is an abuse to obey the judge who is appealed of doing wrong, the example whereof appeareth in the old writ of right, Et nisi feceris vicecomes faciat. 38 It is abuse that a freeman be made the king's of- ficer by any election against his will. Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 237 39 It is an abuse that the salaries of pleaders be not certain. 40 It is an abuse that the defendants have not amends of wrongful plaintiffs. 41 It is an abuse that pleaders arejSspared of oaths according to the points. 42 It is abuse to suspend a pleader if he be not at- taint of a trespass, for which he is condemnable to cor- poral punishment. 43 It is abuse to summon a man for a personal offence. 44 It is abuse to adjudge a man to death by suitors, if not in cases so known, that there need no answer. 45 It is an abuse to bring the appeal elsewhere than before the coroner of the county, and that appeareth by the writ of appeal, as a writ grounded upon error. 46 It is abuse to let to bail a man appealed, or in- dicted of a mortal offence, by pledges. 47 It is an abuse to determine the appeals of felony by judges, ordinaries, suitors. 48 It is abuse that all persons are commonly re- ceivable in appeals of felony. 49 It is abuse that all infants within age are in ward. 50 It is an abuse that people may alien their in- heritances from their heirs further than the grants, or their purchase of lands make mention, for none can make an assignee, if it be not specified in the grant. Digitized by Microsoft® 238 ABUSI0N8 OF [Ch. V., Sc. 1. 51 It is abuse that the inheritances of heirs females are held in ward (though it be of knights service) as of heirs males, since a woman is at age at 14 years. 52 It is abuse that gaolers or their sovereigns plun- der prisoners, (y take from them other things than their arms. 53 It is abuse that prisoners or others for them pay any thing for their entries into the gaol, or for their coming out. 54 It is abuse that a prisoner is laden with irons, or put to pain before he be attainted of the felony. 55 It is abuse that the gaols are not delivered of the prisoners, who are deliverable without delay, without a writ. 56 It is abuse to make a man to answer to the king's suit where he is not indicted, nor appealed. 57 It is abuse to imprison any other than a man in- dicted or appealed, without a special warrant, in case for want of pledges or main-prisors. 58 It is abuse that justices deliver prisoners not taken before the date of their warrants, since the king's intention was not but of those who are then kept in prison. 59 It is abuse that the writ of Odio et atia take no place but in murder. 60 It is abuse that that writ lieth for indictees. 61 It is abuse that appellees or indictees of mortal crime are got out of prison by bail, or those who are con- Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 239 demned to corporal punishment before they do their penance, or that they have bought in the same by fine and ransom. 62 It is abuse that the writs Sicut alias et sicut pluries pass the seal, in case where it should make those officers inobedient of right, and to the king, and should charge others to do such commandment. 63 It is abuse to put these words in writs, Nisi captus sit per speciale prceceptum nostrum, vel capitalis justiciarii nostri, vel pro foresta nostra, etc., for no special commandment ought to exceed the common law. 64 It is abuse to suffer the judges to be plaintiffs for the king. 65 It is abuse that aliens, or others who have not sworn fealty to the king or infamous persons, or in- dicted or appealed of mortal crime, or who have not an able commission, or after any wrong done, or after judgment given, be suffered to have jurisdiction, or to judge out of the points specified in their commissions. 66 It is abuse that in appeals by pleaders are the places, and the countries, and the hours of the days, and that it is against the peace, since every offence is against the peace, and such other words needless. 67 It is abuse to abate sufiicient appeals, according to the statute of Gloucester . 68 It is abuse that the remedial writs are saleable, and that the king commands the sheriff, that he take sureties to his use for the writ, for and by the pur- Digitized by Microsoft® 240 ABUSIONS OF [Ch. V.,Sc. 1. chase of these writs one may destroy his enemy wrong- fully; and because that such fines and penalties run in estreats, though they do nothing but hurt to the pur- chaser thereof. 69 It is abuse that foreigners are not receivable in actions by sureties of freemen, who have not wherewith fo find pledges. 70 It is abuse to distrain in personal actions, where the profit of the issues comes to the king, and no profit accrueth to the plaintiffs. 71 It is abuse that any plaint is received to be heard Avithout sureties present, to testify the plaint to be true. 72 It is abuse, that it is said that villainage is not a frank tenement, and that an assize lieth not of an ejector for term of years, as well as it doth of a frank tenement for term of life, or in fee ; for a villain and a slave are not all one, either in name or signification, for as much as every freeman may hold in villainage to him and his heirs, performing the services and charges of the fees. 73 It is abuse to hold that seisin accrued not to the purchaser when the donor left his goods, for as a con- tract of marriage is good by the consent of the wills of men and women, although that one of them repent, and after the marriage would withdraw himself, but he can- not thereby dissolve the contract; so as well it sufficeth to make the contract by the delivery of seisin as by the celebration of the marriage, although the purchaser Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 241 have no other seisin by taking the esplees, nor any deed, nor writing to testify the bargain ; and if it were that a woman after the marriage were ravished and con- sented thereto, and the husband repleve her, and the ravisher answering to the contract say, that the husband had no right nor action, because he was never fully -Seised by taking the esplees ; nor had no deed : or said, that he was never out of seisin of the woman because ^he was cloathed with his robes, and by her robe she re- mained in his seisin ; this exception nothing availeth him to excuse his wrong no more than in this case. If a man buy a horse, and agree with the seller, and the seller deliver the same to the buyer, notwithstanding that the seller repent of the bargain, and forceably take back the horse, although the buyer hath no action for the same, because he remained always seised thereof at "will ; such exception is not good. 74 It is abuse to think that contracts for goods not moveables are otherwise than for moveable goods. 75 It is abuse to think that seisin accrueth not as soon to a purchaser of his purchase, as to an heir of his inheritance, sibce the law requires but three things in contracts. 1 The agreement of the wills. 2 Satis- faction to the donor. 3 Delivery of the possession and gift. If a transmutation of seisin be given to the pur-:- chaser by the donor at the hour of one of the clock, and the purchaser dieth at the hour of three of the clock he dieth as well seised of the tenement as he should bs' i6 Digitized by Microsoft® 242 ABUSIONS OF [Ch. V., Sc. i. of a woman, or a horse, though the donor have not de- parted with and removed his chattels; and it shall never be a good plea for him to say, that the freehold after the transmutation of seisin by a simple livery remained in the donor, after this livery of the tene- ment; but if the agreement of the donor be not per- formed according to the contract, then he may help him- self thereby. 76 It is abuse to' think that one cannot recover a term for years; nor presentments to churches in man- ner of disseisin, since many reasons may avail to re- disseisors. 77 It is abuse that attaints are not granted in chan- cery without difficulty, to attaint all false jurors, as well in all other actions personals, reals and mixt, as in as- sizes brought. 78 It is abuse to drive a distress out of the hundred. 79 It is abuse to make the view of the distress to bailiffs, in that a plaint will suffice, and a court, and that he is yet seised thereof. 80 It is abuse that we do not sue for a tortious dis- tress by way of felony, and that one attaint not these robbers at the king's suit. 81 It is abuse that vicious contracts are by agree- ments maintained by law, as forbidden of offence. Is not usury an offence ? is not imprisonment an offence ? how can one bind himself to usury, or to imprisonment, or a disseisin, if he do not offend. Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. £43 82 It is abuse that advowsons of charters are aliened by law for years in mortgage, or to farm, or are parta- ble. 83 It is abuse that leases of farms are not longer than forty years, since continuance of seisin by length of time doth disinherit no man. 84 It is abtise that no land is let to farm or in fee, or for years rendring rent by the year, more than the fourth part. 85 It is abuse to outlaw a man for a default, in case where the principal cause is not felony. 86 It is abuse that auditors are appointed by the lords to hear accounts without the assent of bailiffs. 87 It is abuse that bailiffs have no recovery of damages from tortious auditors. 88 It is abuse that regard is had to the persons, when such law is not for bailiffs against their lords, as e contra in the right of debts due by the one to the other. 89 It is abuse that a man may challenge one for his nief to whom he never found sustenance, in as much as a villain is not a villain but so long as he remaineth in custody ; and since none can challenge his villain for villainage though he be in his custody, if he find not sustenance to his villain, or send him to some land in his manor where he may gain his living, or otherwise retain him in his service. Digitized by Microsoft® 2i4 ABUSIONS OF fCH. V., Sc. 1. 90 It is abuse that villains are frank-pledges, or pledges of freemen. 91 It is abuse that others suffer villains to be in their views of frank-pledges. 92 It is abuse that the lords suffer their villains to plead, or be impleaded without them, for a villain is not amerceable in any other court, because he can lose nothing, as he who hath nothing proper of his own. 93 It is abuse to hold villains for slaves, and this abuse causeth great destruction of poor people, great poverty, and is a great offence. 94 It is abuse that a man is summoned who is no freeholder. 95 It is abuse to summon a man elsewhere than in the land contained in the demand, if it contain land. 96 It is abuse that a man travel at his own charges, by any summons personal. 97 It is abuse that a justice or other make a sum- mons, who is not a freeholder within the county. 98 It is abuse to summon men without giving them reasonable warning upon what to answer. 99 It is abuse that false causes of essoins are ad- mitted, for as much as the law alloweth falsity in no ease. 100 It is abuse that an essoiner is admitted in a personal action to the defendant, since one is main- prized to appear in court by mainprisors. Digitized by Microsoft® Ch. v., Sc. l.J THE COMMON LAW. 245 101 It is an abuse to receive an essoin cast in by an infant within age. 102 It is an abuse to receive an attorney, where no power so to do is given by writ out of the chancery. 103 It is abuse to receive an attorney, where the plea is not to be judged in the presence of the parties, if not in case where one maketh an attorney general. 104 It is abuse that none can make an attorney in personal actions, where corporal punishment is to be awarded. 105 It is abuse to receive exceptions in judgments, if they be not sufficiently pronounced, for from the order of the exception rarely ariseth clear judgment. 106 It is abuse to allow a warrant of voucher to a thief, or in other personal action. 107 It is abuse that judges assigned shew not the parties pleading their warrants, or of his power, when they demand it. 108 It is abuse that justices and their officers, who kill people by false judgment, be not destroyed as other murderers, which king Alfred caused to be done, who caused forty-four justices in one year to be hanged as murderers for their false judgment. 1 He hanged Darling because he had judged Sidulf to death, for the retreat of Edulf his son, who after- wards acquitted him of the fact. 2 He hanged Segnor who judged Ulfe to death after sufficient acquittal. Digitized by Microsoft® 246 ARU8IONS OF [Ch. V., So. 1. 3 He hanged Gadwine, because that he judged Hackwy to death without the consent of all the jurors, and whereas he stood upon the jury of twelve men, and because three would have saved him against the nine, Codwine removed the three, and put others upon the jury, upon whom Hackwy put not himself. 4 He hanged Cole, because he judged Ive to death when he was a mad-man. 5 He hanged Malme, because he judged Prat to death upon a false suggestion that he committed the felony. 6 He hanged Athulf because he caused Copping to be hanged before the age of one and twenty years. 7 He hanged Markes because he judged During to death by twelve men who were not sworn. 8 He hanged Ostline because he judged Seaman to death by a false warrant, grounded upon false sugges- tion, which supposed Seaman to be a person in the war- rant, which he was not. 9 He hanged Billing, because he judged Lesion to death by fraud, in this manner he said to the people. Sir, all ye here but he who assisted to kill the man, and because that Lesion did not sit with the other he him commanded to be hanged, and said that he did assist, where he knew he did not assist to kill him. 10 He hanged Seafaule because he judged Olding to death for not answering. 11 He hanged Thursion because he judged Thurguer Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 247 to death by verdict of enquest, taken ex officio without issue joined. 12 He hanged Athelston, because he judged Herbert to death for an offence not mortal. 13 He hanged Rombold because he judged Lischild, in a case not notorious, without appeal, and without indictment. 14 He hanged Bolfe, because he judged Dunstan to die for an escape out of prison. 15 He hanged Freburne because he judged Harpin to die, whereas the jury were in doubt of their verdict, for in doubtful causes one ought rather to save than to condemn. 16 He hanged Seabright who judged Aihebbrus to death, because he condemned one by a false judgment mortal. 17 He hanged Hale because he saved Tristram the sheriff from death, who took to the king's use from an- other's goods against his will, for as much as any such taking from another against his will, and robbery hath no difference. 18 He hanged Arnold because he saved Boyliffe, who robbed the people by colour of distresses, whereof some were by selling distresses, some by extortion of fines, as if betwixt extortion of fines, releasing of tor- tious distresses, and robbery there were difference. 19 He hanged Erhinwald because he hanged Frank- lin, for naught else but because he taught to him who Digitized by Microsoft® 248 ABUSIONS OF [Ch.V., Sc. 1. vanquished by battle mortal to say the word of cravant. 20 He hanged Bermond because he caused GarhoU to be beheaded by his judgment in England, for that for which he was outlawed in Ireland. 21 He hanged Alkman because he saved Cateman by colour of disseisin, who was attainted of burglary. 22 He hanged Saxmond because he hanged Barrold in England, where the king's writ runneth for a fact which he did in the same land where the king's writ did riot run. 23 He hanged Alflet because he judged a clerk to death, over whom he had not cognizance. 24 He hanged Fir on because he judged H anting to death because he gave judgment in appeal before the forty days pendant the appeal, by a writ of false judg- ment before the king. 25 He hanged Diling because he caused Eldon to be hanged, who killed a man by misfortune. 26 He hanged Oswin because he judged Fulcher to death out of court. 27 He hanged Muclin, because he hanged Helgrave by warrant of indictment not special. 28 He hanged Home because he hanged Simin at days forbidden. 29 He hanged Wolmer because he judged Graunt to death by colour of a larceny of a thing, which he had received by title of bailment. 30 He hanged Therherne because he judged Osgot Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 249 to death for a fact, whereof he was acquitted before, against the same plaintiff, which acquittance he ten- dred to aver by oath, and because he would not aver it by record, Therberne would not allow of the acquit- tal which he tendred him. 31 He hanged Wolstor because he adjudged Hau- bert to death at the suit of the king, for a fact which Haubert confessed, and of which the king gave him his pardon, but he had no charter thereof, nevertheless he vouched the king to warrant it, and further tendred to aver it by inrolment of the chancery. 32 He hanged Oskitell because he judged Catling to death, 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 confest he had mortally offended, and that to be quitted of the pain; and Oskitell adjudged him to death upon his confession which he had made to the coroner, with- out trial of the truth of the pain, or the fact. And further, he caused the coroners and officers accessaries to be apprehended, who hanged the people, and all those who might have hindred the false judgment, 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 had falsly hanged any man against law, or any rea- sonable exception. 33 He hanged the suitors of Calevot, because they had adjudged a man to death in a case not notorious, Digitized by Microsoft® 250 ABUSIONS OF [Ch.V., Sc. 1. although he were guilty thereof; for no man can judge within the realm but the king, or his commissaries, ex- cept those lords in whose lordships the king's writ doth not run. 34 He hanged the suitors of Dorcester, because they judged a man to death by jurors in their liberty, for a felony which he did out of the liberty, and whereof they had not the conusance by reason of foreignty. 35 He hanged the suitors of Cirencester, because they kept a man so long in prison, that he died in prison, who would have acquitted himself by foreigners, that he offended not feloniously. 36 In his time the suitors of Doncaster lost their jurisdiction, besides other punishments, because they held pleas forbidden by the customs of the realm to judges, ordinaries, and suitors to hold. 37 In his time Colgrin lost his franchise of en- fangthief, because he would not send a thief to the common gaol of the county, who was taken within his liberty for a felony done out of the liberty in guildable. 38 In his time Buttolphe lost his view of frank- pledges, because he charged the jurors with other ar- ticles than those which belonged to the view, and amerced people in personal actions where one was not to be amerced by a pecuniary punishment. And ac- cordingly he caused mortal rewards to criminal judges for wrongful mortal judgments, and so he did for wrongful judgments venials. Imprisonment for Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 251 ■wrongful 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 mortal. 39 He judged Litbing to prison, because he im- prisoned Herbote for the offence of his wife. He judged Butwood to prison, because he imprisoned Olde for the king's debt. On the other side he cut off the hand of Haulf, be- cause he saved Armoch's hand, who was attainted be- fore him that he had feloniously wounded Bichbold. 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 judg- ments, but disinherited 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 bounds of their delegacy, or of their commission ; or had concealed fines, or amercements, or other thing which belonged to the king; or had re- leased or increased any punishment contrary to law, or procured the exercising or pleading without warrant, either by the property, by warrant of writ, or of a plaint of the possession, or e contra; or in the venial actions by wrords of felony, or e contra, or had sent to no party a transcript of his plea at the journey, or any of the parties wrongfully grieved, or done any other wrong in Digitized by Microsoft® 252 ABUSIONS OF [Ch. V,, Sc. 1. disallowance of a reasonable exception of the parties, or to the judgment. In his time every plaintiff might have a commission and a writ to his sheriff, to the lord of the fee, or to certain justices assigned upon every wrong which waa done. In his time law was hastened from day to day, so that above fifteen days there was no default nor essoin, adjourn able. In his time the parties might carry away the parts of their pleas under the seal of the judges, or the ad- verse parties. In his time there was no stay of writs, all remedial writs were grantable, as of debt by virtue of an oath. In his time the judges used to take twelve pence of every plaintiff at the journey. In his time plaintiffs recovered not only damages- of the issues of the possessions, and of the fees, but re- covered costs as to the hurts, and as much as one might lawfully tax, by the occasion of such a fact. 109 It is abuse that such a multitude of clerks are suffered to be made, whereby the king's jurisdiction, is overthrown. 110 It is abuse that clerks have leases of that which belongs to the temporalty, and hold lay fees. 111 It is abuse that pleas hold upon Sundays, or other days forbidden, or before sun-rising, or in the night time in dishonest places. Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 253 112 It is abuse that none answer to a felony, or other personal action of trespass or scandal, before hisi age of one and twenty years. 113 It is abuse that when the action is affirmative to take the proof against the answer, or plea affirmative. ^ 114 It is abuse that a man be accused of life and member, ex officio, without suit or without indictments. 115 It is abuse that the justices shew not the in- dictments to those who are indicted, if they require the same. 116 It is abuse that no man in England doth an- swer for a thing done out of the realm, et e contra, or in a privileged place, where the king's writ runneth not, for a thing done to a foreigner, et e contra, or with- in a place within a franchise, for a thing done in guild- able. 117 It is abuse that rape is a mortal offence. 118 It is abuse, that rape extends to others than virgins. 119 It is abuse to outlaw a man if not for felony. 120 It is abuse that one take in England any one outlawed in Ireland, or elsewhere out of the realm ; or that one is put out of his fee by judg-ment of law of judges ordinaries, suitors. 121 It is abuse to count of so long time, whereof none can testify the hearing or seeing, which is not to endure generally above forty years. 122 It is abuse that a man have an action personal from a longer time than the last Eyre. Digitized by Microsoft® 254 ABUSIONS OF [Ch. V., Sc. 1, 123 It is abuse of tKe writ of account, for which every one may imprison another wrongfully. 124 It is abuse that one is bound to render an ac- count of issues of land whereof he is guardian by title of law. 125 It is abuse that the writ of Ne in juste vexes is so out of use. 126 It is abuse that battles be not in personal actions as well as in felonies. 127 It is abuse that proofs and purgations be not by the miracle of God where other proof f aileth. 128 It is abuse to join battle betwixt persons who are not admitted to wage battle. 129 It is abuse that a knight is otherwise armed than another man in a combat. 130 It is abuse that judges have cognizance by orig- inal writ, or warrant by vouchers, or in others to which his iurisdiction extendeth not. 131 It is abuse to suffer a voucher to warranty in the king's writ of Quo warranto. 132 It is abuse that those who are found usurers by indictments after their deaths are suffered to be buried in sanctuaries, and that the lands do not escheat to the lords of the fees. 133 It is abuse that vicious obligations drive the authors to personal damages, in as much as they are voidables. 134 It is abuse to compel jurors, witnesses, to say Digitized by Microsoft® Ch. v., Sc. 1.] THE COMMON LAW. 256 that which they know not, by distress of fine and im- prisonment after their verdict, when they could not say any thing. 135 It is abuse to use the words (to their knowl- edge) in their oath, to make the jurors speak upon thoughts, since the chief words of their oaths be that they speak the truth. 136 It is abuse that one examine not the jurors, though they find at least two to agree. 137 It is abuse to put more words in the doing of homage; but thus, I become your man, for the land which I claim to hold of you. 138 It is abuse to answer or appear by attorney. 139 It is abuse to make justices such parties with- out the writ in the Icing's presence, if not with the as- sent of the parties. 140 It is abuse that the writs of audita querela, and conspiracy and others contain not the substance of the plaints. 141 It is abuse that the justices of the bench med- dle with more pleas than of wrong done against fines, grand assises, translation of pleas out of lower courts, and of darrein presentment, and of the rights of the king, queen and their allies. 142 It is abuse to use a Pone when their causes are discussed, if the parties challenge the same, for a lying purchaser ought not to have benefit of his leasings. 143 It is abuse to sue forth grand distresses in pleas Digitized by Microsoft® 256 ABUSIONS, ETC. [Ch. V., Sc. 1. of attachments, whereof the defaults are to the profit of the king, and not of the plaintiffs. 144 It is abuse that trespassers who have nothing, are not banished from towns, counties, manors, and hundreds as they used to be. 145 It is abuse to hold that a -petit cape maketh other title but to save every right in real action, not in others. 146 It is abuse that the issues of grand distresses in mixt actions come not to the profit of the lords of the fees, and others who have courts, as they do to the king, of pleas moved in his court upon the same actions. 14Y It is abuse to think the same punishment is to be to mainprisors, as to principals who make default, whereas they are amerceable only in courts. 148 It is abuse to amerce a man in plesive of fee, or of service, going out of the land by default in a per- sonal action or real; for outlawry or loss of land is suf- ficient punishment. 149 It is abuse that sheriffs do not execution of writs vicecountiels, in as much as the plaintiffs have found pledges de prosequend, where there is no mention to take sureties. 150 It is abuse to distrain for arrearages of services issuing out of lands, moveable goods, whereas no dis- tress ought to be but in the land only. 151 It is abuse that the tenant may without punish- ment enfeoff a third person of the land, of his lord Digitized by Microsoft® Ch. v., Sc. 2.] DEFECTS OF THE CHARTER. 257 in prejudice of him, or do other thing, or say any thing against the points of his oath of fealty. 152 It is abuse to suffer a man who is a champion to be a witness. 153 It is abuse that none have recovery of wrong done by the king, or the queen, but at the king's pleas- ure. 154 It is abuse to judge a man to divers punish- ments for one trespass, as to a corporal punishment and to a ransom, since ransom is but a redemption from •corporal punishment by payment of a fine of money. 155 It is abuse that people defamed of offence are not barred from making oaths, and of their dignities, and of their other honors. And divers other abuses appear by those who well understand the writ before written. Sect. 2. The defects of the Great Charter. Seeing how the law of this realm, founded upon forty points of the great charter of liberties, is damna- bly disused by the governors of the law, and by statutes afterwards made contrary to some of the points, to shew the defects or defaults of the points aforesaid, and -the errors of some statutes, I have put in memory this 17 Digitized by Microsoft® 258 DEFECTS OF THE CHARTER. [Ch. V., Sc. 3. chapter of the defect, and reprehensions of statutes; and first of the defects of the points of the great char- ter. To the point, that the church of England shall have all her rights and liberties inviolable; for first it were necessary to ordain a corporal punishment, and namely to the law judges, the king's ministers, and others, who judge clerks for mortal crimes to corporal punishments, infamatories, and do detain their goods after their pur- gation, and to those secular judges who take upon them cognizance in causes of matrimony, and testaments, or other special things. The other point is, that every freeman of the realm inherit the liberties of the charter, and whereof every one is disseised as of his freehold, which is not adjudged according to the points following, there lieth no recovery of damages by the assize of novel disseisin. A third point seemeth to be defective, for as the re- lief of an earldom entire was to decrease in him who held less, so it seemeth that that certainty was to en- crease as much if an earl held more ; so as he who held two earldoms, and who held an earldom and a barony, shall pay as an earldom and as a barony ; and so of other fees if they be not expressed in the charter, that the fine of one hundred pound be not an earldom for no point increased, and so of other certainties. The fourth point is defective (for although it be that such a point be grounded upon law, to bind the lord of Digitized by Microsoft® Ch. v., Sc. 3.] DEFECTS OF THE CHARTER. 259 fees to warranties by taking of such homages, whether they took them of the right heirs or not) because it is not expressed who should be guardian of the fees in time of vacancy, and have the issues in the mean time in case where the right heirs fly from their lords, or cannot or will not do their homage. In the points of wards it is defective, for as much as no difference is expressed between the heirs males, and the heirs females, for a woman hath her age when she is fully of fourteen years, and the seven years be- sides were not ordained first but for the males, who be- fore the age of one and twenty years were not sufficient to bear arms for the defence of the realm. And note that every guardian is chargeable to three things: 1 That he maintain the infant sufficiently. 2 That he maintain his rights and inheritance with- out waste. 3 That he answer and give satisfaction of the trespasses done by the infants. The defect of the point of disparagements appear- eth amongst the statutes of Merton. And the default of frank benches and widows in the same manner, in which point it is sufficiently expressed that no woman is dowable, if she have not been solemnly espoused at the door of the monastery and there en- dowed. In the point which requireth that the city of London have its ancient liberties, and her free customs, it is to be interpreted in this manner; that the citizens have Digitized by Microsoft® 260 DEFECTS OF THE CHARTER. [Ch. V., Sc. 2. their liberties whereof they are inherited by lawful title of the gifts and confirmations of kings, which they have not forfeited by any abuse, and that they may have their liberties and customs which are sufferable by law, and not repugnant to the law. And where it is said (of London) that the interpretation be as well of the cinque ports, and of other places. The point which forbiddeth tortious distresses for fees is covenable in itself, but the same shall not grieve any man of the realm who hath tenements, that it is no trespass in him, or by his ministers, as appeareth in the chapter of Nativo habendo. The point which forbiddeth that Common pleas fol- low not our court, is to be interpreted in this manner ; that the people shall not travel to sue in the king's household in the country, as they used to do. But this point willeth, that the plaintiffs have commissions to sheriffs, to lords of manors, and to justices assigned, so that right be done to the parties in certain places, where the parties and jurors may be the less travelled. Although it be that the chapter command that petit assizes be taken in their counties, being made for the ease of jurors, yet it is disused, in as much as the jus- tices make the jurors to come from the furthest marches of the counties, whereas it were better that the justices rode from hundred to hundred, than so to travel the people. The point of amercements is misused by justices, Digitized by Microsoft® Ch. v., Sc. 2.] DEFECTS OF THE CHARTER, 261 sheriffs, bailiffs, stewards, and others, who amerce the people in certain in this manner, putting such a one to so much for a contempt or other trespass without a per- sonal trespass, and without the affeerment of the peo- ple sworn to it, and without specifying the manner and the quality of the contempt. Cap. 14. Again, where the affeerors ought to be chosen with the assent of those who are amerced, and in a com- mon place, the lords make the affeerors to come to their houses to affeer the amercements according to their pleasures. The point which forbiddeth that rivers be defended is disused, for many rivers are now appropriate and gotten, and so put in defence, which used to be common to fish in the time of king Hen. I. Cap. 16. The chapter which forbiddeth that sheriffs, consta- bles, coroners, nor bailiffs shall hold pleas of the crown seemeth not needful, for appeals of felony are not here to be brought before coroners, and the exigents and judgments pronounced, and therefore this point had need to have had more words to have expressed the meaning of it. Cap. 17. For the end of the chapter of the moveable goods of the dead, it appeareth that the action accrueth to the widows, and to the children to demand their reasonable parts of the goods of their father taken away. That which is forbidden to constables to take is for- bidden to all men, in as much as there is no difference Digitized by Microsoft® 262 DEFECTS OF THE CHARTER. [Ch. V., Sc. 2. betwixt taking from another against his will and liberty, whether it be horses, victuals, merchandizes, carriages, or other manner of goods. Cap. 19, 20. The chapter for holding the lands of felons for a year and a day is out of use; for whereas the king ought not to have the waste by law, or but the year in the name of fine for safeguard of the land from spoil, the king's ofiEicers take both. The defence of the precipe is not holden in that they do it without writs of possession of farms every day, tjiat the lords lose the cognizance of their fees, and the advantage of their courts. The point, which commands that one measure be throughout the whole realm and one weight, is disused by merchants and burgesses, using for the pound the old weight of twenty shillings of right assize, and also of ells and other measures. The defence which is made of the writ De odio et atia, that the king be not chancellor, nor take any thing for granting the writ ought to extend to all remedial writs, and the same writ ought not extend only to the felonies of murder, but it ought to extend to all felonies, and not only in appeals, but in indictments. The point which forbiddeth that no bailiff put a free- man to his oath without suit, is to be understood in this manner, That no justice, no minister of the king, nor other steward nor bailiff have power to make a free- man make oath without the king's command, nor re- Digitized by Microsoft® Ch. v., Sc. 2.] DEFECTS OF THE CHARTER. 263 ceive any plaint without witnesses present who testify the plaint to be true. The point where the king granteth that he will not disseise, nor imprison, nor destroy, but by lawful judg- ment, which overthrows the statute of merchants, and other statutes, is to be interpreted thus, that none be arrested, if not by warrant grounded upon a personal action, for if the action be venial, no imprisonment is justifiable, if not for default of main-pernors. And so it appeareth that none is imprisonable for debt. And if any statute be made repugnant to this point, either for the king's debt, or for the debt of any other, it is not to be kept. That (none be outlawed) is to be meant, if not for mortal felony, from which one is saved by the oath of neighbours, ex officio, as it is the use in Eyres ; and therefore that destroyeth the statute of out- lawry of a man for arrearages of account, and all other the like statutes ; and that which is said, that none be exiled nor destroyed, is to be interpreted in this man- ner, that every one have an action to appeal all persons, all suitors, all assessors who destroy men against the right course, and against the rules of law. On the other part, where the king forbiddeth that none be disseised of his freehold, of his liberties, or of his free customs, is thus to be understood, That one shall recover by assise of novel disseisin every manner of freehold, and all manner of possession real of lands, or of franchises whereout one is cast, if it be not by law- Digitized by Microsoft® 264 DEFECTS OF THE CHARTER. [Ch. V., Sc. 3. ful judgment; and these words, (if it be not by lawful judgment) refer 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 justice, is mis- used by the chancellor, who sells the remedial writs, and calls them writs of grace, and by the chancellor of the Exchequer who denieth acquittances of payments made to the king under green wax, and all those who de- lay right judgment or other right. The point concerning leave for the staying of mer- chants, aliens, is so to be understood, that it be not prejudicial to the towns, nor to the merchants of Eng- land, and that they be sworn to the king if they stay longer than forty days. The point which forbiddeth that none alien his land in prejudice of the lord of the fee, is to be interpreted in this manner, that np tenant alien the fee of his lord without his consent, or to hold in chief of the lord with- out increase 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 va- cation. The point that none shall be taken or imprisoned upon the appeal of any woman, for the death of any other than 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. Digitized by Microsoft® Ch. v., Sc. 3.] STATUTE OF MERTON. 265 The points concerning sheriffs turns and views of frank-pledges are disused three ways; the first that sheriffs, bailiffs, 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 sec- ond, that they amerce the People for presentments upon personal actions. The third is, that they charge the jurors with articles touching trespass done by neigh- bour to neighbour, or of tenant, or of other lord thaji to the king. The point which forbiddeth religious persons to pur- chase lands, overthroweth the statute afterwards made at Westminster of the same, for as much as the action of the chief lord is limited in so short a time, to hasten the king's actioh in prejudice of the lords of the fee. The last point is of such virtue and of such mean- ing, as that the king hath the cognizance of trespasses done in such manner, as that the fee-tenants have their courts, and the cognisance of trespasses done within their manors, and also as well of real actions and Per- sonals, as of mixt. Sect. 3. Articles upon the statute of Merton. Some points are reproveable amongst the statutes made at Merton after the Great Charter made, and Digitized by Microsoft® 266 STATUTE OF MERTON. [Ch. V., Sc. 3. namely the point of redisseisins. Since the law doth not attaint any trespasser by enquest of office, and be- cause pleas may perhaps avail the tenants, and should be by law allowable, assizes lie to the example of novel disseisin ; and where it is said, that redisseisors be ar- rested 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 personal trespass be punished by a corporal punishment, if he cannot ran- som 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. I. for it is not justice that he should be punished for one fault with corporal punishment, as imprisonment or other, and further by a pecuniary pain, or by ransom ; for ransom is nothing but a buying out the corporal punishment. The point of improvements of wastes is reproveable as being too general, for it ought to distinguish of com- mons ; for in some places the commoners are enfeoffed in such manner that the whole common is only in the tenants, so that the lords have nothing but the soil, and in such case that statute is prejudicial to the common- ers, and repugnant to the Great Charter, which willeth that none be cast out of his freehold, nor the appurte- nances without lawful judgment. The point of rape of marriages is reproveable, in as much that it hath an exception of persons of laymen, Digitized by Microsoft® Ch. v., Sc. 4.] STATUTE OT MARLBRIDGE. 267 and of clerks, for there is no more law that a clerk should offend without punishment than a layman. Other points are repugnable; if the tenant do dam- age to his lord, or e 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 judgments of defaults. The points of making attornies in suits at hundreds, is to be understood in this manner; that although a suitor by this statute may make an attorney for him to save his default, yet none can give judgment by at- torney; nor is a woman named in this statute, because that no judgment is to be given by a woman. Sect. 4. Of the statutes of Marlbridge. Some points of the statutes of Marlebridge are re- proveable, and namely the first five points, because that every personal trespass is punishable by a corporal pun- ishment, if the trespass be not bought in by ransom according to the quantity thereof. The chapter which commandeth the Great Charter to be kept in all points is defective for want of addi- tion of punishment, and it seems cross to make consti- tutions not holden. Digitized by Microsoft® 268 STATUTES OF MARLBRIDGE. [Ch. V., Sc. 4. The Chapters remedials of lords of fees is reproveable in the mitigation of punishment: for all those who do defraud the law, are punishable by corporal punish- ment, and not by a simple amercement. The point of proclamation of wards is reproveable, as that which is founded upon error, as it appeareth in the chapter of defaults. The chapter of redisseisors is reproveable, for that no special command ought to exceed common right, nor any pain of imprisonment is judgeable but for a wrong- ful imprisonment. The chapter of days in dower is reproveable, since the law hasteneth right more in the king's court than elsewhere. The chapters following of attachments and distresses- are reproveable, for in pleas of attachments no essoin 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 jurors is reproveable, because that no punish- ment is therein ordained, and because it hath no excep- tion ; for there are many cases where the people ought to be jurors, though they come not by the king's com- mand, as before justices of forests, before coroners, and before escheaters, and as in courts of sheriffs, and views of frank pledges, and as affeerers, and at gaol deliveries. The chapter which commandeth the arresting of those who are bound to account is reproveable, since the ac- Digitized by Microsoft® Ch. v., So. 5.] . ARTICLES, ETC. 269 tion is mixt, and requireth summons, and not personal arrests. The chapter of wasters of farms is reproveable, for "waste is a personal trespass, and requireth a personal punishment, and not a simple amercement. Sect. 5. Articles upon the statute of Westminster the first. Many chapters are reproveable of the statute of West- ■minster. For the points touching religious persons, are matter to gain monies, and a purchase upon a founda- tion of covetousness, more than for their advantage. The chapter of clerks found guilty of felony, is re- proveable, for want of addition of punishment, these clerks are not to be delivered to ordinaries, but at the pleasure of the king, and of his justices. The chapter of wreck is reproveable, in as much as the finder is forejudged by the statute to have part thereof, whereas he ought to have part of the profit, and so it is reproveable, as to the awarding of the punish- ment. Of the points of amercements is before spoken in the 'Great Charter. The point of takings of distress is much reproveable, as before is said. Cap. 9. The chapter concerning pursuing of felons to main- Digitized by Microsoft® 270 ARTICLES UPON THE STATUTE [Ch. V., Sc. 5. tain the peace is reproveable in the punishment, for he is consenting to a felon who doth not apprehend him "when he may. In the same manner is it of the chapter of coroners, contained in the articles following. The point of election of coroners was not needful to have been ordained, for it behoveth more the electors to have wise and loyal coroners than to the king, and it had better have been enacted, that the coroners do pre- sent the points of their office under the seals of the jurors, than sheriffs should make counter parts of the rolls. The point of enquest of odio et atia is reproveable, for London and other places in liberties where there are no rights. Cap. 12. The point of putting people found guilty of felony, who will not put themselves upon the country, to pen- ance, it is out of use that one kill them, without having regard to the conditions of the persons, and therein it is reproveable, since one may perhaps help and acquit himself otherwise than by his country, and in as much as none is to be put to penance before he is attainted of the offence for which he ought to be pained. The ordinances of punishment of long imprisonment are to be reprehended, as before is said. The point of the order of outlawry of the principals before the accessaries is no statute, but a revocation of error. Digitized by Microsoft® Ch. v., Sc. 5.] OF WESTMINSTER THE FIRST. 271 The point of replevisals is reproveable, according as it is said of actions ; the punishment of long imprison- ment contain error as is said before. The punishment of heirs males married, as against the king, without the consent of their lords, betwixt 14 years and 21 years is reproveable, for then the king should have amends for that, for which he hath not any personal suit for the amends. The point of heirs females containeth error, as ap- peareth in the reprehension of the point of marriages in the Great Charter. The point of tortious distresses ought to contain the punishment for the robbery. The punishment of ministers, disseisors, by colour of their office is reproveable, for the smallness of it, as appeareth amongst the judgments. The point which forbiddeth sheriffs, that they take no rewards is reproveable, in as much as the king taketh of them, and they take nothing of the king. The point of fines of clerks, and the officers of justices in Eyre is reproveable, for the common grievance of the people without taking of profit. The point of imprisonment are reproveable for the reasons aforesaid, and the point of tolls for the pun- ishment of imprisonment, and because the tolls are not established certain. The point which willeth that those who dis-use mar- riages, should lose them, was not needful to have been Digitized by Microsoft® 272 ARTICLES UPON THE STATUTE [Ch. V., Sc. 5. made, for the law is, that he shall lose his franchise who useth it not. The point of receivers of the king's monies, and not rendering the same is reproveable, for the smallness of the punishment, according to that which appeareth before. The errors of taking of carriages and other goods^ appeareth sufficiently by the reasons before. The point which forbiddeth judgment to be given by strangers in counties is reproveable, for no judgment given by another than an ordinary judge assigned is to hold. The point which maketh mention of robbery or dis- seisins is reproveable, for all those are to be seised upon whom the jurors indict of robbery, according to the ex- ample of thieves and other felons. The point of attaint is reproveable, for it should not extend to one case, but it ought to comprehend all oaths taken by twelve men, if one of the parties complain thereof. The point of limitations of actions is reproveable, for the reasons in- the chapter given upon the same matter. The point which forbiddeth falsities and abuses used in courts before this time to false judges, who used not the law by sufferance of falsities. The point of champions is reproveable, for no cham- pion is to be receiveable as a witness. The point of not allowing essoins in assises after ap- Digitized by Microsoft® Ch. v.. So. 5.] OF WESTMINSTER THE FIRST. 273 pearance, is reproveable by the assise of Novel disseisin, "where no essoin is allowable for the tenants, no more before appearance than after, nor in no other personal -action. The other points of essoins are reproveable, for no false cause of essoin ought to advantage any man. The point of delays in pleas of attachment is reprove- able in many points, according as appeareth in the chap- ter of defaults. The point to plead upon the surcharge falleth in prejudice of sheriffs, and of lords of fees, and of liber- ties; and although the two points of disseisins, that is to say, that every one may avoid the dam- ages in the point of personal trespass done to his ancestors, in as much as his action lieth, of what age soever the parties be, yet is the first reproveable, for as much as the plaintiffs have no recovery for the damages done to their ancestors, nor any action, but to have resti- tution of the possession. The other point is reproveable for the smallness of the punishment, but according to common right this punishment should have time, that he should never do homage betwixt them for the lord's forfeiture, when he beginneth to disinherit his tenant contrary to the right of homage. The prayer of the king is reproveable, because he ought to ask nothing contrary to law, but it is the prayer of the justices who desire always to have much to do. i8 Digitized by Microsoft® 2'i'4 ARTICLES UPON THE STATUTE [Ch. V., Sc. 5. The point that if he who is vouched to warranty ought not to warrant, although he be bounden by the deed of his ancestor whose heir he is, in case he alledge that nothing descended to him from that ancestor by whose deed he is vouched, is reproveable, for according to the old law, lands remained liable to the debt, of those Avho acknowledged it, to whose hands soever the lands afterwards came. In the same manner it used to be in all other con- tracts, where the contracts were adjudged or granted; and although nothing descended to the heir, for that he lost not the tenements for want of acquittance, and if he who bound himself to warranty would not war- rant the land, nor vouch over, it appeareth thereby that the ancestor was tenant by a naughty title, and that he was possessor thereof by an ill way; and if the heir had nothing whereby to discharge him, the tenements bound to warranty should be recovered. And if the heir had nothing whereby to discharge, nor no land is found bound to the warranty, if the purchaser lost his purchase, it was at his own peril, and accounted his own folly, the better at any other time to look to his assurance. Digitized by Microsoft® Ch. v., So. 6.] OF WESTMINSTER THE SECOND. 275 Sect. 6. Articles upon the statute of Westminster 2. That wliich is said of the statute of Westminster 2, which faileth in many cases is now to be under- stood, for against all trespasses is the law made, al- though it be disused, or controuled by those who know not the law. And the three first chapters are not statutes, but are the revocations of the errors of negligent judges, for the law permits not that a man make a better estate to another than himself hath, biit requireth that every lawful contract be made according to the wills of the speakers; and that which is in the statute, that if a fine be levied in deceit of right, that the same be null is reproveable; but it might have been better said, that for fine, that no man be barred of his right, for the fine levied cannot be rightly said null, but it holds in force, and barreth at the least donor of his action. The point of distresses doth not repeal any error, but aiSrm them, as before appeareth in the second book. And that which is said in the second statute, that suitors in counties have no record, is but abusion, since every lawful testimony is a record, and every false tes- timony is a lye ; and as lawful may other people testify as the justices assigned. Is not the same writ abused. Digitized by Microsoft® 276 ARTICLES UPON THE STATUTE [Ch. V., Sc. 6. to grant to counties records in outlawries, pledges, main- prises, battles, grand assises, and other cases, and not other points? and to deny that the sherifFs or lord of the fee, or other to whom the king sendeth his writ, hath not as well record of process before him, as those whom they call justices, is but error. And as to the causes of writs of pains is suffered great error, that that which is not warranted in the accessory, that he may in the principal, since the law permits that none be aided by a lye or a vicious writ. Of the other side, because there is more realty in the statute than personalty, as more attachments are awarded in personal actions than in mixt and reals. The point of mesnes is reproveable, as to the procla- mation, and as to the non-acquittance of those who hold by less service than the mesnes, for be it that B. hold one hundred pounds lands of D. by the service of twenty pounds per annum, and the same B. give the moiety thereof in frankalmoigne, or frank-marriage, or to hold by the service of a rose, to C. if it happen that the same B. forfeited what he hath, by this statute no remedy is ordained for C. who was purchaser from B. and therefore the old course is to be holden which is said before in judgments. The remedial statute of the right of the wife lost by the default of the husband is reproveable, for the old law was, that a woman after the death of her hus' Digitized by Microsoft® Ch. v., Sc. 6.] OF WESTMINSTER THE SECOND. 277 band should repleve her inheritance or purchase so lost, svimmoning the tenants, for a cape is not, but a distress and ejection of seisin saving every right ; and it is law- ful for one of the tenants in common to defend his right where he is damnified by the negligence or the non- ability of his partner. In the same manner may a woman according to law in the right of her husband; neither doth the law give to widows action to demand dower in the cases named in the statute, but in all cases the law enables her to be received by lawful reversing of the judgment. And that which is contained that tenants may vouch to warranty, is but abuse; how holdeth voucher place where a writ lieth not, yet it is understood with a sav- ing, that no jurisdiction of a judge assigned extend to other persons than those who are named in the writ, and that none shall vouch more than in the same writ are named, by writ of Replegiare, and therefore are warranties attainable and determinable by writs. The statute following, which ordaineth new writs remedials after defaults, is prejudicial to lords of fees, who lose the advantages of their courts, because that ■writs of right are forbidden in such cases where they wont to be used. Presentments to churches ought not to be but in the names of those, to whom the mere right of the advowson doth belong, according as is said before in contracts; and it is error and abusion of law to endow women of Digitized by Microsoft® 278 ARTICLES UPON THE STATUTE [Ch. V., Sc. 6, advowsons, or to lease them to farm, or for the term of another's life, or in frank-marriage, or in mortgage, or in fee-tail, or otherwise than in fee-simple. And those who receive clerks presented to churches, in prejudice of those to whom the mere right in fee doth appertain, are bound to make restitution of the dam- ages, and those who have recovered to jurors, by whom they were certified of the right of the personage; and so it appeareth that the punishment lieth more against the bishops than the presentors. And that which enacteth long imprisonment for a punishment, is but abuse ; since none is imprisonable if not for a wrongful imprisonment. The statute of warranties is but a revocation of error used against law. The statute of admeasurement is reproveable in many points, as to the proclamations, since admeasurement and surcharge are to be by jurors. The statute of mesnes is reproveable in many points, as it appeareth in the chapter of distresses, contracts, and defaults, and the same appeareth in the end of the statute where the plaintiffs know not a set fine. The statute of suspension of writs in Eyres is re- proveable, as repugnant to the Great Charter, which saith, we will sell no right, nor detain it, and where- fore are writs rebuttable from hearing, but for the mul- titude of writs which are, and for the small number of justices the right of many perish. Digitized by Microsoft® Ch. v., Sc. 6.] OF WESTMINSTER. 279 The statute of obligees in account is reproveable in many points, one as the exception to the persons, for the masters is ordained recovery, and to servants not, when auditors are assigned without the consent of the servant. The other, that the auditors are not tied to allow any thing but at their pleasure without punishment. Another, that the recovery is ordained by detinue of the servants, and not against the surety, nor the goods. Another, that the lords are not to be attested accord- ing as of the servants. Another, that the wickedness of auditors remained unpunished. Another, of outlawry, for none is to be imprisoned if not for a tortious imprisonment. The statute of appeals is reproveable in two points, one in the specialty of the corporal punishment, and of the plurality punishments, since the redemption by a pecuniary pain is but the buying out of the corporal punishment. The other to have jurisdiction against the abettors without original writ. The statutes of waste are founded upon error, since ■waste is a personal trespass, and requireth other man- ner of processes, as appeareth in the chapter of de- faults ; and to defend a personal trespass by writ is but a vain labour. The statute of not allowing a false cause in the es- Digitized by Microsoft® '280 ARTICLES UPON THE STATUTE [Ch. V., Sc. 6. soin de malo lecti is defective, for in no essoin for no party is any false cause, or any falsity to be permitted,, nor ought to be profitable to any. The statute of debt and damages recovered is defec- tive, for not only should such remedy be in the king's 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 fugi- tives as well as true men ; and the king, and all others into whose hands their goods come as well as ordinaries,, for none can forfeit the right of another. The statute for allowing one manner of exception in the like actions was not needful to have been made if not for the negligence of justices, for every affirmative is encounterable with his negative at the peril of the party. The statute of detinue of service is a novelty danger- ous to lords of fees, as appeareth in the chapter of de- faults. 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 dis- seisin is reproveable, for as much as it comprehendeth not lands charged with villain customs, nor lands holden for term of years. The point needeth not have forbidden false excep- Digitized by Microsoft® Ch. v., Sc. 6. J OF WESTMINSTER THE SECOND. 281 tions, if the pleaders held themselves to the points given in charge. And as to the point of imprisonment, the statute is reproveahle, for the reasons aforesaid, and also as to the pain of double damages, for the law giveth a man no more than is his demand. And that "which appeareth in the statute of false ap- peals is more error than right in the enacting the award of amends to defendants, whereas it is not to the plain- tiffs. And as to the writ to the use of sheriffs 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 clerks, 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 dis- seisins, so are they in the statutes of disseisins, corporal punishments nevertheless hold in such personal tres- passes, but in re-disseisins more than in disseisins. The statiite which forbiddeth that writs of Oyer and Terminer be not ligirment granted, is not founded upon any law, as being repugnant to the words of the^ Great Charter, We will not sell or delay justice to any man ; but cometh rather from the temporal judges, who cause the same for their advantages, as desiring to embrace all pleas. The statute of caption of assises thrice in the year is Digitized by Microsoft® 282 ARTICLES UPON THE STATUTE [Ch. V., Sc. 6. reproveable, as to the adjournment of the parties out of the counties before the justices of the bench, who have no jurisdiction over those pleas, since the commissions are given to justices assigned. And as to take juries and enquests in their counties, so the statute is not to destroy the authors and endam- age the people. The statute which forbiddeth justices that they cause not jurors say, but their advice is defective, as appear- eth in the chapter of jurors. The statute of exceptions allowables rebutted by jus- tices is not founded upon law, as appeareth in the judg- ment of false justices, but is when it is in no part fixt. The statute of rape is reproveable, for none can or- dain by statute that a venial punishment be turned into a mortal without the consent of the pope or the em- peror. The statute that the king hath the suit in rape, or in elopement of women married, is reproveable, for none is bounden to answer to the king's suit if not by appeal, or by indictment. And that which is contained in it, that women should lose their dower for the sin of adultery, ought also to comprehend all adulterers, who claim to hold the in- heritances of their wives by the curtesy of England, so that there be no exception of persons. The imprisonment of elopers of nuns and their ran- Digitized by Microsoft® Ch. V.,Sc. 6.] OF WESTMINSTER. 283 som is no law, but is an error in a double manner, as before is said in many places. The imprisonment for two years or more, ordained for a corporal punishment to ravishers of marriages is but error; for no corporal punishment ought to be or- dained but for common profit, as before appeareth of open penances. And that which is ordained of proclamations in per- sonal actions is but abuse of law, as it is said in the statute of moignes. The statute which awardeth ransom is reproveable, for ransom is nothing else than the redemption of cor- poral ptmishment. The statute of distresses made by bailiffs unknown is distinguishable, for in tortious distresses without war- rant the judgment of robbery holdeth ; and by warrant is every one receivable, whether known or unknown. The statute of jurors is reproveable, for the law wills that the plaintiffs have the aid of the courts to cause the witnesses to appear, whereby they may the more law- fully help themselves, without distinction of persons. And that, that jurisdiction is granted to justices as- signed to Oyer and Terminer plaints, without a special commission, is but abuse. The statute which awardeth that writ of judgment be made without warrant of original writ, is nothing else than a license to falsify the king's seal. The punishment of sheriffs ill answering is reprove- Digitized by Microsoft® 284 ARTICLES UPON THE STATUTE [Ch. V., Sc. 6- able, as to the punishment ; for disinheritors of the king offend of the crime of majesty, 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 king's use, but for the profits of the plain- tiffs. The defaults made of the statutes of clerks, cryers, and other officers of the court are but idle, because they are not kept at all. The statute that cognizances and inrolments which are made in the Chancery, the Exchequer, and before justices be established, is an authority of great ill; for by false inrolments might every one in authority de- stroy those he pleased, which should be a great incon- veniency. Again, by this statute authority should ac- crue to authority to the chancellor and others, to falsify the king's seal by writs, to give judgment without orig- inal writs. And therefore note, that none but the king can re- ceive attornies in the king's court, nor recognitions be- twixt parties without warrants of original writs. The statute of improvements of wastes and commons of pasture is reproveable, and distinguishable according as hath been said before. The statute to have view of lands is but a wrongful delay of the right of the plaintiffs ; for the view appear- Digitized by Microsoft® Ch. v., Sc. 6. J OF WESTMINSTER THE SECOND. 285 €th sufficient, by the certificate of the summons, upon ■what tenements the tenants are summoned. The statute which forbiddeth that no officer of the court take any presentment of any church, nor other thing which is depending in plea, or in debate, is not iept. Reprehensions upon the statute of Gloucester, 16 Ed. !L The statutes to recover damages in pleas of posses- sion enacted at Gloucester or elsewhere, and of the hor- rible damages in waste, are reproveable, for that the law giveth one no more than is his demand, and there- fore it behoveth that the damages be mentioned in the "writs, if damages shall be awarded; for a judge cannot exceed the points of his commission, and so it would be needful to use it according to the first ordinance of writs. And the statute of tenements aliened of lands in pre- judice of others is reproveable, for the remedy ought to be such as of guardians alieners, to the de&inherison of the right heirs. The statute of trespass pleaded in counties is reprove- able for want of distinction, for small trespasses, debts,, covenants broken, and such other kinds not exceeding forty shillings. Suitors h»ye power to hear and de- termine without writs, by warrant of jurisdiction ordi- nary, and by writs granted afterwards ; for sheriffs have Digitized by Microsoft® 286 ARTICLES UPON THE STATUTE [Ch. V., Sc. 7. more jurisdiction in their writs vicontiel than jus- tices of the bench by the Pone. And as to the recovery of twenty shillings or more, in right of essoin of the king's service not warranted, the statute is reproveable, for that essoin might be cast where the defendant would make default by the ad- verse party, and so he should have advantage of his malice. The statute which forbiddeth the abatement of ap- peals is not observed. The statute which awardeth an innocent man to re- main in prison, or to have no manner of punishment for necessary manslaughter, or by mischance, where no of- fence is found, is but an abusion. The statutes making mention of London ought to ex- tend commonly throughout the whole realm. Sect. 1. The reprehensions of Circumspecte agatis, Ann. 13 Ed. 1. The first point which saith, that the king's prohibi- tion holds not in correction of mortal offences, where pecuniary pain is enjoinable by ordinaries, is founded upon open error, and usage to enjoin a pecuniary pain for a mortal offence, notwithstanding to destroy the king's jurisdiction. Digitized by Microsoft® Ch. v., Sc. 7.] OF WESTMINSTER. 287 The other points to compel the parishioners by cor- rections to enclose church-yards, to offer, to give mortu- aries, monies for confessions, chalices, lights, holy vest- ments, and other adornment of churches are more grounded upon interest than amendment of souls; and note, that after that they are offered to God, that they are so spiritual that they are to he expended but in alms, and spiritually, for they are never to be con- verted to lay uses. And then if any parishioner, for the hurt of the par- son of the church, keepeth back his tithes, or stealeth them away, or doth not pay them duly or fully, the same is not punishable by a pecuniary pain, but by a corporal punishment. For the excommunicate no pecunial pain v^as to be for restitution or satisfaction, no more than of a Pagan or a jew, and if they do demand a pecuniary pain, there the king's prohibition lieth, and much more in the demand of pensions, or of damages of trespass, or of defamation; but of pleas of correction where one pleads only pro salute animw, the king's prohibition lieth not. Sect. 8. The statute of merchants. The new statute of debts is contrary to law, as it appeareth in the chapter of contracts; for every im- Digitized by Microsoft® 288 ARTICLES, ETC. [Ch. V., Sc. 7. prisonment of the body of a man is an offence if tiot for tortious judgment, and the law will not suffer any obligation, or vicious ^contract by intermixture of of- fence, and therefore it was to be avoided as grounded upon an offence; for no honest man ought to agree to such a contract which causeth him to offend, or to be punished. Again, it is contrary to the Great Charter which en- acteth, that no man be taken, nor imprisoned if not by the lawful judgment of his peers, or by the law of the land. Here endeth the Mirour of Justices, of the right laws of persons according to the ancient usages of England. The end of the fifth chapter, and of the whole booh. FINIS. Digitized by Microsoft® THE DIVERSITY OF COURTS AND TIIKIK JURISDICTIONS COMPILED ANN. 21 HENRY VIII. IN FRENCH, TRANSLATED INTO ENGLISH ANN. 1646. BY W. H. i. e. WILLIAM HUGHES, of Orai/s Inn, Esq. The Second Edition, corrected and paged as the former. WASHINGTON, D. C. JOHN BYRNE & CO. LAW PUBLISHERS AND BOOKSELLERS 1903 Digitized by Microsoft® Digitized by Microsoft® THE DIVEKSITY OF COUKTS, ETC. It is to be understood, that the king is the fountain, of justice, and to that purpose ordaineth judges, that justice be administered to all his subjects; The king himself, for the excellency of his person,, may sit and give judgment in all causes personal or real, betwixt party and party, but he cannot sit in per- son in judgment in any cause where he himself is party, or where the things of his crown or dignity are con- cerned; as upon an indictment of treason, or upon an appeal of murder or felony, or upon an action brought • by himself as formedon of land, of which the right i& descended to him from a collateral ancestor, or in an, action of debt, by reason of the affection moving him to be favourable to himself; and therefore he maketh his judges to sit and hear such matters in difference, and to do justice to the parties. And the place where the judges sit to minister jus- tice are called courts, which are of divers kinds, and the judges thereof have several authority. 291 Digitized by Microsoft® 2^2 DIVERSITY OF COURTS. Of the court of Marshalsea. And first, the court of Marshalsea is an ancient court, and made for the well government and ordering of the Tiing's house, for the preservation of the king and his ;servants; and this court hath its bounds within which it hath jurisdiction, and not without. The judges of this court are the steward and marshal of the king's house, for in them under the king is the ordering of the household, etc. The title of the court is, Placita coronoe. Aula hospitii . domini Regis tent' coram seneschallo et mareschallo hospitii domini Regis, etc. And this court hath power to enquire of treason, mur- der, felony, and to take appeals of them, and of may- hem if they be done within the verge, betwixt persons "who are of the king's house. And if one of the household sueth another who is Tiot of the household, he may plead to the jurisdiction of the court ; and if they will not allow of the plea, he shall have a writ of error, and the judgment shall be reversed in the King's Bench. And if one of the household sued another of the household, and the plaintiff be piit from his service de- pending the suit, the other shall shew the same and abate the writ; but quaere if it be so, if in case the de- fendant be removed out of service, etc. The coroner of the Marshalsea shall sit with the Digitized by Microsoft® THE KING'S BENCH. 293 coroner of the country upon the death of a man, and if the plea may be determined before the king remove out of the verge it shall be, otherwise it shall be at the com- mon law. The King's Bench. Ti-iEEE is another court of high authority called the King's Bench, and the judges of that court have author- ity to enquire of, hear, and determine pleas and things touching the crown; as high treason, murder, man- slaughter, robberies, felonies at the common law; and by statute law, mayhems, trespasses, burglaries, and all deceits and falsities whatsoever; but they have not au- thority to hold pleas betwixt party and party by orig- inal writ, but in special cases. They have power to proceed in and determine in- dictments, and presentments taken within any county within the realm where the king's writ runneth, if it be certified by certiorari, or be delivered under the hands of the justices of the peace, or other justices before whom the indictments or presentments be ; whether it be of treason, felony, forcible entry, riot, or any other thing against the peace; and they have authority to reverse judgments given in the Common Pleas, by a writ of error, or before justices of assise, and in liberties and franchises, but not in London; for a writ of error of a judgment given before the sheriffs Digitized by Microsoft® 294 DIVERSITY OF COURTS. of London shall be reversed before the mayor in the Hustings. And erroneous judgments given before the mayor in London shall be reversed at St. Martin's before special commissioners assigned to that purpose; and thereupon a writ of error shall be directed to the mayor to have the record and proceedings thereof, and the record shall be certified by the recorder, etc. And it is said, that if an erroneous judgment be given in Ireland, it shall be reversed in the King's Bench by a writ of error, for that in Ireland the laws of England are used. And if an erroneous judgment be given in the cinque ports, it shall be reversed in the King's Bench, and the writ shall be directed to the warden of the cinque ports, and he shall return the writ and the record, etc. The king may have a formedon in the King's Bench, debt, detinue, and every other action, and a quare im- pedit at his pleasure. And a common person may bring an action of trespass quare vi et armis in the King's Bench, and actions for forging of false deeds, maintenance, conspiracy, actions of deceit, upon the case, or supposing any falsity and deceit, where the king shall have a fine, etc. And note that there are some actions upon the case, which shall be sued in the King's Bench, and some not ; as an action upon the case against one supposing that the defendant hath sold land to the plaintiff for a cer- Digitized by Microsoft® THE KING'S BENCH. 295 tain sum of money, and that he covenanted to enfeoff him by such a day, and not by any deed, etc., or to build a house such a day, and did not do it, etc., such actions shall be brought in the same court ; but there are other actions upon the case, which shall not be brought in the King's Bench ; as if a Horse be stolen out of the com- mon inn, an action upon the case lieth against the hostler, but not in the King's Bench, as it is said. And so it is where a man is so bounden to keep his fire, that the same hurt not his neighbours houses, etc. And note, that the chief justice of the King's Bench is made by writ, and not by patent, and it is to this ef- fect ; Rex dilecto et fidel. suo I. Fitz-James Sal'tem. Quia volumus quod vos sitis capital, justiciar, noster ad placita coram nobis tenenda vobis mandamus quod of- ficio illi intendatis; but he shall be sworn by the chan- cellor of England before he take upon him his office. The other justices of the same court are made by patent, viz. by these words; Constituimv^, etc., unum justiciar' nostr. ad placita coram nobis tenenda, habend. et occupand. ojficium illud quam diu nobis placuerit. And if a king maketh a judge to hold and enjoy the said office by himself, or his sufficient deputy for life, the grant is void as to the deputy, and if the grant be to him and his assignees, he cannot make an assignee, etc. Digitized by Microsoft® 296 DIVERSITY OF COURTS. The Common Pleas. And note, there is another court called the Common Pleas, which court hath jurisdiction to hold Common Pleas, as well personal pleas as real, or any other prae- cipe quod reddant, of lands or tenements, etc., of debt, detinue, account, and other personal actions ; and they^ have power to hold plea of any of those actions, which may be brought in the King's Bench, as actions of main- tenance, conspiracy, forgery of false deeds, and actions- upon the case, and trespass against the peace, of such- actions wherein the king ought to have a fine, and also of attaints; but they have not power to hold pleas of appeals of murder, rape, felony, mayhem, nor to en- quire of them nor of riots. And it is said, that one may sue the peace against another, before the justices of the Common Pleas, and if the Party be in the hall, or in the Place, or within their view, they may send the warden of the Fleet to bring the Party before the justices to find sureties, or else commit him to the Fleet ; and the reason why they may so do is, that good order, and the peace be kept about the court; but the justices have not power to award process to the sheriff to arrest the party to appear in the court where the Common Plea is ; but it is other- wise of the King's Bench, as it is said, etc. Digitized by Microsoft® THE KING'S BENCH. 297 And it is said, that the justices of the Common Pleas have jurisdiction in some things which touch the crown, and to enquire and hold plea of some felony, and also of misprision, and of deceit done within the court, and within the record thereof. And if one imhezil a panel after the enquest passed, and judgment given in the Common Pleas, by which the judgment is reversable by error for want of that panel; the justices of the Common Pleas have power to enquire of the imbezilment of the panel by twelve of the officers and attornies of the same court, and they shall be sworn before the justices to enquire of that default ; and if they indict the imbezilers they shall be arraigned thereupon, and shall be compelled to answer thereunto as other felons, etc., and if they be attainted they shall forfeit their goods and chattels, tamen quaere, etc. And if one be condemned in debt, or trespass in the Common Pleas, and he be in the hall, the justices at the prayer of the plaintiff may send the warden of the Fleet to bring him before them to satisfy the party the money, or otherwise commit him to the Pleet. And when he appeareth, and will deny that he is the same person, then quwre 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 plaintiff cannot maintain that he is the same person, Digitized by Microsoft® 298 DIVERSITY OF COURTS. because he cometh not in but by information of the party plaintiff, and not by process 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 King's Bench do award process in a forme- don, a writ of right, or execution of land recovered in value, the sheriff ought to execute the writs although they have not any jurisdiction therein. But if the judges of the Common Pleas will grant process of treason, etc., out of their place, the sheriff ought not to execute the process, for that authority is only of Com- mon Pleas, etc. The chief justice of the Common Pleas is made- by patent, viz. by these words, Constituimus ipsum capital, justiciar, nostrum de co'i banco, etc., habendum illud cum feodis, vadiis et regardiis, eidem officio debit' et consuet'. And the other judges of the same bench are made by letters patent, etc. The Chancery. And note, that the court of Chancery is a court of a high nature, out of which court issue all original writs, and there a man shall traverse offices and such things; and in that court women who are widows, to the king shall be sworn that they shall not marry without the king's licence, before the time that they be endowed; Digitized by Microsoft® THE CHANCERY, 299 and it is said, that of error there upon a patent, or a traverse, the same cannot be reversed elsev^here but in parliament. Quoere, etc. And in that court a man shall have remedy for that which he can have no remedy at the common law ; and it is called by the common peo- ple. The Court of Conscience. And therefore see of matters in conscience, how th^, party shall have remedy. If a man hath feoffs to his use, and maketh his will, and thereby willeth that his feoffs should make. an estate to /. for term of his life, the remainder to C. in fee ; if the said /. will not take the estate what remedy is for him in the remainder, in conscience, and how he shall help himself in Chancery, etc. A man shall have remedy in Chancery for covenants made without writings, if the party have sufficient wit- nesses to prove the covenants, and yet he is without remedy at the common law, etc. And for evidences, when a man knows not the certainty of them nor in what they are contained ; it is usually to be relieved in Chancery, for he is without remedy by the common law, etc. . If a man infeoffeth another of certain 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 perform the will of the first feoffor, as it seemeth in the Chan- cery. Digitized by Microsoft® 300 DIVERSITY OF COURTS. A man was bounden nnto another by obligation in a certain sum of money, and the obligee brought an action, upon the same deed in another county than where the obligation was made, and had judgment to recover ; and the obligor in Chancery sued to be relieved, and it was surmised that by that foreign suit he was ousted of divers 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 relieve him. in equity. In the court of Chancery a man shall not be preju- diced by mispleading, or for want of form, but accord- ing to the truth of the cause, judgment 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 lav^, 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 Chancerj by subpcena against his companion who released him, but against the obligor it seemeth he hath no remedy, for every man is bounden to help himself, and it is law- ful 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 Digitized by Microsoft® THE EXCHEQUER. 301 damages, and he hath paid the same without any ac- quittance, or -without having ^ release, and notwitli-- standing the party taketh execution against him upon the same judgment, 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 there- by the common law overthrown. And if I do enfeoff one upon trust, and the feoffee doth infeoff 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 iirst feof- for is without remedy against the second feoffee, as it seemeth. It is said, that the Chancellor of England, whereso- ever he shall be in England, hath pov/er to command a man to prison, and he shall not be bailed; quaere whether the justices of the one bench, or of the other, out of their Courts have the same authority or not. The Exchequer. The court which is commonly called the Exchequer, is properly for accomptants, sheriffs, escheators and the like, and there they are compellable to make their ac- counts according to the usages and customs of the same Digitized by Microsoft® a02 DIVERSITY OF COURTS. court, etc., and it seemeth to be a court which is much for the king's profit, for there all remedies are pro- vided, how the debts and duties to the king shall be levied. And in that court the barons are judges betwixt tha king and his subjects, and they are sworn thereunto; and fines, issues and amercements which are assessed in other of the king's courts, the estreats shall be made thereof to the court of Exchequer, and there they shall write forth process against the parties to answer there- unto, and to satisfy the king what is due to him, and' of divers other matters they have power and authority by reason of their ofiice, etc. ^he Cinque Ports. ' There are also divers other courts, and inferior places where- justice is ministred, and in those places they have judges, as in the Cinque Ports, and such' places which have conusance of pleas, and also in Court Barons, in which courts is justice done according to law, etc. And although they of the Cinque Ports ought to be impleaded of their lands within the jurisdiction of the Cinque 'Ports, yet that holdeth only where the teriiaht sheweth the same, and taketh advantage thereof if he be impleaded in the- king's courts, of things which are Tvithin that jurisdiction ; but if the tenant be sued Digitized by Microsoft® THE CINQUE PORTS. 303 in the Common Pleas, for lands within the Cinque Ports, if the demandant doth recover by default, or if the tenant appear, and plead any matter which is found against him, so that the demandant hath judgment for to recover the land, that judgment shall bind him for ever, etc. But the tenant might have alledged, that the land was within the Cinque Ports, and by such plea the king's courts should be ousted of the jurisdiction, etc. And so it is of lands within an ancient demesne, if a writ -be brought thereof in the Common Pleas, if the tenant appeareth and pleadeth, and doth not take ex- ception to the jurisdiction, and the plea be found against him, so that the demandant recovereth, the tenaut shall not reverse the judgment by a writ of error, because the tenant might have taken exception to the jurisdic- tion of the court, and it should have been allowed, etc. But yet the lord may reverse that judgment by a writ of deceit, and shallmake the land ancient demesne as it was before, etc. And if one hath conusance of pleas in a town or iti a manor, and a writ is brought in the Common Pleas of the same land, and the tenant pleadeth, and judgment is given against him, the recovery is good, for it is within the power of the king, and the writ of tlie Com- mon Pleas doth take place there ; and if the bailiff, or lord doth not demand conusance, the judgment is good. But in another action, the bailiff shall have conusance Digitized by Microsoft® 304 DIVERSITY OF COURTS. for that the nature of the land is not charged, and so see that where a man hath conusance of plea, etc., it ought to be demanded by the bailiff, or the lord, and the tenant shall not demand the same, if he be im- pleaded in the king's court ; but of the ancient demesne there it behoveth the tenant to shew the same, and plead to the jurisdiction, etc., if he will have advantage there- of, etc. And so note, that in the Cinque Ports there is such a liberty that the lands and tenements are pleadable there before the barons, etc., and yet if one be impleaded at the Common Law of lands within the Cinque Ports, the barons shall not have conusance of the plea, but the tenant may plead the same to the jurisdiction in abate- ment of the writ, etc. The Court Baron. Note also that there is another court which is called 'Court Baron, in which court the suitors are the judges, and not the steward; and they hold plea of contracts within the jurisdiction, etc., and yet it is said by some, -that the defendant shall not shew that the contract was made out of the jurisdiction, and pray that the plain- tiff be examined as in a court of Pipowder. The judges of the Court Baron have authority to hold ^lea before them of debt upon contracts, or detinue, but not of detinue cf charters, nor actions of debt upon a Digitized by Microsoft® THE COURT BARON. 305 judgment in a court of record; but otherwise I think it is of a recovery in the same court ; nor shall they hold plea of maintenance, forgery of false deeds, of deceit, nor of decies tantuTn, nor of pleas of accounts, for they have not authority to assign auditors. They shall not hold plea of debt above the sum of forty shillings, un- less it be by prescription ; and they shall not hold plea •of freehold by plaint, but by a writ of right they may. But if a judgment be given of freehold upon a plaint, it is said it is good until it be reversed by a writ of false judgment, tamen qucere, etc. And note for what suit a man shall be judged in a Court Baron, and it is said, that it is where a man is seised of lands in fee-simple, and which he holdeth by service of suit at the lord's manor, that suit is properly suit-service, and for such suit he shall be judged in a •Court Baron, and for no other suit as it is said, etc. • And qucere also, when erroneous judgments are given, how they shall be reversed, viz. when by writ of false judgment, and when by a writ of error. And some say, that in all courts where the party might remove the p)lea by a recordare upon a judgment given, in such •courts a writ of false judgment lieth; as in ancient Demesne, Court Baron, County Court, and Hundred; laut in other, courts which are of record, the plea shall be removed by a certiorari, and upon judgment given in such courts which are of record, it shall be reversed hy writ of error, etc. 20 Digitized by Microsoft® 806 DIVERSITY OF COURTS. And if a man recovereth in a court of record by erro- neous judgment, and sueth not execution, some say, that a writ of error lieth, and the party shall have a supersedeas if he will pray the same ; but if a man hath judgment in a Court Baron, and taketh not forth execu- tion, no writ of false judgment lieth ; qucere the reason thereof, and what the law is in that case. And note, that sometimes the sheriff is judge, as in re-disseisin, waste, and admeasurement, and the process shall be served by the baily, as is said. And note, that the sheriff is an officer to the king's court, to execute the process thereof; yet sometimes the coroner is the officer to the court where defect is found in the sheriff, etc., so that he cannot by law indifferently execute the process as for divers apparent causes, yet if the sheriff dieth, the process shall not go to the coroner, but shall stay till another sheriff is chosen, etc. And because the sheriff is an officer appointed by the law to attend the king's courts, a man shall not take an averment against the return of the sheriff directly, and the reason is, because where justice ought to be ministred and executed, those who have the government of the law ought to repose trust and confidence in some person ; and if every one might aver against that whicli the sheriff doth, then justice should not be executed, but should for ever be delayed, etc. The means and the remedy how a man may come to his due, and to that which is wrongfully kept from Digitized by Microsoft® THE COURT BARON. 307 him, and that is by plea, and this word is general, and hath divers effects implied therein, and may be divided into divers branches, viz. into pleas of the crown, as appeals of death, robbery, rape, felony, and divers other things, etc., and into actions real, whereby lands, tene- ments, rents, and other hereditaments are demanded, as writs of right, formedon, etc., or actions possessory, as writs of entry, assise of mort d'ancestor, cosinage and the like, etc. And it may also be divided into actions personals, as debt, trespass, detinue, etc., and into ac- tions mixt, as into assizes, and actions of waste, which are as well in the realty as in the personalty. A per- sonal plea may be divided into two parts, one into a mere personal plea, as an action of debt, detinue, where none hath interest but the parties themselves, the plain- tiff and the defendant. And the other part is mixt in the crown ; the plaintiff and the defendant have not the sole interest in those actions, but the king hath an interest in them also to have a fine; as in an action of trespass, vi et armis, and that is an action mixt with the pleas of the crown, etc. And note, that in matters of the crown, for such for which a man shall suffer death, some may be principals, and some accessaries, as murder, felony, rape, and the like; but in high treason I conceive all are principals, and in petit treason there may be principal and acces- sary as well as in felony. In a praemunire all are principals, and in cutting out Digitized by Microsoft® 308 DIVERSITY OF COURTS. of tongues, and putting out of eyes, there may he an accessary as well as a principal, as is said, etc. In robbery all are principals who are present at the time of the robbery done, otherwise it is in murder ; for if one be present and doth nothing, he is an accessary, and not a principal, etc. In mayhem some say, that all are principals, as well he who is comforting and abetting, as he who giveth the mayhem ; as it is in tres- pass, tamen quare, for I conceive the law to be con- trary, etc. And it was said, that if a man be present at the death of a man, and moveth another to kill the man, that he is a principal, notwithstanding that he giveth him not any stroke, and notwithstanding that the count in every appeal is, that every principal did mor- tally strike and wound him, etc., but those are words of form, and the blow of him that struck is the stroke of him who commanded him when he was present. And it is to know that for such things for which a man deserveth death, there are two ways to bring him to answer the same ; one by appeal, which is at the suit of the party, the other is by way of Indictment, which is at the king's suit, etc. And for a mayhem the party shall have an appeal of mayhem, wherein he shall re- cover damages, and no death shall follow, etc., and see the appeal following, and first of the appeal of the death of a man, etc. Digitized by Microsoft® AN APPEAL OF MURDER. 309 An appeal of murder. I H. hie instanter appellat W. F. de morte H. C. fratris sui, pro eo quod cum predict. H. fuit in pace dei et dom. regis apud D. tali die, bora, et anno, ihi venit W. F. uti felo dom. regis, in assultu premeditat' vi et armis, etc. Et in ipsum H. adtunc et ibid, felo- nice insultum fecit, et cum quodam gladio precii 12 d. quem ipse in manu sua dextra adtunc et ibidem tenuit predict. H. super caput suum percussit et unam plagam mortalem in longitudine duorum pollicum in anteriori parte capitis sui usque ad cerebrum eidem H. adtunc et ibid, felonice dedit, de qua quidem plaga pred. H. per 3 dies hunc proxime sequentes languebat et tunc ibid, obiitj or immediate obiit. Et sic idem lohannes ut felo dom. regis pred H. felonice interfecit et mur- dravit contra pacem dicti dom. regis, coronam et dig- nitatem suas, et quod hoc fecit nequiter et ut felo con- tra pacem dei et dom. regis, pred. lohannes offert hoc disrationare prout curia dom. regis hie consider aver it, etc. And it seems the appeal of murder ought to be brought within the year and a day after the death of him who is miirdered ; and in an appeal the party hath two issues, to put himself upon the jury to try if he be guilty or not, or to wage battle, and to make the bat- tle with the appellant ; and if he do gage battle he ought Digitized by Microsoft® 310 DIVERSITY OF COURTS. to design the battle in his proper person, and by no champion. But it is otherwise in a writ of right, etc. And there are divers causes to oust the defendant in the appeal of battle, for it is said, that if an infant with- in age bringeth an appeal, and the defendant sheweth that he is within age, etc., the justices have been of opinion that he shall be put to answer the appeal of the appellant being within age, and the defendant hath lost the advantage to wage the battle, because it was his own act. And I conceive that if a woman bringeth an appeal of the death of her husband against another, the defendant shall lose the advantage of battle ; for he can- not combat or derain battle with a woman, etc. And if a party be indicted of the felony or murder, etc., he shall not wage battle. And see that in an appeal of the death of a man against two, the one as principal, and the other as ac- cessary, and they waged battle, and the plaintiff de- murred upon the plea, and it was said, that the acces- sary should not be put to answer till the principal was attainted or acquitted; yet it is said, that the accessary should answer presently, but the issue should not be tried till the principal were attainted or acquitted ; and if the principal be acquitted the other issue should not be tried. And I conceive that in every case of felony where a man is indicted as principal, and afterward hath his pardon, or forjureth the realm, that in those cases and Digitized by Microsoft® AN APPEAL OF MURDER. 311 the like the accessary shall not be arraigned, because that when the principal's life is pardoned, in what man- ner soever it be, the felony is determined, and by con- sequence acquitted, and by the same reason the acces- sary is discharged. But quaere what the law is if the principal have his clergy. And see that where there are three brothers, and the middlemost killeth his eldest brother, the youngest brother shall have the appeal, and yet he is not his heir. The same law where the eldest brother killeth his father, the youngest shall have the appeal if there be but two brothers. And where the Wife killeth her husband, the heir shall have the appeal, as it is said. Quwre what the law is in the eases before, etc. And the process in an appeal of death is one capias, and one exigent, etc., but in an appeal of robbery, an appeal of rape and mayhem, the process is two capias, and one exigent, etc. And note that a man can never have an appeal of robbery, rape, or mayhem by descent, for the same shall never descend ; but it is otherwise of murder. And also note, that the appeal shall not abate, if in the declaration be the year, day, and other time when the felony was done, and it shall not abate for want of fresh suit, if it be not within the year and the day, and that is by the statute of Gloucester, etc. In an appeal, if the defendant plead that the plaintiff is a bastard, and he is certified to be mulier, yet the de- Digitized by Microsoft® 312 DIVERSITY OF COURTS. fendant shall be received to plead Not guilty, because at the beginning when he alleged bastardy, he might have pleaded over to the felony, because he demanded another trial, for the one is triable by the record, and the other by enquest. But of such matter which is triable by enquest, if he pleadeth to the felony, all the same shall be tried by one trial, and by one enquest. In an assize, if the tenant alledge bastardy in the plain- tiff, and the bishop doth certify mulierty, yet the assize shall be taken to enquire of the seisin and disseisin; queer e. And qumre if a man in an appeal plead a plea which is triable in another county, if he shall plead over to the felony, because he demandeth two trials. Appeal of robbery. The writ of appeal of robbery beginneth thus : A. B. nuper de London generosus, attachiatus fuit ad respondendum, R. F. generoso simul cum D. nuper de F. in suburbiis London, de robberia et pace domini regis nunc fracta, unde eos appellat, et sunt plegii de prosequend. A. B. et C. et unde idem E. in propria persona sua instanter appellat pred. G. A. de eo quod ubi idem R. fuit in pace dei et domini regis nunc apud London, viz. in parochia sancti Dunstani in Fleet-street in suburbiis Londini, or, apud talem villam in tali comi- Digitized by Microsoft® APPEAL OF ROBBERY. 313 tatu, 20 Octobris anno regni regis nunc 17. circa horam septimam post meridiem ejusdem diei venerunt tarn pred. W. I. et K. qui modo nan comparent, quam pred. A. qui modo comparet, felonice ut felones dom. regis nunc insidiando et insult' premeditat' contra pacem regis nunc coronam et dignitatem suas die, anno, hora paro- chia, et warda pred. or villa et com. predict. Et pred. W. unam galeam precii 26 s. 8 d. et unam crateram ar- genteam et deauratam precii 40 s. de bonis et catallis pred K. adtunc et ibid, invent, felonice furatus est, cepit et asportavit. Et pred. C. A. et I. K. die, anno, parochia et warda pred. or villa et comitatu pred. felo- nice confortaverunt, sustentaverunt et auxiliaverunt pred. W. ad feloniam pred. informa pred. faciend' et perpetrand' ac eum tunc et ibidem ad feloniam illam factum, scientes eum feloniam illam sic fecisse, recep- taverunt. Et quam cito idem felones felonias predictas in forma predicta fecissent, fugierunt, predictus R. eos recenter insecutus fuit de warda in wardam (if the ap- peal be brought in London), or de villa in villam, (if it be broiight in any county) usque ad quatuor wardas propinquiores. Et ulterius quousque, et c. Et si predictus felo, qui modo comparet, feloniam pre- dictam vult contrddicere, predict. R. hoc paratus est verificare et versus cum probare prout curia, etc. And the like declaration is in burning of houses, and of burglary, mutatis m,utandis. And the defendant in this appeal shall have the same Digitized by Microsoft® 314 DIVERSITY OF COURTS. trial as he shall have in the appeal before rehearsed, to put himself upon the issue triable by the enquest, or to wage battle if he pleaseth. But there are certain things which shall put the same from that advantage, that he shall not wage battle, etc., viz. If the defendant be indicted of the same felony, etc., and if the plaintiff be mayhemed by the defendant, or by another as I conceive ; or if the defendant be taken in the maner, or if the plaintiff be within age, or above the age of forty years, or if the plaintiff be a woman or the like. And note that if the appeal of murder, robbery, or rape be brought in the King's Bench, and issue be taken before the justices of assize, if the plaintiff be non-suit, they have not power to arraign the defendant ; but if the appeal be brought before them, and afterwards the plaintiff is non-suit, it is otherwise as it said. And there is another difference when a man is ar- raigned at the king's suit, and when at the suit of the party ; for if he be arraigned at the king's suit he shall be put to answer the felony, whether he be of that name or of another name; and it shall be no plea for him to say, that he is not of that surname, nor known by such a name, but by another name ; for if a man killeth an- other and is indicted thereof, he shall answer to the felony, and shall not be admitted to plead misnomer; but if it be at the suit of the party it is otherwise ; as if a man bring an appeal against another, there he shall Digitized by Microsoft® APPEAL OF ROBBERY. 315 be admitted to have the plea, and that is the difference. Note, that if a nlan bringeth an appeal of the death of a man, who hath lawful cause to have the appeal, and after declaration he is non-suit^ the defendant shall be arraigned anew at the king's suit ; but if the heir of the dead sueth the appeal, his wife being alive, and after declaration the heir is non-suit ; the defendant shall not be arraigned a-new at the king's suit, because that none could sue the appeal but the wife, and so the decla- ration was without warrant. And qucere, how that mat- ter may appear to the court. And if one be acquitted in appeal, or indictment wherein there is no error in the original ; he shall be arraigned de novo at the king's suit, although that error be in the capias or exigent. But if error be in the original, and he is acquitted, he shall be arraigned de novo at the suit of the king, because that his arraign- ment was never warranted but without warrant ; for when the king is ascertained of a felon, and of the day and year, if the felon be not lawfully acquitted of the same felony he shall be arraigned at the king's suit. But if he be once lawfully acquitted of the felony, he shall never put his life in hazard again for the same felony, if it be not for murder, in which case, it is said, that if a murderer be acquitted within the year at the king's suit, he may be afterwards in an appeal ar- raigned within the year at the suit of the party, etc. And if an appeal of murder be brought before the Digitized by Microsoft® 316 DIVERSITY OF COURTS. sheriff and coroner in the county, it is said, that it may be removed into the King's Bench by a writ, which shall be directed to the coroner, and not to the sheriff, because that the coroner hath the record; yet I think the law is otherwise. And if one be indicted for murder, and afterwards an appeal is brought against him, and after declaration the plaintiff is non-suit, the appellee shall be arraigned at the king's suit upon the declaration, and not upon in- dictment, as it is holden in 4 E. 4. Note, that it was said by some justices in times past, that in every case where the defendant pleadeth a mat- ter, whereby he proveth that the action doth not lie for the plaintiff, as bastardy, or never accoupled in loyal matrimony, etc., there he need not to answer to the felony ; but if he pleadeth a release in bar, then he ought to plead to the felony, because it is not denied by him. that the action once lay for the plaintiff, for when he pleadeth to the felony, then he confesseth that the plain- tiff is such a person who can maintain the action; yet it was said to the contrary, that he shall not plead to the felony in favorem vitw^ where otherwise if the plea were found against him, he should be attainted, and the felony not enquired of, and that seemeth to be both rea- son and law, etc. And note, that when a man is found guilty for mur- der or felony, etc., for which he suffereth death, he may- pray his book to save him if he be a clerk, and shall Digitized by Microsoft® APPEAL OF ROBBERY. 317 Lave it if he can read. But if that bigamy at another time convicted, be alledged against him, and proved, then he shall not have his clergy. And it was said, that if the ordinary refuseth a clerk generally, or specially, that the judge may compel him to accept the felon. But the old law was, that if the ordinary had refused him specially, as to say, non habet vestem clericalera, non habet tonsuramj yet the judge might compel him to accept of him. But if the ordi- nary do refuse him generally, the judge cannot compel bim to accept of him, because there may be some cause wherefore the ordinary by the law of holy church ought not to receive him. But that opinion, as it was said, was altered in the time of William Hussey, and his reason was, that if this judge be his judge, where the ordinary refuseth him specially, it is as great reason that he shall be his judge where he refuseth him gen- erally. And see, that those who are so attainted of murder, or of other felonies, and for such things as they shall suffer death, they shall forfeit their lands and tene- ments, and their goods and chattels for ever, and the king shall have the lands for a year and a day, and then the lords of whom the lands are holden shall have them. But he who is attainted of treason, the king shall have all his lands, as well those which are holden of other lords as those which are holden of himself, etc. And if a man hath land in the right of his wife, and is Digitized by Microsoft® 318 DIVERSITY OF COURTS. attainted of felony, the land shall be forfeited for the term of his life; and it was said, that if before the at- tainder, he and his wife were disseised, and afterwards he were attainted and restored to the king's peace; yet they could not have an assize. Tamen quwre. Appeal of rape. Note also that the appeal of rape beginneth thus : Eobertus Wood nuper de A. in comiiatu Salop cler- icus, diet. R. W. nuper de A. in comitatu predict' ca- pellanus rector ecclesice parochialis de A. in comitatu predict, or thus ; nuper de D. in comitatu predict, gent, alias diet. R. S. nuper de D. in com. predicto yeoman at- tachiatus fuit per corpus suum ad respondendum Alicioe G. de raptu ipsius Alicice, et pace dom. regis nunc fracta, unde eum appellat. Et sunt plegii de prose- quend. A. D. de C. in comit. C. gentleman, et E. I. de M. in comitat. C. yeoman, etc. Et unde eadem Alicia in predict, persona sua instanter appellat predict. R. W. de eo quod ubi predict. Alicia fuit in pace dei et domini regis nunc apud A. predict, in comit. Salop, 8 die mensis Maii ann. regni dom. regis, 17. circa ho- ram sextant post meridiem ejusdem diei, ibidem venit predict. S. felonice ut felo predict, domini regis nunc insidiand. et insuliu premeditato, contra pacem ejusdem dom. regis, coronam et dignitatem suas, die, anno, bora. Digitized by Microsoft® APPEAL OF Mi^YHEM. 319 et loco in comitatu predict, et in prefatam Aliciam ad- tunc et ibid, insultum fecit, et ipsam adtunc et ibid, de virglnitate defloruit, contra voluntatem suam rapuit et carnaliter cognovit, et sic predict. R. S. predict. Ali- ciam modo et forma predict' rapuit, et quam cito idem felo feloniam et raptum predict, fecissit, fugit, dictaq; Alicia ipsum recenter insecuta fuit de villa in villam usq; quatuor villas propinquiores, et ulterius quousq; etc. Et si idem felo feloniam et raptum predict, in forma predict, imposit' dedicere velit, predict. Alicia hoc parata est verificare et versuseum probare, prout curia, etc. And if a man sueth an appeal of the rape of his wife, although she be not his wife in right, but in possession, yet the appeal doth well lie as is said ; otherwise it is in an appeal of murder brought by a woman of the death of her husband, for there it is a good plea, that they were never lawfully coupled in matrimony. Appeal of mayhem. See also that the appeal of mayhem is as foUoweth : viz. I. 'N. in propria persona sua hie instanter appellat W. de F. de eo quod cum idem, quaere tali die et anno, fuit in pace dei, et dom. regis nunc, etc., apud talem villam in tali comitatu circa horam sextam, etc. Ibi venit predict. W. vi et armis, viz. baculis ut felo domiiii Digitized by Microsoft® 320 DIVERSITY OF COURTS. regis nunc insidiand. et ex insultu premeditat' adtunc et ibid, in dictum I. insultum fecit et adtunc et ibid, eum quodam baculo precii, etc., quern predict. W. in manibus suis adtunc et ibid' tenuit, predict, querentem super brachium dextrum felonice tunc percussit, per quod vencB et nervi brachii sui predict, restricti fuerunt annexi, et mortificat' devenerunt ; or, cum quodamgla- dio, vel cultello precii, etc., quem defendens in manibus suis adtunc et ibid, tenuit manum dexteram, vel polli- cem manus dexterce, vel aliud membrum, vel auriculam, vel aliquam juncturam membri querentis felonice am- putavit, vel oculum suum evulsit, vel dentes suos ante- riores fregit et deposuit, et sic idem defendens ut felo dom. regis predict, quer. adtunc et ibid, felonice may- heymavit, contra pacem dlcti dom. regis, coronam et dignitatem suas. Et si defendens hoc velit dedicere, querens hoc paratus est versus eum probare, prout curia dom' regis de eo consider averit, etc. And notwithstanding that the plaintiff declare in an appeal of mayhem, that the defendant hath mayhemed him feloniously, yet the defendant shall not suffer the punishment of death, but shall answer damages accord- ing to the greatness and grievousness, of the offence, etc. And if the plaintiff declareth in an appeal of mayhem, etc., and the defendant prayeth that it may be viewed if it be a mayhem or not, quaere, if the jus- tices say, that he is mayhemed, if it be peremptory to the defendant, so that he shall not be afterwards receiv- Digitized by Microsoft® APPEAL OF MAYHEM. 321 able to plead Not guilty to it, or any other bar. And I conceive it is peremptory, etc. And in appeal of may- hem the plaintiff declared, that the defendant struck him. upon the head, so that he had lost his hearing, and because the justices talked to him, and well perceived that he could hear they said, that the plaintiff should be :fined, etc. And see that if the defendant in an appeal of may- hem saith, that the plaintiff at another time brought an -action of trespass against the same defendant, and sued forth the same mayhem, and recovered damages for the same, and sued execution, if the same be a good 3)lea or not, etc. And it was said, that by an appeal of mayhem a man shall not lose his action of trespass, but contrary-wise, he shall not have an appeal after he hath once recovered in trespass for the same mayhem. Quaere what the law is. And in an appeal of mayhem against two, the plain- tiff declared against one as principal, and against the other as accessary, and it was challenged because that all ought to have been principals, and the court said, it was in his election, so that the declaration one way or the other was good enough. And it was said by some, that it is no mayhem to cut off one's ear, whereby he loseth his hearing, etc., but the beating out of his teeth is a mayhem, because he may by them defend himself in battle. Qucere if in the first case it be not a may- hem, etc. 21 Digitized by Microsoft® 322 DIVERSITY OF COURTS. Indictments. Theee are also indictments upon which a man shall be arraigned, upon which if he be found guilty he shall be executed, etc., and first see indictments upon the view of the body taken before the coroner in the county. Inquisitio indent' capta apud B. in com. 'H. 20 die mensis Maii anno regni nunc regis Henrici octavi 20. coram I. W. uno coronatorum dom. regis nunc com. predict, et super visum corporis cujusdam I. F. ihid. jacent' interject, per sacramentum I. S. W. C, etc. Qui dicunt super sacramentum suum, quod quidam I. N. de London gent. 20 die, etc., vi et armis, viz. gla- diisj haculis et cultellis animo felonico et ex malitia precognitata in prefatum I. F. apud B. predict, insult, fecit et ipsum verheravit, vulneravit et male tractavit, ac diet. I. F. cum quodam cultello vocat' a wood hnife precii 12 d. quem ipse in manibus suis adtunc tenuit, prefat. I. F. adtunc et ihid. usq; ad medium corporis sui felonice percussit atq; invasit in profunditatem decem pollic. dans ei plagam mortalem, de qua quidem plaga diet. I. F. infra unam horam tunc proxime se- quent, adtunc et ibidem ohiit, et sic predict. I. !N". eun- dem I. F. adtunc et ibidem felonice interfecit et mur- dravit, contra pacem dom. regis, etc. And it was said, that the coroner hath not power to take any enquest of the death of a man, if not upon the Digitized by Microsoft® INDICTMENTS. 323 view of the body ; and if he do it in other manner, all that he doth is void. And it hath been used in times past, that the coroners might record the breaking of prison by the prisoners which are in them, and if the prisoners were in for felony they were put to execution without further an- swer ; but quoere if any such law be now in use. And a coroner might take an appeal of an approver, of felony done in any county of England, and in the same manner he might make abjuration, if he con- fessed the felony to be done in another county than in the county where the coroner dwelt. And the reason was, because by that confession they shall be attainted. But he cannot so do in an appeal of robbery, if the felony be not done within the same county. There are also divers indictments, as of robbery, burglary, and other felonies which are mentioned in sundry books, and the course of them is well known, be- cause they are common, and in daily use and experience. If a man be indicted that he feloniously cut down trees, etc., in such a place, and carried them away, the party shall not be arraigned upon such indictment, be- cause it cannot be said to be felony. A man was indicted for that he traitorously, etc., had made 100 s. of alchemy to the likeness of the king's money, and it was moved that the indictment was insuf- ficient, because it was not put certain what money he made, groats or pence. Digitized by Microsoft® 324 DIVERSITY OF COURTS. A man was indicted, that whereas another man was indicted of felony who was put into the stocks, etc., that he entered into the house without breaking of the same, and set him out of the stocks, and set him at lib- erty, and it was said, that it remained in the pleasure of the king, whether he should have perpetual imprison- ment, or other pecuniary punishment according to the king's ordinance, but he shall not be hanged, etc. And see that it was the use in times past, that the party should not be restored to his goods upon an indict- ment of robbery, unless it were foimd that he made fresh suit, if he were not appealed, yet that law is al- tered and changed, and the party shall be also restored to his goods where the felon is arraigned upon an indict- ment as well as upon an appeal, if the party giveth evi- dence against the felon at the time of his arraignment, and he shall not be put to circuit of action to sue his appeal, and it seemeth to be good law. Note, that the writs are the principal and first thing in our law, whereby a man shall recover that which is wrongfully detained from him, and they are the foundation of every suit ; and therefore look when a man beginneth his suit that the writ be good, else all which followeth will be nothing worth ; which writs are ordained by law according as the matter is. And there see first the writ of right and the nature of it, because it is a writ of a higher nature than any other writ can be; and the chief things and articles of Digitized by Microsoft® INDICTMENTS. 325 that writ are, the deforcement, the quantity of the tene- ments, in what town the. tenements are, and that the demandant hath a lawful estate in fee by his own pur- chase, or of the seisin of his ancestor, or his own seisin, the taking of the explees and the seisin thereof, in the time of what king, and in the time of peace, and the tender of the demy mark a good discent, and in what manner he hath right, and the averment. And note, that the explees ought to be of the de- mesne or of the services, and in a precipe quod reddat of the manner of explees in services, etc., and of the de- mesnes in sheep and corn, in pasture in feeding of cat- tle, of wood, in selling of the wood, gardens, in selling the apples, or grass, of villain, is in base service to his profit, and in seisin of those of his blood ; and for a chaplain, or finding of poor men, the explees are al- ledged in masses and prayers, etc., and of a gorge in taking of the fish ; of a mill, in taking of toll : and generally a man shall alledge explees according to the matter in demand and the nature of it. And the trial in this writ of right may be two ways ; the one by the grand assize, and the other by battle; but if the right be to be determined by the battle, it shall be done by champions, and not by the parties themselves, as it is said ; and the reason is, that if any of the parties be killed, judgment of the land can- not be given against a dead person. Quwre if that be the reason or not. Digitized by Microsoft® 326 DIVERSITY OF COURTS. And it was said, that a man cannot have a writ of right of a rent, but only of a rent-service, for that other rents are against common right, etc. And see that a writ of right doth differ from other writs in pleading, for in a writ of right, the tenant ought to conclude upon the right. To conclude, so that he hath more right to have the lands, etc., than the de- mandant, and not to conclude judgment of action, as the conclusion is in other writs, yet the same holdeth not in every case ; for if the tenant in a writ of right plead a release collateral, etc., without warranty, there the tenant shall conclude judgment if action, and not otherwise as it seemeth; for the demandant hath more right to the land than the tenant hath, but by reason of the warranty the demandant shall be barred of his action. And note, that in a writ of right upon the trial no attaint lieth ; and yet in a writ of right of dower an attaint lieth, which is, a writ of right; but the reason is, because the trial thereof shall not be by the grand assize, nor by battle, but by a common jury, etc. And note, that there are divers writs of right ; a writ of right which is triable by battle, or by grand assize, as a writ of right of land, or a writ of customs and services, a quod permittat in the debet, writ of right of advowson, etc., and the like. And there are other writs of the .possession mixt with the right, as a writ of Digitized by Microsoft® AN INDICTMENT. 327 escheat, cessavit, rationable part, etc., and the like, but in those no battle nor grand assize lieth. In a writ of customs and services, the effect thereof is the wrongful deforcement in not doing of the services which ought to be done to the demandant out- of the land, and the land ought to be shewed, and how he holdeth by such services, and shew seisin in him or his ancestors of fee and right, and alledge the taking of explees, and the averment. The articles and things which are material in the writs, appear in the writs themselves, and in the book of novel tales, and in other books, and therefore they need not be here mentioned, and for that cause I omit them here, etc. An indictment upon the statute of 8 H. 6. Jurator. prcesent. pro Dom. rege, quod cum in statu- to in parliamento Dom. nuper regis Henrici Anglice sexti post conquestum apud Westm. anno regni sui 8. tent. edit, inter cetera ordinatum sit quod si aliqua per- sona expulsa sit sen disseisita de aliquihus terris et tene- mentis modo forcihili, aut pacifice expulsa sit, et postea manu forti et armis extra teneatur contra justic. pacem vel post aliquem talem ingressum aliquod feoff amentum seu discontinuatio aliquo modo inde factum sit ad jiis possessor, defraudend. aut tollend. quod pars in ea Digitized by Microsoft® 328 DIVERSITY OF COURTS. parte gravata habeat assissam novce disseisince aut breve de transgressione versus Tiujus disseisitorem, et si pars gravata recuperaverit per assisam vel rationem transgr. et per veredictum alio mode per debitam legis formam sit compertum quod pars defendens in terras et tenem. vi ingressus fuit, aut ea per vim post ingressum tenue- rit, querens recuperet versus defendentem damno sua- ad triplicem, et ulterius finem faciei Dom. regi, et re- demptionem prout in statuto pred. plenius continetur, etc., quidam tamen L. C. de E. in com. pred. generosus- simul cum quinq; personis juratoribus pred. ignotis statutum illud minime ponderans, die Dom. 20 die Januarii circa horam 9 post meridiem ejusdem diei anno- regni Dom regis nunc 12 manu forti ac vi et armis, viz. baculis et cultellis in unum messuagium, unum gar- dinum ducentas acras terras 40, etc., prati, et 30 acras bosci cum pertinen' quorundum E. K. armigeri et L. M. armigeri, etc.,scituat, jacen, et existen. in parochia de L. juxta T. In com. pred. ingressus fuit, et inde ipsos E. K. et L. M. vi et armis, viz. baculis et cultellis ac manu forti disseisivit. Et ejus inde statum et pos- sessionem sic per disse sinam illam habitam et obtent. cum pred. personis ignotis usqj in crastinum diem se- quentem, viz. 13 diem mensis Januarii continuavit. Quo quidem 13 die Januarii H. L. de M. in comitatu pred. yeoman, W. B. de pred husbandman, et I. C. nuper eisdem villa et comitatu laborer apud L. pred. in et super tent' ta pred. una cum prefato T. C. manu Digitized by Microsoft® AN INDICTMENT. 329 forti ac vi et arrruis, viz. hacultis, cultellis, gladiis, scutis, arcubus et sagittis se assemhlaverunt, et eadem tenementa vi et armis pred. a pred. 12 die Januarii hucusq; injuriis ipsius T. C. et ipsum T. pretensa ten- uerunt et prefat. E. K. et L. M., etc., inde hucusq; ex- tra tenent in dicti Dom. regis nunc contemptum ac con- tra formam statuti pred. et contra pacem dicti Dom regis, etc. When the parties are at issue in their actions the common trial thereof in our law is by verdict of 12 men, who shall be sworn upon the book to speak the truth ac- cording to their conscience. And sometimes the mat- ter shall be tried by the bishop, and not by verdict of 12 men; as general bastardy alledged in any of the parties it shall be certified by the bishop, and in a quare impedit if the issue be joined upon the institu- tion, it shall be tried by the bishop, for the same is in a manner a spiritual thing. But induction shall be tried by a jury, and also in a quare impedit, if issue be taken upon plenarty it shall be tried by the bishop; but whether the church be void or not void shall be tried by the jury. And if the parties be at issue in a quare im- pedit upon the ability of the person, whether he were sufficiently learned or not, it shall be tried by the bishop during the life of the clerk, but if the clerk be dead it shall be tried by the jury. And it is said, that if bas- tardy or other the like thing be alleged upon a thing Digitized by Microsoft® 330 DIVERSITY OF COURTS. which is not but dilatory, it shall be remanded to the bishop to be tried, etc. And a man in an action of debt brought against him upon a contract may wage his law, to swear upon a book that he oweth not the plaintiff the money which he de- mandeth, nor any penny thereof; and he ought to have with him 11 more to swear with him, that they believe in their conscience that he sayeth truth, and so he shall be discharged; but if the action be brought upon any specialty, or upon matter of record, or upon a thing touching land, etc., he shall not help himself in that manner, but shall put the same upon the trial of the jury, but he himself shall not be admitted to swear, etc. And note, that an oath ought to have three compan- ions, truth, justice, and judgment, and if they be want- ing it is no oath, but a perjury ; for if a man be forced by constraint to swear, that for many years he quietly held such lands, etc., it is perjury, not in him who sweareth, but in him who compelleth him to swear, Reum non facit nisi mens sit rea. Nemo se circum- veniat aut seducat. Qui per lapidem false jurat per- jurus est. Quacunque arte verhorum jurat aliquis, Deus ita accipit sicut ille qui jurat intelligit. Et minus malum est per Deum falsum jurare veraciter, quam per deum verum jurare fallaciter. Quanta enim id per quod juratur est magis sanctum^ tanto magis est penale perjurium, etc. Digitized by Microsoft® INDEX. A. PAGE Abusions of the Common Law 230-257 Accessaries, nine 56 Accords, final 180 Account 164 Acquittance 164 Action 71, 103, 191, 192 Aflferment and afferrors 66 Alienations 27, 30 Amerciaments 225, 226 Appeals and Appealers 83, 85, 88, 90-97, 155-158, 309-321 Approvers 75, 152 Articles of the coroners enquest 54 in the leet , 66 in Eyre , 218 upon the stat. Marlbridge 367 upon the stat. Merton 265 upon the stat. West. 1 269 upon the stat. West. II 275 Assize of novel disseisin 106 Attachments 81 Attaints 175, 176 Attornies 79, 111, 137 B. Bail in appeals, &c 88 Barons of the Exchequer 63 Battle 166 Beau pleader 52 331 Digitized by Microsoft® 332 INDEX. PAGE Bigamy HS Burglary 50, 57, 157 Burning and burners 40, 93, 155, 203 C. Centuries and Centiners 20 Champion 196 Chancery 298 Charters, Deeds, &o 163 Cinque Ports 303 Circuits 77 Clergy 14» Clerks 142 Coin 87 Combat and Combatei-s 166, 169 Common Pleas 296 Constitutions of King Alfred 21 ,, ,, Edwardl 21 ,, Ancient Kings 21 Contempts and Contumacies 91 Contract 118-123 Conusance 143 Copyholder and Copyholds 126, 165 Corn and Cattle to pay Toll 30 Coroners 53 Coroners to I'eceive Appeals 24 Court Baron 804 Court of Marshalsea 293 Counters or Pleaders 7& D. Defaults of Mag. Charta 257-364 Dilatory Pleas 141 Disseisins 106, 333 Distraining Goods forbidden 37 Distress and Distresses 109, 113, 157 Doomsday Book 127 Dower 27 Digitized by Microsoft® INDEX. 333 E. PAGE Earl and Earldom 20,25 Edward (King) his Ordinances 31 England divided into Counties, &c 19 English first coming into this Realm 18 Englishlre Parent 61 Escape 87 Essoins and Essoiners 130-136 Estreats sent to the Exchequer 25 Exceptions 139-154 Exchequer, Court of 62 Eyre, Office of Jastice in 24, 217 F. Pairs and Markets 29 Ealse Latin 145 Ealsifying 37, 90 Eelonies to be Tried by Appeal 26 Festival Days 146 Pines and Rewards 78 Forfeiture 58 Eranchises 172, 221 Freemen to meet in Counties, &c 23 Free Tenants to Appear to Summons 26 Frank-pledge ; 66 G. Oaol and Gaolers 86 Gloucester 283